WILD & SCENIC RIVER STUDY COMMENTS

WILD & SCENIC RIVER STUDY COMMENTS

JUNIPER WATER CONSERVANCY DISTRICT

I. SUMMARY AND RECOMMENDATIONS

The Juniper Water Conservancy District (the District or JWCD) files these comments regarding the Wild and Scenic Rivers Act (WSRA) study for the Little Snake River Resource Management Plan (RMP). The District hopes that the information and explanation will persuade BLM to revise its initial determinations of eligibility for all of the river segments on the Yampa River as well as the Beaver and Vermillion Creeks. The vested and valid water rights prove that these segments cannot be managed as free-flowing due to the rights of diversion and storage associated with these water rights.

These comments also show that none of the segments should be in the RMP preferred alternative, because they do not meet the suitability criteria in DM 8351 Wild and Scenic Rivers - Policy and Program Direction for Identification, Evaluation, and Management (1993). The Yampa River segments are not suitable due to vested and valid water rights, the lack of federal ownership of water and land, and the irreconcilable conflicts with state and regional agency programs, plans, and policies, due to the planned water storage and diversion projects, and the possible need for interbasin transfers.

The WSRA study process needs to involve all of the state and regional water agencies, consider all of the vested and conditional water rights, as well as the water uses, plans, and programs affecting the Yampa River Basin. Because future water projects use absolute and conditional water rights (both of which are property rights), BLM lacks the authority to use a WSRA study to frustrate the state and local government plans and indeed has a legal obligation to ensure that the RMP, of which the WSRA study is a part, is consistent with the plans of state, tribal and local governments. The existing water rights and associated projects and plans cannot be reconciled with proposed WSRA classifications and, thus, the RMP needs to incorporate these plans and programs into the RMP and adopt land use that is consistent.

II. YAMPA RIVER SEGMENTS

A. BLM Recommendations and Objections

Yampa River Segment 1 (Williams Fork to Milk Creek segment)

BLM Recommendation: Recreational

Yampa River Segment 2 (Milk Creek to Duffy Mountain Tunnel)

BLM Recommendation: Scenic

Yampa River Segment 3 (Cross Mountain Canyon)

BLM Recommendation: Wild

The JWCD strongly recommends that BLM adopts as the preferred alternative Alternative A (no action) or B (same as Alternative A) in the Draft BLM Alternatives dated September 30, 2005, a copy of which is attached as Exhibit A. The Yampa River segments are shown on Exhibit B. The JWCD bases this recommendation on the fact that vested water rights fully appropriate the water in the Yampa River and the scope of the legal rights associated with these water rights precludes a finding that the river is in fact “free-flowing.” The Yampa River segments do not meet the BLM suitability criteria, due to non-federal ownership of the water rights and the adjacent land, state and local agency water development plans, and the opposition of the affected state and regional agencies to a land use classification that would prohibit construction within the river segment corridor and would interfere with diversions of water from the river. The proposed WSRA classifications and resulting management irreconcilably conflict with several state and local agency plans, programs and policies and the classifications do not satisfy BLM’s statutory obligation to ensure that its land use plan is consistent with state and other local government plans, programs, and policies.

B. Eligibility Finding Fails to Address Appropriated Water Rights

1. Free-flowing Finding Flawed

BLM concludes that the recommended Yampa River segments are “free-flowing,” which means a river or segment that is “existing or flowing in natural condition without impoundment, diversion, straightening, rip-rapping, or other modification of the waterway. . . .” 16 U.S.C. §1286(b); DM 8351.31 ¶A, B. It is also understood that the WSRA classification precludes future construction, diversion, or impoundment of waters and calls for claims to instream flows. DM 8351.51 ¶¶A, B.

