First Regular Session
Seventy-fourth General Assembly
STATE OF COLORADO
INTRODUCED
LLS NO. 23-0640.02 Sarah Lozano x3858
SENATE BILL 23-270
Senate Committees House Committees
Agriculture & Natural Resources
A BILL FOR AN ACT
C
ONCERNING PROJECTS THAT RESTORE THE ENVIRONMENTAL HEALTH101
OF NATURAL STREAM SYSTEM S WITHOUT ADMINISTRATION .102
Bill Summary
(Note: This summary applies to this bill as introduced and does
not reflect any amendments that may be subsequently adopted. If this bill
passes third reading in the house of introduction, a bill summary that
applies to the reengrossed version of this bill will be available at
http://leg.colorado.gov
.)
The bill creates a rebuttable presumption that a project that is
designed and constructed within a natural stream system for certain
restoration purposes (stream restoration project) does not cause material
injury to vested water rights (rebuttable presumption). A holder of a
vested water right may challenge the rebuttable presumption by
sufficiently demonstrating in a court of competent jurisdiction that the
SENATE SPONSORSHIP
Roberts and Simpson,
HOUSE SPONSORSHIP
McCormick,
Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.
Capital letters or bold & italic numbers indicate new material to be added to existing law.
Dashes through the words or numbers indicate deletions from existing law. operation of the stream restoration project has caused material injury to
a vested water right.
The bill also requires that, at least 63 calendar days before the
commencement of a stream restoration project, the owner or proponent
of the stream restoration project register the project with the state
engineer and provide notice to the substitute water supply plan
notification list (registration and notice requirement).
Upon the completion of a stream restoration project, the owner or
proponent of the stream restoration project shall file a completion report
with the state engineer.
If a stream restoration project is limited to certain minor
restoration activities:
! The stream restoration project does not cause material
injury to any vested water right;
! The stream restoration project is not an unnecessary dam or
other obstruction; and
! The owner or proponent of the stream restoration project is
not required to comply with the registration and notice
requirement.
Be it enacted by the General Assembly of the State of Colorado:1
SECTION 1. Legislative declaration. (1) The general assembly2
finds that:3
(a) Functioning natural streams are beneficial to all Coloradans4
because they provide clean water for farms and cities as well as5
broad-based public safety and ecological services, including:6
(I) Forest and watershed health;7
(II) Wildfire mitigation and recovery;8
(III) Flood safety;9
(IV) Water quality;10
(V) Recreation; and11
(VI) Riparian and aquatic habitats;12
(b) Functioning natural streams that are connected to floodplains13
balance the patterns of sediment erosion and deposition, which protects14
SB23-270-2- water infrastructure, including diversion structures, ditches, pumps, pipes,1
and reservoirs, that are susceptible to damage and adverse impacts from2
