[Federal Register: June 30, 2004 (Volume 69, Number 125)]
[Notices]
[Page 39404-39405]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn04-28]
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DEPARTMENT OF AGRICULTURE
Forest Service
Evaluating Applications and Issuing Easements for Certain Water
Development Facilities on National Forest System Lands That Qualify
Under the Act of October 27, 1986
AGENCY: Forest Service, USDA.
ACTION: Notice of issuance of agency interim directive.
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SUMMARY: The Forest Service is issuing an interim directive to guide
its employees in evaluating applications and issuing permanent
easements for certain water development facilities on National Forest
System lands that qualify under the Act of October 27, 1986 (also known
as the ``Colorado Ditch Bill''). The interim directive supplements
internal agency direction in Forest Service Manual chapter 2720 to
provide clarity and specificity in agency policy in order to process
applications and issue permanent easements authorized under the
Colorado Ditch Bill in a consistent and efficient manner.
DATES: This interim directive is effective July 30, 2004.
ADDRESSES: This interim directive (ID 2720-2004-1) is available
electronically from the Forest Service via the World Wide Web/Internet
at http://www.fs.fed.us/im/directives. Single paper copies of the ID
are also available by contacting Robert Cunningham, Lands Staff (Mail
Stop 1124), Forest Service, 1400 Independence Avenue, SW., Washington,
DC 20250-1124 (telephone 202-205-2494).
FOR FURTHER INFORMATION CONTACT: Robert Cunningham, Lands Staff (202--
205-2494).
SUPPLEMENTARY INFORMATION: The Forest Service is issuing an interim
directive (ID) to Forest Service Manual (FSM) chapter 2720 to guide its
employees in the review and evaluation of applications for easements
for certain qualifying water development facilities on National Forest
System (NFS) lands, and in the establishment of terms and conditions
for inclusion in these easements. This interim directive to FSM 2720 is
issued as ID number 2700-2004-1. The Act of October 27, 1986 (100 stat.
3047; commonly known as the ``Colorado Ditch Bill''), amended Title V
of the Federal Land Policy and Management Act of 1976 (FLPMA) (43
U.S.C. 1761) to authorize the Secretary of Agriculture to issue
permanent easements without charge for certain water conveyance systems
occupying NFS lands and used for agricultural irrigation or livestock
watering purposes. Those easements have come to be known as ``Ditch
Bill easements.'' The Colorado Ditch Bill included certain criteria
that must be met for applicants and their facilities to qualify for the
issuance of a Ditch Bill easement.
The Colorado Ditch Bill did not prescribe the issuance of a
specific easement to qualified applicants, nor did it prescribe the
manner in which a permanent easement is to be conditioned. Rather, the
Colorado Ditch Bill was enacted as an amendment to Title V of the
FLPMA, which directs that all rights-of-way authorizations issued
pursuant to FLPMA be conditioned in a manner that is consistent with
applicable laws and regulations and adequately protects lands and
resources. Therefore, while the issuance of a Ditch Bill easement in
response to a qualified application is mandated in the statute, the
manner in which the easement may be conditioned to comply with
applicable State and Federal law is left to the discretion of the
authorized officer. The Colorado Ditch Bill also did not exempt the
processing of Ditch Bill easement applications from procedures required
by the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
et seq.). In the case of qualified Ditch Bill easement applications,
the discretionary Federal action consists of identifying terms and
conditions that may be needed in the easement to comply with applicable
State and Federal law. The procedures conducted pursuant to NEPA
provide the basis upon which a decision is made concerning those terms
and conditions.
The Colorado Ditch Bill provided a window of just over 10 years
within which entities could file an application for a Ditch Bill
easement. That application window ended on December 31, 1996. The
Forest Service received more than 2,500 applications for Ditch Bill
easements, the bulk of which were submitted during the mid-1990s in the
last several years of the 10-year application window. The Forest
Service has issued approximately 600 easements in response to those
applications. Approximately 1,800 applications remain unprocessed as
Forest Service administrative units await the direction in this ID
before they proceed in reviewing and processing those applications.
The decision to be made in reviewing and processing an application
for a Ditch Bill easement is two-fold. First, the authorized officer
must evaluate each application against the qualifying criteria
established in the Colorado Ditch Bill. Second, those applications that
meet all of the qualifying criteria are then further evaluated,
pursuant to the provisions of NEPA, to determine the manner in which
the easement may need to be conditioned to comply with other applicable
laws and regulations.
