River Stewardship Toolkit

To conserve and restore America's whitewater resources and to enhance opportunities to enjoy them safely.”

Contributors: John Gangemi, Western Conservation and Access Director Kevin Colburn, Eastern Conservation and Access Director Jason Robertson, Policy Director Tim Kelly, American Whitewater Board, Safety Committee Chair Charlie Walbridge, American Whitewater Board, Safety Committee Lee Belknap, American Whitewater Board, Safety Committee Kevin Lewis, American Whitewater Board

September 2004 ©American Whitewater Table of Contents

Ch apter 1: Introduction ...... 5 1.1 American Whitewater’s History ...... 5 1.2 American Whitewater’s Program Areas ...... 6 1.3 American Whitewater’s River Stewardship Program ...... 6 1.4 The River Stewardship Toolkit ...... 7 1.5 American Whitewater Affiliate Paddling Clubs ...... 7 Ch apter 2: Regulated Rivers: American Whitewater’s Hydropower Program ...... 8 2.1 American Whitewater’s Regulated Rivers Program ...... 9 2.2 How Dams Impact Rivers ...... 10 2.3 River Renewal: Restoring Rivers Through the FERC Relicense Process ...... 19 2.4 FERC Jurisdiction ...... 20 2.5 Balance of Power ...... 21 2.6 The Relicensing Process ...... 22 2.7 Filing Comments with the FERC ...... 26 2.8 Micro Hydro ...... 28 2.9 Hydrology: Collecting and Analyzing the Data ...... 29 2.10 The Natural Hydrograph Concept ...... 31 2.11 Project Economics: Calculating the Cost of Instream Flows ...... 37 2.12 Whitewater Flow Studies ...... 41 2.13 Dam Removal ...... 51 Ch apter 3: Protecting Rivers: Using Federal and State Regulations ...... 52 3.1 National Environmental Policy Act (NEPA) ...... 53 3.2 Wild and Scenic Rivers Act ...... 56 3.3 Wilderness Act ...... 57 3.4 Endangered Species Act ...... 58 3.5 Water Quality Regulations ...... 59 3.6 The Ecology and Conservation of Riparian Areas ...... 62 3.7 Land Management Practices Impacting Rivers ...... 64 Ch apter 4: Collaboration, Coalitions and Negotiations: The Zen of Getting to Yes ...... 69 4.1 Working with State and Federal Agencies ...... 69 4.2 Collaboration and Coalition Building ...... 73 4.3 Interest Based Negotiations ...... 76 4.4 Writing Effectively ...... 79 4.5 Working with the Media ...... 82 4.6 Campaign Organization ...... 86 Ch apter 5: The Paddler’s Footprint ...... 88 5.1 Leave No Trace: The Paddlers’ Footprint...... 89 5.2 River Modification Regulations ...... 90 5.3 Large Woody Debris Removal Ecology and Ethics ...... 93 5.4 Sharing the Rivers: Managing and Minimizing Recreational User Conflicts ...... 96 5.5 The Economic Impacts of River Recreation ...... 102 5.6 Whitewater Parks – Considerations and Case Studies...... 105 Ch apter 6: American Whitewater’s River Access Program ...... 112 6.1 American Whitewater Access Toolbox ...... 113 6.2 Recreational Access ...... 115 Ch apter 7: Navigability Primer ...... 127 7.1 Importance of Proper Legal Representation ...... 127 7.2 Federal Navigability Interests: ...... 128 7.3 State Navigability Interests: ...... 129 7.4 Navigability Defined ...... 129 7.5 The Submerged Lands Act and navigability ...... 132 7.6 The "equal footing” doctrine ...... 132 7.7 The "Public Trust” Doctrine ...... 133 7.8 Applying the public trust on rivers flowing through public lands ...... 133 7.9 Applying the public trust on rivers flowing through private lands ...... 134 7.10 Landowner Or Riparian Ownership Rights ...... 142 7.11 The Sea and Its Arms are Navigable ...... 145 7.12 Tribal and Indian Land Grants and Treaties ...... 146 7.13 Expanding and Preserving Navigability Access Rights ...... 146 7.14 History of Navigability ...... 148 7.15 Learn More about Navigability ...... 166 7.16 Access Closures for “Security” ...... 166 Ch apter 8: Boater Registration ...... 169 8.1 Reasons To Oppose Registration Requirements ...... 169 8.2 States With Canoe & Kayak Registration Requirements ...... 171 8.3 Determining Whether a Registration Bill is in The Public Interest? ...... 171 8.4 How Can You Fight A Bill That Proposes The Registration Of Paddlecraft? ...... 172 8.5 River Safety and Boat Registration ...... 173 8.6 Sample Letter ...... 176 Ch apter 9: Safety ...... 178 9.1 American Whitewater’s Safety Program: Education, Not Regulation ...... 178 9.2 Risk, Safety, and Personal Responsibility ...... 180 Ch apter 2: vers Studied ...... 182 Ch apter 3: ivers Studied ...... 182 9.3 Representing Whitewater to the Public ...... 185 9.4 Accidents, Emergency Workers, and Paddlers ...... 194 9.5 Search and Rescue: A Privilege for the Saved or Burden for Society? ...... 201 9.6 The Relationship Between Safety & Access ...... 210 9.7 Risk Management Planning for AW Events ...... 217 Chapter 1:Introduction

American Whitewater river advocacy work and success relies on a network of grassroots volunteers spread across the country to protect and restore whitewater rivers. American Whitewater firmly believes local paddlers possess important knowledge about their local resource and a firm commitment to protect and restore these rivers in their backyard. Over the years American Whitewater’s network of volunteers has grown to more than 1000 individuals dedicated to river protection and restoration. These dedication individuals are our River Stewards.

This River Stewardship Toolkit has been developed to serve as a guidance document for these volunteer river conservationists. The Toolkit contains information on river access, hydropower licensing, public land management, environmental advocacy, legislation, safety and events as well as numerous case studies and links to regulatory information.. The Toolkit will help River Stewards transfer their new advocacy skills to the issues confronting rivers in their watershed.

1.1American Whitewater’s History American Whitewater has been in the business of protecting and restoring whitewater rivers and promoting recreation since 1954.

Our focus is derived not only from our enjoyment of these rivers, but out of recognition of their relative scarcity—less than one percent of all U.S. river miles have rapids rated Class II or more.

The very characteristics that make whitewater critical for habitat and enjoyable for recreationalists is what attracts a steady stream of assaults by dam builders, hydropower developers, mining and timber harvesters, agricultural (chemical and livestock byproduct) abuse, unreasonable restrictions, and other threats.

AW’s storied history of saving rivers speaks to our collective knowledge of skills and experience saving rivers, but now we need to teach other people what AW has learned in order to stem the tide of threats.

American Whitewater’s main office can be contacted: American Whitewater 1424 Fenwick Land Silver Springs, MD 20910 Phone: 301-589-9453 Website: www.americanwhitewater.org 1.2American Whitewater’s Program Areas American Whitewater is generally recognized for expertise in the the following areas: 1) Hydropower Licensing; 2) River Access; 3) Safety Education; and 4) Events. American Whitewater also works with agencies on public land management plans particularly when those plans affect access to rivers, water quality or the overall aesthetic experience on rivers. American Whitewater alerts our members to legislative proposals affecting rivers. We accomplish much of this work through our nine-member professional staff working closely with volunteers in local watersheds.

Issues impacting rivers come into American Whitewater on a daily basis at a rate greater than the staff can process them. Some of these issues can be solved in a short time frame while others require prolonged attention to reach acceptable solutions. The vast network of dedicated volunteers working in their local watersheds help American Whitewater staff identify and resolve issues. American Whitewater is developing three tools to more effectively utilize this network of volunteers in the future: 1)The River Stewardship Toolkit; 2) Project Tracking Database; and 3) a Volunteer Management System. The River Stewardship Toolkit will provide volunteers with knowledge and tools to work on specific river issues. The Project Tracking Database will enable American Whitewater staff to track river issues geographically and categorize the issues. The Volunteer Management System will allow staff to match river issues with volunteers as well as assess tools needed to solve an issue and track progress through regular reporting. Integrating these tools will enable American Whitewater to expand program work into water quality and public land management while at the same time continuing to grow our hydropower licensing and access work.

1.3American Whitewater’s River Stewardship Program For over fifty years, AW has been a focused voice for the protection of our nation’s rivers. Our fuel for success has come in the form of dedicated volunteers and grassroots efforts led by highly skilled AW Staff and volunteer Regional Coordinators. However, the onslaught of new threats facing our rivers far outstrips the availability of trained river conservationists.

Since 1954, American Whitewater has been passively educating river “recreationists” through its national magazine, events program, and website. However, the quantity and sophistication of the threats facing our nation’s rivers now requires a new tactic. American Whitewater is launching a River Stewardship program designed to empower the next generation of river “recreationists” with the knowledge and skills to rise from the ranks of mere river users and become full fledged advocate for the resource.

Educated river “recreationists” represents the only viable alternative for stemming the tide of threats facing our rivers. Often recreationists have already developed a passion for protecting their favorite rivers, but frequently they lack the expertise to be successful against the attorneys and hired-gun consultants retained by special interests. River Stewards will be an integral part of American Whitewater fostering the mission, purposes and operating principles of the organization. River Stewards are the cornerstones of American Whitewater’s grassroots activism, and the primary resource utilized for: • Conserving and Restoring Whitewater • Protecting Access • Educating Boaters and Non-boaters Alike on Safety • Celebrating America’s Wildest Rivers

Throughout history, river protection campaigns have been largely dependent on local grassroots efforts. Except for nine professional staff positions, all of American Whitewater’s programs and efforts depend on its volunteer Board of Directors and its volunteer network of River Stewards. This includes the publication of the bi-monthly Journal American Whitewater. The River Stewardship program will enable American Whitewater to expand our network of active volunteers. The goal is to have an active River Steward in each major paddling area. Current River Stewards can help us reach this goal by recruiting other river activists who work, play or live along whitewater rivers.

Visit our website to learn more about American Whitewater’s River Stewardship Program and sign up as a River Steward.

1.4The River Stewardship Toolkit The River Stewardship Toolkit will ensure that the next generation of river “recreationists” will be able to rise from the ranks of mere river users and become full fledged river stewards.

1.5American Whitewater Affiliate Paddling Clubs American Whitewater is an affiliation of paddling clubs. These affiliate clubs play a critical role disseminating important information on river conservation, access and safety and events. Fur­ thermore, many of these affiliate clubs host local paddling events and festivals. These events festivals provide an ideal forum for educating paddlers about river issues and recruiting members to American Whitewater. In 2004 there were 105 American Whitewater Affiliate Paddling Clubs representing approximately 80,000 paddlers nationally. Visit the American Whitewater website for more information about American Whitewater Affiliate Club programs. Chapter 2:Regulated Rivers: American Whitewater’s Hydropower Program 2.1American Whitewater’s Regulated Rivers Program American Whitewater has a long-standing program opposing new dam construction, working with dam owners to improve instream flows at existing dams, and fighting to remove dams where necessary. American Whitewater initiated this campaign back in 1957 with a letter filed in opposition to the construction of Glen Canyon Dam in 1957. Over the years American Whitewater has established itself as the national leader representing whitewater recreation interests integrated with river conservation ethics. American Whitewater’s Regulated Rivers Program focuses primarily on private hydropower dams under Federal Energy Regulatory Commission (FERC) jurisdiction. American Whitewater applies their knowledge and expertise gained in the FERC arena to dams managed by the Army Corps of Engineer Dams and Bureau of Reclamation as well as private dams where opportunity arises.

American Whitewater takes a pragmatic restoration approach in hydropower relicensing. American Whitewater seeks to holistically restore ecological processes and river recreation to the river system while simultaneously recognizing that hydropower plays an important role in our national energy portfolio. Our goals focus on minimizing the footprint hydropower makes on the landscape while balancing our river restoration goals and recreational interests. American Whitewater proposes instream flow alternatives based on analysis of the natural hydrograph prior to dam construction coupled with project economics and the larger energy markets. Ideally, river recreation including whitewater is a byproduct of a healthy functioning river system restored through the relicense process. American Whitewater actively opposes new dam construction particularly micro hydro projects.

American Whitewater’s recreation specific goals and objectives include restoration of flows for river recreation, enhancement of public access and facilities as warranted, and mitigating the impacts of flow storage and diversion through publication of real-time flow information via the internet and toll-free phone line. American Whitewater is the national expert on the design and implementation of whitewater flow studies at hydropower projects and rivers where flows are regulated by dams.

American Whitewater in concert with other river conservation organizations at the national, regional and state level helped found the Hydropower Reform Coalition in 1992 and the California Hydropower Reform Coalition in 1997. These coalitions were formed in response to the tremendous hydropower licensing workload and need for policy as well as procedural reform. Collectively, these groups developed important tools and information for citizen groups to participate in the licensing process.

Adversaries attempt to distort the conservation communities goals and objectives in hydropower relicensing. Unfortunately, this misinformation leads to battle lines being drawn in the relicense process slowing down the process of gathering information about existing conditions and researching alternative flow regimes that might improve conditions for aquatic organisms and recreation. 2.2How Dams Impact Rivers Dams impact rivers in a variety of ways. One of the best ways to understand these impacts is to explore them in each section of a dammed river from upstream to downstream. These sections are: the Upstream River Reach, the Reservoir, the Bypass Reach (if there is one), and the Downstream River reach. Dams impact each of these areas differently and essentially chop up what was once continuous habitat into these three or four distinct pieces.

Upstream River Reach

All reservoirs have water flowing into them, usually from the river that was dammed and also the various tributaries that used to enter the river but now flow into the reservoir. These river reaches are essentially isolated from the original river – and become ecological islands of habitat. Reservoirs provide very different habitat than rivers, and often stream organisms are unable to live in or even safely move through reservoirs due to exposure to predators, different water quality/temperature variables, or simply the lack of current. Dams impact these upstream reaches in the following ways:

• Upstream reaches are no longer connected to the main river or to each other by continuous inhabitable habitat. • Populations of aquatic organisms may become fragmented into multiple smaller subpopulations that experience less exchange of genetic material with fewer other individuals – making them more subject to localized extinctions. • Upstream watersheds are often deprived of migratory fish and their resulting social and ecological benefits which include the inherent value of the continuation of the migratory fish species, nutrient contributions to the aquatic, riparian and even upland areas, utilization by animals as a food source, utilization by people for sport fishing, food, and commerce, and the spiritual value of the return of the fish.

