[Federal Register Volume 69, Number 125 (Wednesday, June 30, 2004)]
[Notices]
[Pages 39404-39405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14859]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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