In the late 1980s, internal agency policy was established to
provide Forest Service officers with management direction in processing
applications for and conditioning Ditch Bill easements. That policy was
issued in the Forest Service Directive System FSM 2729. Minor revisions
to that policy were made during the early and mid-1990s.
Beginning in the mid-1990s, as more and more western National
Forests and their Ranger Districts started focusing on and responding
to the large number of Ditch Bill easement applications they were
receiving, internal questions started to emerge about existing policies
and inconsistencies in applying agency policy and procedures to case-
specific situations. The inconsistencies were in part attributable to
the lack of understanding of the agency's limited discretion in
responding to Ditch Bill easement applications, and inadequate agency
direction at FSM 2729 concerning specific procedures to follow in
evaluating applications, responding to assertions of outstanding rights
that are included as part of a significant number of applications,
evaluating the environmental effects of the ongoing operation and
maintenance of qualifying facilities, and complying with the procedural
requirements of laws such as NEPA and the Endangered Species Act of
1973 (ESA) (16 U.S.C.
[[Page 39405]]
1531 et seq.) in processing applications and conditioning easements.
Compliance with the provisions of ESA is of particular concern in light
of the fact that as many as half of the remaining applications may
include facilities that occupy habitat of a listed species, pursuant to
ESA. During the late 1990s the Forest Service also started to encounter
inconsistencies in the procedures that authorized officers were using
to identify and formally decide upon the terms and conditions to be
included in a Ditch Bill easement.
The primary purposes of this ID are to (1) Supplement agency policy
in a manner that provides greater clarity and understanding of the
Forest Service's limited discretion in issuing easements for qualifying
facilities, (2) identify specific options to consider and procedures to
follow in complying with the provisions of the ESA, (3) ensure
compliance with other existing laws and regulations governing these
facilities and their use and occupancy of NFS lands, (4) recognize the
rights of water users under State law, and (5) minimize impacts to the
end use of water for agricultural irrigation and/or livestock watering
purposes. The ID specifically:
1. Provides additional internal policy and procedures which direct
the authorized officer to consult with Forest Service Water Rights and
Boundary Management Specialists and, when needed, the Office of the
General Counsel in evaluating evidence of a State-recognized water
right and to ensure compliance with the qualifying criterion requiring
the submittal of a recordable survey.
2. Establishes a series of water resources management policy
statements for consideration in evaluating applications for and the
conditioning of Ditch Bill easements that more clearly direct the
authorized officer to recognize and respect the roles of the western
States in appropriating and allocating water resources for beneficial
uses and direct a greater degree of coordination and cooperation in
seeking solutions to water needs and conflicts.
3. Provides clearer direction for requesting additional information
from applicants when needed to evaluate the content of an application
against the qualifying criteria.
4. Establishes procedures in responding to applicants who assert an
outstanding statutory right to use and occupy NFS lands with their
water development facility.
5. Provides additional direction to authorized officers when
rejecting applications that do not qualify for a Ditch Bill easement.
6. Directs that all Ditch Bill easements include a provision that
provide the authorized officer the authority to review and, if
necessary, to modify or revise the terms and conditions of the Ditch
Bill easement and/or an operation and maintenance plan that may be made
a part of a Ditch Bill easement. Such a provision is required in
existing Federal regulation for special use authorizations at 36 CFR
251.56(b)(1)(v). This provision shall not, as part of a periodic review
of an easement's terms and conditions, authorize the Forest Service to
administratively terminate or revoke the easement because the
easement's permanency is granted by Federal law.
7. Provides more specific direction for complying with the
provisions of NEPA and greatly expanded direction addressing procedures
for complying with the requirements of ESA.
8. Provides direction for exploring a variety of approaches to meet
the requirements of applicable Federal and State law in a manner that
recognizes existing water rights and minimizes impacts to the
applicant's end use of water for agricultural irrigation and/or
livestock watering purposes.
9. Specifies that this ID does not prompt any revisions or
replacements to Ditch Bill easements issued prior to the effective date
of the ID and provides direction for addressing applications for and
conditioning of Ditch Bill easements for water development facilities
that are jointly used by others and that may already have been
authorized by a Ditch Bill easement issued prior to the effective date
of this ID.
Dated: June 24, 2004.
Dale N. Bosworth,
Chief.
[FR Doc. 04-14859 Filed 6-29-04; 8:45 am]
BILLING CODE 3410-11-P