The respective Yampa River segments are fully appropriated. The Yampa River, both in the proposed stream segments and upstream of the proposed Yampa stream segments, is subject to many vested water rights, both absolute and conditional.^{^[1]} A complete listing of those water rights can be viewed at http://water.state.co.us/pubs/tabulation.asp by clicking on the Division 6 data for the

class=Section2>

Official July 1, 2004 Water Rights Tabulation. The state water tabulation demonstrates that there are literally thousands of vested absolute and conditional water rights (both for direct diversion and for storage) that would be affected by these classifications and which call for significantly different analysis regarding the free-flowing character.

The owners of these water rights are entitled to divert or impound the water for beneficial uses, to change the point of diversion and the uses, and to enlarge upon those rights if contemplated at the time of the original appropriation. Green v. Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775 (1962).^{^[2]} The eligibility study considers only current flows and ignores both the vested and conditional water rights, the exercise of which will change the character of the river.

Any proposed WSRA river classification is subject to all valid existing rights. 16 U.S.C. §1283(b), 1284(f); 43 U.S.C. §1701 n. §§701(a), n.701(h); DM 8351.32, ¶C; 8351.33, ¶A.11; BLM cannot deny or extinguish these rights. Nor can BLM regulate state water rights. Nonreserved Water Rights–United States Compliance with State Law, 88 Interior Dec. 1055, 1058 (1981) citing California v. United States, 438 U.S. 645, 654 (1978); United States v. New Mexico, 438 U.S. 696, 702 (1978) (holding that BLM is subject to state water laws and the states control this regulatory field).

Thus, the fact that the diversion and storage structures are not currently built does not diminish the scope of the water right for purposes of what is a valid existing right to which any WSRA classification would be subject. The RMP eligibility study should be revised to calculate the effects of these water rights on flows.

2. Streamflow Data

Attached as Exhibit F is a map showing the location of two gauges, one below the Yampa segments (at Maybell) and one on the Yampa just below Craig above the Yampa segments. The exhibits show the USGS Streamflow data by month for the years of record that exist. A review of this data indicates that the Yampa River at Maybell, in drought years such as 1954 to 1956, 1977, and 2002, shows very little flow during the late irrigation season. In fact, in August 2002, the average monthly flow at Maybell was only 12.7 cfs. The Yampa River Below Craig gauge, for which fewer years are available, also demonstrates that in 2002 the flow in the Yampa was minimal at best during the late irrigation season, reaching a low of 25.2 cfs in August. Those who observed the Yampa during the drought of 2002 know that the Yampa was dry in many locations, particularly below the larger agricultural diversions.

3. Neither “rare” nor “unusual”

The BLM WSRA eligibility criteria also require that the river segments be “rare” and “unusual.” DM 8351.31 ¶B.3. The Yampa River, Segments 1 and 2, do not contain qualities that would distinguish them from any other segments of the Yampa River or other similar rivers in the region. The only distinguishing characteristic appears to be less private land ownership, which is not an outstanding value. As the eligibility study notes, most of the land along the Yampa River is privately owned.

C. Proposed Segments Do Not Meet Suitability Criteria

(1) The suitability analysis for a proposed WSRA segment must consider 13 factors. DM 8351.33, ¶A. Of the 13 factors, none of the Yampa River segments meets six of the 13 suitability criteria: ownership and jurisdictional considerations, DM 8351.33 ¶A.2; reasonably foreseeable potential uses of the land in the corridor and the water that would be affected, Id. ¶A.3; “Federal, state, local, tribal, or other interests in designation or nondesignation of the river,” Id. A.5;, as well as the lack of support from the state’s congressional delegation, Id. ¶A.10; “Historical or existing rights which could be adversely affected,” since BLM must afford protection for valid existing rights ; Id. ¶A.11; and “The consistency of designation with other agency plans, programs or policies and in meeting regional objectives.” Id. A.12. Since the proposed Yampa River segments do not meet the above criteria, the preferred alternative must exclude all of the segments.

2. Ownership and Jurisdiction Considerations, DM 8351.33 ¶A.2

Over one-third of the adjoining property for Segment 1 and one-eighth of Segment 2 is privately owned. A classification under WSRA is limited to public land. DM-8351.06, ¶B; 8351.32, ¶B. The private land adjacent to Segment 1 limits or bars public access and Segment 2 cannot be effectively managed due to private lands within the segment corridor.

