Colorado Department of Public Health and Environment (CDPHE)
Via: Google Form Portal
Colorado Parks and Wildlife
Att: Fletcher Jacobs
Via email only
RE: Regulation #87 Dredge and Fill Control regulations
Dear Planning Team;
Please accept this correspondence as the input of the above Organizations regarding the proposed Rule 87 concerning the Dredge and Fill Control regulations. For purposes of these comments, this will be referred to as the Proposal. We appreciated the virtual meeting and discussion between our representatives and CDHPE on January 8, 2025. In our call we discussed our concerns around possible recreational impacts from the Rule as it did not appear to have been within the scope of the Stakeholder Group efforts. While the representatives in the meeting stated that they did not believe these new regulations would impact trail maintenance efforts, we are unable to identify specific provisions in the Rule that allow this type of effort. While there are many provisions that could be applied to allow trail maintenance to continue, often these provisions require broad interpretations to make these types of determinations. We would ask that the Rule be clarified to address that trail maintenance activities would be presumed to be outside the scope of work that would require a State Water permit.
1a. Who we are.
Prior to addressing the specific concerns, the Organizations have regarding the Proposal, we believe a brief summary of each Organization is needed. The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization representing the OHV community seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple-use recreation. The TPA acts as an advocate for the sport and takes the necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse multiple-use trail recreational opportunities. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport.
The Organizations partnerships with State and Federal managers has prospered since the creation of the winter grooming program, funded through the sale of snowmobile registrations and permits in the early 1970s. The CPW OHV program was created in the 1988 and has provide more than 100 million in funding to managers to maintain safe creational for motorized use over the life of these programs. Currently the OHV and Snowmobile program fund the hiring of more than 150 employees who perform maintenance on trails across the State. These programs have been supplemented by hundreds of thousands of hours of volunteer effort to leverage these grant funds. In 2023, TPA and CSA joined in their estimates of these hours and concluded that total was far in excess of 20,000 hrs. in 2022 alone. The possible impacts of the proposal on our partnership with CPW and federal lands managers is a major reason for these comments as each of these efforts requires a grant proposal through the State Trails Program.
Maintenance crew applications are annually applied for by the Federal land managers, who often do not have access to any engineering staff to do detailed designs for larger efforts such as road or bridge reconstruction. Far too commonly these resources are provided through the grant program on larger projects, opening the possibility of significant delay in projects. For maintenance, the land mangers do not have access to hydrologists to certify a lack of impacts for a smaller project. They rely on their staff and BMPs to protect water resources. Even a preliminary certification of no impact would be an immense barrier to these applications. We have attached a sample of various projects that are performed by these maintenance crews as part of our annual maintenance programs with these comments to allow you to understand the scope of these efforts as Exhibit “1” to these comments. NEPA compliance and other environmental compliance issues, such as 404 permit, are resolved in the schedule C-1 of these applications by the federal applicant. NEPA compliance is allowed for maintenance in this manner based on the USFS regulations found in 36 CFR 220.6, which specifically allows maintenance to occur outside the need for an EA or EIS. Given the clarity of existing NEPA regs on this issue, we would ask for similar regulations to provide this authority under the Proposal simply to avoid delays or questions in funding being used on the ground to protect resources. Even with this clarity, there are periodic questions and concerns that grants lack NEPA review that are raised. Having these clear and direct regulations allows us to resolve these concerns relatively quickly.
In our meeting we pledged to share a copy of the video we partnered with Colorado Youth Corp, CPW and USFS to create that outlined the benefits of our efforts in restoring areas impacted by the East Troublesome Fire in 2021.[1] These grants and resource are more critical than ever before in maintaining recreation and protecting waters given the challenges that the USFS has recently experienced hiring seasonals.[2] We have a compelling concern that all funding for maintenance crews is on the ground as fast and efficiently as possible to allow these state resources to backfill this gap in funding currently being experienced by federal lands managers.