sedimentation, especially sedimentation resulting from fires and floods;3
(c) Stream restoration projects are an essential tool for water4
project developers and wastewater and stormwater dischargers to meet5
regulatory obligations;6
(d) Stream restoration projects address the legacy of water quality7
and habitat impacts from abandoned mines or catastrophic mine spills that8
have deprived entire communities of safe drinking water; and9
(e) The Colorado water plan sets a vision for thriving watersheds10
and calls for multi-benefit projects that restore stream health to enhance11
water supply security for agriculture, communities, tourism, and12
ecosystem function.13
(2) The general assembly therefore declares that, because of the14
vast amount of benefits that natural streams provide the state's15
communities and environment, the state should facilitate and encourage16
the commencement of projects that restore the environmental health of17
natural stream systems.18
SECTION 2. In Colorado Revised Statutes, 37-92-602, add (9)19
as follows:20
37-92-602. Exemptions - presumptions - stream restoration21
projects - report - legislative declaration - definitions. (9) (a) T
HE22
GENERAL ASSEMBLY HEREBY DECLARES THAT STREAM RESTORATION23
PROJECTS ARE ESSENTIAL FOR THE PROTECTION OF PUBLIC SAFETY ,24
WELFARE, PROPERTY, AND THE ENVIRONMENT.25
(b) A
S USED IN THIS SUBSECTION (9), UNLESS THE CONTEXT26
OTHERWISE REQUIRES:27
SB23-270
-3- (I) "MINOR STREAM RESTORATION ACTIVITY " MEANS ANY OR ALL1
OF THE FOLLOWING ACTIVITIES:2
(A) S
TABILIZING THE BANKS OR SUBSTRATE OF A NATURAL3
STREAM SYSTEM WITH DEFORMABLE AND POROUS HARD OR4
BIOENGINEERED STRUCTURES COMPOSED OF WOOD , ROCK, OR NATURAL5
MATERIALS THAT RESULT IN ONLY AN INCIDENTAL INCREASE IN SURFACE6
AREA, NOT TO EXCEED THE ORDINARY HIGH WATER MARK OF THE7
NATURAL STREAM;8
(B) M
ECHANICAL GRADING OF THE GROUND SURFACE ALONG A9
NATURAL STREAM SYSTEM IN A MANNER THAT DOES NOT RESULT IN10
GROUNDWATER EXPOSURE , DIVERSIONS OF SURFACE WATER , OR THE11
COLLECTION OF STORM WATER ;12
(C) S
TABILIZING AN EPHEMERAL OR INTERMITTENT NATURAL13
STREAM BY INSTALLING DEFORMABLE AND POROUS STRUCTURES INTO THE14
BANKS AND SUBSTRATE, WHICH MAY INCIDENTALLY AND TEMPORARILY15
INCREASE SURFACE AREA OR INFILTRATION ;16
(D) D
AYLIGHTING A NATURAL STREAM THAT HAS BEEN PIPED OR17
BURIED;18
(E) R
EDUCING THE SURFACE AREA OF A NATURAL STREAM TO19
ADDRESS REDUCTIONS IN HISTORICAL FLOW AMOUNTS ; AND20
(F) I
NSTALLING STRUCTURES OR RECONSTRUCTING A CHANNEL IN21
A NATURAL STREAM SYSTEM FOR THE SOLE PURPOSE OF RECOVERY FROM22
THE IMPACTS OF A WILDLAND FIRE OR FLOOD EMERGENCY .23
(II) "N
ATURAL STREAM" HAS THE MEANING SET FORTH IN SECTION24
37-87-102 (1)(b).25
(III) "N
ATURAL STREAM SYSTEM " MEANS THE EXTENT OF A26
NATURAL STREAM IN THE STATE AND THE GEOMORPHIC FLOODPLAIN AND27
SB23-270
-4- ASSOCIATED RIPARIAN AREA.1
(IV) "S
TREAM RESTORATION PROJECT " MEANS A PROJECT THAT IS2
DESIGNED AND CONSTRUCTED :3
(A) W
ITHIN A NATURAL STREAM SYSTEM ;4
(B) F
OR THE PURPOSES OF WILDLAND FIRE MITIGATION ; FLOOD5
MITIGATION; BANK STABILIZATION; WATER QUALITY PROTECTION OR6