Equally important, BLM does not own the water within the river and lacks jurisdiction to regulate the exercise of these water rights. California v. United States, 438 U.S. 645, 654 (1978); Sierra Club v. Andrus, 487 F. Supp. 443 (D. D.C. 1980) (rejecting proposed doctrine of nonreserved rights for public lands). Nor can BLM file a claim for instream flows, as required in the manual, DM 8351.51, ¶¶A.2.i, B.2.k, C.2.i, since that authority is vested exclusively in the Colorado Water Conservation Board. C.R.S. §37-92-102(3); Thornton v. Bijou Irrig. Co., 926 P.2d 1, 94 (Colo. 1996). Even if the Board agreed to claim instream flows and such flows were available, they would be so junior as to be of limited, if any, value. Thus, it is impossible for BLM to maintain streamflows, because the water is fully appropriated.

The WSRA classification by BLM does not create a reserved water right under the WSRA, because congressional designation is necessary. Federal Water Rights of the National Park Service, Fish and Wildlife Service, Bureau of Reclamation and the Bureau of Land Management, 86 Interior Dec. 553, 608 (1979). The public lands do not have any reserved water rights, since the public domain by definition is not a reservation. Nonreserved Water Rights–United States Compliance with State Law, 88 Interior Dec. at 1056-57 (amending the 1979 opinion to eliminate the theory of non-reserved water rights for public domain lands).

3. Reasonably Foreseeable Uses of Land and Water, DM 8351.33 ¶A.3

a. Juniper/ Cross Mountain Projects

The proposed WSRA classifications of the Yampa River segments directly conflict with the development of Juniper and Cross Mountain Projects.

The Juniper Water Conservancy District was created to be the beneficiary of the Juniper/Cross Mountain Projects when built. The water rights for the Juniper/Cross Mountain Projects, a list of which is attached hereto as Exhibit D, are valid, vested water rights that are held by the Colorado River Water Conservation District. The Juniper/Cross Mountain Projects are major water resource projects that will store over 1,000,000 acre feet of water, as well as direct flow rights. Attached as Exhibit E are two maps that show the location of the Juniper Project. The Juniper dam is located below Segment 2, but would inundate all of the Segments 2 and 3 on the Yampa. The Cross Mountain Reservoir Project would involve the inundation of Segment 1 of the proposed Yampa WSRA segments.

Should Congress designate a stream segment for the WSRA system, federal assistance to upstream and downstream development is prohibited, if a water resource will “invade” a wild and scenic river segment or “diminish” the outstanding resource values (“ORVs”) present in the designated segment. 16 U.S.C. §1278(b)(iii). Moreover, a water resource project is defined as any “dredge and fill resource project or activity that required a federal permit.” See generally, 30 U.S.C. §1344(d); 33 C.F.R. Part 323.

As part of its land use planning and study, BLM can only exercise the power delegated by Congress, which is to study potential river segments not previously identified. 16 U.S.C. §1286. Federal law does not authorize BLM to supersede a state or local government water project by adopting WSRA classifications that conflict with planned projects and valid rights. 43 U.S.C. §1701, n. §§ 701(a);701(g)(2); 701(h). Indeed, FLPMA actually requires BLM land use plans and public land management to be consistent with state and local government plans, programs, and policies to the greatest extent possible while consistent with federal law. 43 U.S.C. §1712(c)(9). The proposed WSRA classifications irrevocably conflict with planned water projects that exercise both vested and valid rights and reasonably foreseeable uses. The existing rights and planned uses show that the proposed segments do not meet the suitability criteria that BLM must follow or the consistency mandate found in FLPMA.

b. Statewide Water Supply Initiative

The Colorado River Water Conservation Board undertook a Statewide Water Supply Initiative (“SWSI”) that produced a detailed report and executive summary which analyzes present and future water use within the State of Colorado by basin. Both the executive summary and full SWSI report are available at http://www.cwcb.state.co.us/swsi. The SWSI findings further support the conclusion that the water in the Yampa River needs to be diverted and developed and that it is in the public interest to allow such water uses. SWSI concludes that:

1. Significant increases in Colorado’s population will intensify competition for water.

2. If Municipal (M) and Industrial (I) water projects and processes are not successfully implemented, Colorado will see a significant reduction in irrigated agricultural lands as M and I water providers acquire and transfer agricultural water rights.

