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AW Testifies in Colorado Senate on Right to Float

Posted: 03/16/2010
By: Nathan Fey

 On Monday, March 15, 2010, the Senate Judiciary Committee heard testimony on House Bill 1188. AW staff and Colorado Whitewater Board Members Dede de Percin, Mark Robbins, and Patrick Tooley testified in support of the bill.  CW President Leslie Tyson and Board Member Ted Dietrich also attended the hearing on behalf of CW and helped coordinate AW and CW’s efforts to support and improve House Bill 1188.  By a 4-3 vote, the Senate Judiciary Committee passed House Bill 1188.  Equally important, we were successful in getting CW’s amendments incorporated into the bill, so that all members of the boating public are included, not just commercial outfitters.  The bill now goes to the full Senate.  If the bill makes it out of the Senate, the bill will go back to the House, which must approve the amended version of the bill. The bill will then head to Governor Ritter’s desk.

House Bill 1188 represents a significant step forward in recognizing and clarifying the right to float on Colorado’s rivers and streams.  But much work still needs to be done before House Bill 1188 becomes law. We need your support.  At the end of this letter, you will find ways you can help pass this important piece of legislation. 

House Bill 1188 clarifies the right to float on those segments of Colorado’s rivers and streams that have been historically rafted by commercial outfitters.  Representative Kathleen Curry and Senator Mary Hodges are the primary sponsors of the bill.  House Bill 1188 will help clarify a murky, complex, and unsettled area of Colorado law, namely the balancing of the rights of private landowners with the rights of the public, to whom the Colorado Constitution specifically dedicates Colorado’s waters.

Colorado Whitewater and American Whitewater, in a coordinated effort, began work on House Bill 1188 well before the bill was introduced in the General Assembly.  We urged the Bill’s sponsor to introduce a bill that included all rivers and streams and all members of the boating public. And while the Colorado River Outfitter’s Association wanted the bill limited to commercially rafted rivers for political reasons, CROA did not oppose including all members of the boating public within the bill.  Even so, the bill as introduced did not include all of the boating public.

Once House Bill 1188 was introduced in the House, CW’s Board appointed a task force to work on the bill.  The task force consists of CW Board Members Ted Deitrich, Dede de Percin, Mark Robbins, Leslie Tyson, and Patrick Tooley.  The task force works closely with AW’s Nathan Fey, and receives valuable perspective, input, and financial support from former CW and AW President and Board Member Jay Kenney.  Former AW Access Director Ken Ransford, an attorney active in river access and conservation, also provides helpful advice and input. 

CW’s task force has devoted hundreds of hours working on House Bill 1188.  Working closely with American Whitewater, the CW task force has

·       Advocated for a "right to float" within the House Judiciary Committee

·       Attended the House Judiciary Committee hearing

·       Conferenced with Governor Bill Ritter and his legal advisors

·       Conferenced and met with Representative Curry and Senator Hodges

·       Lobbied other Senators and Representatives to support House Bill 1188

·       Provided legal authorities and input to key Colorado Senators

·       Engaged in extensive meetings and communications with commercial outfitters, their lobbyists, and their legal counsel

·       Drafted proposed amendments to improve House Bill 1188

·       Successfully pushed to have amendments included in House Bill 1188, the most important of which ensures that all members of the boating public are included

·       Networked with civic and political supporters of the bill

·       Spoke to members of the media to explain why House Bill 1188 should include all members of the boating public, not just commercial outfitters

·       Enlisted Senator Chris Romer’s support to oppose any effort to amend the bill to exclude non-commercial boaters from the bill


Strategy, Silence, and Chatter.  CW and AW have tried to be very thoughtful and strategic about House Bill 1188.  We were disappointed that House Bill 1188 as introduced did not cover all rivers and the entire boating public.  Nevertheless, our strategy was not to oppose the bill, at least not initially, but instead to work to improve it.  (For reasons that are too involved to explain here, House Bill 1188 cannot be amended to cover all rivers and streams).   Our primary goal was and is to ensure that all members of the boating public are included in the bill.