The Reservoir

Santeetlah Reservoir, Cheoah River, NC. Often overlooked because they are hidden under a glimmering reservoir – the ecological impacts of the reservoir itself are the most dramatic impacts of all sections of a dammed river. Construction of reservoirs completely converts terrestrial ecosystems complete with rivers and streams flowing through them, into submerged and still water aquatic ecosystems. Certainly all terrestrial organisms flee the rising water as the reservoir originally fills – or perish. The following is a summary of the ecological impacts of reservoirs themselves.

• Terrestrial and ecologically valuable riparian is habitats are completely submerged and lost to the plant and animal species that previously inhabited them. Many plants and animals perish at the time of initial reservoir filling. • Reservoirs form new barriers to terrestrial animal movements and migrations. • The land submerged under reservoirs is subject to erosion, physical and chemical changes, and filing in with sediment. • Newly filled reservoirs have been shown to release significant amounts of mercury. • Dams typically act as absolute barriers to upstream fish migration and movement, unless fish passage facilities have been installed. Many fish passage facilities pass only some percentage – often a small one - of fish that reach the dam. • Reservoirs are very different ecosystems than rivers, and are therefore typically inhabited by different organisms. The construction of reservoirs creates new habitat conditions that are generally hostile to native stream fishes while they may be suitable for introduced fishes and other organisms, or may artificially select for native species that can live in the reservoirs. • Small migratory fish such as salmon that typically float downstream to the ocean are radically slowed or stopped by reservoirs – making them subject to predation and other causes of mortality. • Fish attempting to pass downstream of a dam may be blocked entirely or pulled through the turbines of the hydroelectric unit which may or may not kill the fish. Stunned fish that do pass the dam are subject to increased predation by birds and other fish. • Reservoirs often flood inhabited lands that must be evacuated. Often, deep social scars are left by this process that last for generations. • Reservoirs may increase land values around their shorelines and therefore may lead to increased development and social changes to these often rural areas. • All river recreation and terrestrial recreational opportunities under reservoirs are obviously lost for lifetimes – and replaced by reservoir based recreation opportunities.

The Bypass Reach Diversion flume (concrete structure upper left of photo) and bypass reach, Klamath River California.

Many dams divert water for some distance to a powerhouse through a pipe, tunnel, or flume. This process radically increases the head (height the water is dropped from) at a relatively low construction cost, and therefore greatly increases the profitability of the dam. The problem with this process is that it generally leaves the section of river parallel to the diversion dry or close to it. These river reaches, located between a dam and its powerhouse are known as bypass reaches because the water is bypassed around them. Most bypass reaches are high gradient rivers and streams that feature – or at least used to feature – excellent whitewater opportunities. Bypass reaches have some very serious ecological problems that are often a restoration focus during dam relicensings. The ecological impacts associated with bypass reaches are as follows:

• The ecology of bypass reaches can be described as “Hell or High Water.” The reaches typically flow at very low flows as provided by leakage, groundwater discharge, tributary inflow, or a mandatory minimal release from the dam – or they infrequently flow at very high flows that result from the dams having to spill water due to unusually high inflow. • Low flow conditions eliminate the quantity and quality of the aquatic habitat available for aquatic species. • Water quality and temperature are often impacted by low flow conditions. • Riparian vegetation encroaches into the river channel as the ecosystem seeks to establish a smaller redefined stream channel bordered by terrestrial habitat. • High flows periodically scour vegetation, aquatic organisms, and sediment from the channel and essentially reset the ecosystem. • Disturbance adapted species, often exotic, are artificially selected to live in the channel while many species that have not evolved mechanisms to deal with radically low and high flows may disappear from the channel. • In cases where the flow has been greatly reduced, the aquatic habitat and species composition may more closely resemble a chain of small pools and wetlands than a river. • Often, boatable flows are seldom or never encountered in bypass reaches unless intentionally provided because low flows are too low and the spills are too high. Therefore, bypass reaches impact paddling by virtually eliminating it. • Sometimes bypass reaches do support angling opportunities – largely based on angling preferences for low flow conditions. At times a class IV or V river will be turned into a trickle that allows wading. Thus, the recreational characteristics of the bypass reach has been altered. • Often, bypass reaches are virtually forgotten by nearby residents.

The Cheaoh River in Western North Carolina has a good example of a bypass reach. In fact, the entire length of the river is either under reservoirs or dewatered. The hydrograph below depicts the “Hell or High Water” aspects of the Cheoah. Note that most of the year the flow is a fairly constant 20-50 cfs which is provided entirely by tributaries that flow into the Cheoah between the dam and the gage, as are the small increases in flow seen in November and December. The large flow of 4,200 cfs is a spill over Santeetlah Dam, while the medium sized flows may be spill or tributary inflow.

The following two photographs show the Cheoah during a large spill, and at its more typical dewatered state. Cheoah River Spilling

Cheoah River Not Spilling The Cheoah has experienced dramatic vegetation encroachment due to its dewatering, which would be even more dramatic if the channel were not occasionally cleared of trees by the power company to provide better flood conveyance. The photograph below was taken from the dam and shows how vegetation has moved into the channel, and also shows pools of still water that result from the estimated 1 cfs of leakage from the dam. Cheoah River from Santeetlah Dam Often power companies are required to add minimum base flows to bypass reaches in an effort to maintain some degree of aquatic habitat. An example of a base flow can be seen in the photo below taken on the Klamath River. The large upper pipe conveys almost the entire Klamath River several miles downstream to the powerhouse, while the small pipe with water coming out of it is the very small portion of the river that is allowed to flow through the bypass reach. The photo says it all about who gets the lion’s share of the river – the river or the power company.

Klamath River diversion pipe and instream flow release

The Downstream River Reach The majority of research into regulated river restoration has focused on the downstream impacts of dams and how to limit and mitigate those impacts. This is simply because all dams impact rivers downstream, the downstream length of impact is fairly long, the downstream habitat is often the most viable, and because changes in dam operations can make or break the downstream ecosystem. The basic downstream impacts of dams are as follows:

• The flow regime is altered by most dams. Large storage dams have virtually complete control over a rivers flow regime and can manipulate flows to provide profit or other social goals. Smaller dams with less storage have less ability to control the flow regime but most still can essentially turn a river on and off at will for periods of time. • Altered flow regimes can change aquatic species composition, diversity, and distribution. • Altered flow regimes can lead to changes in riparian and floodplain vegetation by providing an unnaturally consistent flow regime, and by eliminating regular out of bank flows and large floods. • Altered flow regimes can greatly change recreational patterns and characteristics. • Altered flow regimes can encourage industrial use of the river, and floodplain building. • The sediment regime is altered by most dams because reservoirs typically trap sediment flowing into them from upstream, leaving the downstream reaches sediment starved. This condition can lead to changes in the stream’s bed, banks, and floodplain. It can also lead to nutrient based ecological changes in the river. • The water temperature regime below dams is typically altered and is largely determined by the depth from which the release water is pulled from the reservoir. Deeper water is typically colder. Cold water, when released into naturally warm or cool water ecosystems can have devastating impacts on natural fish and mussel populations. Many organisms have evolved with a specific temperature regime and are ill suited to adapt to an altered one. • Several water quality parameters are also heavily altered by dams including dissolved oxygen which can be drastically lowered by dams. • Downstream fish and other aquatic organisms’ populations are generally fragmented by dams. Many fish and other species literally bump their heads on the dams and can move no further upstream. These organisms are cut off from upstream habitat, while forced to live in degraded downstream habitat. In the case of migratory such like salmon this condition often spells disaster for upstream fish runs, the people and organisms that depend on those runs, and at times the species as a whole. Klamath River Salmon jumps its last jump at the base of the downstream-most dam on the river. This salmon may be artificially bred – and will then be used for fertilizer and food. Salmon do not pass the Klamath’s dams.

The month-long hydrograph for the Nantahala River depicts a regulated river, below the power plant. Three feet on the gage is the turbines’ most efficient flow, and most days in January the power plant is generating 24-7.

The same month is shown below at a gage upstream of the reservoir with natural flow conditions. Note that the flow is much more dynamic and exhibits the classic hydrograph pattern of rain events: steep rising limbs caused by quick increases in flow, followed by slower decreases in flow. Additional Resources

Several other excellent resources are available for learning about the impacts of dams on rivers. American Whitewater recommends the following resources.

The Hydropower Reform Coalition maintains a website listing some dam impacts.

The USGS has published an excellent free book called Dams and Rivers: A Primer on the Downstream Effects of Dams (Circular 1126). A copy of the book can be obtained by ordering it online at the USGS Store, which will require a nominal shipping fee. You may also view the book online at: http://pubs.er.usgs.gov/pubs/cir/cir1126.

If you want to get really in depth the US Forest Service now offers a free online short course called the Geomorphic Response of Rivers to Dams. The course is essentially a video shot of several talks given in March of 2003 that includes a power-point panel on your computer screen. Check it out at: http://www.fsl.orst.edu/geowater/morphology/

How Hydropower Works (Source: U.S. Department of Energy) Hydropower plants capture the kinetic energy of falling water to generate electricity. Hydropower produces about 11 percent of our nation's energy. The Department of Energy provides an informative webpage explaining how hydropower works. Hydropower myths and realities (Source: American Rivers) Developed by American Whitewater’s HRC partner, American Rivers, Hydropower Myths and Realities provides information about hydropower generation and the misconceptions surrounding this power source and efforts to reform hydro.

Scientific Literature

2.3River Renewal: Restoring Rivers Through the FERC Relicense Process

Following text is adapted in part from the California Hydropower Reform Coalition and the Hydropower Reform Coalition Toolkits integrated with text from American Whitewater staff tailored to paddlers.

The relicensing of hydropower dams presents a once-in-a-lifetime opportunity to restore rivers, improve fish, wildlife habitat and recreation opportunities, and boost the quality of life for river communities.

"The public must retain control of the great waterways. It is essential that any permit to obstruct them for reasons and on conditions that seem good at the moment should be subject to revision when changed conditions demand." (President Theodore Roosevelt, 1908)

Who is FERC? (Source: FERC website) FERC, the Federal Energy Regulatory Commission, is an independent regulatory agency within the Department of Energy that:

• regulates the transmission and sale for resale of natural gas in interstate commerce • regulates the transmission of oil by pipeline in interstate commerce • regulates the transmission and wholesale sales of electricity in interstate commerce • licenses and inspects private, municipal and state hydroelectric projects • oversees related environmental matters • administers accounting and financial reporting regulations and conducts of jurisdictional companies 2.4FERC Jurisdiction A FERC license is required to construct, operate, and maintain a non-federal hydroelectric project that: 1) occupy federal public lands or federal reservations 2) are located on navigable streams 3) use surplus water or water power from a federal government dam 4) were constructed after August 26, 1935 and are located on a non-navigable stream that affects the interests of interstate or foreign commerce (including providing power to an interstate power grid).

Occasionally private hydro operators challenge FERC’s jurisdictional authority. American Whitewater has participated in several jurisdictional proceedings particularly those that involve navigability.

What is relicensing? As public resources, rivers cannot be owned by private industries. A developer may obtain a license from FERC, however, to dam the river for the purpose of hydropower generation.

These licenses last 30 to 50 years and typically stipulate how the dams are operated, what minimum water flow levels are required, what forms of fish passage must be installed and, in some cases, how watershed lands are managed.

FERC oversees 1005 licenses and 597 exemptions (as of April 2000). Until 1993, relicensing was a relatively infrequent procedure that received little, if any, public attention. In 1993, 160 licenses affecting 237 dams on 105 rivers expired, representing over ten percent of all FERC- licensed dams. These relicensings represent the beginning of an unprecedented wave that will continue with licenses for 650 more dams expiring in the next 15 years.

Relicensing: an opportunity for river restoration As a matter of public policy, FERC hydropower licenses do not last forever. A license can be issued for periods of 30 to 50 years. When the license expires, the dam owner must renew it through a process known as relicensing. The relicensing process allows FERC, state and federal resource agencies, conservation groups, and the general public to reconsider appropriate hydropower operations and land management for each project, taking into account current social and scientific knowledge.

In the past, FERC's primary goal was the promotion of hydro dams as a means to harness a river's power generation potential, often without regard for the dam's environmental impacts. In 1986 Congress amended the Electric Consumer’s Protection Act (ECPA) to FERC's operating law (the Federal Power Act). ECPA required FERC to take a more balanced approach to dam licensing. The amendment requires FERC, when deciding whether to issue a license, to consider not only the power generation potential of a river, but also to give equal consideration to energy conservation, protection of fish and wildlife, protection of recreational opportunities, and preservation of general environmental quality. This "equal consideration" mandate requires FERC to consult with federal, state and local resource agencies, including fish, wildlife, recreation and land management agencies, in order to assess more accurately the impact of a hydro dam on the surrounding environment.

In its evaluation of environmental impacts, FERC is obligated to comply with the National Environmental Policy Act (NEPA). This requires FERC to prepare an Environmental Impact Statement (EIS) or Environmental Assessment (EA), investigative reports which assess the environmental consequences of a proposed hydropower project and compare the impacts with those of alternatives to the suggested action.

State and federal agencies as well as tribal nations have the authority to prescribe mandatory conditions in hydropower licensing proceedings. These agency mandatory conditioning authorities are codified in the FERC regulations.

The relicensing of FERC-regulated dams has recently become a major tool for river conservation and restoration, with more than 150 projects relicensed since 1993, and 250 more scheduled for relicensing by 2010.

Because rivers are a public resource, it is important during relicensing for all interested parties to have a say into how the dam and the river will be managed for the 30 to 50 year term of the FERC license. Relicensing proceedings offer a once-in-a-lifetime opportunity for local organizations to have an impact on the protection and restoration of rivers adversely affected by hydropower development. Changes to project operations can benefit the environment, public recreational opportunities, and local economies. Effective hydropower relicensing needs local input – especially among groups that have intimate knowledge of the affected river and watershed. Hydropower relicensing is a clear and effective way to establish a legacy of healthy rivers for future generations. Read more about the FERC relicensing process.

How to contact FERC: Mailing address: 888 First St., NE, Washington, DC 20426 General phone number: (202) 208-0200 Website: http://www.ferc.gov/

2.5Balance of Power The Federal Power Act gives the Federal Energy Regulatory Commission (FERC) the authority to “issue licenses…for the purpose of constructing, operating, and maintaining” hydroelectric projects. In the past, FERC’s primary goal had been the promotion of hydropower dams as a means to harness a river’s power generation potential, often in disregard of the proposed dam’s environmental impacts. A 1986 amendment to the Federal Power Act, the Electric Consumers Protection Act (ECPA), required the Commission to take a more balanced approach to dam licensing. ECPA requires FERC, when deciding whether to issue a new license, to consider not only the power generation potential of a river, but to give equal consideration to energy conservation, protection of fish and wildlife, protection of recreational opportunities, and preservation of general environmental quality.