3. Environmental and recreational uses of water are expected to increase with population growth. However, without a mechanism to fund environmental and recreational enhancement beyond the project mitigation measures required by law, conflicts among M and I, agricultural, recreational, and environmental users could intensify.

SWSI projects that the population of the Yampa/White/Green River Basins (39,302 in 2000) will increase by 22,100 in 2030 to a total of 61,400. This is a 56% increase over that 30 year period. Associated with that population increase is a 22,300 acre foot increase (about 76% increase) in the need and consumptive use of water by the year 2030.

c. Future Interbasin Water Compacts

The development of Yampa River water is a probability given the need for inter-basin transfers within the state and related diversions and storage that are necessary to make such transfers possible. In the next five years, the state and regional boards established pursuant to the “Colorado Water for the 21^st Century Act” (HB 1177) will identify and agree on interbasin storage and transfer projects to address projected water shortages among municipalities on the Front Range. HB 1177 divides the state into several regions, each of which has a board. The Yampa River is part of the Yampa-White River Roundtable. The statewide board made up of representatives from the regional boards, will make decisions concerning future water development and water transfers to deal with the lack of water on the Front Range during low water years. Their mission is the assure sufficient water to meet the future needs of the entire state.

The limits that the WSRA classification would place on construction of water facilities and storage puts BLM on a collision course with the state and regional water planners that are mandated to find innovative solutions to the state’s water needs. Any WSRA classification would hand-cuff and impair the efforts of the State of Colorado to find solutions to water shortages that affect the future of the entire state and its residents. The RMP, for this reason, should conclude that the WSRA classifications are not in the public interest, do not meet the suitability criteria, and would violate FLPMA’s obligation of consistency with state and local government plans.

4. Historical and existing rights adversely affected, DM 8351.33 ¶A.10

a. Existing rights

BLM cannot adopt a river classification that impairs or would impede existing state-recognized water rights, whether developed or not yet developed. BLM management of a river segment classified under the WSRA prohibits construction of major water projects, DM 8351.51 ¶¶A, B. It also involves claims for instream flows to retain the water within the river, DM 8351.51, ¶¶A.2.i, B.2.k, C.2.i, which conflict with the valid rights entitling the owners to divert the water.

As explained, the Colorado River Water Conservation District owns the Juniper/Cross Mountain Projects water rights shown on Exhibit D. Development of the Juniper Project directly conflicts with the proposed classification of Yampa segments 2 and 3. The Cross Mountain project will conflict with Yampa segment 1.

Pursuant to 16 U.S.C. §1283(b), WSRA designation by Congress must be subject to valid existing rights, including the exercise of the water rights associated with the Juniper/Cross Mountain Projects. Alternatively, the United States would have to pay just compensation for the taking of the water rights and lost value of the developed water rights. The cost of condemning the Juniper/Cross Mountain Project water rights would be very, very significant.

BLM lacks authority to condemn or take water rights, including the development rights afforded under state law. Thus, BLM cannot adopt land use allocations that interfere with the operation of state water rights, because that would fail to honor valid existing rights. The proposed WSRA segments cannot be managed as scenic, recreation or wild river segments due to the vested and valid water rights and the related plans, projects, and policies adopted by state and regional agencies.