RESTORATION; HABITAT, SPECIES, OR ECOSYSTEM RESTORATION; DROUGHT7
RESILIENCE; SOURCE WATER PROTECTION; INFRASTRUCTURE PROTECTION;8
OR SEDIMENT AND EROSION MANAGEMENT ; AND9
(C) I
N A MANNER THAT DOES NOT INCREASE THE WATER SURFACE10
AREA OF THE NATURAL STREAM BY MORE THAN ONE -QUARTER ACRE PER11
STRUCTURE OR TREATMENT AND THAT DOES NOT EXCEED A TOTAL12
INCREASE OF EIGHT SURFACE ACRES FOR A SERIES OF STRUCTURES WITHIN13
ONE STREAM MILE.14
(c) (I) E
XCEPT AS SET FORTH IN SUBSECTION (9)(f)(I) OF THIS15
SECTION:16
(A) T
HERE IS A REBUTTABLE PRESUMPTION THAT A STREAM17
RESTORATION PROJECT DOES NOT CAUSE MATERIAL INJURY TO VESTED18
WATER RIGHTS; AND19
(B) T
HE HOLDER OF A VESTED WATER RIGHT MAY CHALLENGE THE20
REBUTTABLE PRESUMPTION BY BRINGING AN ACTION IN THE WATER COURT21
FOR THE DIVISION IN WHICH THE STREAM RESTORATION PROJECT IS22
CONDUCTED NO LATER THAN TWO YEARS AFTER THE FILING OF THE23
COMPLETION REPORT REQUIRED PURSUANT TO SUBSECTION (9)(e) OF THIS24
SECTION.25
(II) T
HE HOLDER OF A VESTED WATER RIGHT MAY REBUT THE26
REBUTTABLE PRESUMPTION PURSUANT TO SUBSECTION (9)(c)(I)(B) OF27
SB23-270
-5- THIS SECTION BY PRESENTING EVIDENCE SUFFICIENT TO SHOW THAT THE1
OPERATION OF A STREAM RESTORATION PROJECT HAS CAUSED MATERIAL2
INJURY TO THE VESTED WATER RIGHT .3
(d) E
XCEPT AS SET FORTH IN SUBSECTION (9)(f)(III) OF THIS4
SECTION, AT LEAST SIXTY -THREE CALENDAR DAYS BEFORE THE5
COMMENCEMENT OF A STREAM RESTORATION PROJECT , THE OWNER OR6
PROPONENT OF THE STREAM RESTORATION PROJECT SHALL :7
(I) R
EGISTER THE STREAM RESTORATION PROJECT WITH THE STATE8
ENGINEER ON A FORM PRESCRIBED BY THE STATE ENGINEER ; AND9
(II) P
ROVIDE NOTICE TO THE SUBSTITUTE WATER SUPPLY PLAN10
NOTIFICATION LIST MAINTAINED BY THE STATE ENGINEER PURSUANT TO11
SECTION 37-92-308 (6) FOR THE WATER DIVISION IN WHICH THE STREAM12
RESTORATION PROJECT IS PROPOSED. THE NOTICE MUST INCLUDE:13
(A) T
HE LOCATION OF THE STREAM RESTORATION PROJECT ,14
INCLUDING THE NAME OF THE STREAM , THE COUNTY WHERE THE STREAM15
RESTORATION PROJECT IS PROPOSED, AND THE APPROXIMATE ELEVATION16
OF THE STREAM RESTORATION PROJECT ;17
(B) C
ONTACT INFORMATION FOR THE OWNER OR PROPONENT OF18
THE STREAM RESTORATION PROJECT ;19
(C) A
DESCRIPTION OF ANY PURPOSES OF THE STREAM20
RESTORATION PROJECT, AS DESCRIBED IN SUBSECTION (9)(b)(IV)(B) OF21
THIS SECTION;22
(D) A
PROJECT MAP, DESIGN, AND DESCRIPTION DEMONSTRATING23
THAT THE STREAM RESTORATION PROJECT IS DESIGNED IN ACCORDANCE24
WITH THE REQUIREMENTS OF SUBSECTION (9)(b)(IV) OF THIS SECTION;25
AND26
(E) A
SUMMARY OF ANY OUTREACH REGARDING THE STREAM27
SB23-270
-6- RESTORATION PROJECT, INCLUDING NOTIFICATION OF THE STREAM1
RESTORATION PROJECT TO ADJOINING PROPERTY OWNERS , LOCAL FLOOD2
CONTROL DISTRICTS, THE BASIN ROUNDTABLE CREATED IN SECTION3
37-75-104 (1)(a)
OF THE WATER BASIN WHERE THE STREAM RESTORATION4
PROJECT IS PROPOSED, OR ANY OTHER POTENTIALLY INTERESTED PERSONS5
WITH INTERESTS IN THE VICINITY OF THE STREAM RESTORATION PROJECT .6
(e) U
PON THE COMPLETION OF A STREAM RESTORATION PROJECT ,7
THE OWNER OR PROPONENT OF THE STREAM RESTORATION PROJECT SHALL8