This “equal consideration” mandate requires FERC to consult with federal, state and local resource agencies, including fish and wildlife, recreation, and land management agencies, in order to more accurately assess the impact of a hydro project on the surrounding environment. Despite this important legislative reform, FERC has responded slowly; the original goal of facilitating hydropower development remains entrenched in the thinking at FERC. The Commission can be convinced, and forced through court action if necessary, to do well by the environment. But citizens may be disappointed if they rely on the goodwill of the Commission to protect the best local boating or fishing stream from inappropriate hydroelectric development.

New dams must be licensed by FERC before construction may occur, and existing dams must be relicensed every 30-50 years, depending on the license term. Many dams are due to be relicensed over the next decade. In issuing licenses for both new and existing hydroelectric dams, FERC must give “equal consideration” to power and non-power values. Non-power values include “the protection, mitigation of damage to, and enhancement of fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality.” FERC must also include “adequate” and “equitable” measures to protect fish and wildlife and their habitat in any license it issues. Thus, the FERC can and does impose instream flow requirements in its hydropower dam licenses. Don’t sit back waiting for the FERC to prescribe studies and flows of its own volition. The FERC serves more as an arbitrator in relicense proceedings. It’s up to stakeholders in the proceedings to argue for scientific studies and alternatives to the existing flow regime.

2.6The Relicensing Process At least five years before a project license expires, a project owner files a notice with FERC stating the intent to seek a new license. The utility prepares a package of information on current project operations and future relicensing plans, which serves as a starting point for consultations and meetings with state and federal resource agencies, tribes, conservation groups and members of the public, to identify the actions needed to protect fish and wildlife and provide recreation enhancements.

Once additional information needs have been agreed upon, the licensee conducts studies that will produce data to be used in the licensee’s application, and ultimately influence FERC’s decisions for license conditions. These new license conditions will govern project operations and provide protection and mitigation measures for environmental and recreational resources for at least the next 30 years. FERC Licensing Procedures FERC employs three processes for relicensing hydropower projects: 1) the Traditional Process; 2) Alternative Licensing Process; 3) the Integrated Licensing Process. A fourth process known as the Hybrid process has been used by utilities but is recognized by FERC as the Traditional Process with enhanced communication. Starting in July 23, 2005 all utilities will be required to use the FERC’s new Integrated Licensing Procedures. In some relicense proceedings the process evolves into a Settlement Proceeding. There are a variety of sources to learn more about the hydropower relicensing process. The FERC released a Hydropower Licensing Handbook in April 2004. The FERC also provides flow chart diagrams for licensing procedures and other FERC regulatory processes. The National Hydropower Association Relicensing Handbook provides useful insights on hydropower licensing procedures from a trade organization perspective.

The following descriptions of the three FERC Licensing Procedures is adapted from a paper titled, Will the Integrated Licensing Process Foster Ecological Sustainability?, presented December 4-5, 2003, Charlottesville, Virginia by Richard Roos-Collins, [email protected].

Traditional Process (TLP) The Traditional Licensing Process (18 CFR §§ 4.34, 4.38 and Part 16) has been in place in its current form since 1985, and in some form since the enactment of the Federal Power Act Part I in 1935. It relies on a procedural format whereby participants respond via formal comments to FERC notices. In this procedural format the licensee proposes a document (such as a study plan) and other stakeholders comment. It requires in-person consultation at specified stages. In its minimal form, it is like litigation, where the general strategy is to win the paper war in the eyes of the judge – the FERC.

Alternative Licensing Process (ALP) Under the Alternative Licensing Process adopted in 1997 (18 CFR § 4.34(i)), the licensee commits to work collaboratively with stakeholders to develop and implement a study plan, and to negotiate a settlement that will become the basis for the license applications. While the statutory steps occur in the statutory sequence, the ALP creates substantial incentives for the stakeholders to collaboratively resolve their disputes about the study plan, and more importantly, the conditions of a new license. It thus tends to reduce the process costs of relicensing.

The FERC’s intent in the ALP was to foster collaborative processes. In some proceedings Licensees have requested the ALP process but behaved in the traditional licensing fashion— adverserial with unilateral decision making authority. Because the FERC lacks a regulatory definition or means to measure collaboration there is no means for enforcement. American Whitewater recommends the following procedural method to avoid dysfunctional ALPs that lack collaboration.

The Licensee must specifically request use of the ALP procedure to the FERC. This request must be accompanied by a list of stakeholders supporting use of the ALP procedures along with a Communications Protocol developed collaboratively with the stakeholders. FERC regulations do not specify the contents of the Communications Protocol other than a list of the parties in support of the ALP. American Whitewater recommends stakeholders insist the Licensee develop collaboratively the Communications Protocol in detail prior to submission to the FERC. The Communications Protocol is the only regulatory FERC step in the ALP allowing stakeholders to shape the collaborative procedures. Do not sign in support of the ALP until this step is taken. Encourage other stakeholders to withhold their support as well until the collaborative protocols are agreed upon. The Communications Protocol should clearly spell out procedural rules defining collaboration, decision making processes, dispute resolution procedures, technical work group and plenary structure, and timelines. Ultimately, this step in every stakeholders best interest including the Licensee since this is the initial building block for establishing trust. With trust comes a more efficient licensing process which in turn saves the Licensee money.

Integrated Licensing Process (ILP) In July 2003, the FERC adopted the Integrated Licensing Process (104 FERC ¶ 61,109). The ILP will presumptively replace TLP or ALP after a transition period ending July 2005, unless the licensee for a given project persuades FERC to allow the use of one of those existing processes due to special circumstances (18 CFR § 5.3(a), (e)). The ILP is intended to: (A) establish a parallel track for development of the license application and environmental review; (B) pro- actively resolve disputes about study plans before that application is filed; and (C) encourage the FERC and other agencies with prescriptive authority to cooperate in the environmental review process necessary for their respective decisions. Since the ILP is new and the FERC’s preferred licensing procedure the FERC has developed an ILP workflow diagram depicting the key steps in the process. Since this will be the default relicense procedure starting in July 2005 American Whitewater recommends stakeholders become familiar with the accelerated procedural timelines. The California Hydropower Reform Coalition has developed an ILP Guidance document describing the procedural steps and timelines. Hybrid Process Relicense proceedings using the Traditional Licensing Process with “enhanced communication” have been labeled “Hybrid Processes”. The FERC regulations do not recognize or codified the Hybrid Process. This process has become common practice and deserves mention. The Hybrid Process is intended to improve communication in the Traditional Process while avoiding the regulatory and associated procedural burdens of the ALP. Because there are no regulatory requirements or FERC policy for Hybrid Processes caution should be used. The Licensee has no requirement to collaborate fairly or honor informal agreements in a Hybrid Process. With that cautionary note aside, Hybrid Processes have proved to be an effective means for reaching agreement and often are the precursor to a formal “Settlement Agreement”. If you are asked to participate in a Hybrid Process be sure to insist on development of collaborative protocols prior to signing on in support of this procedure. Some federal and state agencies will not sign-on to Hybrid Processes because it potentially compromises their legal authority.

Settlement Agreements In addition to participating in relicensing, many resource agencies and public stakeholders have chosen to negotiate directly with the license applicant to develop license terms and conditions that include conservation and recreation enhancements. These settlements have generally yielded faster and more creative improvements for rivers than those achieved in traditional relicensings. Settlement agreements establish a framework for long-term cooperation between resource agencies, the public, and project owners. The typical adversarial nature of hydropower vs.conservation is alleviated through the settlement process, as the concerns of all parties can often be equitably addressed.

FERC generally welcomes the settlement process as it often allows for more expeditious relicensing. Settlements can occur at any time during the relicensing process, however, it is best to develop an agreement before the environmental review has been conducted. This way, FERC can evaluate proposed settlement terms and conditions as possible alternatives in the EA or EIS. Once a settlement has been negotiated and signed, it is submitted to FERC with the request that all settlement terms and conditions be included as part of the official license. However, because FERC may omit or alter terms of the agreement which are not “conventional” FERC provisions, many settlement parties have included a clause in the settlement making all settlement terms legally binding regardless of whether the FERC includes them in the license.

If you are asked to participate in a Settlement be sure to insist on development of collaborative protocols prior to signing on in support of this procedure.

Dr. Ken Kimball, Conservation Director for the Appalachian Mountain Club and expert hydro relicense practitioner, has developed a presentation on the successes and failures of Settlement Agreements in the New England states.

Settlement Examples: Nantahala River, NC Tuckasegee River, NC

2.7Filing Comments with the FERC American Whitewater and our coalition partners have participated in hundreds of relicense proceedings across the nation. This participation has provided tremendous experience and insights into FERC regulations and practice as well as the art of filing comments. American Whitewater maintains a library of comments written by staff and volunteers to serve as examples in other proceedings.

The FERC acts like a judicial body and as such requires specific filing formats, procedures and timelines. Failure to comply with these formats and procedures will result in dismissal of your document. The FERC regulations and filing procedures are available in section 18 of the Code of Federal Regulations. American Whitewater and our coalition partners have considerable experience filing documents with the FERC. Below is a list of filing instructions and templates that might be of assistance.

Why File Comments with FERC? The FERC functions as a quasi judicial body with the five appointed Commissioners serving in the role of judges. The FERC hears arguments from all stakeholders formally registered as parties in a proceeding. Written comments correctly filed with the FERC become part of the record for the proceeding from which the Commissioners must base their decision. Accordingly, anytime you submit comments or request information during a relicensing, you should file formally with FERC. This will ensure both that FERC is aware of your filing and that the information in the filing becomes part of the administrative record for the proceeding. Do not rely on another party to file comments on behalf of your interest. Documents filed with FERC carry the most weight if they come from stakeholders who are formal parties to the proceeding.

Content of Comments (Source: California Hydropower Reform Coalition Toolkit) Stakeholders should thoroughly research the issues prior to submitting comments. Be familiar with the FERC administrative record for the proceeding. This includes the current license application, study plans, formal comments from other parties, and all FERC documents such as scoping documents and environmental assessments/impact studies. Identify errors or omissions in the FERC administrative record regarding the project’s operations and environmental impacts. Your comments should address these errors and omissions. If necessary be prepared to recommend alternatives not included in the record. These alternatives should be supported with data and analysis. In summary, be sure your comments are well researched, concise and likely to be supported by other key stakeholders in the process.

Strategy: 1. W ork closely with state and federal resource agencies in the development of your comments, recommendations, terms and conditions. FERC gives more deference to agency comments than those by conservation groups or citizens. Cultivate a relationship with the state and federal resource agency staff. Provide resource information and data to resource agency staff.

2. If possible, obtain a copy of agency filings before you file your comments. Agency comments can be very lengthy because their terms and conditions can be submitted as part of their mandatory conditioning authority and must include evidentiary basis.

3. If you agree with agency comments, indicate concurrence with their filing and restrict your submission to specific areas of concern. This will allow you to make comments without a detailed evidentiary basis if you do not have such evidence separate from that of the agency.

4. A ddress all issues of concern. FERC will rarely address license conditions that no one has recommended in their filing. Recommended terms and conditions address a variety of issues, including: (1) conservation mitigation such as instream flows, bypassed reach restoration, reservoir operation, fish passage (up and downstream), fish protection from entrainment, watershed land management, erosion control, water quality protection, wildlife habitat conservation, and cultural resource conservation; (2) recreation mitigation such as public access, facilities, recreational instream flows, and aesthetics; and (3) additional mitigation such as trust funds, dam decommissioning funds, and public committees to oversee license implementation.

5. If requesting studies, meet FERC’s criteria for study requests. The requirements, found in 18 CFR 5.9(b) generally state a study request must: • Describe the goals and objectives of the study proposal and the information to be obtained; • If applicable, explain the relevant resource management goals of the agencies or tribes; • If the requester is not a resource agency, explain any relevant public interest considerations that would benefit from the proposed study; • Explain any nexus between project operations and effects (direct, indirect, and/or cumulative) on the resource to be studied, and how the study results would inform the development of the license requirements; • Explain how any proposed study methodology (including any preferred data collection and analysis techniques, or objectively quantified information, and a schedule including appropriate filed season(s) and the duration) is consistent with generally accepted practice in the scientific community or, as appropriate considers relevant tribal knowledge; • Describe considerations of effort and cost, and why proposed alternatives would not suffice. How to File Comments (Adapted from the California Hydropower Reform Coalition Toolkit) Anytime you submit comments or request information during a relicensing, you should file with FERC and the service list. This will ensure both that FERC is aware of your filing and that the information in the filing becomes part of the administrative record for the proceeding. The FERC has strict regulations on formats, timelines and procedures.

The FERC regularly distributes “Notices” to the mail list and service list for a hydropower proceeding. These FERC Notices specify if comments are being accepted and the timeframe for filing those comments. Any stakeholder can file comments on these FERC Notices provided the correct procedures are followed as specified in the Notice. The timeframe for submitting comments must be strictly adhered to for the comments to be part of the administrative record.

Templates are extremely useful tools for formatting comments and reviewing the procedural as well as substantive nature of specific comments. American Whitewater maintains an electronic library of FERC comments filed in various relicense proceedings. The FERC’s online e-library stores every filing submitted and issued by FERC, the applicant, agencies, tribes, and public stakeholders during the relicensing process. All filings are grouped by proceeding and sorted by date. The FERC website www.ferc.gov is a good source of information for how to file with the Commission.

The FERC accepts comments submitted via the Internet. E-filing has greatly improved the public’s ability to submit comments to the FERC in a timely fashion. There are a few tricks to using the e-filing tool--American Whitewater’s conservation office can assist you with e-filing problems.

