I attended the "Ditch Bill Forum" on Thursday, an event pulled together by CWCB as sort of an addendum to their quarterly board meeting.  The meeting was held in Alamosa, and featured high level staff from the U.S. Forest Service, the Colorado Department of Natural Resources, and many other state and federal agencies.  The purpose of the meeting was to present an update on the status of "Ditch Bill Easement" applications in Colorado. (By the way, since this is a long and potentially boring article, please enjoy the photos I took on the drive home.)

For those of you not familiar with "Ditch Bill Easements," here's the scoop.  Way back in 1976, the federal government enacted the "Federal Land Management and Policy Act" (FLPMA, or "flip-ma" if you want to be hip.)  One of the things that came out of this Act was the requirement that water users seek Special Use Permits for water structures located on Forest Service lands.

In 1986, Congress amended the 1976 Act to allow agricultural interests (irrigation and livestock users) to bypass the whole Special Use thing and get permanent easements, at no cost, for those facilities that met certain criteria.  This was called "The Ditch Bill."  A window of opportunity was open for the next ten years, until December 31, 1996, for agricultural water users to apply to get free and permanent easements for ditches, reservoirs and other structures located on Forest Service lands.

State and federal agencies actively publicized this window of opportunity to water users in the Forest Service areas.  Some water users were confused as to whether they may have had existing permanent easements that pre-dated the Forest Service; they were advised to apply for "Ditch Bill Easements" anyway just to cover their bases.  If water users eligible for Ditch Bill Easements did not apply for easements, for whatever reason, then they would be subject to the Special Use process. While "extra diligent efforts" were made in 1996 to round up all of the qualifying water users, no one really knows what percentage of them opted in to the Ditch Bill Easement program.

In all, the Forest Service received about 2,500 applications for easements nationally.  Almost half of them were in the Rocky Mountain Region, and the bulk of those were in Colorado. More than 2,000 of the applications were submitted "at the eleventh hour" in 1996.

The Forest Service has acted on only about 300 of these applications.  It sounds as though other agencies, constituents, and applicants have grown frustrated with the glacial pace at which the Forest Service has been processing applications.  Additionally, the Forest Service has revised policy positions several times (Wilderness Areas were out at first, then in; environmental review [NEPA] not required at first, then required in certain cases, etc.)  In their defense, the language of the Ditch Bill is pretty confusing and almost contradictory.  For example, the language of the bill directs that the Secretary of Agriculture "shall issue a permanent easement" for qualifying structures, but then goes on to say that easements shall include terms and conditions that are in compliance with applicable provisions and procedures in existing law/regulation.  These existing laws and regulations include such things as the National Environmental Policy Act, the Engangered Species Act, Forest Service plans, etc.   

The Forest Service is now at the point where they have more or less solidifed their policy positions, and they are about to finalize a strategy for devoting staff and resources to processing applications.

The question-and-answer portion of the meeting is where we got down to the nitty-gritty.  Here are some of the issues that were raised:

- There are many ditch systems that have multiple purposes and do not cleanly fit the "agricultural use" limitation.  In general, a system that serves municipal uses is subject to the Special Use process.  It sounded like allowances would be made if the ditch is primarily used for agriculture but the old water right happens to include "domestic" as a decreed use (this is pretty common for old irrigation systems.)

- It sounded like a single ditch system could end up with more than one type of easement; the Ditch Bill Easement would cover existing, agricultural uses while a Special Use Permit would cover non-agricultural uses plus any future enlargements of the system (for whatever use.)  An enlarged reservoir, for example, might have a Ditch Bill Easement for its original configuration and a Special Use Permit for the enlarged portion.

- The current policy provides for a "Re-Opener" clause in Ditch Bill easements.  What that means is that although the easement is permanent, the federal government will reserve the right to come back later and change the terms and conditions of the easement.  It was this issue that created the most unease and skepticism among the forum attendees.  The primary purpose of the "re-opener" clause is thought to be an opportunity for the government to require by-pass flows to protect threatened and endangered species. Pointed questions were asked about whether there is any meaningful difference between a Special Use Permit and a Permanent Easement with a Re-Opener clause. Actually, it sounds like there are some pretty meaningful differences between the two, one being that the Easement is transferable while a Permit is not. 

- Some of the applicants may have existing easement rights that derive from older legislative acts, dating from 1866, 1891 and 1897.  As the Forest Service processes applications that might be covered by these previous Acts, they have indicated that they will so notify the applicants.  It should be noted that if a water user obtains a Ditch Bill Easement, it will void out any prior easement rights.

The bottom line for DARCA members?  Here's my take on it:

- If you have any structures or facilities located on Forest Service land and the "Ditch Bill Easement" is something you've never heard of before, check with your local Forest Service office to find out if a predecessor may have filed an application.  If no application is pending, you should seek out legal counsel to see if you have an older 1866-type easement that authorizes your use of Forest Service lands.  Trust me, you don't want to get sucked into the Special Use Permit process.

- If you have an easement application pending, it might be worth a call to the Forest Service to make sure they have current contact information on file for you, especially if there have been any changes in management or ownership in the last ten to fifteen years.  And be sure to express your interest in being part of the application review process.

- Don't give up any existing 1866-type easements in favor of a Ditch Bill Easement without the advice of legal counsel.

If you have further questions about Ditch Bill Easements, I would direct you to Randy Karstaedt, the Director of Physical Resources for the Forest Service's Rocky Mountain Region.  His email address is .