Forest Service Manual
national headquarters (wo)
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fsM 2700 - special uses management

chapteR 2720 - special uses administration

Interim Directive No.:  2720-2005-2

Effective Date:  December 30, 2005

Duration:  This interim directive expires on June 30, 2007.

Approved:  frederick norbury
	          Associate Deputy Chief, NFS	Date Approved:  12/21/2005	

Posting Instructions:  Interim directives are numbered consecutively by title and calendar year.  Post by document at the end of the chapter.  Retain this transmittal as the first page(s) of this document.  The last interim directive was 2720-2005-1 to FSM 2720.

New Document
	id_2720-2005-2 	16 Pages	
Superseded Document(s) (Interim Directive Number and Effective Date) 	id_2720-2004-1, 06/30/2004	16 Pages	

Digest:  

This interim directive (ID) reissues without change, the direction previously contained in 
ID 2720-2004-1, which provided guidance to Forest Service officers in evaluating applications and issuing easements for certain qualifying water development facilities on National Forest System (NFS) lands authorized under the Act of October 27, 1986 (otherwise known as the “Colorado Ditch Bill”).  Notice of the issuance of ID 2720-2004-1 was published in the Federal Register on June 30, 2004 (69 FR 39404).

2729.16 - Provides additional citations to Federal statutes applicable to the processing and evaluation of special use applications for “Ditch Bill easements” for certain qualifying water 
development systems pursuant to the Act of October 27, 1986.  Paragraph 2 includes a series of water resources management policy statements for managing water resources on NFS lands that must be considered in evaluating applications for and conditioning Ditch Bill easements.

Digest--Continued:  

2729.16a - Provides more specific direction for rejecting applications for Ditch Bill easements that do not meet all of the qualifying criteria.

2729.16d - Adds paragraph 6, which outlines procedures for consulting with Water Rights and Boundary Management Specialists and, when needed, the appropriate Regional contact of the Office of the General Counsel in evaluating evidence of a valid water right and the elements needed to comply with the qualifying criterion concerning a recordable survey.  Adds paragraph 7, providing guidance in requesting additional information from applicants when the additional information is needed to adequately evaluate an application against the qualifying criteria.  Paragraphs 8 through 10 provide specific procedures to follow when responding to applicants who assert an outstanding statutory right to use and occupy NFS lands with a water development facility.  Paragraph 11 provides direction for rejecting applications when all or part of a water development facility fails to meet the qualifying criteria.

2729.16e - Adds paragraph 3, to identify the statutory obligation to issue easement to applicants that meet the qualifying criteria.  Adds paragraph 4, specifying that an authorized office may further condition an Ditch Bill easement beyond the standard terms and conditions found in Form FS-2700-9a if required by applicable State or Federal law.  Also adds paragraph 5, to provide direction for the inclusion of a revision of terms and conditions provision in all Ditch Bill easements. 

2729.16f - Expands upon and provides more specificity to current direction for complying with the provisions of the National Environmental Policy Act of 1969 (NEPA) and the requirements of the Endangered Species Act of 1973 (ESA) when processing Ditch Bill easement applications.  Also, provides clear direction for exploring a variety of approaches designed to meet the requirements of applicable Federal and State law, with the goal of minimizing impacts to the applicant’s end use of water for agricultural irrigation and/or livestock watering purposes. 

2729.16r - Provides new direction that the provisions in this ID will not prompt any revisions or replacements to Ditch Bill easements issued prior to the effective date of the ID.  Also provides additional direction for addressing applications for and conditioning Ditch Bill easements for water development facilities that are jointly used by others, and which may already have been authorized by a Ditch Bill easement issued prior to the effective date of this ID (June 30, 2004).

