FIVE CORE OPPOSITION AREAS TO PROPOSED RULES: DETAILED ANALYSIS

 

Clean copy of draft CDEC rules here: https://drive.google.com/file/d/1lBWrx3hvgCkdpnocEs6h-2m0X8YoUjq5/view

Redline copy of draft CDEC here: https://drive.google.com/file/d/1qRpb24m2CqkP3i6EPXK3TaG05h6yOBy7/view
 

1. Buildings/Emergency Shelters: Regulatory Mismatch Threatens Program Viability

 

The Problem:
CDEC's proposed rules create two distinct categories—"emergency shelter" (requiring permanent buildings) and "alternative shelter"—while CCNBEE's data shows 95.8% of successful emergency shelter uses involved yurts and other flexible structures like tarps that would not meet the current definition.

Critical Impact:
- Existing programs may be forced to shut down or lose UPK funding access
- 95.8% of proven safety solutions disqualified by arbitrary definitions
- Building requirements trigger DORA cascade requiring I4/E occupancy (early childhood center standards)
- New field trip definition targets licensed programs with daily nature programming

Regulatory Cascade Effect:
Emergency shelter building requirement → DORA building codes → I4/E occupancy mandate → Early childhood center requirements → Program closure or license loss

Washington State Precedent:
Washington state successfully wrote exemptions for emergency shelter occupancy requirements, demonstrating practical regulatory solutions that Colorado could adopt. Washington state's successful model demonstrates how multiple regulatory agencies and practitioners can collaborate to create rules that ensure safety while enabling program operations.Their complete rules can be read here: https://app.leg.wa.gov/WAC/default.aspx?cite=110-302 

There is a specific rule addressing zoning, codes, ordinances and use occupancy here: https://app.leg.wa.gov/WAC/default.aspx?cite=110-302-0415&pdf=true

The certificate of occupancy classification does not have to be E or I-4 occupancy; however, all other considerations of fire safety must comply.

 

CCNBEE Recommendation:
Adopt flexible emergency shelter definitions that recognize yurts, covered pavilions, tarps, and vehicles as acceptable emergency protection, following Washington state's multi-agency collaborative regulatory model.
 

2. Weather/Temperature: Unscientific Ranges Ignore Professional Protocols
 

The Problem:
CDEC's proposed 20-94°F operational range ignores scientific standards and professional weather management protocols, forcing unnecessary closures when programs can operate safely.

Scientific Standards vs. Arbitrary Limits:
- Wet bulb thermometer measurements needed for high temperatures (NOAA standard)
- Surface temperature measurements needed for low temperatures (ground conditions)
- Weather forecasting excellence (79.07% accuracy) enables proactive safety planning
- Professional benefit-risk assessment by skilled practitioners vs. arbitrary cutoffs

Proven Safety Protocols:
- Above 94°F: Manageable with water access and shade availability
- Below 20°F: Manageable with windbreaks, direct sun exposure, and heat-absorbing elements
- Extreme weather events: Advance warning allows evacuation planning
- 1.8 closures per year average shows sound professional judgment

CCNBEE Recommendation:
Adopt scientific temperature measurement standards aligned with NOAA protocols, allowing professional benefit-risk assessment for operations outside narrow ranges.

3. Staff Qualifications: Inadequate Expertise Requirements
 

The Problem:
CDEC's proposed rules (page 68) allow any preschool director to operate ONB programs without specialized outdoor education experience, creating safety risks through inadequate expertise.

Current Gaps:
- No specialized requirements for outdoor education, environmental education, native plants/animals knowledge, or benefit-risk assessment skills
- Generic early childhood qualifications insufficient for specialized outdoor programming
- Safety depends on expertise that proposed rules don't require

CCNBEE's Higher Standards:
CCNBEE advocates for increased qualifications requiring ONB Directors to have:
- Early childhood education expertise AND
- Forest School Practitioner Level III or equivalent
- International practitioner standards for safe benefit-risk assessments

CCNBEE Recommendation:
Require specialized outdoor education expertise for ONB program directors, including Forest School Practitioner Level III certification or equivalent, ensuring safety through professional competency.

