2729 - WATER (NON-POWER GENERATING)

Direction in this section governs non-power generating water uses.  
2729.01 - Authority

Issue authorizations for the impoundment, storage, transmission, or distribution of water under the appropriate provisions of the Federal Land Policy and Management Act of October 21, 1976 (43 U.S.C. 1761), The Act of October 27, 1986, or if in wilderness, under the Wilderness Act of September 3, 1964.
2729.1 - Water Transmission [Reserved]
2729.11 - Irrigation Water Ditch [Reserved]
2729.12 - Irrigation Water Transmission Pipeline, 12” Diameter or More [Reserved]
2729.13 - Irrigation Water Transmission Pipeline, Less Than 12” Diameter [Reserved]
2729.14 - Water Transmission Pipeline, 12” Diameter or More [Reserved]
2729.15 - Water Transmission Pipeline, Less Than 12” Diameter [Reserved]
2729.16 - Water Conveyance System Easements Under the Act of October 27, 1986

The Act of October 27, 1986, amended Title V of the Federal Land Policy and Management Act of October 21, 1976 (FLPMA) (43 U.S.C. 1761) to authorize the Secretary of Agriculture to issue permanent easements without charge for water conveyance systems used for agricultural irrigation or livestock watering.  The act requires applicants to submit information concerning the location and characteristics of the water conveyance system necessary to ensure proper management of National Forest System lands.  Extensions or enlargements constructed after October 21, 1976, do not qualify for an easement, and must be covered by other authorities (FSM 2729.16p).  Exhibit 01 is a flowchart for evaluating applications for easements under the Act of October 27, 1986.

2729.16 - Exhibit 01

WATER CONVEYANCE SYSTEM ANALYSIS/EVALUATION FLOWCHART

			Water conveyance 
system/user			
			                      \
                        \				
Does user wish to retain existing grant?      \
                  \
                     \	
yes 	Does use have an outstanding
grant or authority?
│	
yes 	\ Is water conveyance 
system pre-1976?
│
│			
│
│
│
│
│
│
│	\ no
     \
       \→	no
↓
Application for easement under the Act of October 27, 1986
│		│
│
│
│
│
│
↓			
│
│		│
↓		no
↓			
│
yes
│
│
│
│		Does application 
meet Qualifying 
Criteria?
│
│
│	
——―no ›	Evaluate for qualification under other sections of FLPMA
│			
│		│		│			
│
│
│		│
yes
│		│
│
↓			
│
│
│		│
│
│		Qualifies for other FLPMA easement?	
—―no ›	│
│
│	
│
│
↓		│
│
↓		│
yes
↓		│
│
↓	
Administer existing grant under applicable laws (FSM 5522)		Issue easement without charge
under the Act of 
October 27, 1986 
(FSM 2729.16)		Issue easement or special use
authorization under other sections of FLPMA 
(FSM 2710)	Encroachment or unauthorized use (FSM 3135)	

2729.16a - Qualifying Criteria for Issuance of Easements Without Charge

Qualifying water conveyance system facilities on National Forest System lands include reservoirs, canals, ditches, flumes, laterals, pipes, pipelines, tunnels, and other facilities and systems for the impoundment, storage, transportation, or distribution of water, including roads and trails required by the owner and/or assignees for maintenance and operation of the system facilities, provided that such water conveyance system facilities were constructed and in operation before October 21, 1976.

