July 26, 1999 Dale Bosworth Regional Forester USDA Forest Service P.O. Box 7669 Missoula, MT 59807 Dear Dale: I want to thank you for taking the time to meet with Wilderness Watch and Friends of the Bitterroot on July 14 to discuss a number of our concerns regarding dams in the Selway-Bitterroot Wilderness. I also want to reiterate some of our concerns, and document some of the key points of our discussion. Rodd Richardson explained that the Forest Service has asked the Bureau of Reclamation to assess the condition of each dam in the Selway-Bitterroot Wilderness. The survey was started in 1998 and the Forest Service is awaiting the report from BOR. Rodd also indicated that the Forest Service's legal counsel (presumably OGC) is preparing an analysis of the easements associated with the dams as well as any rights associated with the easements. We expressed our belief that the Forest Service should interpret the "rights" associated with easements as narrowly as they are defined by the easements. Put another way, easements granted a century ago for a dam could not have expressly provided for use of motorized equipment, vehicle access, or other modern conveniences. We were pleased that both you and Rodd indicated your agreement that existing easements don't guarantee motorized use or motorized access. We believe that Forest Service officials should be extremely cautious in this area so as to not compromise the public's interest in protecting the Selway-Bitterroot Wilderness, or set precedents that could harm other Wildernesses with dams. We requested copies of the BOR report when it's completed and any documents prepared that describe the Forest Service's interpretation of the easement rights granted to irrigation companies/districts. You stated that the BOR report would be made available, but were uncertain whether the legal analyses would be shared with the public. Please let us know when you think the BOR report will be available. I again want to urge you to share the legal analyses with the public. Because of the potential long term implications of the interpretation of the easements for the SBW and other Wildernesses with dams, we feel that the decision making process would benefit from any insights the public might have to offer. Another major concern revolves around the lack of a public involvement process for decisions involving operation and maintenance of the dams. Specifically, recent media stories indicated that the Forest Service is negotiating operation and maintenance agreements, including the use of motorized and mechanized equipment, with the dam owners. We expressed our beliefs that these decisions must be made through the NEPA process, and that the special use permits and/or operation and maintenance plans have historically skirted NEPA analysis. Rodd stated that where SUPs have exceeded their 10-year terms, they would be extended on an annual basis pending a final determination on easements. We expressed our concern that motorized use for maintenance was being approved under this procedure without any opportunity for public review, and that patterns were being established that could have long term consequences for the SBW and other Wildernesses. I believe our concern about ongoing motorized use was left hanging. Please advise us as to what process, NEPA or otherwise, will be used during the interim to approve operation and maintenance activities on the dams pending a long term policy. You acknowledged there is some confusion about the NEPA requirements involving the dams, and the process for public involvement. You stated that NEPA is required for SUPs (we don't believe the dams in the SBW have met this test in the past), but were unsure whether NEPA is required for operation and maintenance plans where the dam is authorized by an easement. You also indicated that the requirement may be different depending on whether the easement is pre or post-FLPMA. You stated that Rodd Richardson would investigate the answers to these questions with your legal counsel and get back to us. I want to reiterate how critical this issue is to the public. As you know, most if not all of the dam owners have asserted easements based on statutes that pre-date the Bitterroot National Forest and/or on the so-called "ditch bill." If the Forest Service concludes that the operation and maintenance plans don't require NEPA documentation, then the public will be precluded from participating in critical decisions that affect the Selway-Bitterroot Wilderness. We believe such a conclusion would not only be illegal, but would seriously damage the credibility of the Forest Service with respect to the public involvement process. We urge you to develop and implement a strategy that offers every opportunity for the public to be involved in the decisions and management affecting these dams, regardless of whether the dams are operated under SUPs or easements. We also urged you to take a long term view of decisions regarding these dams. Most were built nearly a century ago when the primary value of what is now the SBW was seen as supplying irrigation water for farmers in the Bitterroot Valley. Much has changed since then in terms of social, economic and environmental values. In 1964, Congress, on behalf of the American people, set aside this area as Wilderness and charged the Forest Service with administering it for the use and enjoyment of the American people in such manner as will leave [it] unimpaired for future use and enjoyment as wilderness. Decisions being made now need to take into account the next 100 years, and they must ensure that the Forest Service meets the mandate to preserve these lands as Wilderness. Finally, we discussed the possibility of jointly sponsoring a primitive skills workshop that would highlight the ability to do the types of work required on the dams using primitive tools and equipment. We appreciate your initial statement of support. The use of primitive tools for work at the dams would go a long way in defusing the conflicts that could plague these dams for decades to come. I believe I speak for both Wilderness Watch and Friends of the Bitterroot when I say we are serious about sponsoring such a workshop, but we can not do it without the full participation, support and co-sponsorship of the U.S. Forest Service. We would not waste a minute of our time on such a workshop if we were not committed to finding Wilderness-compatible solutions to the dam maintenance issues in the SBW. At the same time, the Forest Service needs to show it is equally committed to such solutions, and that it is willing to make all reasonable efforts to find and/or develop the skills needed to achieve this goal. We would welcome any suggestions you have for proceeding at this time. Thanks again for taking the time to meet with us. We look forward to your prompt reply. Sincerely, George Nickas Executive Director cc: Rodd Richardson, Bitterroot National Forest Jim Olsen, Friends of the Bitterroot Stewart Brandborg Bill Worf John Dettmann, Faegre and Benson The Ecology Center Friends of the Clearwater Sierra Club--Bitterroot Mission Group The Wilderness Society-Northern Rockies Region