The Ditch Bill Deadline Approaches
| Publication year | 1995 |
| Pages | 1569 |
1995, July, Pg. 1569. The Ditch Bill Deadline Approaches
Many ditches, reservoirs and other water facilities in Colorado are located, at least in part, on federal lands. Under a series of federal statutes enacted in the nineteenth and early twentieth centuries, water users were granted various rights-of-way across the public domain for these water systems. All of these acts were repealed in 1976 with the passage of the Federal Land Policy and Management Act ("FLPMA"),(fn1) and all new rights-of-way can be issued only under the provisions of the FLPMA. However, the FLPMA did not terminate rights-of-way that had been previously established under the prior right-of-way statutes.(fn2)
An amendment to the FLPMA in 1986, sponsored by Congressman Strang of Colorado and commonly known as the Strang Act or "Ditch Bill," authorizes the granting of permanent written easements across National Forest System lands for certain water systems in place prior to October 21, 1976.(fn3) Application for Ditch Bill easements must be made by December 31, 1996. Accordingly, owners of water systems that are located on National Forest System lands must decide soon whether to apply for such easements. This article reviews the process and criteria for obtaining Ditch Bill easements, the rights that may have been acquired under the previous right-of-way statutes and some of the pros and cons of obtaining a Ditch Bill easement.
The Ditch Bill requires the Secretary of Agriculture to issue a permanent easement, without charge, for water systems traversing lands within the National Forest System if the following criteria are met:(fn4)
1) the water system must have been constructed and in operation prior to October 21, 1976;
2) the Forest Service lands involved must be in a state, like Colorado, where the prior appropriation doctrine governs the ownership of water rights;
3) the water system must be used solely for agricultural irrigation or livestock watering purposes;(fn5)
4) the uses served by the water system must not be located solely on federal lands;
5) the originally constructed facilities comprising the water system must have been in substantially continuous operation without abandonment;
6) the applicant must have a valid existing right established under state law for the water to be conveyed by the water system;
7) the applicant must provide a recordable survey and other information concerning the location and characteristics of the system as necessary for proper management of the National Forest lands involved;(fn6) and
8) the application must be submitted on or before December 31, 1996.
Water systems include reservoirs, canals, ditches, flumes, laterals, pipes, pipelines, tunnels or other facilities and systems for the impoundment, storage, transportation or distribution of water, including roads and trails required by the owner for maintenance and operation of the system facilities, provided that such facilities were constructed and in operation before October 21, 1976.(fn7) The easements allow maintenance and minor improvements to be made to the system, but do not allow extensions or enlargements without obtaining a separate right-of-way under the normal provisions of the FLPMA.(fn8)
Issuance of a Ditch Bill easement is a nondiscretionary action if the above criteria are met, and therefore does not require compliance with the National Environmental Policy Act or other environmental laws.(fn9) The easements are permanent and are not subject to periodic repermitting. Ditch Bill easements can be freely transferred without the imposition of fees, new conditions or stipulations at the time of the transfer, although the holder must notify the Secretary of Agriculture within sixty days of any change in ownership or change in address.(fn10) Easements under the Ditch Bill also are exempt from the special use fees being imposed by the Forest Service under the FLPMA.(fn11) Accordingly, Ditch Bill easements are far preferable to the
To continue reading
Request your trial