The authorized officer must issue an easement without charge for uses under this designation if all of the following criteria are met:
1.  The applicant submits a written application on or before December 31, 1996. 
2.  The system was constructed and placed into operation prior to October 21, 1976.  This includes systems for which there was no authority, and those authorized under the following acts: 
a.  The Act of July 26, 1866 (43 U.S.C. 661).
b.  The Act of March 3, 1891 (43 U.S.C. 946-949).
c.  The Act of June 4, 1897 (16 U.S.C. 473-475, 477-482, 551).
d.  The Act of February 15, 1901 (43 U.S.C. 959).
e.  The Act of February 1, 1905 (16 U.S.C. 524).
3.  The National Forest System lands occupied by the system are in one of the following States where the appropriation doctrine governs the ownership of water rights:  Alaska, Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Dakota, Oklahoma, Oregon, Texas, Utah, Washington, and Wyoming. 
4.  The applicant has a valid existing right, established under applicable State law, for water to be conveyed by the water system.
5.  The water conveyance system or that portion of the system for which the application applies is used solely for agricultural irrigation or livestock watering purposes at the time an application is submitted.  Agricultural irrigation and livestock watering uses are distinguished from industrial and municipal water uses, but include incidental domestic use of water which may be either consumptive or non-consumptive.
6.  The originally constructed facilities comprising the water conveyance system have been in substantially continuous operation without abandonment.
7.  The system or portion of system submitted by applicant is not an enlargement or extension constructed after October 21, 1976.  Enlargements or extensions constructed after October 21, 1976, are considered a new use and require a separate authorization under the applicable sections of FLPMA and 36 CFR part 251 (FSM 2729.16p).  Maintenance and minor improvements necessary to maintain the original capacity are not considered enlargements.
8.  The use served by the water conveyance system is not located solely on Federal lands. 
9.  The system is identifiable by a recordable survey.  Recordable survey, as used in the act, is one which allows the authorized officer to locate the water conveyance system facilities on the ground, and allows the authorized officer to post the water conveyance system facilities on Forest Service land status records.  There is no statutory requirement that the survey be recorded.
2729.16b - Documents That Meet Forest Service Survey Requirements

The following are examples of documents that meet the Forest Service survey requirements if tied to an acceptable land survey monument and if they accurately depict the location of the system:  State ditch location statements; deeds; maps; public land surveys; centerline surveys; metes and bounds surveys; plats; orthophotoquads; topographic quads; or any combination of the above.  For reservoirs, the applicant must furnish copies of the high water line surveys filed with the State Engineer, if available.  No easement shall be issued until these depictions are confirmed in the field by the authorized officer.

An acceptable land survey monument is any existing or original Bureau of Land Management or General Land Office corner; Homestead Entry Survey or Mineral Survey corner; or, if none of these corners exists within two miles of either the point of diversion or points of ingress or egress on National Forest System lands, a described and photo-identifiable monument.  Such monuments may be permanent physical features used by surveyors as local custom or practice.
2729.16c - Application Procedure and Requirements

The authorized officer shall ensure that the applicant meets the qualifying criteria listed in 
FSM 2729.16a.  Pre-application discussions should assist the user in determining whether it is reasonable to proceed with an application (FSM 2729.16, ex. 01).  Require the applicant to submit only the minimum information needed.  The authorized officer shall acknowledge the receipt of all applications with a letter.