Table of Contents

2729.16 - Water Conveyance System Easements Under the Act of October 27, 1986
2729.16a - Qualifying Criteria for Issuance of Easements without Charge
2729.16d - Evaluation of Application
2729.16e - Easement Preparation and Issuance
2729.16f - Compliance with the National Environmental Policy Act of 1969 (NEPA)
2729.16r - Effect on Ditch Bill Easements Already Issued

2729.16 - Water Conveyance System Easements Under the Act of October 27, 1986
1.  Authority.  
a.  Federal Land Policy and Management Act (FLPMA) of 1976 (43 U.S.C. 1701-1782) and Act of October 27, 1986 (100 stat. 3047; commonly referred to as the  ”Colorado Ditch Bill”).  Title V of FLPMA was amended by the Colorado Ditch Bill to authorize the Secretary of Agriculture to issue permanent easements (Ditch Bill easements) without charge for water conveyance systems used for agriculture irrigation or livestock watering.  The Colorado Ditch Bill requires the applicant to submit information concerning the location and characteristics of the water conveyance system so that the authorized officer can ensure proper management of National Forest System (NFS) lands.  Extensions or enlargements constructed after October 21, 1976, do not qualify for a Ditch Bill easement and must be covered by other authorities (FSM 2729.16p).  Exhibit 01 is a flowchart for evaluating applications for Ditch Bill easements.  
In addition to the provisions previously cited, FLPMA governs the permitting of many rights-of-way uses on NFS lands, including most types of non-Federal uses of water resources.  
b.  Other Authorities That Govern the Evaluation and Issuance of Ditch Bill Easements.  
(1) The Organic Administration Act of 1897 (Organic Act) (16 U.S.C. 473 et seq.).  This act provides for the withdrawal of lands from the public domain for the establishment of National Forests to improve and protect forests within the boundaries for the purpose of securing favorable conditions for water flows and to furnish a continuous supply of timber (16 U.S.C. 475).  The act also provides the Secretary of Agriculture with the authority to protect lands by making rules and regulations to regulate the use and occupancy of NFS lands (16 U.S.C. 551).  With respect to water resources, the act provides that waters within the boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes under the laws of the State where the national forests are located, or under the laws, rules, and regulations of the United States (16 U.S.C. 481).  
(2) The Multiple-Use Sustained-Yield Act of 1960 (MUSY) (16 U.S.C. 528-531).  This act further defines the purposes identified in the Organic Act for which NFS lands are managed to include outdoor recreation, range, timber, watershed, and wildlife and fish resources (16 U.S.C. 528).  The act also directs the Secretary of Agriculture to administer NFS lands to provide a sustained yield of renewable surface 
resources in a multiple-use context (16 U.S.C. 529).  Section 4 of the act further 