2.8Micro Hydro While the threat of big dam construction has largely drawn to a close in the continental U.S. there is an increasing threat of small hydropower dams on high gradient streams and creeks—the very creeks many boaters cherish for the challenge coupled with superb aesthetics, water quality and sense of wilderness. Private hydro operators are actively developing projects on high gradient streams. The International Small-Hydro Atlas has identified 539 undeveloped sites in Washington State and another 481 sites in British Columbia. There are currently around 400 applications for power generation on creeks and rivers in BC! An additional 662 sites have been identified in the neighboring states of Alaska, Oregon, and Idaho, and many 1000’s more have been discovered all across the globe. American Whitewater has fought back plans to dewater Canyon, Clearwater, and Martin Creeks in Washington as well as Boundary Creek in Idaho. Micro-hydro projects rely on a dam diverting water from the river channel into a tunnel or canal contouring along the mountainside. Contouring the water along the mountainside enables the project to maximize the elevational difference (referred to as “head in hydropower jargon) between the powerhouse and the canal. The higher the “head” the more electricity is produced from the spinning turbines. In order to maximize electrical production hydro engineers design lengthy canal systems transporting water 10 to 15 miles before dropping it to a powerhouse located adjacent to the river channel. Because development of micro-hydro projects incurs considerable initial capital costs supplied by investors there is a strong incentive to maximize energy production which in turn maximizes profits. The end result is projects engineered that capitalize on diverting as much water as possible from the river channel.

Micro-Hydro developers describe their projects as benign because comparatively micro hydro dams and water diversions are small relative to the massive height of large-scale dams and huge volume of water used. Contrary to contemporary thought—size doesn’t matter when it comes to hydropower impacts. The scale of the ecological impacts to river systems can be quantified based on the percentage of water diverted and the length of the dewatered channel. For whitewater boaters micro-hydro projects can be devastating. These projects dewater significant stretches of the river channel often times targeting the steepest sections for dewatering—the very sections that attract creek boaters.

American Whitewater fights construction of micro-hydro projects by working with local boaters and clubs. We provide advice and at times devote a staff member to work directly on the project. American Whitewater is lending support to our Canadian neighbors where possible.

2.9Hydrology: Collecting and Analyzing the Data According to the world’s leading river ecologists flow defined as the timing, magnitude, frequency, duration and rate of change is considered to be the number one factor determining the physical, biological and chemical characteristics of a river. American Whitewater firmly believes flow is the single most important factor for determining species distribution and ecological processes. Accordingly, American Whitewater carefully analyzes the hydrology of a river system including pre-project conditions (natural) verses post-project construction (regulated) conditions. This systematic analysis allows American Whitewater to objectively evaluate the impacts of the hydropower project on whitewater resources and propose recreational flows for the new license that mitigate lost opportunities but more importantly also perform ecological processes now eliminated by the dams regulation of flow. As a result the magnitude and timing of American Whitewater’s recreational flow proposals parallel natural flow conditions (pre-project).

The FERC requires the application for a new license to include existing hydrology information. Typically this hydrology information is limited to annual or monthly exceedence curves. Exceedence curves allow you to predict the percentage of time a given flow might occur in the channel based on a set record of hydrologic data for the project. These graphs are of limited value for developing instream flows for fisheries or recreation. Furthermore, the FERC regulations do not require the utility to provide information about the pre-project hydrology. Nonetheless, in collaborative relicense proceedings stakeholders are increasingly demanding utilities provide pre-project and regulated hydrologic data as well as perform comparative analysis between proposed instream flow alternatives and pre-project flows.

In collaborative proceedings and settlement negotiations American Whitewater requests the utility provide pre and post project hydrologic data as well as provide comparative analysis using analytical tools developed by Brian Richter from the Nature Conservancy. Brian’s paper titled “A Method for Assessing Hydrologic Alteration in Ecosystems” breaks instream flows into five major components: magnitude, frequency, duration, timing and rate of change. These five components are further divided into thirty metrics. Collectively, these measures of the hydrograph interact to determine the ecological characteristics of river ecosystems. In a follow- up paper, “How Much Water Does A River Need,” Richter describes a procedure for evaluating alternative flow regimes based on deviations from the pre-project natural hydrograph. The assumption here is that native species evolved around the ecological characteristics of the river which in turn are set by the hydrology. Deviations from that natural hydrology will result in changes to the ecological characteristics and associated species. The analytical concepts presented in Richter’s papers are available in an IHA software package by Smythe Scientific Software.

Sidebar: In 1998 American Whitewater was asked to participate in the fisheries technical work group for the Mokelumne Hydroelectric Project (FERC No. 137) located on the Mokelumne River in California. American Whitewater was representing a diverse group of organizations including river conservation groups, anglers and boaters all member groups of the California Hydropower Reform Coalition. The original license for the project had expired in 1972. Relicensing had been going on since before the expiration. Instream flows in multiple stream reaches dewatered by project operations were a principal issue preventing the group from reaching agreement. The fisheries technical work group directed PG&E to provide pre and post project hydrologic data for evaluating instream flow alternatives. American Whitewater’s Conservation Director, John Gangemi, requested the analysis include the Index of Hydrologic Alteration (IHA) and the Range of Variability Approach. The U.S. Forest Service, a member of the fisheries group, was hesitant to use an unfamiliar analytical tool. The IHA software was forwarded to the U.S. Forest Service’s Stream Team located in Ft. Collins, Colorado. The stream team approved use of the IHA analysis. This was the first FERC relicense proceeding where IHA was used. The analysis helped the fisheries group reach consensus on instream flow recommendations for individual reaches. Since that initial application the U.S. Forest Service Region 6 (California) requires IHA analysis in all relicense proceedings.

Hydrologic Data Sources:

The U.S. Geological Survey (USGS) measures surface water discharge at sites across the country. The USGS also provides access to long-term hydrologic data sets. In California, the California Department of Water Resources is a good source for streamflow information. Other states and regions may have additional streamflow information.

2.10 The Natural Hydrograph Concept The science of river ecology has progressed dramatically in the last thirty-years starting with the 1972 publication of H. B. Hynes landmark book, “The Ecology of Running Waters.”1 Since release of Hynes book considerable research has occurred within individual river science disciplines as well as synthesizing this knowledge into ecological perspectives. In the 1990’s numerous papers identified instream flow as the single most important factor driving fluvial

1 Hynes, H. B. 1970. The Ecology of Running Waters. University of Toronto Press, Toronto. 555 p. geomorphic processes which in turn create habitat mosaics effecting species abundance, distribution and life history sequences.

Applying the Natural Hydrograph Concept in Hydropower Proceedings

The scientific literature clearly demonstrates that restoration of riverine ecological processes in rivers regulated by dams requires instream flows that closely mimic the natural hydrograph present prior to dam construction2. Within the context of hydropower relicensing, restoration of the natural hydrograph has become a popular goal among state and federal agencies as well as non-governmental organizations in proceedings across the country. American Whitewater largely supports this effort in hydro proceedings where dam removal or run-of-river operations are being considered as a viable option.

In reality, most hydropower relicense proceedings do not include dam removal or run of river operations as alternatives. In these proceedings it is inappropriate to rigorously apply the natural hydrograph concept as a model for the annual hydrograph in the new license. In river reaches where hydro projects cause water to bypass significant distances of natural river channel continued power generation—the lion’s share of the water in most cases-- automatically eliminates the volume of water necessary to achieve the natural hydrograph and associated ecological processes. Dedicating a percentage (often times 80 to 90 percent) of the annual hydrograph to power generation makes it impossible to craft an instream flow regime mimicking the natural hydrograph. In these proceedings where hydropower consumes a significant percentage of the hydrograph strict adherence to the natural hydrograph concept is both impractical and impossible to apply across all resource disciplines. In such cases, stakeholders should view hydropower relicensing as an opportunity to develop alternative flow regimes that better balance beneficial uses than the existing or previous license instream flow conditions.

2 Stanford, J.A. et. al.. 1996. A general protocol for restoration of regulated rivers. Regulated River: Research and Management 12:391-413. Richter, B.D., J.V. Baumgarten, J. Powell, and D.P. Braun. 1996. A method for assessing hydrologic alteration within ecosystems. Conservation Biology 10(4):1163-1174. Richter, B.D., J.V. Baumgartner, R. Wigington, and D.P. Braun. 1997. How much water does a river need? Freshwater Biology 37:231-249. Poff, N.L., J.D. Allan, M.B. Bain, J.R. Karr, K.L. Prestegaard, B.D. Richter, R.E. Sparks, and J.C. Stromberg. 1997. The natural flow regime: a paradigm for river conservation and restoration. Bioscience 47(11): Goals related to instream flows should be fashioned in a manner proportional to the alternatives being considered in the relicense proceeding. In situations where continued hydro generation is part of the next license the natural hydrograph serves as a reference point but should not be a strict metric for acceptance of a flow recommendation. Alternative flow regimes should be considered with a continuum of options ranging from instream flow conditions in the existing license to that of a natural free flowing system. No single flow recommendation for a specific resource discipline should be eliminated simply because it does not comply with the natural hydrograph concept.

Items to consider when determining if the natural hydrograph is an appropriate objective/standard:

• Does the proposed management equitably require all water uses to comply with the natural hydrograph, including the power company or dam owner. Specifically, is the proposed management either to remove the dam or to operate it as run-of-river.

• Are there other circumstances that inherently limit ecological restoration potential such as cold-water discharges (Nantahala), water quality impacts (Ocoee), upstream flow modification (Little Tennessee), or short stream length (Cheoah).

• Will the river be managed for native species recovery – or for non-native game fish?

Another important consideration when considering the appropriateness of using the natural hydrograph as a standard is the restoration approach: Functional versus Structural Restoration. Often times a flow regime is proposed that “mimicks” the natural hydrograph. In this case it is not about reconstructing the exact structure of the historical flow regime, but rather aiming to restore certain functions that the historical hydrograph provided. This relies on models designed to predict specific aquatic habitat, which is a function of the flow regime. The structure of the original hydrograph is GONE due to continued power generation – so the question becomes how many ecological and social functions can we restore to a river with the left over water.

Constant variable base flows restore the following functions: Increased aquatic habitat, angling. Variable high flow events restore the following functions: channel maintenance, sediment transport, spawning and migration cues, scouring of lentic and upland vegetation in the channel, reduction of invasive species, paddling.

How many kids can you feed with table scraps? Is it better to let some die so that others are strong or keep them all alive but weak, what happens if the kids beat the hell out of each other to be first in line, which kid deserves the food more? Playing god with instream flows is really about social values engineering. The end result in most relicense proceedings is power generation alterations to the hydrograph are acceptable because they are expected socially as a traditional use, base flows meeting traditional angling needs are acceptable because predictive models say they are, but whitewater flows are perceived as unknown ecological risks or “disturbances” and thus required to strictly follow the structure of the Natural hydrograph. This is a mistake because as previously stated – the natural hydrograph no longer exists.

The point being that low flows are restored to functionally mimic the natural hydrograph, while high flow events are often forced to structurally comply with the natural hydrograph, when in reality both are functional restoration. If both can be considered as critical to restoring a wide array of valuable social and ecological functions then realistic functional river restoration can be achieved.

In relicense proceedings where decommissioning is not an alternative state and federal agency resource managers and non-governmental organizations must clearly define their resource management goals and objectives. Complete restoration of natural conditions is not feasible given the lack of project decommissioning. Stakeholders must scale back their river restoration goals proportional to the volume of water remaining for instream flows. Stakeholders should focus on developing alternative flow regimes designed to meet individual resource goals and objectives. The alternative flow regimes should be designed in a fashion that strives to enhance aquatic resources/riverine ecological processes without causing impact. No single beneficial use should dominate the alternative flow regime developed as the annual hydrograph for the new power license. Resource managers should resist developing an alternative flow regime that focuses on a single species or species guild particularly when that alternative restricts and/or eliminates other beneficial uses. Instream flows should be dynamic in time and volume to stimulate habitat and species diversity3. Evaluations of alternative flow regimes should be based on objective scientific study meeting peer review standards.

Most instream flow recommendations on regulated rivers revolve around fishery needs. Typically, fishery instream flow recommendations are less than 10 percent the volume of the natural hydrograph and have little if any seasonal variation. This is referred to as a flat-line hydrograph because of the lack of peaks and valleys predominant in a natural hydrograph. Riverine ecological processes are driven by the peaks and valleys in the annual hydrograph. The aquatic habitat and associated biological community are manifested by the hydrologic peaks and valleys. It is not uncommon for resource managers to prescribe a flat-line instream flow for the fishery and in the same meeting object to pre-project whitewater releases under the pretense that the rate of change between the artificial base-flow and the whitewater release is not natural. This selective application of the Natural Hydrograph Concept is simply a self-serving argument against whitewater flows with no scientific merit. Ironically, it is the proposed whitewater flows that more closely mimic the natural flow than the proposed fishery instream flow. Admittedly, the flow fluctuations were not present in the pre-project hydrograph. But since the stakeholder group is not truly reconstructing the natural hydrograph then why is the whitewater constituency required to uphold the natural hydrograph paradigm while the fishery flows blatantly violate the concept? All beneficial uses should adhere to the same standards be it hydropower generation, fisheries/aquatic organisms or angling? The inconsistent application of the natural hydrograph concept is a symptom of stakeholders not clarifying resource goals and objectives in a proceeding and applying those goals and objectives uniformly.

Any proposed whitewater schedule should be evaluated through empirical scientific study rather than paradigms about natural hydrographs applied inconsistently across resource disciplines. Resource managers should be developing testable hypothesis related to their biological concerns about whitewater releases. Do the whitewater fluctuations cause a biological impact? What is the difference biologically between whitewater fluctuations, project shut-downs and spill flows? Is the recorded biological impact long term or short term i.e., does it cause a decrease in the inter

3 Resch et al. 1988. River Continuum Concept. or intra-annual population? Are these biological impacts the result of a synergistic interaction between degraded habitat and fluctuating flows? If the habitat improved would the flow fluctuations have a biological impact? These questions need to be asked and carefully tested. Assumptions should be carefully tested.

Clean Water Act compliance

On the Pit River, the California Water Quality Control Board, the state agency responsible for administering the federal Clean Water Act, recognizes 21 beneficial uses. The Basin Plan states the following:

“Beneficial uses are critical to water quality management in California.