An application consists of:
1.  A completed Form FS-2700-3, Special Use Application and Report (Form SF-299 in Alaska), or a letter containing the information requested on the form.
2.  Documentation supporting the applicant's claims to having a grant or easement issued under the acts repealed by FLPMA (FSM 5520).
3.  Submission of information qualifying as a recordable survey.  Only the minimum information needed to post status records and locate the improvements on the ground is required.
4.  Submission of additional information concerning location and characteristics of the system as requested by the authorized officer as necessary to recognize and protect the water system and other National Forest System uses established before or subsequent to the water system.  Examples include:  points at which the water system enters and exits natural channels used to carry water, typical cross-sections, headgates, diversion structures, roads, locks, gauges or other flow measuring devices, crossings by roads and other easements, flumes, dam specifications, reservoirs, and pipelines.
2729.16d - Evaluation of Application
1.  Existing water conveyance system facilities may have been authorized under a Forest Service special use authorization or by an easement or grant issued by another agency, usually the Department of the Interior.  
a.  The authorized officer should be prepared to discuss with the holder advantages and disadvantages of applying for an easement or retaining the existing grant.  Advise users that one purpose of FLPMA is to resolve title claims arising under statutes repealed by the act, but that there is no obligation to apply for an easement under this designation.  Water users may choose to continue the use under existing authorizations and grants.
b.  The issuance of a special use authorization to a water user does not necessarily extinguish existing easements and grants issued under statutes repealed by FLPMA.  However, the act requires an applicant to relinquish any existing easements and grants as a condition of obtaining an easement under the act.
c.  If an applicant claims to have a grant or easement issued under the acts repealed by FLPMA, advise the applicant to submit documentation supporting the assertion as part of the application (FSM 2729.16c, para. 2).  
(1) Water conveyance system grants issued under the Act of July 26, 1866 (43 U.S.C. 661) were not formally documented and may be shown by water decrees, deeds, ditch location statements, field survey notes filed by the Bureau of Land Management (BLM) water rights applications, testimony, court decrees, permits, water use records, water administrative records, irrigation records, ditch rider notes, or other historic data.  
(2) Most easements established under the Act of March 3, 1891 (26 Stat. 1095) were issued by the Department of the Interior and a search by the applicant of the BLM and Forest Service records may provide information that will aid in verification of the easement.
2.  Where no prior easement or grant exists, but the water conveyance facility occupied National Forest System land prior to October 21, 1976, determine if the applicant holds a valid interest in the water conveyance system facilities and water rights.
3.  If an easement or grant is shown to exist and no easement is sought under this section, the authorized officer must administer existing easements or grants under the applicable laws and the regulations of the agency originally assigned administration of the use (FSM 5522.12).  (Most of the relevant U.S. Department of Interior regulations appear at 43 CFR part 2800.)
4.  Determine if the existing use meets all of the other criteria listed in FSM 2729.16a.  If the use meets all of the criteria, the authorized officer must offer an easement at no charge. 
5.  Authorized officers should explain the benefits of the authorization or easements under the authority of the act to water users who have no valid existing right or current authorization.  If, after notice, the owner fails to obtain a special-use authorization or an easement under the act, the authorized officer shall treat the use as an encroachment and proceed accordingly under the provisions of FSM 5335.
2729.16e - Easement Preparation and Issuance
1.  Issue the standard Easement for Agricultural Irrigation and Livestock Watering, Form FS-2700-9a, as set out in FSH 2709.11, section 54.4.
2.  Record additional information, as set out in FSM 2729.16c, paragraph 4, and attach it to the easement.
2729.16f - Compliance with the National Environmental Policy Act (NEPA)

Granting easements under FLPMA for existing water conveyance system facilities, with historic operational activities, is not discretionary and, therefore, does not constitute a Federal action subject to analysis or review.  Conditions of the grant, including operations and maintenance activities (FSM 2729.16k), may require environmental analysis and review (FSM 1952.2).
2729.16g - Conversion of Fee Permits Under Other Authorizations to Easements Without Charge

There is no authority to forgive past due fees billed for existing special use authorizations of water conveyance system facilities built before October 21, 1976, or to discontinue current year billing.  When converting an existing fee permit to an easement without fee under the FLPMA, the authorized officer shall proceed as follows:
1.  Prior to Receipt of Easement Application.  The authorized officer shall continue to bill the established annual fee until the holder submits a complete written application for a easement under the act (FSM 2729.16c) or shows that an outstanding right exists (FSM 2729.17a).
2.  Post-Application Receipt.  The authorized officer shall defer any new billing of the annual fee for the use until a decision is made on whether or not the use qualifies for an easement without fee.
2729.16h - Multiple Users of the Same Water System

The authorized officer shall issue separate easements to each qualifying person or entity holding a valid interest in the water conveyance system facilities and water right.  Many transfers of interests in water rights and water conveyance systems have taken place since the uses were established, and the intent is not to interfere with those transfers.  There is no fee for easements issued to users who qualify under the FLPMA.  In circumstances where nonqualifying uses are involved under different authorities and fee schedules, determine fees for the nonqualifying uses in proportion to the amount of water allocated to flow through the system under each authorization.
2729.16i - Amendments

Process as an amendment to the easement any changes to the water conveyance system the holder proposes to make, other than minor improvements, that do not constitute extensions or enlargements as described in FSM 2729.16a.
2729.16j - Transfers