While the Organizations are concerned regarding possible impacts to all forms of recreation from these ambiguities, the snowmobile community represents an area when the impacts from an overly strict interpretation of these provisions could simply stop this activity entirely. This sport, much like the downhill ski industry, occurs entirely on frozen water that melts and runs off every year. Trail grooming through the State Program provides a critical link for the safe operation of these activities. With a strict interpretation of the ambiguities, could a permit be required for snowmobile and skiing maintenance activities? Possibly. That would functionally stop these activities from occurring and avoiding that situation is a priority for our Organizations. We would like clarity that this would not occur.
1b. Our recent challenges from minor ambiguities.
As we have noted previously our partnerships on trail maintenance with CPW and federal land managers have spanned more than 50 years. Over the 50 year of this partnership, we have worked to resolve many issues that have arisen from minor ambiguities in drafting having major impacts on the ground. The Organizations concerns on this issue are not without basis as we were forced to obtain passage of legislation last session that both in state and out of state snowmobile users were required to register their snowmobiles for legal use on Colorado Trails. For decades a small ambiguity in the snowmobile legislation was interpreted as requiring out of state users to register their snowmobiles. When the most recent Attorney General was sworn in, his opinion was different and we could no longer require out of state users to purchase a permit. This decision also excluded the out of state user from being required to pay the .25 surcharge to support the Colorado Search and Rescue program as well. This was a major concern as the S&R program is seeing rapidly increasing demands for its service while it has not received major new funding for many year. Loss of any revenue stream would have a significant impact.
This ambiguity was not of sufficient scale to stop our efforts, but it was a growing barrier given the increases in out of state visitation to Colorado for recreational opportunities. This ambiguity created problems beyond just funding as the public was questioning why residents must support free recreational opportunities for non residents and similar concerns. While CPW and the Organizations were able to resolve this ambiguity with the passage of SB 24-56[3] last session, this was a major effort to resolve a minor ambiguity. We would like to avoid having to run legislation in the future to clarify that trail maintenance does not need a permit for maintenance if there are water issues possibly involved.
2. The economic and social value of recreation and trails to Colorado is overwhelming.
The Organizations are aware that the Proposal is being drafted by CDPHE, who does not have a wide ranging background in recreation management. The Organizations believe it is important to recognize the immense economic value that Colorado receives from outdoor recreation. The 2023 Department of Commerce Bureau of Economic analysis estimated the value of outdoor recreation at more than $17 billion in value added to the economy and accounting for more than 132,594 jobs.[4] This accounts for more than 3.2% of the State GDP annually and many of these benefits are flowing to smaller communities that have lost other revenue streams and are now overly reliant on recreational activity to provide basic services. In 2023 COHVCO partnered with CPW and federal land managers to update their economic contribution study addressing motorized use recreation on trails found that motorized alone accounted for more than $3.2 billion in revenue and 10,370 jobs in the State.[5]
The values of trails in particular are a huge resource that is hugely valued socially for residents in the State of Colorado. CPW State Trails Program Strategic Plan addresses the value of trails to the State of Colorado residents as follows:
“Trail related recreation, including non-motorized and motorized recreation, continues to be the most popular type of outdoor recreation in Colorado. Recent studies about participation in outdoor recreation indicates that 83% of Coloradans recreate on trails, and that total participation exceeded 227 million activity days in 2013.9 These figures are consistent with previous studies, indicating the long-term popularity of trail related recreation in Colorado.10,11,1 Current estimates are that there are over 33 thousand miles of trails in Colorado. Of that total, approximately 58 percent (19,168 miles) are on federal lands, principally those managed by the US Forest Service and Bureau of Land Management. Local and Regional governments provide about 18 percent of the total (6,200 miles), while the remaining 24 percent (7,970 miles) are managed by CPW in state parks or state wildlife areas or CDOT in highway corridors.”[6]
Given the huge reliance of the Colorado economy on outdoor recreation and the immense social value that the resident of the state place on trails, and any barriers to maintaining them would have a significant and immediate impact on these benefits. We are asking to avoid these type of impacts by clarifying that trail maintenance is outside the scope of effort that would need review and permitting under the Proposal.