State law defines beneficial uses of California's waters that may be

protected against quality degradation to include (and not be limited to)

"...domestic; municipal; agricultural and industrial supply; power

generation; recreation; aesthetic enjoyment; navigation; and preservation

and enhancement of fish, wildlife, and other aquatic resources or preserves"

(Water Code Section 13050(f)). Protection and enhancement of existing

and potential beneficial uses are primary goals of water quality planning.”4

The US Forest Service has an obligation under a Memorandum of Understanding with the California Water Quality Control Board to uphold federal Clean Water Act water quality standards and regulations for the respective reaches of the Pit River in this relicense proceeding. The Basin Plan for the Sacramento Basin specifically designates canoeing and rafting as Recreation I beneficial uses for the Pit 3, 4 and 5 reaches. As such, these beneficial uses are protected by state and federal regulations. The US Forest Service cannot issue draft 4(e) conditions that categorically deny a beneficial use particularly when the rational for precluding a beneficial use is based solely on assumptions rather than conclusive evidence. Proposed 4(e)

4 The Water Quality Control Plan (Basin Plan) For The California Regional Water Quality Control Board Central Valley Region, Fourth Edition – 1998. The Sacramento River Basin And The San Joaquin River Basin conditions that exclude or eliminate a beneficial use would violate the Antidegradation regulations. The Antidegradation policy can be found http://www.swrcb.ca.gov/plnspols/wqplans/res68-16.html. The US Forest Service must balance existing beneficial uses with resource protection objectives. Those objectives must be based on objective scientific data and be proportional to the specific percentage of natural the US Forest Service is attempting to restore. If the US Forest Service goal is to restore 100% natural in the Pit River, then the project facilities must be removed. If the goal is less than 100% of natural, then all objectives in specific disciplines should be scaled back accordingly.

The FERC is also from a regulatory standpoint responsible for upholding the Clean Water Act water quality standards and regulations identified in state water quality standards. California’s Sacramento River Basin Plan can be found at http://www.swrcb.ca.gov/rwqcb5/available_documents/index.html#anchor616381

2.11 Project Economics: Calculating the Cost of Instream Flows

One of the many challenges in hydropower relicensing is determining the true dollar value of instream flows and recreation flow releases. While appearing to be little more than simple calculations, you will be challenged in this area for several reasons. Hydropower operations, like many other unique industrial operations, tend to be multi-generational careers. When you interact with system operators, you’ll discover that their whole life, along with their father, and even grandfather, has been hydropower. One of the cardinal rules of hydropower operations is to never spill water – spill is wasted revenue (also known as foregone generation). This has been ingrained into their thinking for their entire career. Further, utilities tend to develop a sense of ownership of the water used in their operations. This has been fostered by the forty or more years of relative freedom to utilize nearly the entire streamflow at will. With the advent of environmental legislation which calls for enhanced protection of habitat and species, along with consideration of other beneficial uses, hydropower generation is no longer the sole consideration. Simply put, while the utility may possess the right to use streamflow for hydropower generation, the actual ownership of this public trust resource belongs to the entire public and all interests need to be considered, including returning flows to reaches dewatered by project operations (referred to as bypass reaches in hydropower jargon).

Utilities often make the argument that restoring flows to bypass reaches is too expensive and economics justify continued hydropower generation over environmental, recreational and aesthetic uses. In many instances the utility has brought their economist to the negotiations to pronounce the “horrendous expense” of a proposed flow, without supplying the methods used in arriving at their figure, often claiming they are not at liberty to divulge their calculations because it is proprietary information. This claim should never be accepted without solid supporting information and by doing some research on your own part. American Whitewater staff utilize a simple Excel worksheet to quickly calculate the expense of flow releases. Keep in mind that this is just for quantifying the actual expense of a flow, not the value. Always compare apples to apples in these discussions and avoid getting sidetracked with other issues.

In the energy business, utilities are continually generating, buying, and selling power based on their load (electrical demand) and generational capability. The wholesale price of electricity is constantly changing based on demand vs. capacity. In the springtime, when demands are lower and high streamflows provide abundant generation, wholesale prices are low. In contrast, during the fall and winter, low flows and high demand drive the wholesale price much higher. Research in the late 1990’s in California showed wholesale prices during the springtime of $0.00 to $15.00 per megawatt hour (mw/hr), as opposed to fall prices greater than $80.00 per mw/hr. Using three full years of hourly price data, we found that the average wholesale price of electricity was $30.00 per mw/hr. Calculating “Cost of Instream Flows” Based On Foregone Power Generation Hydropower operations have a rated generation capacity at a given flow value i.e., 112 MW @ 3,000cfs. The spreadsheet tool allows you to insert the generation capacity and corresponding flow, proposed instream flow, and wholesale price of electricity. This then allows you to calculate the cost of the proposed instream flow. The spreadsheet also includes the proposed instream base flow. This is included to avoid adding the cost of this flow twice into the calculations. We refer to this as “double dipping” by the utility and results in inflated costs for recreational releases. The cost of an instream flow is one expense, recreational or other flows are additional expenses on top of the instream flow. Therefore, you need to factor in the instream (base) flow.

Calculate Cost of Bypass Flows (Enter Values in Red Cells)

70 Input Powerhouse Rated Capacity (MW)

Input Powerhouse Maximum Flow (CFS) 3560 Generation per 1cfs = 0.0197 MW/Hr Generation per 100 cfs = 1.9663 MW/Hr Generation per 1000 cfs = 19.6629 MW/Hr

Desired Recreation Flow 1600 cfs Instream (Base) Flow 250 cfs Duration of Recreation Release 6 Hours Forgone Generation = 159.270 MWh Acre/Feet = 669.4 Cost per Acre/Foot = $7.14 Input Wholesale Power value $ $30 Cost of Release = $4,778.09

In the above example the powerhouse capacity is 70 megawatts @ a flow of 3,560 cfs which means for every hour that 1,000 cfs passes through the turbines; 19.66 megawatt/hours of electricity is produced.

The next group of input values will give the cost of a flow release. The desired release level is 1,600cfs, with an existing instream(base) flow of 250 cfs, with a duration of 6 hours and the wholesale price of power is 30.00 per MW/Hr. Based on the calculations above a 1600 cfs release for six hours costs $4,778.00 in lost power generation. Additionally, you have calculated the total forgone generation and total acre/feet of water needed for the release. An additional expense is the ramping flows that precede and follow a recreational release. To generate that figure you will need to change the duration to that of the rate change (usually .5 to 1 hour), and the desired flow to that of the flow increase or decrease. Add together all the totals for the ……(Kevin Lewis to finish text)

Philosophically, some river advocates oppose placing a value on instream flows claiming environmental laws require sufficient instream flow to protect non-power values such as fisheries and recreation. While on paper these laws may indeed identify non-power beneficial uses in reality the final decisions on the volume and timing of instream flows are ultimately driven by the project’s economics. Doing your homework on the project’s economics beforehand enables you to call the bluff when the utility claims instream flow proposals will make the project economically marginal. Furthermore, knowledge of project economics enables you to make reasonable proposals (economically viable) for recreation instream flows. This knowledge of project economics and effort to make reasonable flow proposals will be a great asset to the relicensing process and other stakeholders as well. American Whitewater always crafts recreation instream flow proposals based on the hydrology of the system and project economics. As a result we almost always achieve our restoration goals in relicense proceedings. Along the way other stakeholders including utilities notice our reasonable approach thus enhancing our credibility and expertise in the field of hydropower relicensing. 2.12 Whitewater Flow Studies Whitewater flow studies are a critical component in a hydropower relicense proceeding for boaters. These studies set the stage for future whitewater flows by identifying a specific range of flows that optimize whitewater recreation. Whitewater flow studies should be done objectively with the goal of accurately and precisely identifying the range of flows suitable for whitewater recreation. Done properly without bias, flow studies objectively document the water volumes necessary for a range of whitewater flows between minimum acceptable and optimum, using scientific methodologies to obtain the supporting preference data. Furthermore, pinpointing the range of flows between minimum acceptable and optimum flows helps maximize the potential number of boaters, thus helping to justify the case for establishing a release schedule that truly benefits the whitewater recreation community.

Stakeholders, particularly utilities and their hired consultants, are tempted to start negotiating at the design stage of the whitewater flow study. This temptation stems from the fact that scheduled flows take water away from power generation or force the utility to generate when market rates are low. In an effort to protect their interests in power generation utilities and their contractors will try to reduce the range of flows being investigated in a whitewater flow study. The range of flows should be developed based on objective information about the reach including the following: existing and historic boating use, site reconnaissance, and hydrologic analysis. Typically, whitewater flow studies investigate a range of flows. Negotiating the range of study flows based on foregone power generation will result in biased study results. These flow negotiations should be postponed until the end of the study period. If utility project managers/consultants persist in trying to negotiate flows rather than use objective information for selecting study flows then contact the FERC staff person assigned to the project.

Whitewater Flow Study Objectives Establishing clear objectives is a critical part of a successful recreation instream flow study. These objectives include but are not limited to the following: • Identify whitewater recreation opportunities on the river reaches affected by the hydropower project. • Identify minimum acceptable and optimum flows for respective recreational activities • Develop flow preference curve • For respective recreational activities, identify level of difficulty/skill level for different types of flow conditions. • Identify flow-related attributes for each opportunity • Develop relationships between flow levels and experience quality for each recreational opportunity. • Assess relative impacts of providing specific flows for a given activity on other flow dependent river recreation opportunities. • Assess potential impacts/biological effects of specific recreation flow regimes on aquatic habitat and associated organisms. • A summary of boating-relevant hydrology and project operations and discussion of implications relative to the feasibility, costs, and timing involved in providing boating flows. • Determine access and facility needs

Terminology Minimum Acceptable Flow: Flow identified statistically through survey results whereby 50% of participants indicate they would not return at that flow because it is too low for a quality recreational experience.

Optimum Flow: Flow identified through survey results that is predominantly preferred by participants.

Bypass Reach: Hydropower jargon referring to a section of the natural river that is dewatered between the dam and powerhouse located downstream. Types of Whitewater Flow Studies American Whitewater has applied five different types of study designs to investigate whitewater resources in hydropower proceedings. Typically, American Whitewater utilizes a Five-Step Sequential Framework that organizes the investigative power of four formerly unrelated recreation instream flow methods into a complimentary progression. These individual study methods are briefly described below. Several of the study methods are synonymous with whitewater recreation studies, however, the methods have broad application to flow dependent recreation investigations in general.

Desktop Analysis: This step is marked by compilation of existing information about river channel characteristics, natural verses regulated hydrology, known river recreational opportunities, access points and flow information. Products from this analysis typically include tables listing whitewater runs and their associated attributes, maps, video and still photos for this phase of the study. This information can be supplemented with interviews of local users either on site or electronically via the internet coupled with phone interviews. Typically, fieldwork is limited to site visits if necessary by the principal researcher to ground truth existing information or to compile information for desktop reporting purposes. Desktop studies are particularly well- suited to hydro projects with multiple dams and powerhouses potentially impacting a large number of whitewater reaches. This analysis has been completed on the San Joaquin watershed in California as part of Southern California Edison’s Big Creek proceeding involving the relicensing of seven hydropower projects with multiple dams and powerhouses.

Land Based Reconnaissance Study: The reconnaissance typically includes a facilitated user group site visit lead by a principal researcher with training in social science surveys and ideally, familiarity with whitewater boating. The user group tours the river reach with pre-determined stops at points of interest and survey questions. Ideally, flows will be provided in the river reach within an estimated recreational flow range. Some site reconnaissance studies have provided a range of flows for the visit. Providing estimated recreational flows during the site visit, particularly a range of flows, expands the information gathered. Participants complete survey forms during the reconnaissance. The lead researcher or a designated person leads a focus group discussion after participants have completed their survey forms. This study method has been used on the following rivers High Falls section, Saranac River, New York FERC No. 2738 Bonas Defeat, East Fork Tuckasegee, North Carolina FERC No. 2698 Tamolich Falls section, Mackenzie River, Oregon FERC No. 2242 Chelan Gorge, Chelan River, Washington FERC No. 637

Single Flow Feasibility Study: Single flow studies are designed to confirm the presence or absence of a recreational opportunity and/or gain knowledge on the range of estimated flows appropriate for a Controlled Flow Recreation Study as well as logistical needs. A designated team recreates on a single pre-determined flow estimated to be in the appropriate range. The pre-determined flow should be selected based objective information: existing or historic use, site reconnaissance and/or hydrologic analysis. Ideally, the flow selected for the single flow study will fall within the boatable range (minimum acceptable to optimum flows). Do not allow the utility or their consultants to negotiate flows in the study design phase or arbitrarily set the flows below the perceived boatable range. For safety reasons try to avoid high challenge flows.

Participants complete a single flow survey form that prompts them to measure the recreation attributes of the flow. In some rare cases sufficient data may be collected to estimate the minimum acceptable flow and optimum flow with a level of accuracy that eliminates the need for a Controlled Flow Whitewater Study. Upon completing the single flow survey form the paddling group should be asked a series of focus group questions. Individual and group responses should be recorded for the group to view and later transcribed into the final report. The focus group questions help stimulate discussion thereby providing additional information not captured in responses to multiple choice survey questions.

Controlled Flow Recreation Study: These studies are designed to identify minimum acceptable and optimum water volumes for flow dependent recreation. The actual methodology is described on page 40 in the Whittaker et al. (1993) publication titled Instream Flows for Recreation: A Handbook on Concepts and Research Methods. The dam operator releases a pre- determined range of flows selected by whitewater experts with site-specific knowledge, preferably participants in the relicense proceeding. Do not allow the utility or their consultants to negotiate flows in the study design phase or arbitrarily set the flows below the perceived boatable range. Flows should be selected based on objective information: results from a single flow study, existing or historic use, site reconnaissance and/or hydrologic analysis. Ideally, the flow selected for the controlled flow study will bracket the boatable range (minimum acceptable to optimum flows) with at least one flow below minimum acceptable and 2-3 flows equal to or between minimum acceptable and perceived optimum.

A team of participants representing the breadth of potential users recreates on each flow. After each test flow, participants respond to a single flow survey form designed to record the quality of the experience at that flow. Once all the flow levels are completed, participants complete a comparative survey form that measures the recreation attributes of one flow against another. The data generated from participant responses helps develop a flow preference curve that identifies a minimum acceptable and optimum flow. The data generated from a controlled flow recreation study is specific to the reach being paddled by participants. This data is not applicable to other segments on the same river or other rivers.

Upon completing each single flow the paddling group should be asked a series of focus group questions. This should also be done after the comparative flow survey form is completed. As noted above, individual and group responses should be recorded for the group to view and later be transcribed into the final report.

Internet Based Recreation Flow Study: Recreation instream flow studies can utilize the internet for data collection means. There are certain advantages and disadvantages with internet- based studies that stem largely around the concept of facilitated verses non-facilitated studies. Internet based studies offer a distinct advantage because they expand the number of participants greatly thereby allowing increased statistical analysis. On the disadvantage side, because participants are completing the survey form without the advantage of having a facilitator on hand to explain questions or provide a contextual overview of the study, the precision and accuracy of this data can be problematic. In contrast, recreation instream flow studies with a limited test group size utilize trained facilitators to assist with understanding the survey form, specific questions and overview of the FERC proceeding. In addition, all participants are recreating under the same external conditions limiting variable analysis to flow. This facilitation greatly improves the accuracy and precision of the survey responses. Given these advantages and disadvantages, internet based recreation flow studies are most applicable in the early stages of the Five-Step Sequential Framework in addition to or in lieu of the desktop analysis or the single flow recreation study. American Whitewater has conducted internet based flow studies for Stony Creek, PA and West Rosebud Creek, MT.