If BLM were to adopt the proposed WSRA classifications, water resource development, and even the simple task of getting a Section 404 permit to develop a diversion structure, or other activity related to the ongoing use and diversion of water would be severely impaired. Attached hereto as Exhibit C is a list of conditional water rights that exist in Water Districts 44, 54, 57 and 58, all of which are within or upstream of the proposed Yampa segments. Also attached as part of Exhibit C is a Water District map showing the location of Water Districts 44, 54, 57 and 58. A review of these decrees demonstrates that there are hundreds of thousands of acre feet of conditional storage decreed on the Yampa and its tributaries upstream of these segments. The proposed WSRA classifications would make development of these conditional water rights difficult, if not impossible, under the standards set forth in the WSRA that are discussed above.

Thus, the proposed WSRA classifications would effect an inverse condemnation of the valuable water rights and the projects. Bass Enterprises Prod. Co. v. U.S., 381 F.3d 1360, 1365 (Fed. Cir. 2004) (citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) in which the Court held that there is a regulatory taking when the entire value of the property is lost by operation of agency action).^{^[3]} The RMP must also include a takings implication assessment pursuant to Executive Order No. 12630. 53 Fed. Reg. 8859 (1988); Fallini v. Hodel, 725 F.Supp. 1113,1123-24, (D. Nev. 1989). BLM would ultimately owe the District millions of dollars in compensation and face additional claims from the owners of other water rights.

Ownership of submerged lands “which carries with it the power to control navigation, fishing, and other public uses of water – is an essential attribute of sovereignty.” U.S. v. Alaska, 521 U.S. 1, 5 (1997). This power was guaranteed to the states by the federal government upon admission of the new states to the Union and is recognized as the Doctrine of Equal Footing. Id.

b. Man-made Diversion Structures

There is a major man-made diversion of the Yampa River through the Duffy Mountain Tunnel on the end of Segment 2. This structure is not merely a flume. The irrigation water for a significant amount of land along the Yampa River enters a man-made tunnel and crosses under Duffy Mountain. The magnitude of this diversion in the proposed Segment 2 and its close proximity to Segment 1 are grounds for a finding of lack of suitability.

c. Water Quality Issues

The proposed WSRA classifications also fail to deal with the fact that the proposed segments are within a short distance from the City of Craig Wastewater Treatment plant. The segments are even closer to the Tri-State power plant, the largest coal-powered electrical generation plant in the state. The City of Steamboat Springs and the Town of Hayden also discharge treated wastewater into the Yampa River pursuant to valid NPDES permits. While the treated waters discharged into the Yampa River meet state and federal guidelines, the treated wastewater may affect river water quality, especially during low water times when the concentration levels of the river change. The segments of the Yampa River, while within legal pollution limits, are not pristine, outstanding, or rare to warrant classification.

d. Air Quality Issues

The Tri-State Power Plant emissions are not consistent with the proposed classification. A shift of the wind, failure of equipment or other events may change the outstanding values on the river. The power plant is close enough that one can often hear the noise of the power plant from both Segments 1 and 2. Clearly, due to their proximity to the power plant, Segments 1 and 2 are neither outstanding, nor rare and are not suitable for management under the WSRA.

5. State, local government interests in nondesignation, DM 8351.33 ¶A.5; Opposition of State, Regional and Local Governments, and the congressional delegation, DM 8351.33 ¶A.10

Because of significant water scarcity issues within the state, there will be major changes coming with respect to existing water uses and future water development. The extent of the water rights in the Yampa River and demand for future water development pit BLM’s RMP against the established plans, programs, and policies of the state and regional water agencies. The proposed classification will make it extremely difficult to meet the needs of the growing population projected for the communities in the planning area. Moreover, to the extent water resource project development is adversely affected, the likely result will be increased competition between water users. If water rights cannot be developed, the trend of transferring of agricultural water rights out of production and into M and I uses will grow exponentially with significant and adverse impacts to agriculture, fish, and wildlife. Farms and ranches will sell the water and either shrink their operation or leave the business, with significantly less water for fish and wildlife.