3. The Federal Highways Administration recently recognized the value of trails for transportation in emergency response and climate resilience.
In 2023, Federal Highways Administration released their report identified the high value that all forms of trails play in the changing climate situation and in emergency response. This report clearly identified the value of trails for many other uses beyond recreation as follows:
“Trails are often overlooked as elements of essential infrastructure for a resilient transportation system.1 In emergencies where other transportation facilities are shut down or inaccessible, people may use trails to get where they need to go. Trails can also provide critical access in emergencies for people without access to a car or transit service. Trails for both motorized and nonmotorized use can provide access for search and rescue, fighting wildfires, or other emergency response operations. The increase in trail use during the COVID-19 pandemic has also demonstrated the importance of trails for improving health and wellbeing during public health emergencies.”[7]
The growing recognition of the benefits of these types of resources for non-traditional uses has become more common. In 2023 the Governor of Vermont hiked almost a mile on snowmobile trail after roads around him were heavily impacted by Tropical Storms.[8] The Organizations again would note that maintenance of these resources is critical and could be impacted by overly strict application of the ambiguities in the Proposal.
4. Governor Polis Executive Order 2020-008 requires coordination of management efforts to protect recreation and natural resources.
As previously addressed the both the economic value and social value that Colorado places on recreation and natural resources is immense and striking the proper balance of these values has been an ongoing effort in Colorado. In 2020, Governor Polis signed Executive Order B-2020-008 that reaffirmed the need to balance all values in management efforts and avoid barriers to the long term funding necessary to achieve these goals as follows:
“A. DNR, in consultation with CPW and the CO-OP, shall develop the Initiative to achieve the following goals:
1. Ensure that Colorado’s land, water, and wildlife thrive while also providing for equitable and safe access to quality outdoor recreation experiences; ….
4. Identify stable and long-term funding from multiple, sustainable sources to provide for the critical investments needed to conserve Colorado’s landscapes, rivers, wildlife, sensitive habitats, and recreational opportunities.”[9]
As we have noted the CPW trails grants and program provide a model of the sustainable long term funding necessary to protect water resources and recreational opportunities. The Organizations would assert that avoiding ambiguities in the Proposal, such as we are asking for, falls within the clear scope of this Executive Order and is required to be addressed.
5. Governor Polis recently reaffirmed the need for balance when the 2024 SCORP priority of maintenance.
The Governor and CPW recently reaffirmed their commitment with the release of the 2024 Statewide Comprehensive Outdoor Recreation Plan which was signed by Governor Polis in September 2024. The 2024 Statewide Comprehensive Outdoor Recreation Plan identifies Priority number 1 as follows:
“Priority number 1: Access and Opportunity. Goal: all Coloradans and visitor’s have access to and opportunity for sustainable outdoor recreation.”[10]
The need for maintenance of existing infrastructure is clearly identified as objective II under goal 1 as follows:
“Maintain and enhance the quality of outdoor recreation experience as and destinations through collaboration planning and holistic actions.”
The 2024 SCORP also identifies the priority that managers give to maintenance of recreational facilities as follows:
“A majority of survey takers would like land managers to prioritize operation and maintenance of existing outdoor areas and facilities.”[11]
Achieving these goals can only occur when the limited resources that are available to achieve these goals is effectively and efficiently applied on the ground. In order to achieve the goals of the SCORP and requirements of EO2020-008 the Organizations submit that providing clear and unambiguous guidance for implementation of efforts to avoid impacts on program is a critical requirement.