requires “the harmonious and coordinated management of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output” (16 U.S.C. 531).  
(3) McCarran Amendment of 1952 (43 U.S.C. 666).  This amendment permits State courts to adjudicate Federal water rights claims under State law.
2.  Water Resources Management Policy.  When reviewing and processing applications for the issuance of Ditch Bill easements, follow these four cornerstones for managing water resources on NFS lands:
a.  State Authority To Issue Water Rights.  States are responsible for allocating water available for appropriation.  In western states, water is allocated through the grant of water rights for beneficial uses.  The Forest Service must apply for water rights under State and Federal law for use of water on NFS lands and must identify water needed during State water rights adjudications pursuant to the McCarran Amendment Act of 1952 (para. 1b(3)).  Because the management of land and water are intimately connected, a clearly defined and executed State system of water rights adjudication and granting of water rights provides for the certainty necessary for the management of NFS lands.  Such a system also provides for the orderly distribution of rights between competing interests for a limited resource.
b.  Respect for Water Rights Granted by the States.  Water rights are valuable property interests that are granted, exercised, transferred, and managed in accordance with State law.  These rights are held by private and public entities, including the Federal Government, and are assigned priority based upon the date on which the right is established.  In many instances, water rights predate the reservation of the Federal lands and the establishment of the NFS.  Recognition of and respect for these rights is a fundamental tenet of responsible Federal land management and is essential to maintaining order and predictability among water uses and water users.  Frequently, the exercise of a water right is connected to or dependent upon the permitted occupancy or use of NFS lands.  In these instances, it is incumbent upon the Federal land manager to pursue land, water, and other resource management objectives in a manner that minimizes potential negative impacts to the exercise of these rights.  There are some cases where conflicts will exist.  However, these conflicts can and should be resolved through cooperation among the Forest Service; water right holders; State, Tribal and local governments; and other interested parties.
c.  Forest Service Responsibility for Managing Water Resources on National Forest System Lands.  The responsibility of the Forest Service to manage water resources on NFS lands begins with Article IV, Section 3 of the Property Clause of the United States Constitution, which confers plenary authority to Congress over all Federal property.  Congress exercised this authority to pass laws that established and govern the national forests and define Forest Service management responsibility.  The laws that are pertinent to the management of water resources on NFS lands include those found in paragraph 1.
While the Forest Service derives its mandate for managing the NFS from these authorities, each authority defines only a portion of the total requirements for managing resources and should not be construed in isolation from other authorities.  For example, while the MUSY requires the Forest Service to manage NFS lands for multiple uses and FLPMA requires the Forest Service to manage rights of way in a manner that minimizes damage to the environment, the requirements of these statutes must be harmonized with activities carried out under the provisions of the Organic Act that require the Forest Service to manage water uses in accordance with State and Federal law. 
d.  Federal and State Cooperation.  Managing water uses on NFS lands in accordance with State and Federal law requires the Forest Service to coordinate water resource objectives with State appropriation and allocation processes.  Water needed to meet Federal land management responsibilities on NFS lands, and the amount of water on NFS lands available for appropriation, shall be identified through cooperative planning efforts involving applicable State, Tribal, and local governments; water rights holders; and other interested parties.  
When a conflict arises, such as a situation when the Forest Service’s responsibility to protect and recover Federally listed threatened and endangered species conflicts with the administration of a water right, the conflict shall be resolved by Federal and State authorities working in cooperation with water right holders, applicable Tribal and local governments, and other interested parties, and not through a unilateral regulatory action by the Forest Service.
2729.16a - Qualifying Criteria for Issuance of Easements without Charge

Applications that do not meet the qualifying criteria identified in paragraphs 1 through 9 of this section shall be rejected as provided in FSM 2729.16d, paragraph 11.
2729.16d - Evaluation of Application
6.  Consultation with Water Rights and Boundary Management Specialists and the Office of the General Counsel.  As appropriate, coordinate with the Forest and/or Regional Water Rights Specialist and, when needed, the Regional Office of the General Counsel in evaluating evidence of a valid water right recognized pursuant to State law.  Coordinate with the Forest and Regional Boundary Management Specialist to determine minimum standards required for a recordable survey, and the adequacy of information submitted in the application to qualify as a recordable survey of the subject facilities.
7.  Requests for Additional Information.  If the application does not include all the information needed to evaluate the facility, the use, or the owner against the qualifying criteria, request in writing that the applicant provide the additional information needed to evaluate the application.  Provide the applicant a reasonable period of time within which to submit the additional information.  In most cases, a reasonable period of time should not be more than a full field season.  For example, a full field season may be necessary when the applicant needs to secure a recordable survey of the subject facility(ies).  A reasonable period of time may be less than a field season when field work is not needed to complete the application. 