4. Field Trips: Regulatory Trap Targeting Existing Programs
 

The Problem:
CDEC's new field trip definition stating "Field trips are not intended to replace a regular classroom experience" appears designed to force existing licensed indoor centers taking daily nature trips into the new ONB license category.

Regulatory Trap Mechanism:
1. Existing licensed programs with buildings take daily nature trips (operating successfully)
2. New definition prohibits field trips from replacing classroom experience
3. Forced choice: Stop daily outdoor programming OR switch to ONB license
4. ONB license penalties: Lower ratios + additional regulations + building requirements

Impact on Successful Programs:
- Targets hybrid programs operating safely under current licenses
- Eliminates daily outdoor programming for licensed centers
- Reduces family choice by forcing single regulatory framework
- Not about safety - these programs have zero incident records

CCNBEE Recommendation:
Remove restrictive field trip definition that targets existing successful programs, allowing continued daily outdoor programming under current licensing frameworks.
 

5. Toileting: Inter-Agency Coordination Failure
 

The Problem:
CDEC defers toileting requirements to CDPHE, but it is uncertain if CDPHE will require flushing toilets with water even though they have said verbally that portable chemical toilets may be a possibility, creating regulatory uncertainty for outdoor programs using portable chemical toilets.

Coordination Failure:
- CDPHE has stated in meetings over the last 3 years that portable chemical toilets and even “wag bags” are feasible but there are no currently written rules about what is allowed for ONB schools and there is concern they may require flushing toilets with no flexibility for outdoor settings that use portable chemical toilets like 5 gallon buckets and Bio-Gel.
- El Paso County Health Department proposing restrictions on composting toilets/potty chairs
- CDEC has no control over CDPHE guidelines but defers to them
- Programs need portable solutions (5-gallon buckets with seats/bags/bio gel)

Legal Requirement:
ONB legislation requires CDEC to collaborate with health and fire departments with funding attached. CDEC must document collaboration with other departments and co-create  specific requirements in regard to rules that overlap with other agencies rather than creating "impossibility" situations especially but not limited to Buildings, Toileting and Fire.

Washington State Model:
Washington state successfully addressed building use occupancy and toileting issues through proper rule writing and inter-agency coordination. Their complete rules can be read here: https://app.leg.wa.gov/WAC/default.aspx?cite=110-302 

• There are specific rules addressing zoning, codes, ordinances and use occupancy here: https://app.leg.wa.gov/WAC/default.aspx?cite=110-302-0415&pdf=true

ONB providers who plan on using an indoor facility [though a permanent indoor facility is NOT required by WA rules] or structure for occupancy, such as a cabin or yurt, to meet the biological needs of children, for part of its ONB program that is not currently licensed, the ONB provider must:

• (a) Have a certificate of occupancy issued by the local building, planning, or zoning department, or a local equivalent such as a building permit, if a locality does not have the certificate of occupancy; and (b) Be inspected and approved by the state fire marshal or local authority as approved by the department; The certificate of occupancy classification does not have to be E or I-4 occupancy; however, all other considerations of fire safety must comply.

• There are specific rules addressing bathroom space toileting here: https://app.leg.wa.gov/WAC/default.aspx?cite=110-302-0220&pdf=true 

 

(1) ONB providers must provide at least one of the following bathroom options, and may use a combination of toileting options to ensure children and staff are able to meet their toileting needs: 

(a) An indoor bathroom in a licensed family home, center, or

school-age facility.

 

(b) A portable chemical toilet designated for use by the ONB program. The portable chemical toilet must be nontoxic and formaldehyde-free, and emptied regularly and as needed. The portable chemical toilet surfaces must be cleaned at least once each day and more often if

needed, pursuant to WAC 110-302-0241. 