When and how to push for our amendments presents a delicate problem.   On the one hand, if you offer your amendments at the wrong time, your amendments may fail. On the other hand, if you wait too long, you may be out of luck.  We hope those of you who wanted to know more about our strategy and the details of our amendments understand our reluctance to share this information prematurely.  We share what we can when we can. 

You should also know that we have worked and will continue to work closely with our friends at CROA to help get House Bill 1188 passed.  We understand that commercial outfitters need to protect their interests, just as we need to protect ours, and we will oppose any effort to remove non-commercial boaters from the bill.  CROA does not want us to exclude private paddlers from the bill. While our interests at some point could diverge, if we continue to work together, House Bill 1188 will become law and everyone will benefit.


How You Can Help.  Your help is critical.  The last time the General Assembly considered a river access bill was 1996.  The bill didn’t even make it to the House floor.  Please make sure this precious opportunity to clarify and codify the right to float is not squandered. 

First, thank Representative Curry and Senator Hodges for sponsoring the bill.   The opposition has really turned up the heat and is trying to wear them down.  Thank them for including all members of the boating public.

Second, let Colorado's Senators, Representatives, and Governor Ritter know you support House Bill 1188, provided that it applies to all members of the boating public.  If you are website savvy, go to the Colorado General Assembly website and see who voted for the bill.  Thank them and urge them to protect the rights of all members of the boating public.  Urge those who voted against the bill to support it now.  The opposition has lots of money and has been aggressively calling and emailing in an effort to defeat the bill.  Don’t let them outwork you.

Third, thank Colorado Senator Chris Romer for his commitment to keep all members of the boating public in the bill. You know the opposition will work hard to kill the bill.  It’s nice to know you have a tough, smart Senator watching your back. Go to Senator Romer’s facebook page ( and let him know you appreciate his support. 

Finally, encourage your friends to join and support AW and Colorado Whitewater.  Our commitment to River Access is unequaled and we have worked exceptionally hard on House Bill 1188.  Given the importance of this bill, AW's affilate club Colorado Whitewater has hired a lobbyist.  If you can afford it, make a donation.  We may not have the deep pockets of those who want to privatize our public waters, but your donation will help ensure our voice is heard. 

We will continue to work hard to see House Bill 1188 enacted into law.  And while the bill is far from perfect, it represents a significant opportunity for all of us. 



Testimony of Nathan Fey, American Whitewater

Colorado Senate Judiciary Committee

Hearing on Colorado River Outfitters Viability Act

March 15th, 2010


Good Evening, Madam Chair and members of the committee.

I am Nathan Fey, Colorado Director for American Whitewater. I speak here today as a fifth generation Colorado Native, and as a representative of whitewater enthusiasts - both residents and non-residents of our great state that boat in Colorado.


American Whitewater is a national membership organization, founded in 1954, that represents all whitewater enthusiasts, including kayakers, rafters, canoeists and river conservationists. The organization is the primary advocate for the preservation and protection of rivers throughout the United States, with a mission “to conserve and restore America’s whitewater resources and to enhance opportunities to enjoy them safely.” Our membership includes over 8,000 individuals and 160 affiliate clubs totaling hundreds of thousands of whitewater paddlers – a significant percentage of enjoy Colorado’s outstandingly remarkable whitewater rivers and recreational opportunities.


As a national conservation and access-oriented organization, American Whitewater has been and continues to be a strong supporter of the right to float and safe public river access and navigation rights that also ensures long term resource protection. We achieve this conservation objective through education, advising agencies, and sharing information that we have collected over the past several decades of researching the navigability statutes of all 50 states. We have a long history of using our expertise in River Access to build the knowledge base among both recreationists and landowners, and reducing conflicts and supporting responsible recreational enjoyment of rivers and streams.