If an applicant fails to provide all the information needed to qualify for the issuance of a Ditch Bill Easement, inform the applicant that the Forest Service will suspend the processing of their application and will take one of the following courses of action:
a.  Respond to the applicant’s assertion of an outstanding right in cases where an assertion is being made, as provided in paragraph 8.
b.  Require the owner of the facility to apply for a special use authorization, as provided in paragraph 11.
c.  Initiate action to terminate the use and occupancy of NFS land.  (Consult with the Office of the General Counsel when this action is contemplated).
8.  Responding to Requests for a Forest Service Evaluation of the Applicant’s Assertion of an Outstanding Right, Prior to Processing a Ditch Bill Easement Application.  Some applicants may include in their Ditch Bill easement application an assertion of an outstanding statutory right pursuant to one of the pre-FLPMA statutes identified in FSM 2729.16a(2) and may request the Forest Service to evaluate the validity of their assertion before processing their application.  In these cases, inform the applicants that the Forest Service does not have the authority to validate claims to real property interests in Federal lands and that such a claim can only be addressed in a Federal court of competent jurisdiction.  Provide the applicants with the options of either directing the agency to proceed with the processing of their application for a Ditch Bill easement or directing the agency to suspend the processing of their application (para. 10) so that they can continue to assert that their use and occupancy of NFS land with their facility is occurring pursuant to their possession of a valid outstanding or statutory right.  
9.  Acceptance of a Ditch Bill Easement and Relinquishment of a Claim of a Prior Statutory Right.  Inform the applicants that if they qualify for and elect to accept a Ditch Bill easement that they will be required to relinquish any and all claims they may have to prior statutory rights.  
10.  Requests To Suspend a Ditch Bill Easement Application.  Administer the use and occupancy as an outstanding right (FSM 5520 and FSH 5509.11, ch. 60) if the applicant chooses to suspend the processing of their Ditch Bill easement application and the applicant’s assertion of an outstanding right to the use and occupancy of NFS land either has been affirmatively adjudicated in a Federal court or, based on the evidence, appears to be valid.  If the assertion of an outstanding right has not been affirmatively adjudicated in a Federal court and, based on the evidence, does not appear to be valid, inform the applicant that the facility’s continued existence on NFS land can continue only if authorized by a special use authorization; that is, either a Ditch Bill easement (if the facility and the applicant meet all the qualifying criteria for such an easement) or a special use permit.
11.  Applications in Which All or Part of the Facility or the Applicant Does Not Meet the Qualifying Criteria.  Reject applications for a Ditch Bill easement that do not meet all of the qualifying criteria, including the requirement of  evidence of a valid water right and the requirement that a facility must have been constructed prior to the date of enactment of FLPMA, October 21, 1976.  Any water development facilities or extensions or enlargements of water development facilities that were constructed after October 21, 1976, do not qualify for the issuance of a Ditch Bill easement.  Notify applicants of a denial in writing, citing the requirement(s) that the applicants, their facility, or portions of their facility, failed to meet.

When the authorized officer rejects a Ditch Bill easement application, it is possible that the applicant may respond by asserting possession of an outstanding right to the use and occupancy of NFS lands.  If the applicant’s assertion has either been affirmatively adjudicated in a Federal court or based on the evidence, appears to have the potential of being valid, inform the applicant accordingly and administer the continued use and occupancy as an outstanding right (FSM 5520 and FSH 5509.11, ch. 60).  If either of these two conditions does not exist, inform the applicant that the facility’s continued existence on NFS land must be authorized with a special use authorization, or must be discontinued and removed. 
a.  Situations in Which Only Part of the Facility Qualifies for a Ditch Bill Easement.   When part of a facility qualifies for a Ditch Bill easement and part of it does not, evaluate both the qualifying and non-qualifying segments of the facility in the same analysis, resulting in a single agency decision applicable to all segment(s) of the facility.  The decision must address whether a special use permit will be issued for the non-qualifying segments of the facility and the terms and conditions of that permit and the terms and conditions to be included in a Ditch Bill easement for the qualifying segment(s) of the facility.  