6. Consistency of Classification with Plans, Programs and Policies of State and Local Governments, DM 8351.33 ¶A.12

The WSRA suitability criteria and FLPMA both require BLM to address consistency and to resolve inconsistences with state and local government plans, programs, and policies to the greatest extent practical and consistent with federal law. 43 U.S.C. §1712(c)(9); 43 C.F.R. §§1610.3-1(c); 1610.3-2; DM 8351.33, ¶A.12. As explained above, the proposed WSRA classification of the Yampa River segments directly conflicts with state and regional water plans, programs, and policies. These plans are exercising long-standing appropriated water rights and, thus, these rights and plans, including the Juniper and Cross Mountain projects, must take precedence over a study, where the outcome is not specified. BLM must recognize valid rights and has no authority to regulate the exercise of state water rights. The proposed classifications do not conform to either federal law or BLM WSRA policy and should be removed from the proposed preferred alternative.

D. The Designations Are Not Necessary to Protect Endangered Fish, a Major Justification For The Proposed Classification

The 2005 Draft Eligibility Report justifies the proposed Yampa River segment classification in part on the needs of endangered fish. These fish are already protected from harm under the Endangered Species Act, 16 U.S.C. §§1533(b)(6)(C) (critical habitat); 1533(f) (recovery plan); 1536 (consultation for any federal action), 1538(a)(1)(B) (prohibiting any taking). The protection of these fish is also assured in the Upper Colorado River Recovery Program (“Recovery Program”), which was adopted as a joint effort of the U.S. Fish and Wildlife Service, State of Colorado, Colorado River Water Conservation District, Bureau of Reclamation, and the City of Craig. The Recovery Program also involved a Section 7 consultation with the U.S. Fish and Wildlife Service to amend a Problematic Biological Opinion (“PBO”) to approve the Recovery Program, including the expansion of the Elkhead Reservoir and the leasing of water rights for the endangered fish. The Recovery Program does not propose or contemplate wild, scenic or recreation classifications for any segments of the Yampa River Basin under WSRA.

After years of negotiations, the USFWS, Bureau of Reclamation, Colorado Water Conservation Board, the City of Craig, and the Colorado River Water Conservation District entered into agreements to provide for the construction of the Elkhead Reservoir Enlargement. This enlargement, which will cost over $20,000,000, will increase the water storage capacity of Elkhead Reservoir by 13,137 acre feet. Of this amount, 5,000 acre feet are being purchased through the Recovery Program for use in the implementation of the Recovery Program and recovery of the endangered fish. The estimated cost to the Recovery Program is almost $9,000,000. In addition, the reservoir enlargement provides for a water lease for 2,000 acre feet to the Recovery Program for the additional benefit of the endangered and native fish species in the Yampa River. Copies of the Acquisition Agreement for the Elkhead Reservoir Enlargement dated February 17, 2004, and the Recovery Implementation Program Agreement between the Bureau of Reclamation, USFWS and the Colorado River Water Conservation District dated February 17, 2004, are attached as Exhibits G and H respectively. These documents outline the agreements between the parties regarding the Elkhead Reservoir enlargement, the allocation of water to the Recovery Program, and the division of costs for the project.

This cooperative effort to help recover the endangered fish in the Yampa River would not have happened if the state and regional water agencies knew that the Yampa River segments would be classified under the WSRA planning authority so as to preclude future water development. The proposed WSRA classifications could actually impede the recovery of the endangered fish, because they constrain future water projects necessary to provide additional water for recovery purposes and limit future water projects in general.

Moreover, the BLM needs to consult with both the Recovery Program members and USFWS before putting the proposed classifications in the draft RMP for a suitability determination due to the possible impacts on the Recovery Program. As noted above, these WSRA classifications could actually work against the Recovery Program by impeding or preventing water resource development for fish recovery purposes. Finally, the eligibility and suitability determinations in the proposed RMP constitute a federal action under the Endangered Species Act requiring a Section 7 consultation.

Furthermore, the segments of the Yampa River are already managed by BLM as part of an SRMA, which is preferable to being managed under a WSRA classification, since the current management does not involve analysis of local vested water rights. A determination of “no action” would allow the continued management of these sections under the SRMA.

