I found the comments after the main article more informative then the actual article and a great conversation by people that I suspect actually have a legal background. The following is my favorite but I highly suggest people read not only the article but ALL of the comments:
From posted by "marinoxx" here: Bill pitting river enthusiasts, landowners runs into rough waters in Senate - Article Comments - View topic - General Discussion - Article Talk : Denver Colorado Neighbors
Aren't all of these rafting rivers considered navigable? And if so, didn't the bed and banks up to the high water mark become property of the state at statehood pursuant to the Equal Footing Doctrine? How does Colorado define navigable? Will someone in law please answer my questions?
No court in Colorado has ever made a determination of navigability.
Emmerts Case is the case that some nefarious lawyers rely upon to argue that there are no floating rights in Colorado. It is not true. The parties in Emmerts case stipulated to the fact that the waterway in question was not navigable therefore this question was taken off the table.
There are two ways that the public has the right to float in Colorado.
1. Under the Colorado constitution - Article XVI, section 5:
“[t]he water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.”
In other words, the property in the water prior to appropriation is vested in the public and the "people", read that singular or plural, have the right to use it. This right to use is a usufruct.
2. Under the public trust doctrine, a Federal jurisdiction which is enforced under the commerce clause as a navigable servitude is a mechanism for determining title. It is a very dangerous doctrine for landowners to risk. Essentially the water in question needs to be "navigable". In this context the text for navigability is essentially whether it has been used for transportation or commerce. It is relatively complex but in short, if a stretch of water has been used for some time for commercial rafting and supports an industry, it will be navigable. The conseqence is that the bed of the river to the higher water mark becomes public property. The state courts cannot overrule such a finding nor can the state legislate to overturn such a decision because it will be unconstitutional.
Unfortunately in Colorado the debate has been hijacked by landowner lawyers who do not truthfully explain the law. The rafters and fishermen are too slack to realize they have to raise funds and bring court cases to attack this farce. The rafters think that politicians who can be easily bought will help them out. They are juvenile and naive in their thinking and that fact is going to come home to them soon. On the other hand, the landowners who keep sticking to this idiotic line that there is no right to float are equally dumb.
In time, someone will get a court case going in the Federal Court and then the landowners who finally get some good advice will be petrified that something like the Curran decision in 1984 in Montana will happen to them. Then we might get some sense. Until then it is a mess.