Whitewater Flow Studies on High Gradient Streams Many FERC jurisdictional hydropower projects contain dewatered river reaches with steep gradients (ranging from 100 to 400 feet per mile), constricted canyons with rapids, waterfalls, and limited access. These are generally categorized as high challenge runs with Class V and VI difficulty. A significant percentage of the whitewater community not only has the skills to paddle these reaches safely but also places them at the top of their destination list. The steep gradient coupled with narrow constrictions makes these whitewater reaches very sensitive to slight changes in flow fluctuations. Therefore, it is imperative that minimum and optimum flows be pinpointed through a Whitewater Flow Study.

Utilities and stakeholders in hydro relicening proceedings often times recoil at the mere suggestion of a whitewater flow study on high gradient reaches with Class V difficulty. In some cases this opposition is sincerely based on safety concerns and general lack of familiarity with the sport. In other cases utilities skillfully use “safety” as a thinly veiled obstruction tactic to a whitewater study and the associated mitigation measures that might be required. In order to successfully address utility concerns American Whitewater published a report on liability at hydropower projects. American Whitewater has also developed a narrative justifying the need for whitewater flow studies in hydropower relicense proceedings with Class V difficulty where initially there was opposition to a flow study due to safety concerns or the fact that the utility simply believed the river was not runnable. American Whitewater highly recommends developing liability waivers and safety plans collaboratively with the utility as a means of demonstrating your sincerity with their concerns in a solution focused manner. The following guidance documents, liability waivers and safety plans used in other whitewater studies should help in the development of a plan specific to your river. • Ri sk Management Planning • A merican Whitewater Safety Code • N orth Fork Feather Safety letter • L iability Waiver • A usable River Whitewater Study Risk Matrix • G ore Canyon Race Risk Matrix

Selecting participants The success of a whitewater flow study hinges primarily on the character and quality of the boating participants. Select participants based on proximity to the resource, representatives from local as well as regional paddling clubs and most importantly commitment to the flow study, the overall relicensing and restoration effort at hand. You also want participants that are team players recognizing when it is time to lead as well as follow both on and off the water. Strive for diversity in your participants in terms of age, gender, boating preferences (play vs. river running), watercraft type, private vs. commercial, etc. Participant skills should be commensurate with the whitewater difficulty of the river reach, i.e., don’t put Class III paddlers on a Class IV or V reach. On the other hand you don’t want all Class V hair boaters that will be bored with anything less than Class V.

Participation in a whitewater flow study is a work-day not to be confused with a play day on the river. Sure there is opportunity for fun during a flow study but participants also need to understand they are collecting valuable information used in negotiations. This role should be treated seriously. Take home message: Look for paddlers that are intelligent and serve as good role models for paddle sports.

All participants should be American Whitewater members. The reason for this last requirement is simple: Flow study participation is a member benefit. Membership funds American Whitewater staff work on hydro relicense proceedings and the associated whitewater flow studies—those members funding the work should be rewarded accordingly.

Participant Compensation American Whitewater discourages monetary compensation of whitewater flow study participants. American Whitewater receives no compensation from the utility during a flow study despite the fact that American Whitewater staff largely design and execute the study in the field. Not accepting compensation enables American Whitewater to remain in a neutral and important advocacy role for the whitewater resource. Compensation compromises that neutrality and advocacy. Accordingly, American Whitewater believes whitewater flow study participants should not compromise their objectivity and advocacy during a field study.

Flow study invite Participants should be formally invited via a flow study invite letter. In most cases the utility typically gets suspicious when I recommend sending an invitation letter. The best solution is to collaboratively draft the letter with the utility and send it on the utility letterhead. The purpose of the invitation letter is to explain the flow study schedule, the proposed range of flows, the purpose of the flow study, the reason for the individual’s selection to the team and the individual’s responsibilities as a participant. I treat this invitation like a contract. Typically this letter goes out one month in advance giving individuals time to plan their work and family schedules. Participants are required to RSVP so we can track the number of participants insuring the correct number and diversity of paddlers.

Participant behavior during the study is very important. Boating participants are serving as role models for the paddling community. All eyes in the hydro proceeding are focused on the boating participants. Any rude or socially unacceptable behavior during the study is magnified back at the negotiation table. Don’t undress in the open. Be courteous to the hydro staff and consultants, and the public. Be on time. Help with loading boats etc. Boat safely. Don’t run marginal lines during the study since accidents or injuries will taint the non-boating public’s view of the risks associated with whitewater boating.

Number of Flow Study Participants Generally speaking as the difficulty of a whitewater run increases the size of the group in a whitewater flow study decreases. This is obviously for safety but also logistical reasons as well. Class V flow studies typically are limited to anywhere from four to ten boaters. This limited sample size compromises the statistical analysis of the survey questions but is necessary particularly from a safety perspective.

As the whitewater difficulty decreases the number of participants and variety of watercraft typically increase. With this increase in participant numbers comes an increase in logistical effort and increased potential for accidents due to the corresponding loss in direct oversight of individual paddlers.

Crashing the Flow Study Inevitably other boaters not invited as participants want to take advantage of a controlled spill in a river reach that is normally dewatered. I try to discourage this but ultimately American Whitewater cannot prevent the public from accessing “their” rivers. I discourage non-study participants largely because of the public and stakeholder scrutiny of the paddling community during a flow study. Limiting participation to selected individuals decreases the risk of accidents as well as modeling socially acceptable behavior. When only a handful of paddlers crash the flow study I try to fold them into the study team if appropriate based on skill, commitment and attitude. If this is not possible in private discussions I discourage the paddlers from using the resource that day while at the same time explaining the purpose of the study, reason for the limited number of participants and strategies for getting them involved in future flow studies. If the paddlers insist on paddling independently I simply request that they paddle safely and model socially acceptable behavior since their actions will also be reflected in the study.

Water Craft Types Selection of watercraft should be commensurate with the whitewater difficulty and hazards on the river. Typically as the whitewater difficulty increases the diversity of watercraft decreases. The greater diversity of watercraft enhances the power of the study results. Individual watercraft types typically have a specific flow preference range that may or may not overlap with other watercraft types. Kayaks typically have the widest flow range preference.

Flow study briefing On the first day of a whitewater flow study it is critical for the flow study organizer (preferably an American Whitewater staff or representative) to provide an introductory talk describing the purpose of the study, objectives, brief overview of the relicense process and expected boater behavior emphasizing safety during the study. In some cases the utility or consultant hired to oversee the whitewater study will overlook the introductory talk. Be sure to emphasize the need for this from a safety perspective as well as providing the participants with an overview of the relicense process and their responsibilities in the study. If the consultant or utility insists on giving the talk simply offer your assistance. Don’t hesitate to pipe in during the group discussion to insure that key discussion points are covered.

Participants should be familiar with the survey questions prior to paddling. I typically read through each survey question to the group to make sure they are aware of the questions and understand them prior to paddling.

Lastly and most importantly particularly in more difficult whitewater rivers I establish an on-the water leader. If there is more than one boating group in larger studies then I establish a leader per boating group. This person is in charge of keeping the group together, establishing communication signals, maintaining communication on the river and safety. This might seem too controlling for the average day paddling but keep in mind this is not an average day paddling —many eyes are overseeing the whitewater study so we need to be accountable for each person on the water.

Video and Still Photo Documentation Be sure to document whitewater flow studies through video and still photography. Video is an important medium for the FERC and agency staff to visually see the qualitative and navigational differences for each flow investigated. The utility should contract with a professional trained in video and still photography with experience shooting whitewater or similar outdoor action sports. Be sure to meet with the video and still photographer ahead of time to select important filming sites and review the objectives associated with video and still photo documentation of the flow study. Emphasis should be placed on capturing images at three to five locations. Sites should be selected based on their responsiveness to flow changes. The objective is to capture how the changes in flow influence navigation and whitewater quality. Selecting a known play spot susceptible to flow changes is good as well as locations where lower or higher flows will make navigation difficult. Maintaining the same camera position, angle, and zoom is absolutely necessary to systematically document whitewater opportunities at respective flows.

Whitewater study report form Be sure to memorialize the whitewater study by completing a whitewater study report and submitting that to American Whitewater. American Whitewater has conducted more than forty whitewater flow studies at hydropower projects. American Whitewater keeps a library of whitewater flow studies available to members. Contact Carla Miner at the Bigfork Conservation office [email protected] or call 406-837-3155. Previous studies can provide valuable insights into the design and implementation of your flow study.

Logistical Responsibilities Establish logistical responsibilities with the utility and/or consultant long before implementing the flow study. Because American Whitewater’s expertise we typically draft much of the study plan methodology and coordinate boating participants. The utility and/or consultant then assumes American Whitewater will continue to do all the work in the field. Communicate clearly the flow study logistical needs and parties responsible for fulfilling those needs. The utility should be responsible for transportation, food and refreshments, and lodging for remote studies requiring long distance travel.

Transportation: The utility should provide a shuttle vehicle capable of carrying all the flow study participants and gear to the put-in and picking them up at the take-out. Avoid boaters using their own shuttle vehicles since this results in delays getting on the water due to coordinating shuttle vehicles, loading gear, folks getting lost, flat tires etc. Flow releases in controlled flow studies result in foregone generation—getting on the water on the pre-arranged schedule is very important to the dam operator and reflects on the ultimate success of the study.

Food and Refreshments: The utility should provide lunch and beverages for participants. Providing food keeps participants in a central location once off the water rather than traveling back to their vehicles for nourishment. Rewarding participant with a lunch also provides great incentive for completing the survey form and remaining for focus group discussions. Lastly, providing lunch is a great gesture of gratitude on the utilities part for the participants donating their time.

Lodging: In multi-day flow studies particularly with full days on the water the utility should provide lodging and meals for participants. This keeps participants in the same location thereby increasing logistical efficiency as well as keeping boaters warm and fed. Requiring boaters to camp in remote locations results in less time available participating in the study. Participants should not be required pay for lodging particularly when they are volunteering their time and in some cases foregoing income opportunities of their own. In some flow studies the utility has honored and recognized the commitment of time from participants by hosting a dinner. This is a nice way to wrap up a flow study as well as provide a great forum for reviewing the focus group questions.

Monitoring Whitewater Releases to Assess Potential Ecological Impacts Eventually in the process of negotiating a whitewater release schedule in a new FERC hydro license concerns will be raised about potential ecological impacts. American Whitewater highly recommends addressing these concerns during the study phase rather than confronting them at the negotiation table once the studies have been wrapped up. American Whitewater has developed a list of recommended ecological investigations that should be conducted simultaneously with a whitewater flow study that involves controlled releases of water. It is incumbent on the utility to make sure these ecological studies are undertaken. This rarely happens. American Whitewater recommends a proactive approach whereby the whitewater flow study is integrated into the study plans of fisheries/aquatics technical workgroups also involved in the relicense proceeding.

There has been a significant amount of scientific research on the ecological impacts of peaking hydropower projects on aquatic organisms and water chemistry but very few studies have focused specifically on the ecological effects of whitewater flows. American Whitewater believes studies investigating peaking power impacts on river ecology do not serve as surrogate investigations of the impacts of controlled whitewater releases. Controlled whitewater releases and peaking power operations are markedly different in flow volume, ramping and periodicity. Peaking power operations typically exceed the upper and lower limits of the natural hydrograph, lack ramping rates and cycle repeatedly in the same day. This operational regime creates a varial zone where the river channel is periodically wetted for extended periods of time permitting colonization by aquatic organisms then later dewatered causing stranding and desiccation. Controlled whitewater releases on the other hand track the natural pre-project hydrograph, have ramping rates specific to the river channel profile and occur as stochastic events with infrequent changes in flow. Very little if any stranding occurs because there is no varial zone wetted for extended periods allowing colonization.

Selected Whitewater Literature Citations

Bowers, R. 1993. A nuts and bolts approach to whitewater recreation studies. Proceedings from the Recreation and Instream Flow Workshop. San Francisco, CA.

Giffen, A. and D. Parkin. 1992. Using systematic field evaluations to determine instream flow needs for recreation. A copy can be obtained from the authors at Land and Water Associates, 9 Union Street, Hallowell, Maine 04347, (207) 623-2136.

Shelby, B., Whittaker, D., and Mazza, R. 2004. Assessing controlled whitewater flows on Washington State's Chelan River. Hydro-Review Vol. 23(2): 36-45.

Shelby, B., D. Whittaker, and J. Roppe. Controlled Flow Studies for Recreation: A case study on Oregon's North Umpqua River. June 5, 1998.. Oregon State University, Covallis, OR 97331.

Whittaker, D., Bo Shelby, William Jackson, and Robert Beschta. 1993. Instream flows for recreation: A handbook on concepts and research methods. U.S. Dept. of the Interior, National Park Service, Rivers Trails and Conservation Program.

Whittaker, D & B. Shelby. 2002. Evaluating instream flows for recreation: Applying the s tructural norm approach to biophysical conditions. Leisure Sciences Vol 24(3-4): 363- 374.

2.13 Dam Removal

American Whitewater and the whitewater paddling community have a long history of supporting dam removals across the country. It is only natural that paddlers are active advocates for dam removal, since we are one of the groups most impacted by dams. Paddlers have played integral roles in the removal of dams using a variety of strategies. The following is a list of some of these dams and the tactics that were utilized.