III. BEAVER CREEK AND VERMILLION CREEK: BLM Recommendation: Scenic

These segments do not lie within the boundaries of the Juniper Water Conservancy District. Accordingly, the comments on these segments will be brief. For the same reasons relevant to the proposed Yampa River segments, however, the District notes that these proposals also do not conform to BLM’s suitability and eligibility criteria.

A. Vermillion Creek

The entire water right for Vermillion Creek is owned by a few interest holders, who can use or divert all of the water. Thus, Vermillion Creek is not “free-flowing” nor does it meet the ownership and use criteria for suitability. DM 8351.06, ¶B; 8351.32 ¶A.1, 8351.33 ¶A.2.

B. Beaver Creek

Any ingress and egress to Beaver Creek must cross private land in Utah, thus preventing the public from using this segment. This segment does not meet the access and public land ownership criteria required for suitability. DM 8351.33 ¶A.2. The issues of state-recognized water rights must also be considered. These water rights prevent a WSRA classification since the reasonably foreseeable uses of the water and existing rights and uses conflict with the proposed scenic classification.

IV. ADDITIONAL CONSULTATION AND COORDINATION NECESSARY

As the cited provisions in the BLM WSRA manual show, the eligibility and suitability analysis requires close consultation with all state and other units of local government. When a decision may or will interfere or conflict with the exercise of state water rights, agency plans, programs, and policies, BLM needs to work closely with the water conservation boards, the Department of Natural Resources, the state engineer, and all of the affected water conservancy districts and water users. Since these classifications also affect future water interests of the major metropolitan areas, it is clear that BLM must also consult with the major Front Range communities and their respective water agencies, including the City and County of Denver, Aurora, and Thornton.

V. CONCLUSION

The District strongly recommends that BLM adopt as its preferred alternative the no action or no change.

^{^[1]} In Colorado both absolute and conditional water rights are recognized as property rights. People ex rel. Danielson v. City of Thornton, 775 P.2d 11 (Colo. 1989); Navajo Dev. Co. v. Sanderson, 655 P.2d 1374 (Colo. 1982); Weibert v. Rothe Bros. Inc, 200 Colo. 310, 618 P.2d 1367 (1980); Gardner v. State, 614 P.2d 357 (1980); City of Colorado Springs v. Yust, 126 Colo. 289, 249 P.2d 151 (1952). A conditional water right allows the appropriator to reserve a priority date and have the necessary time to develop larger, and generally more, expensive water projects. C.R.S. §37-92-103(6); City of Aspen v. Colorado River Water Conservation Dist., 696 P. 2d 758 (Colo. 1985). The holder of a conditional right must identify the water to be put to beneficial use and prove that he can and will develop the water. C.R.S. §37-92-305(9)(b).

^{^[2]} A water right is perfected when the owner makes beneficial use, which includes a point of diversion and the location where the beneficial use will occur. High Plains A&M LLC v. Southeastern Colorado Water Conservancy Dist., 120 P.3d 710, 718 (Colo. 2005) citing Farmers Highline Canal & Reservoir Co. v. City of Golden, 129 Colo. 575, 584, 272 P. 2d 629, 634 (1954). The water right also includes the right to change both the use and the points of diversion, and the right to cross the land of another. Weibert, 618 P.2d at 1371; High Plains A&M LLC, 120 P.3d at 717-718 (explaining history and criteria for a change of use).

^{^[3]} BLM can only regulate public use and access where necessary to protect and enhance the resource values of the river areas. Final Revised Guidelines for Eligibility, Classification and Management of River Areas, 47 Fed. Reg. 39454, 39459 (Sep. 7, 1982) (“Public use may be controlled by limiting access to the river, by issuing permits, or by other means available to the managing agency through its general statutory authorities”). BLM, however, may not alter, amend or be in conflict with any interstate compact, and fair compensation must be paid for the taking of vested water rights. 16 U.S.C. §1284(b), (e), 43 U.S.C. §1701 n. §701(g)(3).