The waste container for the portable chemical toilet must be:

(i) Fabricated from impervious materials, such as plastic, steel,

fiberglass, or other equivalent material;

(ii) Water tight and capable of containing the chemical waste in

a sanitary manner; and

(iii) Sufficient in size for the number of persons that will be

using the toilet and consistent with the manufacturer's recommended

use requirements. At a minimum, the portable chemical toilet must be

of sufficient size that the container will normally be at half of its

volume capacity immediately before each regularly scheduled emptying

of the waste.

 

(c) The use of toileting facilities in a public park or nature center if:

(i) ONB providers check the bathrooms for cleanliness and safety

prior to the children's use; and

(ii) The toilet seats, sinks, or other surfaces that children

touch are cleaned and disinfected daily.

 

(d) A portable toilet, with individual liners that allow for san-

itary disposal after each use, and with surfaces cleaned at least once

each day and more often if needed, pursuant to WAC 110-302-0241.

 

(e) A water conserving toilet, such as a composting or pit toilet, and greywater system that meets the requirements for health and sanitation as described in the Washington State Department of Health

Water Conserving On-Site Wastewater Treatment Systems- Recommended

Standards and Guidance (https://www.doh.wa.gov/Portals/1/Documents/

Pubs/337-016.pdf).

 

(f) If no other toileting options are available, backcountry toileting options that comply with the rules of the landowner and the

"Leave-No-Trace" standards described at https://lnt.org/learn/

principle-3.

(i) Unless approved by the department, children must not be al-

lowed to play or eat within 200 feet of areas that have been used or

are designated as backcountry toileting spaces; and

(ii) ONB providers must use gloves to assist children and to ensure the sanitary disposal of toilet paper. Both children and adults must wash their hands pursuant to WAC 110-302-0200.
 

CCNBEE Recommendation:
CDEC is required to fulfill a legislative mandate for inter-agency collaboration, writing specific allowances for portable chemical toilets and coordinating with CDPHE and DORA and any other overlapping agency to enable outdoor program operations.

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LEGAL FRAMEWORK AND PROCEDURAL REQUIREMENTS

Required Regulatory Analyses

To support evidence-based rulemaking, CCNBEE respectfully requests CDEC prepare and distribute:

Cost-Benefits Analysis per CRS § 24-4-103 (2.5)(a):
- Economic impact on existing programs and families
- Cost of compliance vs. safety benefits achieved
- Analysis of program closures and reduced UPK access
- Comparison with alternative regulatory approaches

Regulatory Analysis per CRS § 24-4-103 (4.5)(a):
- Impact on small businesses and nonprofit programs
- Alternatives to proposed regulations
- Coordination with other state agencies
- Implementation timeline and support needs

Inter-Agency Coordination

The ONB legislation includes funding for CDEC to collaborate with health and fire departments. CDEC's current approach of deferring to other agencies violates this legislative mandate and creates regulatory impossibility.

Required Actions:
- Coordinate with CDPHE on toileting requirements
- Work with DORA on building code implications
- Collaborate with fire departments on safety protocols
- Write comprehensive rules preventing inter-agency conflicts

Moving Forward 

CCNBEE offers to support CDEC in conducting required analyses by providing additional data, practitioner expertise, and stakeholder engagement.

Program Diversity Protection

CCNBEE's data demonstrates successful programs operating under various legal frameworks:
- Licensed programs with buildings taking daily field trips
- Exemption programs operating under state law
- Hybrid models serving diverse family needs

Proposed regulations threaten this diversity by forcing all programs into a single, restrictive framework regardless of current success and safety records.