When facilities or portions of facilities that do not qualify for a Ditch Bill easement are authorized by a current special use authorization, the facility’s use and occupancy of NFS land may continue under the terms and conditions of that authorization.  If the use and occupancy was previously authorized with a special use authorization, and that authorization has terminated or has been revoked, or if the use and occupancy had never been authorized with a special use authorization, direct the facility owner to supplement his/her Ditch Bill easement application with an application for a new special use authorization.  Provide the applicant with available information and instruction for preparing and submitting an application (Form SF-299 or other suitable application format).  
b.  Situations in Which the Entire Facility Fails To Qualify for a Ditch Bill Easement.  When an entire facility fails to qualify for a Ditch Bill easement, evaluate and process the application for a special use permit and the continued existence of the use and occupancy of NFS lands in accordance with the provisions of FSH 2709.11, 
chapter 10. 
2729.16e - Easement Preparation and Issuance
3.  Statutory Obligation to Issue an Easement.  As directed in the Act of October 27, 1986 (the Colorado Ditch Bill), the authorized officer has no discretion other than to issue a permanent easement to applicants who meet all of the qualifying criteria, that have been identified in the Act.   In such cases, the authorized officer shall issue an “Agriculture Irrigation and Livestock Watering System Easement” (Form FS-2700-9a), that contains standard terms and conditions to assure that the continued use, operation, and maintenance of the facility will be conducted in a manner that complies with the provisions of the Colorado Ditch Bill.   
4.  Statutory Obligations to Further Condition Ditch Bill Easements.  The Colorado Ditch Bill does not exempt the continued use, operation, and maintenance of a qualifying water development facility from the requirements of applicable State and Federal law.  Therefore, while granting a standard Ditch Bill easement for a qualifying facility is non-discretionary, the authorized officer may condition that easement beyond the standard terms and conditions in Form FS-2700-9a if required by applicable State or Federal law.  For example, where the ongoing operation and maintenance of a qualifying facility may affect a federally listed threatened or endangered species, additional terms and conditions may be required by the Endangered Species Act.  Federal laws other than the ESA will rarely require additional terms and conditions.  

Ensure that all additional terms and conditions added to the standard terms and conditions of Form FS-2700-9a, and the terms and conditions of any operation and maintenance plan made a part of the easement, are consistent with the mitigation measures identified in any applicable decision document for that case.
5.  Revising Terms and Conditions.  Federal regulation at Title 36, Code of Federal Regulations, Section 251.56 (b)(1)(v), directs that, except for authorizations issued pursuant to the National Forest Ski Area Permit Act of 1986, authorizations exceeding 30 years shall provide for revision of terms and conditions at specified intervals to reflect changing times and conditions.  An example of a changed condition would be the listing of a species and/or the designation of critical habitat of a listed species under the Endangered Species Act of 1973 (ESA) (16 U.S.C. 1531 et seq.).  Therefore, all Ditch Bill easements issued after the date of this interim directive (ID) shall be conditioned with the following provision, which shall be included within Provision #6, the “Operation and Maintenance” section, in a Forest Service Ditch Bill easement, Form FS-2700-9a:
Pursuant to the requirements of 36 CFR 251.56(b)(1)(v), the terms and conditions for operation and maintenance set forth in this section, and any operations and maintenance plan incorporated in this easement pursuant to paragraph (e) of this section, may be revised or modified by the Authorized Officer upon determination that:

a.  Modification or revision of such terms and conditions is necessary to comply with the requirements of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq) or applicable State or Federal law.

b.  Terms and conditions contained herein are no longer needed to comply with the requirements of applicable State or Federal law.
2729.16f - Compliance with the National Environmental Policy Act of 1969 (NEPA) 

When considering how the provisions of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.) apply to a qualifying Ditch Bill easement application, it is important to consider the following:
1.  Describing the Purpose and Need for Additional Terms and Conditions.  When it has been determined that an application for a Ditch Bill easement meets all of the qualifying criteria, evaluate whether State and Federal law requires additional terms and conditions for the ongoing operation and maintenance of the qualifying facilities.  The purpose and need for proposing additional terms and conditions is to comply with State or Federal law.  
2.  Baseline Condition.  For purposes of granting a Ditch Bill easement, the “baseline condition” includes the water development facility and the environmental conditions that exist as a result of the effects of its current use, operation, and maintenance.  Most qualifying facilities have been in place and operational for 50 or more years, and some of the land and resource conditions on NFS lands adjacent to and in the vicinity of these facilities have been created or influenced by the facility’s construction, use, operation, and maintenance.  In some cases, these facilities have created water dependent resource conditions and other conditions that would not otherwise exist.  
3.  NEPA Procedures.  Where additional terms and conditions are required, follow applicable Forest Service procedures pursuant to NEPA.
4.  Environmental Considerations Pursuant to the ESA.  Regulations promulgated under the ESA describe the environmental baseline under the definition of the “effects of the action” in 50 CFR 402.02:

The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impacts of State or private actions which are contemporaneous with the consultation in process. 

