Many water users either have forgotten about, or are not aware of, an act passed by Congress back in 1986 which gives owners of certain water facilities the right to get permanent easements for those facilities from the federal government free of charge. However, this government give-a-way is about to end. If qualifying owners do not apply before December 31, 1996, a golden opportunity to get out from under certain federal regulation will have been missed.

The 1986 legislation was enacted to provide a simplified means of resolving some disputes that had arisen because of the enactment of the Federal Land Policy and Management Act of 1976 ("FLPMA"), the most comprehensive single statute ever enacted with regard to the management of public lands. FLPMA became law on October 21, 1976 and repealed a tangled array of prior laws under which many water facilities had been authorized and built on public lands. However, in implementing FLPMA, the Forest Service began to charge fees and place restrictions and conditions on permits for such pre-FLPMA facilities. The owners of those facilities challenged the Forest Service's administrative actions, citing a provision in FLPMA that all actions under the "Act shall be subject to valid existing rights." Therefore the 1986 act, Public Law 99-545, provided an alternative non-litigation solution to these disputes.

Public Law 99-545 has several limitations to the scope of its application and several filing requirements. In general, it is limited to pre-FLPMA water facilities that occupy National Forest lands and service agricultural irrigation or stock watering purposes, at least some of which are not on federal lands. Expansions or enlargements made after October 21, 1976 are not covered by this Act. The specific requirements include the following:

1. The applicant must submit a completed written application (Form FS-2700-3 "Special Use Application and Report" or its equivalent) on or before December 31, 1996.

2. The water system or facilities must have been placed into operation prior to October 21, 1976.

3. The National Forest System lands occupied by the water system or facilities must be in a state where the appropriation doctrine governs the ownership of water rights. This includes Utah and 17 other states.

4. At the time of application, the water system is used solely for agricultural irrigation or stock watering purposes. It may also be used for other private (non-commercial) uses such as domestic uses incidental to the agricultural uses.

5. At least some of the end uses must be off of federal lands.

6. The originally constructed facilities must have been in substantially continuous operation without abandonment.

7. The applicant must provide proof of a valid water right for the water conveyed by the water system or facilities.

8. The applicant must be the owner of the facilities or improvements.

9. An operations and maintenance plan for the facilities should be prepared and included with the application.

10. A recordable survey must be included with the application.

11. A recordable deed prepared for the Regional Forester's signature must be provided.

If these conditions are met, the permanent easement is to be issued free of charge. The easement is fully transferrable upon the same terms and conditions applicable to the original applicant.
The easement will terminate if the water system is subsequently used for any purpose other than the authorized agricultural purposes. The owner is responsible for all maintenance and repairs on the facilities and may be charged for emergency repairs performed by the government to remove threats to persons or property.

If you have qualifying facilities you must act soon to apply for this permanent easement before this opportunity expires at the end of 1996. Your comments and questions are welcome. The author can be reached at (801) 413-1600.

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