American Whitewater Affiliation
Access: Sept/Oct 96 Journal
Potomac Access Update!
by Rich Hoffman, American Whitewater's River Access Director
Since the January 1996 floods and arrest of Olympic canoeist Davey Hearn, the
agencies who manage the Potomac River and surrounding land have discussed
closing the Potomac River to all use during high water.
The River itself is under the jurisdiction of the Maryland Department of Natural
Resources (MDNR) and its Virginia and Maryland banks are controlled by a variety
of landowners, including the National Park Service.
These groups meet every several months as the Potomac River Safety Committee (PRSC)
to discuss safety issues. AWA and Steve Taylor of the Canoe Cruisers Association
(Washington, D.C. paddling club) have attended four of these meetings since
January.
One of the driving forces behind the river closure policy is a belief expressed
by government agencies and employees that Maryland law imposes a mandatory duty
to attempt rescue, and that agencies and government officials face significant
liability risks in the event rescue is not attempted or is unsuccessful.
Presumably, a river closure would keep all recreational users off the River and
avoid the need for rescue.
In April PRSC meetings, we decided to conduct legal research on these matters
for the July 11 meeting, with the possibility to arrange a future meeting
between respective legal counsel.
On our side, we enlisted the brilliant legal eagles from the law firm of Perkins
Coie, including Don Baur, Angela Killian, and Allison Meade, to investigate
these legal matters.
Summary of Legal Research
We focused our research on the following questions:
1. Do Maryland officials have a duty to rescue boating accident victims on the
Potomac?
Conclusion: Both statutory and common law support the position that state
officials owe no special duty of rescue to Potomac accident victims. At most,
they may have a duty of reasonable care toward Potomac recreators. This is the
same duty that is owed to the public that recreates on public lands, as a
general matter, by government officials. Officials could not be held liable for
choosing one policy or system of emergency response over another so long as that
policy was the result of reasoned choices under the circumstances.
2. Assuming that Maryland officials do have some duty to Potomac accident
victims, what liabilities do they face with regard to safety and emergency
decisions and actions?
Conclusion: Due to a number of common law and statutory immunities and the
limited nature of any duty that might be owed accident victims, State personnel
are not subject to any liability so long as officials do not act with gross
negligence or malice. Neither the State nor its personnel are any more exposed
to liability during flood than under normal operating conditions. Indeed, they
may be less so because the dangers of the River in flood and the difficulties
posed for rescue attempts are so obvious that a recreator is more likely to be
found to have assumed the risks both or the activity on the water and of the
unlikelihood of rescue.
Policy Direction
As outlined above, there is no compelling legal reason for a river closure
policy. We are strongly opposed to the concept for other reasons as well:
A. High water river closure to all river use is not supported by accident
statistics.
No kayaker or closed boat canoeist has ever drowned on the Potomac River. River
closure would deny skilled boaters the opportunity to enjoy the River during
high water. The paddling community frequently has been able to aid in rescues of
other recreational users; closure of the River could therefore eliminate a
potentially valuable resource to assist in rescue situations.
While 55 people have died in the last ten years between Great Falls and the
Chain Bridge, no drownings have occurred during floods (the highest recorded
drowning level is 6.5 feet on the Little Falls Gauge). Most drownings occur at
moderate water levels, well below flood stage. (Kauffman, R., Taylor, S., and
Price, R., 1992. A Recreational Gauging and Information System to Alert Potomac
River Users of Dangerous Water Levels. Published by MDNR.) Recreational users
tend to avoid the River at high water levels because there is such obvious risk.
Closing the Potomac River would send the message that the government will take
the place of individual responsibility and judgment.
B. Closure is a separate issue from false alarms.
Another justification for river closure could be to reduce false accident
reports and associated expenses. However, there is no data to support that a
river closure would reduce false reports (MDNR receives false reports regardless
of river level). It was concluded in the April 17 PRSC meeting that river
closure is a separate issue from false accident reports.
Other
Alternatives
We support other options for high water river management: maintaining the
current open-river policy, an exemption to whitewater boats from closure, or a
permit/registration system for whitewater boats. There are numerous successful
examples for each of these different systems.
In addition, we have offered to assist with education and training efforts for
boaters and state and federal officials. The idea of a river patrol is one that
has appeal. Look for more details about this in the future.
Finally, we are currently working with the National Park Service to channel the
media attention on the arrest of Davey Hearn for a constructive purpose. We will
be working on a joint press release and on an effort to strengthen river
education and safety in National Parks.
See upcoming issues for additional information.
Davey Hearn to Represent AWA!
Throughout his distinguished racing career, Davey Hearn has been a strong
advocate for clean, free-flowing rivers and access. In addition, he is an
accomplished expert in river safety. We are honored to have Davey serve as the
Chair of AWA's River Access Committee. Davey's presence will help to accomplish
our goals of promoting river access, conservation and safety and establishing a
strong link between them.