Therefore, the effect of the diversion, storage, and transport of water by a qualifying facility in a Ditch Bill easement application is included in the environmental baseline for purposes of ESA consultation.  
5.  Consultation and Conferencing Pursuant to ESA.  When the continued use, operation, and maintenance of a qualifying facility may affect a listed species or its critical habitat, the Forest Service is required to consult with the United States Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS) to ensure any action the agency authorizes in the easement is not likely to jeopardize the continued existence of any listed species, or will not result in the destruction or adverse modification of critical habitat (50 CFR 402.01(a)(1)).   Both the applicant and the Forest Service have an obligation to avoid prohibited acts as described in Section 9 of the ESA.  The applicant can ensure that he/she is not in violation of Section 9 prohibitions through development of either a conservation plan under Section 10 of ESA (para. 6(a)) or a consultation process under Section 7(a)(2) of ESA (para. 6(b)).
a.  Section 10 Conservation Plan Option.  There may be several reasons why it would be to the applicant’s advantage to develop a conservation plan under the provisions of Section 10(a)(1)(B) of ESA.  For example, if the applicant is conducting similar water diversion/water use activities off of NFS lands requiring Section 9 compliance, the applicant may be able to “package” his/her activities under a single conservation plan, and secure a FWS or NMFS permit authorizing a taking that otherwise would be prohibited under Section 9.  Also, it may be feasible for several applicants to jointly develop a conservation plan.  A conservation plan under Section 10(a)(1)(B) also could involve the assistance or cooperation of the State or Federal land managers. 
When an applicant chooses to develop a conservation plan that results in a permit from FWS/NMFS authorizing a taking, use that information in evaluating the Ditch Bill easement application.  The applicant’s decision to exercise the Section 10 option commonly expedites the Forest Service’s evaluation of the Ditch Bill easement application, including the Forest Service’s completion of Section 7(a)(2) consultation requirements under ESA, because:
(1) The Forest Service’s evaluation is limited to additional measures required by applicable State and Federal law.  As previously stated, additional terms and conditions will rarely be required by federal laws other than the ESA.  
(2) A conservation plan developed under Section 10(a)(1)(B) of ESA is binding for the applicant(s), the Forest Service, and FWS/NMFS.  The facility owner is responsible for ensuring that the provisions of the FWS/NMFS permit are met and that any prescribed monitoring occurs to ensure that the facility owner, to the extent practicable, is minimizing or offsetting the impacts of such a taking.
(3) An agreed upon conservation plan between the applicant and FWS/NFMS, with or without Forest Service involvement, including provisions specified to authorize a taking, shall be considered by the Forest Service as part of the proposed operation and maintenance of the facility. 
b.  Section 7 Option.  The Forest Service is obligated to consult with the FWS/NMFS to ensure any action the agency authorizes, funds, or carries out is not likely to jeopardize the continued existence of any listed species or will not result in the destruction or adverse modification of critical habitat (50 CFR 402.01(a)(1)).  
Section 7 consultation procedures shall be followed as provided in 50 CFR part 402, subpart B.  The Forest Service shall notify the applicants for a Ditch Bill easement that they may participate in the consultation process consistent with 16 U.S.C. 1536 (a)(3).   
(1) Interagency Coordination.  Field units of the Forest Service, FWS, and/or NMFS are encouraged to work collaboratively in the evaluation of the effects of the proposed action.  The Forest Service has the sole responsibility, however, for making a determination of effects and providing appropriate documentation. 
(2) Need for Consultation.  If, based on the evaluation of the proposed action on both NFS lands and on non-Federal lands, the Forest Service concludes that the proposed action is likely to have “no effect” on listed species or designated critical habitat, consultation with the FWS and/or NMFS is not required.  If, however, the Forest Service  determines that the proposed action “may affect” listed species or critical habitat, consultation is required and the consultation process must be completed before the Forest Service authorized officer makes a decision regarding the easement and any associated terms and conditions.  
(3) Timely Consultation and Additional Information.  In cases where the terms and conditions of a Ditch Bill easement include voluntary measures providing direct and immediate benefit to listed species and their habitats, (e.g. fish screens, metered headgates, or other improvements), consultation regarding these voluntary measures can and should be initiated prior to addressing an issue whose resolution necessitates the collection and interpretation of additional, but currently unavailable, information.