FILE A COMPLETION REPORT WITH THE STATE ENGINEER IN A FORM9
PRESCRIBED BY THE STATE ENGINEER .10
(f) I
F A STREAM RESTORATION PROJECT IS LIMITED TO ONE OR11
MORE MINOR STREAM RESTORATION ACTIVITIES :12
(I) T
HE STREAM RESTORATION PROJECT DOES NOT CAUSE13
MATERIAL INJURY TO ANY VESTED WATER RIGHT ;14
(II) T
HE STREAM RESTORATION PROJECT IS NOT AN UNNECESSARY15
DAM OR OTHER OBSTRUCTION ; AND16
(III) T
HE OWNER OR PROPONENT OF THE STREAM RESTORATION17
PROJECT IS NOT REQUIRED TO COMPLETE THE REGISTRATION AND NOTICE18
REQUIREMENTS DESCRIBED IN SUBSECTION (9)(d) OF THIS SECTION.19
(g) T
HE OWNER OR PROPONENT OF A STREAM RESTORATION20
PROJECT SHALL NOT INSTALL THE STREAM RESTORATION PROJECT IN A21
MANNER THAT ADVERSELY AFFECTS THE FUNCTION OF STRUCTURES USED22
TO DIVERT WATER OR MEASURE WATER FLOW BY HOLDERS OF VESTED23
WATER RIGHTS WITHOUT THE PERMISSION OF THE OWNERS OF THE24
STRUCTURES.25
(h) O
N OR BEFORE FEBRUARY 1, 2026, THE STATE ENGINEER SHALL26
REPORT THE FOLLOWING INFORMATION TO THE AGRICULTURE AND27
SB23-270
-7- NATURAL RESOURCES COMMITTEE OF THE SENATE AND THE AGRICULTURE ,1
WATER, AND NATURAL RESOURCES COMMITTEE OF THE HOUSE OF2
REPRESENTATIVES, OR ANY SUCCESSOR COMMITTEES :3
(I) T
HE TOTAL NUMBER OF STREAM RESTORATION PROJECTS THAT4
HAVE BEEN REGISTERED PURSUANT TO SUBSECTION (9)(d)(I) OF THIS5
SECTION;6
(II) A
NY COMPLAINT OF MATERIAL INJURY TO A VESTED WATER7
RIGHT MADE PURSUANT TO SUBSECTION (9)(c)(I)(B) OF THIS SECTION; AND8
(III) T
HE RESULTS OF ANY STUDIES THAT THE STATE ENGINEER IS9
AWARE OF THAT EVALUATE CHANGES TO HYDROLOGY OR WATER10
AVAILABLE TO VESTED WATER RIGHTS HOLDERS DUE TO STREAM11
RESTORATION PROJECTS IN THE STATE.12
(i) N
OTWITHSTANDING ANY PROVISION IN THIS SUBSECTION (9) TO13
THE CONTRARY, NOTHING IN THIS SUBSECTION (9):14
(I) C
REATES A BASIS FOR A WATER RIGHT , CREDIT, OR OTHER15
RIGHT FOR THE USE OF WATER;16
(II) C
REATES PRECEDENT FOR THE LITIGATION OF , CREATES A17
LEGISLATIVE DETERMINATION OF , ALTERS, OR AFFECTS ANY REAL18
PROPERTY INTERESTS, INCLUDING EXPRESS OR PRESCRIPTIVE FLOWAGE19
EASEMENTS AFFECTING LAND ALONG A PUBLIC STREAM HELD BY ANY20
POLITICAL SUBDIVISION OR PERSON;21
(III) P
ROHIBITS THE STATE ENGINEER FROM TAKING ANY ACTION22
NECESSARY TO COMPLY WITH AN INTERSTATE COMPACT , INTERSTATE23
APPORTIONMENT DECREE , OR INTERSTATE AGREEMENT;24
(IV) A
LTERS, AMENDS, OR AFFECTS ANY FEDERAL , STATE, OR25
LOCAL LAW OR REQUIREMENT THAT OTHERWISE APPLIES TO A STREAM26
RESTORATION PROJECT; OR27
SB23-270
-8- (V) IMPAIRS OR IN ANY WAY AFFECTS THE ABILITY OF ANY PERSON1
TO APPROPRIATE WATER FOR PURPOSES RELATED TO A STREAM2
RESTORATION PROJECT.3
(j) A
STREAM RESTORATION PROJECT THAT HAS OBTAINED ANY4
APPLICABLE PERMITS, IS UNDER CONSTRUCTION OR COMPLETED BY5
A
UGUST 1, 2023, AND MEETS THE REQUIREMENTS OF SUBSECTION6
(9)(b)(IV)
OF THIS SECTION DOES NOT CAUSE MATERIAL INJURY TO ANY7
VESTED WATER RIGHT AND IS NOT AN UNNECESSARY DAM OR OTHER8
OBSTRUCTION.9
SECTION 3. Safety clause. The general assembly hereby finds,10
determines, and declares that this act is necessary for the immediate11
preservation of the public peace, health, or safety.12
SB23-270
-9-