• D illsboro Dam, Tuckasegee River, NC. AW and other paddling groups supported dam removal in relicensing negotiations and encouraged public support of the project. The Executive Summary of the Dillsboro Dam Removal Environmental Assessment is available on-line. • Condi t Dam, White Salmon River, WA. AW supported dam removal through this relicensing process. We raised support by issuing a call for comments. • S andy River Basin, OR. AW volunteer and staff played major role in this relicensing related dam removal. • E lwha River, WA. Paddlers have long advocated for the removal of these dams that have ended once prolific salmon runs into Olympic National Park. • Be arcamp River, NH. AW and the Merrimack Valley paddlers supported this dam removal and paddlers attended removal ceremonies. • S turgeon River, MI. Paddlers supported this relicensing related dam removal. • P enobscot River, ME. Paddlers supported this dam removal but have not yet become major players. • T welvemile Creek, SC. AW Volunteer Kevin Miller is representing paddlers in the ongoing removal negotiations focused on at least two dams. • P ine River, WI. AW unsuccessfully attempted to have this dam removed through relicensing. • W illimantic River, CT. AW has supported volunteer Dan Mullins in his significant efforts to have 4 dams removed. We assisted Dan with his advocacy and planning efforts and with forming the Willimantic Whitewater Partnership. Dan has turned a boater’s dream into a social and environmental movement. • Cont oocook River (see page 46 of the Nov/Dec 2004 AW Journal). AW advocated for this dam removal and was the first outside party to commit funds to the removal. Volunteer board member Tom Christopher was instrumental in this process. • M illtown Dam, MT – EPA superfund site impacting aquatic habitat. AW and regional boaters are stakeholders in the removal negotiations. There are some excellent resources out there for anyone interested in pursuing the removal of one or more dams. American Rivers Dam Removal Program has an online Dam Removal Toolkit that offers some excellent free public resources. We also encourage paddlers to order (for free) or view online two well referenced books published by the Heinz Center on the science and decision making that goes into dam removals. The International Rivers Network also has a good web publication on dam removal. The most important things to remember with dam removals is that they are entirely possible, more are happening all the time, and that one person can make a big difference.

Chapter 3:Protecting Rivers: Using Federal and State Regulations 3.1National Environmental Policy Act (NEPA)

The following text has been excerpted in part from the Dixie National Forest Guide to Public Involvement publicly accessible on the DNF website.

NEPA is an acronym for the National Environmental Policy Act, 1969. All federal actions require NEPA procedural analysis with the exception of categorical exclusions. NEPA is purely procedural. It does not require a specific outcome. A NEPA analysis is a public disclosure process of the environmental consequences if a project were implemented. NEPA is a procedural law and as such requires that the Proposed Action be Scoped or made known to the public. It also requires that the agency and the public help to define Significant Issues (legitimate conflicts with the proposed action). Alternatives are modifications made to the Proposed Action and are designed to resolve a significant issue(s). Environmental Consequences are specifically what would happen to the environment (social, physical, and biological) if the Proposed Action or an Alternative to the Proposed Action were implemented. For additional information see the Council for Environmental Quality and Forty Most Frequently Asked NEPA Questions.

THE COMPONENTS OF A NEPA ANALYSIS

Purpose and Need for Action The difference between the existing resource condition(s) and the desired resource condition(s) as identified during the NFMA analysis.

Proposed Action Specific management action(s) prescribed to move the resource(s) from the existing condition(s) to the desired condition(s). This is an end-product of the NFMA analysis.

Scoping The process where the Proposed Action is made public, and people are given the opportunity to express any conflicts that they may have with the Proposed Action. While positive, supportive comments are welcome in scoping, the true intent of scoping is to identify what it is that people DON'T LIKE about the Proposed Action. Scoping An integral part of the environmental analysis. Scoping requires examining a proposed action; identifying the breadth its possible effects; establishing the depth of environmental analysis needed; determining analysis procedures, data needed, and task assignments. The public is encouraged to participate and submit comments on proposed projects during the scoping period. Usually there is a date associated with the end or closure of the scoping period. It is that date which responses to the formal scoping statement are due; this is usually 30 days after release of the scoping statement. Especially valuable at this early stage are concerns regarding potential environmental impacts of a proposed actions and identification of issues not listed in the agency scoping document.

Significant Issues These are the legitimate conflicts with the Proposed Action that result in the development of alternatives to the Proposed Action.

Alternatives to the Proposed Action Modifications of the Proposed Action designed to resolve a significant issue(s). For example, changes in the location of prescribed activities, intensity of activities, mitigation measures applied to activities, different methods of treatment, etc.

Environmental Effects Specifically, what would happen to the environment (social and biological) if the Proposed Action, or an Alternative to the Proposed Action, were implemented?

NEPA Terminology Categorical Exclusion (CE) A number of categories of action have been determined from prior experience and analysis to result in no significant impact to the environment. If a proposed action falls into one of these categories, and if no extraordinary circumstances exist which might cause a significant impact in the specific case, these actions can be "categorically excluded" from documentation in an EA or EIS. Unlike an EA or EIS, there is no formal pre-decision comment period with a categorical exclusion (except for scoping). Examples of categorical exclusions are road work, some small timber sales, trail maintenance, etc.

Decision Notice (DN) When an Environmental Assessment (EA) is conducted and it is concluded that no significant environmental impact will result from implementing the preferred alternative, a Decision Notice is issued. If a significant environmental impact will result, an EIS must be prepared, and a Record of Decision is issued. Decisions documented in a Decision Notice are subject to administrative appeal unless there has been no expression of public interest in the action.

Decision Memo (DM) This type of decision is used when the environmental analysis has been "categorically excluded" (CE) from documentation in an EA or an EIS. Ordinarily, decisions documented in a Decision Memo are not subject to administrative appeal; the exception is the category of small timber sales (unless there has been no expression of public interest in the sale).

Environmental Assessment (EA) This document discloses the environmental impacts to be expected from the proposed action and from specific alternatives to the proposed action. An EA is prepared when significant environmental impacts are not anticipated or when there is a question as to the extent of the impacts. Your comments are requested within 30 days of release of an EA. Your comments are considered prior to making the final decision and are responded to in an appendix to the EA.

Environmental Impact Statement (EIS) A formal public document prepared to analyze the impacts on the environment of a proposed project or action and released for comment and review. An EIS is prepared, instead of an EA, when significant environmental impacts are anticipated. Your comments are requested within 45 days after the release of a Draft Environmental Impact Statement (DEIS). Your comments are considered prior to making the final decision and are responded to in the Final Environmental Impact Statement (FEIS).

Legal Notice A notice of an appeal decision published in the Federal Register or in the legal notices section of a newspaper or general circulation as required by 36 CFR 217.2

Notice of Intent (NOI) A notice printed in the Federal Register announcing that an "Environmental Impact Statement" will be prepared. (40 CFR 1508.22)

Record of Decision (ROD) This type of decision is used when an Environmental Impact Statement (EIS) has been produced. Decisions documented in a Record Of Decision are subject to administrative appeal.

Scope Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental document (either EA or EIS).

For More NEPA Information The Council on Environmental Quality (CEQ) - NEPA Site provides valuable information on the National Environmental Policy Act (NEPA) including a NEPA Task Force report. There is also a NEPA Review Forum designed to foster the exchange of information and ideas related to the NEPA process over the last 25 years. The US Forest Service NEPA page also contains valuable information.

US Forest Service Appeals Process Land management decisions on National Forest Service lands require NEPA analysis. These decisions can be challenged through an appeals process. For more information visit the US Forest Service Appeals and Litigation site. The US Forest Service also provides an Eco-Watch website for tracking environmental policy and land management practices on National Forests.

National Forest Management Act (NFMA) The National Forest Management Act, 1976 (NFMA) requires National Forests to draft standards and guidelines for the management of individual units of National Forests. These standards and guidelines are referred to as Land and Resource Management Plans (LRMP) otherwise known as the Forest Plan. A NFMA analysis uses the Forest Plan to develop a Proposed Action by comparing the existing condition to a desired future condition for a resource or an area of the forest. Opportunities to move the existing condition to the desired condition are identified and possible management practices to effect the change in existing condition to desired condition are listed and checked for consistency with law including forest plan, regulation or policy. The culmination of a NFMA Analysis is a Proposed Action. A NFMA Analysis does not make programmatic or project specific resource commitments. For more information see "The Components of a NFMA Analysis".

3.2Wild and Scenic Rivers Act

American Whitewater and the Wild and Scenic Rivers Act

Paddlers love Wild and Scenic Rivers’s and have successfully advocated for their inclusion in the Wild and Scenic Rivers system for decades. From Oz Hawksley’s infamous early descents of the Selway in the 1960’s which documented the grandeur of the river corridor - to American Whitewater’s recent involvement with the 2003 designation of North Carolina’s Wilson Creek, paddlers have worked hard to protect rivers using the Wild and Scenic Rivers Act. The WSR-Act is essentially a non-degradation policy – meaning that it does not allow the values for which a river was designated for be diminished by human causes. At the time of designation studies are done that scope out the “outstanding remarkable values” of a specific reach of river. Based on these values a river reach may be designated as either “wild,” “scenic,” or “recreational”, or be removed from the list of eligible rivers. A wild river segment is managed with stricter environmental rules than a scenic river segment, and a scenic river segment is managed with stricter environmental rules than a recreational river segment. Regardless of the type of designation, all WSR’s are protected from dam construction, and all must maintain the specific values for which they were designated. Wild and Scenic Rivers are managed by a variety of federal agencies, based on land ownership along the river corridor. The keys to understanding the management of a specific WSR are actually quite simple. The Wild and Scenic Rivers Act itself is relatively short (if you exclude the list of designated rivers) and easy to read and understand. It is strongly recommended that individuals concerned with a WSR read the act itself. Secondly, the actual studies and proposals that lead to the river’s designation should clearly define the outstanding remarkable values. These studies should be available from the agency that manages the river, and should be read in detail to better understand the management mandates of the managing agency. A paddler’s role on effectively utilizing the Wild and Scenic Rivers Act will often be in reporting any potential violations of the protections the Act applies to a specific river. In addition paddlers are critical participants in the designation process. Paddlers should assure that paddling use is listed as an outstanding remarkable value in all the study and recommendation documents by directly communicating these interests with the agency in charge of designation. In addition paddlers often have an intimate knowledge of the river corridor and can contribute valuable information to the process. Paddlers interested in having rivers designated should check with the land management agency that owns the land bordering the rivers in question. Often these agencies will have lists of study rivers and simply need public and political support to secure designation for these rivers. Paddlers are in an excellent position to provide this support. Paddling and other non-motorized recreation is generally considered strongly compatible with all types of Wild and Scenic designation. The only exception is the Headwaters of the Chattooga which was designated with paddling clearly noted as an outstanding remarkable value. Paddling was banned on the Chattooga for unknown reasons in the 70’s and again in 2004 for a wide range of illegitimate reasons. The Sumter National Forest offered a very slanted and bold set of arguments in defense of the ban in their 2004 Revised Forest Plan, which AW appealed. Resolution of this issue is expected to come in the form a decision from the Chief of the USFS in April of 2005. American Whitewater’s comments on the Chattooga boating ban provides valuable insights on the policy and management of W&S rivers. The National Park Service has a webpage, www.nps.gov/rivers/, that has a large amount of valuable information regarding the Wild and Scenic Rivers Act. 3.3Wilderness Act President Lyndon B. Johnson signed the Wilderness Act into law on September 3, 1964, formally creating the National Wilderness Preservation System which was established to "...secure for the American people of present and future generations the benefits of an enduring resource of wilderness." Wilderness areas are not merely wild lands, but federal public lands designated by congress to receive the strongest possible protection from human impacts. In general, no roads or permanent structures are allowed in wilderness areas, nor are activities like logging, mining, or most vehicular traffic. More than 105 million acres of public lands have been designated as Wilderness since 1964, and it is estimated that as many as 200 million additional acres of roadless lands may be eligible for wilderness designation that today are at risk of being logged, mined, and otherwise impacted. Once these undesignated lands have roads built on them, they will no longer be eligible for wilderness designation, and the opportunity to have them protected as wilderness is gone. American Whitewater was founded in large part to protect wilderness rivers and to foster their safe exploration and stewardship, as well as to protect the wild and natural character of all rivers. We maintain this commitment in our work today. Paddling is often the best way to experience rivers that flow through wilderness and is a use that is wholly supported by the Wilderness Act. The Act specifically cites “outstanding opportunities for solitude or a primitive and unconfined type of [non-motorized] recreation” as a primary function of wilderness protection. Wilderness rivers and creeks are a rare delight for paddlers that desire to experience Nature on Nature’s terms, and to witness the spectacular beauty and remoteness that our country has to offer. Wilderness rivers also provide critical habitat for native species and deliver clean water to people and animals living downstream. Because it is good for rivers, good for paddlers, and at the core of our values, American Whitewater will always support the protection of our remaining roadless lands and their designation as wilderness, and will likewise support the protection of the Wilderness character and values of existing wilderness areas. American Whitewater’s involvement with wilderness has most typically been in sharing knowledge of recreational use with managers, educating paddlers on low impact river use, participating in wilderness management planning processes, assisting with the development of permit programs, advocating for wilderness designation, and defending roadless lands. We are among the lowest impact user groups on wilderness rivers, and therefore generally have strong and positive relationship with wilderness land and river managers. We are always seeking ways to improve dialog with wilderness managers and to lessen our already low impact on wilderness and other remote rivers.

Rarely have paddlers’ rights to enjoy wilderness rivers been challenged, but it has occurred. The Sumter National Forest attempted to claim in their decision to maintain a ban on paddling that paddling was inconsistent with the Wilderness Act. They based their assertion on comments from angling interests which claimed paddling use was noisy, bright, un-natural, and disrupted their solitude. Our comments on the subject squarely and absolutely dismissed the SNF’s claim based on the Wilderness Act itself, as well as the USFS regulations on managing wilderness. The Wilderness Act itself is relatively easy to read and should serve as an excellent resource for paddlers concerned with wilderness rivers. More information on wilderness, including the Wilderness Act can be found at www.wilderness.net, www.wilderness.org, or on the website of any of the federal agencies that manage Wilderness Areas (NPS, USFS, USFWS, BLM).

3.4Endangered Species Act Originally adopted in 1973, the Endangered Species Act (ESA) was designed to protect species believed to be on the brink of extinction. When the law was enacted, 109 species were listed for protection. Today, more than 1250 plants and animals are on the ESA list. The ESA categorizes species as threatened, endangered or extinct. Species can be petitioned for listing. The U.S. Fish and Wildlife Service (USFWS), the federal agency mandated to oversee ESA species, makes a ruling on the petition. Based on the evidence presented in the listing the USFWS can list a species as threatened, endangered or reject the petition as unwarranted. In addition species may be listed as candidate species pending review of a petition for listing or due to insufficient data from which to make a designation. Because of the private property ramifications and associated political implications of listing species the USFWS has issued decisions stating that ESA listing is “warranted but precluded.”

Many states also have adopted legislation categorizing species as sensitive, threatened or endangered. The U.S. Forest Service also has a category for sensitive species. This designation in turn influences U.S. Forest Service land management practices in areas with habitat supporting sensitive species.