6. Why we are asking for clarity and possible resolutions.
The Organizations believe the importance of all trails to the State of Colorado residents may be higher than any other state in the Country. Colorado residents also expect natural resources, such as water to be protected. As we have noted there are many requirements to this effect in place, such as various environmental review requirements like NEPA and the Proposal. Based on a 50-year partnership with CPW, writing these goals is often much easier than implementing these goals and often there are unintended consequences from any efforts. We are also aware these types of consequences may be easily avoided as exemplified by the regulations provided under 36 CFR 220.6 for NEPA.
In our discussions with your office we agreed that maintenance of trails is outside the scope for this effort. This understanding is not clearly reflected in the Proposal, and several of the provisions are open to interpretation to avoid impacts to maintenance efforts. While the Proposal allows exceptions to the permit requirements for maintenance and reconstruction of transportation structures in paragraph f and voluntary restoration efforts in ephemeral streams in paragraph M, there is significant ambiguity in these provisions. Is a trail a transportation structure. We would say it is. Could this change in the future? Possibly. Is trail maintenance a voluntary restoration effort of an ephemeral stream?
Our concern is there is no definition of a transportation structure or ephemeral stream in the Proposal. After briefly reviewing the Clean Water Act, these definitions are lacking in those statutes as well. This causes us great concern as this means these terms are open to interpretation. Again we would think it was and based on our conversations, CDPHE seems to agree. We are asking that these exclusions be clarified to avoid any ambiguity and reflect the consensus of understanding that was in our meeting. The Organizations are aware that many decades from now, this understanding may not be easily identified and well intentioned efforts may resolve these ambiguities differently without understanding the impacts from that type of decision. The Organizations would ask that these ambiguities be resolved so that the critically needed funding flows from the trails program to on the ground projects that provide high quality recreational opportunities and protect water resources on the ground.
7. Conclusion.
We thank you for this opportunity to comment on the Proposal and hope that our concerns can be easily and quickly resolved in the rulemaking effort to avoid future impacts to programs from what is simply ambiguity in drafting. The Organizations again would like to thank you for the opportunity to discuss these concerns previously and hope our comments expand on our concerns addressed in that meeting. We are asking that the Proposal provide authority similar to the existing NEPA provisions for maintenance in this manner based on the USFS regulations found in 36 CFR 220.6, which specifically allows maintenance to occur outside the need for an EA or EIS. Given the clarity of existing NEPA regs on this issue, this would be a minimum authority under the Proposal simply to avoid delays or questions in funding being used on the ground to protect resources.
The Organizations and our partners remain committed to providing high quality recreational resources on federal public lands while protecting resources and would welcome discussions on how to further these goals and objectives with new tools and resources. If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com), Chad Hixon (719-221-8329 / chad@coloradotpa.org).
Scott Jones, Esq.
CSA Executive Director
COHVCO Authorized Representative
Chad Hixon
Executive Director
Trails Preservation Alliance
Marcus Trusty
President
CORE
[1] A copy of this video is available for review here: Restoring impacts from the East Troublesome Fire in the Sulphur Ranger District
[2] ‘Unacceptable’: Colorado’s federal lawmakers respond to U.S. Forest Service seasonal hiring freeze | KUNC
[3] More information on this legislation is available here Out-of-State Snowmobile Permit & Search Rescue Fee | Colorado General Assembly
[4] Outdoor Recreation Satellite Account, U.S. and States, 2023 | U.S. Bureau of Economic Analysis (BEA)
[5] See, Page 4. A copy of that report is attached as Exhibit “2”to these comments.
[6] See, CPW Trails Program Strategic Plan at pg. 5 – A copy of this document is attached as Exhibit “3” to these comments.
[7] A complete copy of the 2023 report is available here: Trails and Resilience: Review of the Role of Trails in Climate Resilience and Emergency Response
[8] Vermont ravaged by ‘historic and catastrophic’ flooding as governor warns ‘this is nowhere near over’
[9] EO B2020 008 II A
[10] Copy of 2024 SCORP is available here: 2025 to 2029 SCORP – 2025 to 2029 SCORP Plan
[11] Pg. 8 of 2024 SCORP.