(4) Monitoring and Enforcement in Relation to the ESA in Ditch Bill Easements.  The Forest Service has the responsibility to administer and monitor the use and occupancy of NFS lands authorized by the easement.  Monitoring shall include an evaluation of the effects of the authorized use and occupancy on listed species and/or their habitats occurring on NFS land, as provided in the Forest Land and Resource Management Plan.  The authorized officer shall keep the FWS/NMFS apprised of the findings from ESA monitoring activities.  
The NMFS and FWS have the responsibility and authority to monitor effects of the facility owner’s activity on listed species and/or habitat on non-Federal land, and to enforce any ESA violations, including the taking of listed species on any land, whether Federal or non-Federal, resulting from the easement holder’s activities.
7.  Conditioning Ditch Bill Easements.  Additional terms and conditions to a Ditch Bill easement beyond those provided in form FS-2700-9a may be required by State or Federal law, and most frequently, by the federal Endangered Species Act of 1973 (ESA).  Additional terms and conditions will rarely be required by Federal laws other than the ESA.  Follow the direction in the following paragraphs when considering terms and conditions in a Ditch Bill easement required by State or Federal law, particularly when those terms and conditions may interfere with the applicant’s operation of the facility, or decrease the quantity of water available to the applicant for beneficial use.  In doing so, the authorized officer shall consider every means available to meet the requirements of applicable law, while maintaining to the maximum extent practicable the reasonable operation and maintenance of the facility.  Additional terms and conditions required by Federal law must be consistent, to the maximum extent practicable, with applicable State laws and any allocations of rights granted under such State laws, and the cornerstones for managing water resources, identified in FSM 2729.16, paragraph 2.   
a.  Coordination and Cooperation.  
(1) Cooperation of the Applicant.  Advise the applicant of any concerns regarding environmental effects associated with the ongoing use, operation, and maintenance of a water development facility and shall identify possible measures concerning its continued use, operation, and maintenance that may be required by applicable State or Federal law.  Seek the applicant’s cooperation in exploring the most appropriate means of complying with applicable law, and seriously consider all proposals that the applicant might voluntarily offer to mitigate environmental concerns.
(2) Jurisdictional Authorities of State Natural Resource Agencies.  Thoroughly explore the authorities, policies, agreements, and strategies that State agencies may have with respect to the administration of water rights and any State and local laws that might apply to the diversion, storage, use, and release of water associated with the water development facility.  Identify the State’s authority and interest in helping to mitigate impacts and achieve management goals.