As the Colorado Director for American Whitewater, I work with agencies and community groups around Colorado, vested in protecting the value of our recreational opportunities and iconic quality of life. As part of Colorado’s public policy and conservation community, we are developing federal, state, and small-scale management plans for our public lands and waters that are based on locally crafted criteria and cooperative measures unique to Colorado. Whether though drafting new alternatives to federal management of Wild and Scenic Rivers, or our own brand of National Forest Roadless Area Management, or new tools to quantify and preserve river flows critical to fish, wildlife, and recreation – Colorado is a proven leader in conservation initiatives, and serves as an example for other states of forward thinking public policy.


Except when it comes to the public right to float on our Rivers and Streams.


First, the right to float issue is not a new issue, and we are long overdue in bringing Colorado up to par with the rest of the nation in preserving this public right. In the western United States, only Colorado and North Dakota fail to recognize the existing use of public waters for navigation. Colorado is the only state where the right to float has not been clearly recognized in the entire intermountain west. We’ve heard the discussion about takings of private property and the arguments against the right to float, and we routinely reject these arguments, just as Colorado’s neighboring states have.


In New Mexico, a state that follows the doctrine of Prior Appropriation, The constitution declares water in a stream to be public. The public has the right to use this water for recreational purposes, subject to the right of appropriators to remove water from the stream (e.g. for irrigation). In New Mexico, it is established that any of us can float any stream for which there is legal access. In addition, New Mexico allows for portage rights between the high and Low water mark of any stream.


In Wyoming, the public is allowed to boat any non-navigable streams that can be floated by any craft, even for pleasure. The right to float the stream is accompanied by a right to portage around and over obstructions, including riffles, rapids, and dams. In 11 Western States, the right to float on any stream is broadly protected, as it is in New Mexico and Wyoming.  In 5 other Western States, the right to float is protected on navigable streams.  In Arizona for example, where the federal test of navigability has been codified by the state, the public has a right to float on any stream in existence at the time of Statehood.


Here in Colorado, the first recorded commercial rafting trips date back to the 1840s, and there are well-documented private whitewater expeditions in Colorado long before Colorado became a State. House Bill 1188 attempts to protect the longstanding right float for commercial outfitters on a limited number of river miles. American Whitewater recognizes the need to clarify the rights of commercial outfitters, in light of recent threats to jobs and industry, but we request that this committee amend the bill to extend the rights of navigation and portage to all persons.


HB 1188 is a good bill, but it doesn’t go far enough… The right to float and portage protects more than commercial outfitters and jobs. Recreational paddling is enjoyed by 11% of Colorado Residents over 18 years old - nearly 400,000 individuals.  These are tax-paying Colorado citizens, many of which are not commercial customers but private boaters. There are over 20 specialty retail stores in Colorado that cater to the private, non-commercial rafter, kayaker, and canoeist; each with mailing lists and customer databases that number in the tens of thousands. In communities across our state, whitewater paddling and active outdoor recreation draws thousands of participants and spectators - pumping $500 Million into state tax revenues each year, and generating $7.6 Billion in retail sales and services.


In 2006, the City of Durango calculated non-commercial traffic for their recreational water rights filing or RICD.  There were over 15,ooo in state and 1,300 out of state users that year on the Lower Animas. The estimated economic impact of this non-commercial use was nearly $4 million that year alone. Cities and towns like Golden, Vail, Glenwood Springs, Dolores, Ridgway, Steamboat Springs, Gunnison and more all benefit economically from the ability of all persons to float and recreate on river and streams.


We have worked with the Colorado River Outfitters Association and our affiliate clubs around the State to find opportunities to improve HB1188. We have worked with closely with Colorado Whitewater to draft amendments to the bill that help preserve the rights of the general paddling public and to craft a bill that we can support. I encourage this committee to consider L-031 amendments and vote to move HB 1188 to the full Senate for General Reading.


I appreciate the opportunity to speak before you.  I am willing to answer questions or speak with each of you individually at the close of this hearing.


Thank you for your attention and time.



Colorado Stewardship Director

Nathan Fey

1601 Longs Peak Ave.

Longmont, CO 80501

Phone: 303-859-8601
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