First Regular Session
Seventy-fourth General Assembly
STATE OF COLORADO
REVISED
This Version Includes All Amendments Adopted
on Second Reading in the Second House
LLS NO. 23-0640.02 Sarah Lozano x3858
SENATE BILL 23-270
Senate Committees House Committees
Agriculture & Natural Resources Agri culture, Water & Natural Resources
A BILL FOR AN ACT
C
ONCERNING ACTIVITIES
THAT RESTORE THE ENVIRONMENTAL101
HEALTH OF NATURAL STREAM SYSTEMS WITHOUT102
ADMINISTRATION.103
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
HOUSE
2nd Reading Unamended
May 3, 2023
SENATE
3rd Reading Unamended
April 18, 2023
SENATE
Amended 2nd Reading
April 17, 2023
SENATE SPONSORSHIP
Roberts and Simpson, Bridges, Buckner, Coleman, Cutter, Exum, Fenberg, Fields, Ginal,
Hinrichsen, Jaquez Lewis, Kolker, Marchman, Mullica, Pelton B., Priola, Will, Winter F.,
Zenzinger
HOUSE SPONSORSHIP
McCormick and Catlin,
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. sufficiently demonstrating in a court of competent jurisdiction that the
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
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
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 NATURAL
3
STREAM WITH HARD, BIOENGINEERED, OR NATURAL MATERIALS THAT ,4
UNDER LESS THAN EXTREME FLOW CONDITIONS , ALLOW WATER TO FLOW5
DOWNSTREAM, DO NOT CAUSE THE WATER LEVEL TO EXCEED THE6
ORDINARY HIGH WATER MARK , AND MAY INCIDENTALLY INCREASE7
SURFACE AREA OF THE 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
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 ; AND
4
(B) F
OR THE PURPOSES OF WILDLAND FIRE MITIGATION ; FLOOD5
MITIGATION; BANK STABILIZATION; WATER QUALITY PROTECTION OR6
RESTORATION; HABITAT, SPECIES, OR ECOSYSTEM RESTORATION ;
7
SOURCE WATER PROTECTION ; INFRASTRUCTURE PROTECTION ; OR8
SEDIMENT AND EROSION MANAGEMENT .9
10
(c) IF 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 ; AND
14
(II) T
HE STREAM RESTORATION PROJECT IS NOT AN UNNECESSARY15
DAM OR OTHER OBSTRUCTION .
16
17
(d) THE OWNER OR PROPONENT OF A STREAM RESTORATION18
PROJECT SHALL NOT INSTALL THE STREAM RESTORATION PROJECT IN A19
MANNER THAT ADVERSELY AFFECTS THE FUNCTION OF STRUCTURES USED20
TO DIVERT WATER OR MEASURE WATER FLOW BY HOLDERS OF VESTED21
WATER RIGHTS WITHOUT THE PERMISSION OF THE OWNERS OF THE22
STRUCTURES.23
24
(e) NOTWITHSTANDING ANY PROVISION IN THIS SUBSECTION (9) TO25
THE CONTRARY, NOTHING IN THIS SUBSECTION (9):26
(I) C
REATES A PRESUMPTION OF INJURY FOR ANY ACTIVITY THAT
27
270
-5- DOES NOT MEET THE DEFINITION OF A MINOR STREAM RESTORATION1
ACTIVITY PURSUANT TO SUBSECTION (9)(b)(I) OF THIS SECTION;2
(II) CREATES A BASIS FOR A WATER RIGHT , CREDIT, OR OTHER3
RIGHT FOR THE USE OF WATER;4
(III) CREATES PRECEDENT FOR THE LITIGATION OF , CREATES A5
LEGISLATIVE DETERMINATION OF , ALTERS, OR AFFECTS ANY REAL6
PROPERTY INTERESTS, INCLUDING EXPRESS OR PRESCRIPTIVE FLOWAGE7
EASEMENTS AFFECTING LAND ALONG A PUBLIC STREAM HELD BY ANY8
POLITICAL SUBDIVISION OR PERSON;9
(IV) PROHIBITS THE STATE ENGINEER FROM TAKING ANY ACTION10
NECESSARY TO COMPLY WITH AN INTERSTATE COMPACT , INTERSTATE11
APPORTIONMENT DECREE , OR INTERSTATE AGREEMENT;12
(V) ALTERS, AMENDS, OR AFFECTS ANY FEDERAL , STATE, OR13
LOCAL LAW OR REQUIREMENT THAT OTHERWISE APPLIES TO A STREAM14
RESTORATION PROJECT; OR15
(VI) IMPAIRS OR IN ANY WAY AFFECTS THE ABILITY OF ANY16
PERSON TO APPROPRIATE WATER FOR PURPOSES RELATED TO A STREAM17
RESTORATION PROJECT.18
(f) A
STREAM RESTORATION PROJECT THAT HAS OBTAINED ANY
19
APPLICABLE PERMITS OR IS UNDER CONSTRUCTION OR COMPLETED BY20
A
UGUST 1, 2023 DOES NOT CAUSE MATERIAL INJURY TO ANY VESTED
21
WATER RIGHT AND IS NOT AN UNNECESSARY DAM OR OTHER OBSTRUCTION .22
SECTION 3. Act subject to petition - effective date. This act23
takes effect at 12:01 a.m. on the day following the expiration of the24
ninety-day period after final adjournment of the general assembly; except25
that, if a referendum petition is filed pursuant to section 1 (3) of article V26
of the state constitution against this act or an item, section, or part of this27
270
-6- act within such period, then the act, item, section, or part will not take1
effect unless approved by the people at the general election to be held in2
November 2024 and, in such case, will take effect on the date of the3
official declaration of the vote thereon by the governor.4
270
-7-