The State’s role can be particularly important in cases where Forest Service concerns regarding compliance with State or Federal law stems from activities occurring on nonfederal lands within the drainage or basin being evaluated.  State agencies should participate in identifying appropriate options for mitigating these environmental impacts.
(3) Natural Resources Conservation Service.  The Natural Resources Conservation Service (NRCS) has several conservation programs that can be a valuable source of technical and financial assistance to water users and landowners in exploring means by which goals for addressing impacts might be achieved, particularly those goals that might be met through the structural redesign or retrofitting of the water development facility.  For example, the NRCS may be able to provide technical and/or financial assistance to retrofit a facility in such a manner that goals are met with limited or no impact to the owner’s current/historic end use of the water being stored, diverted, or transported over NFS lands.  Retrofitting can include redesign proposals such as lining the ditch, piping the water, and stopping leaks/ditch overflows.  Consult with the Office of the General Counsel whenever retrofitting proposals appear to have the potential of exceeding the scope of the facility owner’s right pursuant to the act. 
(4) Other Third Party Interests.  The Forest Service should work closely with the applicant, other local, State, and Federal agencies, Tribes, and, where appropriate and feasible, nongovernmental organizations with whom the applicant may have an interest in partnering as a possible means of meeting the requirements of applicable State or Federal law.  There may be possible funding sources, such as NRCS programs, funds from the Bonneville Power Administration, or support from conservation organizations.
(5) Coordination with the Office of the General Counsel.  The authorized officer shall seek the advice of the Office of the General Counsel prior to making a decision to condition a Ditch Bill easement in a manner that may affect the applicant’s operation of the facility or the quantity of water available to the applicant for beneficial use.
b.  Identifying Potential Measures To Mitigate Environmental Impacts.  Specifically defined flow regimes below a point of diversion, dam, or water impoundment may be required by State or Federal laws.  Any proposed term or condition to establish a flow regime shall comply with both Federal and State law and be in accordance with the cornerstones for managing water resources identified in FSM 2729.16, paragraph 2.   
(1) Installation of Water Control and Measuring Devices.  Maintaining an operable headgate and water volume control device at the point of diversion for a water transmission facility, in accordance with established State policies and practices, is a standard condition in the Forest Service Ditch Bill easement (Form FS-2700-9a) issued for all qualifying facilities.  Evaluate the extent to which goals for addressing impacts may be realized from the installation of a headgate and a flow measuring device, maintaining the applicant’s diversion of water consistent with that specified in the State appropriated water right.  Requiring the installation and proper maintenance of a water control and measuring device(s) may, in many cases, be all that is needed to mitigate impacts of the operation and maintenance of a qualifying facility.  
(2) Improvements to the Design or Maintenance of Facilities.  Many ditches leak or absorb significant losses of water from the point of diversion to the place of use on non-Federal land.  These losses can be reduced through improvements or changes in maintenance of the ditches or delivery systems.  Changes to the design of diversions, ditches, and delivery systems, such as the lining of a ditch, can result in a yield of additional water downstream of the diversion point while minimizing the loss of water being conveyed to the non-Federal land for livestock watering and/or agricultural irrigation purposes. 
(3) Instream Flow Provisions.  In cases where a minimum instream flow immediately below a point of diversion or a dam/impoundment is required by State or Federal law, the quantity and timing of an instream flow must be:
(a) Determined using recognized methods and models for that river basin/watershed setting, such as methods employed by local or State entities, Tribes, or other Federal agencies in the local area, if applicable, and consistent with the use of the best available information as required under NEPA (40 CFR 1502) and ESA (50 CFR 403.14(d)). 
(b) Established in accordance with the four cornerstones for the management of water resources identified in FSM 2729.16, paragraph 2.  
7.  Documenting Analyses and Decisions for the Issuance of Ditch Bill Easements.  Environmental analyses and decisions in Ditch Bill easement application cases should be made and documented in a manner consistent with NEPA, the Council on Environmental Quality regulations, and management direction in the Forest Service NEPA Handbook, FSH 1909.15.  
2729.16r - Effect on Ditch Bill Easements Already Issued

The direction in this interim directive (ID) does not apply to Ditch Bill easements that have been issued prior to the effective date of this ID (June 30, 2004).  Therefore, do not revise or prepare replacement easements for those Ditch Bill easements issued pursuant to previous management direction and guidance. 

A situation may occur where there is more than one qualified applicant for the same facility and where each applicant holds a valid water right and qualifies for a Ditch Bill easement.  In this situation, if a Ditch Bill easement(s) has been previously issued for the qualifying facility, process the additional, qualifying applications by first reviewing the environmental analysis that was conducted for the issuance of the existing easement(s).  If the environmental effects of the use and operation of the facility were adequately addressed in the issuance of the existing easement (s), a similarly conditioned easement may be issued to the applicant(s), subject to the provisions of this ID.