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STRATEGIC RECOMMENDATIONS
 

Immediate Actions

1. Delay Implementation until comprehensive analyses completed
2. Conduct Required CRS Analyses before proceeding with rule adoption
3. Engage Practitioner Expertise in rule revision process
4. Coordinate Inter-Agency Requirements as mandated by legislation

Evidence-Based Rule Revision

1. Emergency Shelter Definitions - Adopt flexible standards recognizing yurts and portable structures like tarps as well as shelters with a roof and no walls.
2. Temperature Ranges - Implement scientific measurement standards allowing professional assessment
3. Staff Qualifications - Require specialized outdoor education expertise
4. Field Trip Flexibility - Remove restrictions targeting existing successful programs. Specifically remove/strikethrough the end of the Field Trip Definition line on page 3 Section 2.204 DEFINITIONS I “These trips range from a few hours during the day to a full day.  periodically throughout the year. Field trips are not intended to replace a regular classroom experience.”
5. Toileting Solutions - Enable portable chemical toilet use through inter-agency coordination

Long-Term Framework

1. Support Program Diversity - Maintain multiple legal pathways for safe operations
2. Evidence-Based Regulation - Use CCNBEE data to inform ongoing rule development
3. Professional Development - Support Forest School Practitioner training and certification
4. Family Access - Ensure UPK funding available across program models

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PATH FORWARD

 

CCNBEE proposes a collaborative path forward that includes: delayed implementation pending required analyses, practitioner engagement in rule revision, site visits to several programs to test approaches, and ongoing data sharing to inform evidence-based regulation. CCNBEE commits to ongoing data collection and transparent sharing to support continuous improvement in ONB regulation.

CONCLUSION

CCNBEE's comprehensive data analysis demonstrates that Colorado's outdoor nature-based preschools operate with exceptional safety and reliability. Zero reportable incidents across 20 programs for one full year, combined with full enrollment and active waitlists, proves these programs serve families effectively while maintaining rigorous safety standards.

However, CDEC's proposed regulations threaten to eliminate successful programs through arbitrary requirements that ignore evidence-based practice. The 95.8% mismatch between proven emergency shelter solutions and proposed definitions exemplifies regulatory misalignment that prioritizes bureaucratic compliance over child safety and family access.

CCNBEE advocates for evidence-based regulations that support program accessibility while maintaining safety standards. The current proposed rules create significant undue hardships that could eliminate programs, reduce family choice, and prevent UPK access for Colorado's most vulnerable families.

As Colorado implements SB 24-78, CCNBEE urges CDEC to fulfill its legislative mandate: 

• for inter-agency coordination, 

• collaboration with existing ONB programs to create and implement training using a benefit-risk assessment 

• cost benefit and regulatory analyses, and revise proposed rules based on evidence rather than arbitrary restrictions.

Colorado's children deserve access to high-quality outdoor nature-based education. CCNBEE's data proves these programs work safely and effectively. Proposed regulations should support, not eliminate, this proven educational model.

 

CCNBEE looks forward to partnering with CDEC in the continued development of evidence-based regulations. Our shared commitment to child safety and program accessibility provides a strong foundation for collaborative solutions that serve Colorado's families. CCNBEE specifically requests that: 

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(i) some of the outdoor programs it represents participate in the creation and implementation of the CDEC training program, and 

 

(ii) that the collaborative process of creating training programs occur simultaneously with the rule drafting. Instead of siloing these inter-related pieces of the process, CCNBEE encourages CDEC to develop the training program requirements at the same time it develops other requirements, rules and obligations imposed on nature-based child care centers pursuant to the legislation. CCNBEE has general concerns about unduly burdensome aspects of the proposed rules that maybe able to be ameliorated once CDEC staff and practitioners/providers collaborate on a training program with site visits to experience and witness the peer to peer network that has conducted this safety data and supports safe practices.

 

(iii) executive director if CDEC creates an issue-specific subcommittee of RAC that includes multiple members of CCNBEE who are experts on nature-based early child care centers/education.

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Stakeholder Contact Information

Colorado Collective for Nature-Based Early Education
Jennifer Kollerup, Mycelium Director
Email: jennifer@ccnbee.com
Website: www.cocollectivenaturebasedearlyed.org

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This white paper represents the collective expertise of 30+ Colorado nature-based early education programs with decades of safe, successful operations. CCNBEE remains committed to evidence-based regulation that supports program accessibility while maintaining the highest safety standards for Colorado's children.