A river access advocacy group is splintered. Landowners are organized to protect a decades-old “float but don’t touch” decree.
And lawmakers, halfway through the legislative session, have yet to take up any bill that would change that state’s murky rules around recreational access to the state’s waterways.
As a short and dry river season takes shape after a snow-starved winter, it appears the status quo will hold. But passions are roiling at Colorado’s uniquely volatile confluence of property rights, recreational pressures, and river safety.
“I think there is a way to respect private property rights and protect the right to float,” natural resource attorney Amy Beatie told a Crested Butte crowd March 19 gathered to watch the new “Common Waters” documentary.
There are three organizations angling for space in this decades-long scrap over access. The brand new Responsible River Recreation Alliance is gathering paddlers to support legislation that would clarify public access on Colorado’s rivers and streams with a call for a law that would allow boaters to safely pass through private property without leaving their crafts, unless they need to portage around a dangerous obstacle like a lowhead dam or a fence.
The Colorado Water Conservation Alliance is uniting waterfront landowners with warnings that shifts in the “no touch” rules for paddlers passing private land in Colorado could impact property rights and lead to lengthy lawsuits. That alliance is urging landowners to fight any change to the status quo.
Also in the mix is a quieter but ardent group — the Colorado Stream Access Coalition — arguing that the land beneath Colorado’s rivers and streams was public at statehood and anglers should be able to wade through private property because streambeds are public land.
The blend of those three divergent arguments — the right-to float, the right-to-wade, and do nothing — seems to have stymied any new laws.
Hattie Johnson, who co-directs Southern Rockies policy for American Whitewater, said her Responsible River Recreation Alliance has heard concerns from landowners that a right-to-float will lead to a right-to-wade.
“The words ‘Trojan horse’ have been used often,” Johnson said.
The recreational alliance is working to waylay that angst, with messaging that safe passage through a stretch of water does not mean people outside of boats.
“One of the concerns we are hearing when we talk about the right to float is … the fear that we are opening that door to wading on private property,” Johnson said. “We understand people wanting to protect their private property rights. We are not talking about allowing people to walk and wade. But the fear is that it could lead to that.”
Court decision, memo shaped access
Any review of Colorado’s access rules requires a bit of background, especially considering that every other state in the West has clear laws allowing public access through private property. Access on Colorado’s rivers and streams, by contrast, is guided by a pair of muddled legal arguments.
First was the Colorado Supreme Court’s 1979 decision in People v. Emmert, in which the high court ruled that the public does not have a right to float a “non-navigable” stream or river — primarily, one that cannot support commerce — that flows “through, across and within the boundaries” of private land. That ruling affirmed a lower court’s trespass conviction of rafters who were arrested as they floated under a barbed wire fence across the Colorado River near Parshall in Grand County.
(The dissent in the Emmert ruling noted that public ownership of the water in streams “to the use of the people of the state.” The dissenting justices said that public ownership of the water should trump the feudal European law that the majority cited, in Latin: ”Whoever owns the soil, it is theirs up to heaven and down to hell.”)
Even in 1979 they were asking for lawmakers to wade into the roiling waters. Justice Jim Harrigan, in his dissent, wrote that the high court should leave access decisions to the state legislature, with regulations and licensing to protect property rights while preserving “reasonable recreational access.”
The second legal argument guiding Colorado stream access came in 1983 when Colorado Attorney General David Woodward penned a memo that supported the Colorado Supreme Court’s assertion that stream beds are privately owned. Woodward’s memo argued that anyone who touches a streambed or rock when floating through private land is committing criminal trespass.
The memo, while arguing that state trespass laws and the Emmert ruling did not allow landowners to close waterways to floating passersby, did allow landowners to pursue criminal charges against anyone who touched a riverbed. River advocates call that memo, which has no real legal teeth, “a letter to Santa Claus.”
The Emmert ruling and “no touch” memo have anchored Colorado’s restrictive access laws for decades and legislative attempts in the 1990s and 2010s to expand that access or add clarity to riverbed trespassing rules have failed.
Resolving disputes one at a time
A 17-member River Dispute Resolution Task Force created by Colorado Gov. Bill Ritter in 2010 met five times that year and offered a list of recommendations around access and public education designed to resolve access disputes. Those suggestions included a statewide signage system to note “No Public Access,” more consistent enforcement of criminal trespass rules and illegal obstruction of waterways and legislation that would limit liability of landowners.
The task force also created a commission that would resolve river access disputes. That commission did not last long.
The Creekside Coalition first formed in 1995 as access issues in Colorado heated up. After many years of dormancy, the group revived in June last year, with a website and call for donations, saying stream access in Colorado and navigability laws were “under attack by out-of-state interests, unfriendly rural/mountain legislators and their allies.”