The provisions of the FLPMA allow transfers of the easement to other agricultural irrigation or livestock watering users without the imposition of fees, terms, or conditions.  The new holder must notify the Forest Service of changes in ownership within 60 days.  Easements granted under this act terminate if the holder transfers the easement to a person or entity that uses the water for purposes other than agricultural irrigation or livestock watering (FSM 2729.16n).  If the water right transfers completely to a nonagricultural user, that user must apply for an authorization under other sections of this act (FSM 2729.16p).
1.  Complete Transfer to Multiple Users.  If the holder of an easement issued under the FLPMA sells water rights to an agricultural irrigation or livestock water user and to a nonagricultural user, the holder may transfer the easement to the agricultural user.  However, the nonagricultural user must apply for an authorization under other sections of the act 
(FSM 2729.16p).
2.  Partial Transfer to Multiple Users.  If the holder of a easement issued under FLPMA retains some water rights, sells a portion to an agricultural irrigation or livestock water user and the remaining portion to a nonagricultural user, then the holder retains the easement under the act, and the new agricultural user must apply for an easement under the act.  The nonagricultural user must apply for an authorization under other sections of the act (FSM 2729.16p).
2729.16k - Operations and Maintenance

Require water users to review operations and maintenance with the authorized officer prior to initiation of use under the new easement issued under FLPMA.  The water user may instead prepare a written plan by mutual agreement with the authorized officer.  The plan should describe how facilities will be operated and maintained to prevent unacceptable damage to National Forest System lands and resources.  Operations and maintenance plans should be kept current, and should be attached to the easement.
2729.16l - Liability

The easement holder is liable for the damage to National Forest System lands caused by the holder's negligence, intentional acts, or failure to comply with the terms and conditions of the easement or any applicable law.  If a water conveyance system facility deteriorates and threatens persons or property and, after consultation, the easement holder refuses to perform the repair necessary to remove the threat, the Forest Service may perform the repair and maintenance on the facilities and assess the holder for the cost (43 U.S.C. 1761).
2729.16m - Relinquishment of Easement

Holders of easements issued under the FLPMA may apply for a replacement easement under other sections of the act.  The holder may retain the existing easement until the authorized officer has processed such applications (FSM 2729.16o).  The holder must then relinquish the existing easement when the new easement is authorized.
2729.16n - Terminations

The act provides for termination of the easement under three circumstances:  change in the 
end-use of the water to a nonqualified use, abandonment, or termination under the provisions 
of section 506 of FLPMA.
1.  The authorized officer must terminate an easement under the terms of FLPMA if the water conveyance system facilities are used for any purpose other than agricultural irrigation or livestock watering.  The water user must apply for a replacement authorization under other applicable sections of the act (FSM 2729.16o).
2.  The authorized officer must terminate easements that meet the conditions of abandonment.  A determination of abandonment is based on a rebuttable presumption of abandonment, which is a failure of the holder to use the facilities for agricultural irrigation or livestock watering for any continuous 5-year period.  The authorized officer must make a 

preliminary review of all the facts to determine if the right-of-way meets the conditions of abandonment.  Before proceeding to terminate an easement, the authorized officer must ask the owner of the facilities to voluntarily relinquish the easement.  If the owner does not relinquish the easement, the authorized officer shall refer the matter to the Office of General Counsel (OGC) for advice on how to proceed. 
3.  The authorized officer may initiate action to terminate an easement for breach of terms and conditions.  Regulations at 36 CFR 251.60 and 7 CFR 1.130 - 1.151 delineate the process for termination of easements as described in section 506 of FLPMA.  The action requires a formal proceeding before a Department of Agriculture Administrative Law Judge.  The authorized officer shall refer the case to OGC for advice on how to proceed.
2729.16o - Reporting Use

Use code 916 in the Forest Land Use Reporting system (FSM 2790) for water conveyance system easements issued under FLPMA.
2729.16p - Water Conveyance Systems Under Other Authorities

Follow the direction in FSM 2710 and 2720 for authorizing water systems under other sections of FLPMA.  Enlargements or extensions constructed after October 21, 1976, are considered a new use and require a separate authorization under the applicable sections of FLPMA and 
36 CFR Part 251.  This does not apply to maintenance and minor improvements to a system.

See FSM 5522 for systems covered by outstanding Federal grants and agreements.
2729.16q - Fee Refunds for Outstanding Authorizations, Grants, or Other Situations Where Fees Were Erroneously Charged

Discontinue billing and process fee refunds for confirmed holders of grants issued under the Act of July 26, 1866, and easements authorized under the Act of March 3, 1891.  Refunds are given for the period starting with December 31 of the calendar year preceding the request for confirmation of the grant.  Direction for administering outstanding authorizations and grants is contained in FSM 5522.