“They’re collectively working toward bill and ballot proposals with the goal of taking ownership of your stream beds and making all rivers and streams publicly accessible,” the Creek Coalition website reads. The group argues that changes to access laws would prevent landowners from closing their land to unwanted visitors, degrade riparian habitats, reduce property values and incentives for conservation as well as expose landowners to injury lawsuits.
The Creekside Coalition dissolved in January, according to documents filed with the Colorado Secretary of State.
The nonprofit Colorado Water Conservation Alliance is gathering landowners in opposition to legislation around stream access. The group argues that any change to the “float don’t touch” status quo could lead to lawsuits that might actually end that no-contact right to float and limit recreational access.
The group also argues that a sudden shift that makes riverbeds public land would upset more than a century of water law and property rights in Colorado and would constitute “the largest legislative taking of private property in modern U.S. history.” And paying landowners for that land as well as the cost of a legal battle would fall on Colorado taxpayers, the Colorado Water Conservation Alliance argues.
“We remain very opposed to any legislation that would open a right to trespass on private property and we think that legislation would end up costing Colorado a lot,” said Jason Hopfer, a consultant working with landowners — many of them along the Taylor River in Gunnison County below the Taylor Reservoir — who are members of the new alliance.
The recreational group and the landowner group have been talking with lawmakers. Colorado Sen. Dylan Roberts said “conversations are ongoing” and he had no update.
“But as of right now there is no bill and I haven’t seen what a potential draft might look like,” Roberts said. Rep. Julie McCluskie, another Western Slope legislator, also said she had no update.
“A cascade of unforeseen impacts”
The Common Sense Institute this week released a report highlighting the contributions of river-front landowners and warning that expanded access with legislation could cost the state “tens of billions or more.”
The free-market research group out of Greenwood Village estimated there are 55,000 to 65,000 miles of rivers and streams in Colorado on private land, which is about half of the estimated 107,000 to 110,000 miles of waterways in the state. About half of those private miles are large enough to be named and about 1,700 miles is generally floatable with rafts and kayaks.
The institute estimated that the value of privately-held land next to moving water is $100 billion and private land next to water that can float boats is worth $3 billion to $5 billion. And that value is soaring. For example, land along the Elk and Yampa rivers in northeast Colorado has increased from $1 million a mile to $4.5 million in the last four years.
The Common Sense Institute Report, authored in part by Greg Walcher, the former head of the Department of Natural Resources, says changes to access laws with legislation allowing either floating or wading “could upend 150 years of of settled law and precedent in Colorado and reverse the understanding of generations of property owners.”
Changes in the law “may precipitate a cascade of unforeseen consequences and invite a host of difficult-to-resolve issues,” reads the report.
Limiting human impacts
Mark Squillace is a natural resources law professor at the University of Colorado Law School in Boulder. His Colorado Stream Access Coalition argues that the Colorado Constitution’s wording that every natural stream is “property of the public” and “dedicated to the use of the people of the state” means the public has access to the beds of rivers and streams.
The stream access coalition is not supporting any right-to-float legislation because “it does not resolve the issue of the right to wade in navigable waterways, which we contend is guaranteed by federal constitutional law,” he said. (Squillace argues that most of Colorado waterways were navigable at statehood — he’s got a raftload of old newspaper clippings showing commerce on the state’s rivers and streams — and therefore are public property.)
The 15,000-member Western Landowners Alliance also is watching for any legislation that would expand access on Colorado waterways.
One thing that is missing from this debate, said landowner alliance CEO Lesli Allison, is perspective on the role of landowners in riparian conservation.
It’s “impossible” for landowners to invest in fish habitat and restore endangered fish if they can’t control access to their land, she said. Many landowners fund improvements with hunting and fishing access programs, she said, pointing to a study her alliance commissioned that shows landowners of parcels larger than 500 acres in 11 Western states directed $407.5 million into land conservation in 2024.
“The world is more crowded and people are looking across fence lines and wanting more access,” Allison said. “The recreation industry is pushing on access and we are not talking enough about the impacts to the environment and wildlife. We need to be talking about limiting human impacts, not endlessly expanding without consideration of wildlife and habitat.”
The landowner group argues that negotiated access — much like Colorado has implemented for the last several decades — is the best way to limit the impact of recreation, said Allison, the alliance’s CEO since 2014. Forcing access with legislation amounts to a public taking of private property that would be endless and expensive lawsuits, she said.
Her proposal: Invest that money on negotiated access. Those “incentive-based gate programs” would allow recreational access — for a fee — that could be used to offset the costs of conservation.
The chances for a summer of conflict on Colorado’s trickling rivers and streams is melting faster than the state’s haggard snowpack. But don’t expect the contention around Colorado’s cloudy access to fade. All the groups in the fractured discussion around river access are leaning into their paddles.
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