The USFWS strives to protect ESA species from further population declines while simultaneously working to increase abundance and expand the range of a given species. This is primarily accomplished through protecting critical habitat for ESA species. Habitat is critical for foraging, cover and reproduction. USFWS staff work with other federal and state agencies identifying and developing strategies for protecting ESA habitat. In some cases this includes cooperative agreements with private landowners. Visit the USFWS endangered species program for more information. ESA species management is an integral component in many river conservation issues, particularly hydro dam related issues. American Whitewater staff work closely with state and federal agencies developing instream flow regimes designed to protect aquatic habitats for ESA listed species. Sadly, ESA listed species have been used by some entities in hydropower proceedings to craft instream flow regimes that meet their specific self-interest while precluding other interests at the table. American Whitewater advocates for whitewater releases that correspond to historic pre-project flow volumes. The scientific literature overwhelming singles out flow volume as the number one factor influencing aquatic habitat. Seasonal variation in flow volumes is critical for triggering riverine ecological processes including aquatic organism life history patterns. Whitewater releases corresponding to these pre-project flows also serve ecological purposes.

3.5Water Quality Regulations

Few people in modern America have as much direct contact with river water as paddlers do. River water enters our bodies every time we go paddling through our mouths, noses, ears, eyes, and any cuts or scrapes we may have. Few of us would scoop up a glass of water from the rivers we paddle and drink it, but in many ways that is exactly what we do every time we go paddling. While little to no data actually exists on the health impacts associated with paddling, we all know that rivers can and do make us sick. We get ear infections, sinus infections, skin infections, digestive parasites and disorders, and a variety of other nasty physical impacts – all because we love paddling. Because paddlers are one of the communities most impacted by pollution we should also be among the strongest advocates for clean and healthy rivers. The causes and types of human generated pollution are almost unlimited. In this chapter we will address four basic types of pollution: point source pollution, non point source pollution, dumping/dredging, and litter/trash dumping. Each of these basic types of river impacts has different causes and solutions, and is governed by different environmental laws and regulations. Likewise, the control of each has a role for paddlers and other river users to play.

3.5.1 Point Source Pollution Point source pollution generally refers to material coming from a specific location such as discharge coming from a factory or municipal wastewater treatment plant. These discharges generally enter the river from a pipe or ditch that is often underwater and essentially invisible. Many industrial processes, such as paper milling, produce liquid or slurry wastes. This pollution can be legally released into rivers in specific amounts as deemed appropriate by the state agency that regulates water quality which is in charge of enforcing the Clean Water Act. These state agencies issue permits for these discharges and must monitor the industries for compliance. You can locate permitted dischargers through searching the EPA website by area code, river name, company name or other means and produce maps of the discharge site.

Paddlers experiencing unusual or unacceptable water quality conditions are urged to contact their state water quality agency and file a report. American Whitewater developed a specific Water Pollution Reporting Form for paddlers to fill out prior to contacting an agency. In addition to filling out a report, visual documentation of the suspected source is always a good idea. Examples of potential point source water quality violations include unusual water color or odor, evidence of a fish kill, films on the water, or anything that seems out of the ordinary.

You may want to do some research on your own about what pollution is being legally discharged into the rivers you paddle. The EPA has several excellent web resources that allow you to map and query pollution discharges Where You Live. You may be surprised at what is going into your river! You can research individual chemicals through the EPA website on Pollutants and Toxins or through a website called ChemFinder. Water quality permits are granted through a public process. Ask your state water quality agency how you can get involved in the permitting process as a member of the public.

3.5.2 Non Point Source Pollution Nonpoint Source Pollution originates from broader areas than point source and typically includes agricultural drainage, urban runoff, road and building construction runoff, some mining discharges, runoff from timber management, septic tank discharges and land application of waste. Most surface runoff occurs during and after periods of heavy rain – when paddlers are likely to be the only ones on or near the river. We are therefore in the best position to notice and report excessive runoff. If you witness excessively muddy tributaries or direct runoff from an impacted site you should call your state water quality agency and report what you witnessed. Consider filling out American Whitewater’s Water Pollution Reporting Form prior to making this contact, and also try to visually document the pollution with a camera or video camera.

Mining has unique chemical impacts that differ from normal sedimentation and is addressed in greater detail in Chapter 3.7.4 of this Toolkit.

Sedimentation – which is just a term for soil getting washed into the river – is more damaging to river ecosystems and human health that one might think. Specifically increased sedimentation has the following effects:

• Increases the nutrients available in river ecosystems which can change the dynamics of the entire ecosystem, and increase levels of bacteria and other pathogens that can impact public health. • Decreases the amount of light reaching the organisms on the bottom of the river • Alters stream channel shape by filling in pools and eroding banks more quickly • Reduces habitat for some native species such as mussels and macroinvertebrates by coating stream bottom in fine sediment • Impacts the health of fish by altering visibility, impacting gill function, and changing feeding patterns and prey • Decreases aesthetic qualities of the river. • Increased cost and difficulty of water treatment In addition, a large amount of non point source pollution is not just soil. It often contains oil from street runoff, fertilizer and animal waste from farms, and other nutrients and chemicals that further impact the river ecosystem.

There are many easy ways to vastly reduce the amount of non point source pollution entering our rivers. These range from catchment ponds, to protecting and restoring streamside buffers, to silt fences. If you see excessive sedimentation entering a stream, it is likely an easy problem to fix. By reporting such impacts you are helping the state agencies do their jobs – jobs for which because of tight funding and limited personnel are difficult to do. You may also want to get involved with a Volunteer Stream Monitoring Program.

3.5.3 Dumping of Dredge or Fill Material

This category of river impacts includes the dumping of dredge or fill material such as soil, rock, wood, low bridges or other materials into wetlands or waters, as well as the construction of devices that inhibit navigability of waterways. Examples of such actions may include creating an earthen dam, dredging of a river channel, filling of waterway to create home site or agricultural land, road construction, navigation obstruction by low bridge or fence, etc. While some of these actions are legal, most require a permit from the United States Army Corps of Engineers (USACE). If you witness any of the aforementioned impacts you are encouraged to call your regional office of the USACE. Before doing so consider filling out the American Whitewater Reporting Form for the dumping of dredge or fill material

3.5.4 Litter and Large Scale Dumping

Litter is a senseless and all too common river impact that paddlers can easily do something about. We encourage paddlers to pick up and properly dispose of any trash they find at river access areas and along the river. When litter is a significant issue on a run, we strongly recommend you participate in, or organize, a River Cleanup. This is one of the most tangible and simple ways for paddlers to act as strong river stewards and show communities and other users that we have a strong environmental and social ethic.

For other more large scale littering impacts beyond the scope of a river cleanup such as the dumping of automobiles and large amounts of appliances you should contact your State Division of Waste Management or your City Government. Should you need to do so consider filling out our Reporting Form for large scale litter and dumping.

3.5.5 Future Water Quality Projects

In the near future we hope to build a comprehensive online water quality reporting tool and database for AW members and other river recreationists to use. American Whitewater Intern James Wood developed a pilot program for the state of North Carolina that we hope to soon implement as an online tool, and a model for volunteers in other states. Check out the pilot project at the following link, and if you are interested in helping with any part of this project contact [email protected]. AW Pilot Water Quality Program (for NC) We would like to thank James Wood for his assistance with the development of this Pilot Program and also in the preparation for this Toolkit chapter.

3.5.6 Additional Resources

• Ri ver Network: • Cl ean water network • Ri verlink • USDA: Water Resource Data Base: Information and links to a wide range of aquatic based websites: Agricultural, Ecology, Chemical Information, etc. • USDA: National Agricultural Library Water Quality Information Center: Electronic access to information about water and agriculture: Contains many links to agricultural runoff and related water quality resources • USGS: Additional sources of Water information: Country Wide Information. Links to Federal, Regional, State, International, Institutes and Universities, and Organizations involved in Climatologic, Hydrology and related fields. Water Watch precipitation Map.

3.6The Ecology and Conservation of Riparian Areas In many ways, riparian buffers define our paddling experiences. Likewise, they define the river ecosystem and how rivers interact with the landscape. In many parts of the country the word “buffers” instantly strikes fear into those concerned with private property rights and any potential limitations on those rights. Riparian buffers may be political hot potatoes but there are some very good reasons why paddlers should support the protection and restoration of riparian areas. It is important to remember that buffers are not a political statement, they are an ecological necessity.

Riparian areas are simply the land adjacent to rivers and streams. These areas typically foster vegetation that is specifically adapted to living in the dynamic conditions associated with living next to a river. Thus, these species are adapted to being regularly flooded, scoured, fragmented, buried, dried up, washed downstream and otherwise abused. In order to survive, many of these plants have developed deep fibrous root masses that both hold the vegetation in place and also hold the stream-banks in place. It is primarily because this characteristic of riparian vegetation, that maintaining riparian buffers is so important. This vegetation with its deep binding root masses both protects the river from things happening on land, and protects the land from the erosive forces of the river. The following is just a subset of the ways in which maintaining riparian buffers enhances the paddling experience, the river ecosystem, and the relationship between rivers and people.

• Increases aesthetics by maintaining a natural viewshed from the river. • Reduces sedimentation and stream bank erosion that is responsible for muddying the water, damaging property, and reducing the amount of aquatic habitat available. • Filters pollution and runoff that would otherwise go directly into the river. • Slows run-off and reduces flooding. • Offers critical habitat to terrestrial and aquatic species. • Drives the aquatic food chain by supplying leaves and nutrients to the river. • Provides shade that maintains naturally cool water temperatures.

When buffers are removed through timber harvest practices, landscaping, urban development, agricultural clearing, over grazing, or by any other means, these many benefits to paddlers and rivers are lost. Without a healthy riparian buffer, our rivers become muddy ditches, lifeless and dysfunctional. The intricate ecological web of the river unravels, and will not be restored until the riparian vegetation itself is restored. This is exactly why there is so much interest in riparian restoration and protecting riparian buffers. As you are out there driving around, paddling, and best of all – flying, take notice of the state of our rivers’ riparian areas. You will notice that many whitewater rivers have boulder and bedrock banks and may have a fairly intact riparian area, while lower gradient rivers that have soil and gravel banks and extensive floodplains are more likely to be heavily impacted. This pattern of development is fairly common because floodplains are flat and therefore easier to build on, graze on, and plant agricultural products on than upland slopes. Much of the work that needs to be done on riparian areas is in these lower gradient stream reaches, but do not think that you are off the hook since you are primarily a whitewater paddler. Rivers are continuums. Almost all whitewater rivers have low gradient reaches upstream and downstream of them in need of help, and many of the whitewater sections themselves have small areas in need of help.

So What Can You Do?

Hopefully, if you did not already, you now realize that riparian buffers are critical for the health of the rivers we enjoy. Surely then you are asking yourself, “OK that is all well and good, but what the heck can I do about it!?” Well, don’t despair, there are a few really simple things that every paddler can do to help protect and restore riparian areas.

• Start at home! If you own land on a river or stream, even if it is a tiny creek, make sure that you have native woody vegetation planted along the stream banks. Yard grass does not count and rip rap is probably worse! Yard grass offers virtually no ecological benefits to a riparian area and rip rap stops a river’s natural processes dead. Some common riparian shrubs and trees are willows, alders, red- osier dogwoods, and cottonwoods but do your homework on what is native and appropriate. Encourage your friends to do the same. • Don’t Be a Cow! Boaters, anglers, and hikers can have impacts to riparian areas similar to cows (trampling and killing the vegetation). When you are walking to or from the river, scouting, or portaging, stay on established trails and avoid damaging vegetation or dislodging loose soil and rocks. When possible, walk on rocks rather than soil/vegetated areas. • Don’t Be a Beaver! Avoid removing strainers from streams whenever possible. Learn more about the ecology and practice of removing trees from streams in Chapter 5.3 of this toolkit. • Be a Tattletale! If you are out paddling and see unusual amounts of sedimentation or direct and significant erosion occurring, call your state agency in charge of water pollution control and report what you saw. These agencies are generally overworked and have little time to spend in the field. They often appreciate the public acting as watchdogs. • Step up! Support organizations actively protecting and restoring riparian areas. Whether your position in life is such that you can write a check to such an organization or can spend a day volunteering to plant shrubs at a restoration site, step up and get involved. Local watershed organizations are often the best first contact for how to get involved. Riparian restoration is very accessible, hands on, and worthwhile activity that can be lots of fun. • Be Politically Active! Remember this always: Rivers cannot vote. We must be speak for rivers, and we must vote for rivers. Everyone from your local county commissioners to the President of the United States regularly make decisions that affect our rivers. So write those letters to the editor, support those watershed initiatives, and cast those river-votes.

Riparian areas are beautiful and integral parts of ecosystems and are embarrassingly easy to protect and restore, once the decision is made to do so. We encourage paddlers to take advantage of this great opportunity to have a positive influence on rivers.

Additional Information on Riparian Buffers

• The North American Native Fishes Association maintains an excellent website with articles on the various values of riparian areas with pictures and hotlinks to relevant scientific journal articles. The website features the values of riparian areas to Streams, Fish, Insects, Animals, and of course People. • The Massachusetts Government Riverways programs maintains some good online fact sheets regarding the Functions and Values of Riparian Areas. • RiverLink has published an excellent journal on buffers and riparian zones along river corridors in PDF format. Rational, Strategies and Resources for Restoring and Protection Streamside Corridors. This resource provides case studies of riparian area conservation initiatives. • The National Resource Conservation Service Buffer Page allows the public to research various buffer related topics including funding opportunities. • For researching specific riparian area topics in the scientific literature we highly recommend this Searchable Riparian Bibliography. • If you really want to dig deep into riparian area ecology and protection you may want to check out this In Depth Book on the topic from the National Academies Press.

3.7Land Management Practices Impacting Rivers 3.7.1 Road Building on Public Lands There are reportedly 500,000 miles of roads in the US Forest Service system alone that currently require billions of dollars of maintenance. Paddlers use these roads to access many rivers nationwide – yet many of these same rivers are negatively impacted by those roads and their associated uses. There are political forces pushing hard to build additional roads into roadless lands to allow logging and mining to occur, and a countermovement pushing for roadless area protection, selective road removal, and improved maintenance. American Whitewater and the greater paddling community have been involved in this very important debate, and will continue to be because it directly affects our interests in a number of ways. We offer the following ecological premises that we base our advocacy efforts on: • Roads can have direct negative ecological impacts on rivers and streams through increasing erosion and sediment delivery, encouraging the spread of invasive species, altering flow patterns in the river and tributaries, and through impacting and fragmenting habitat of aquatic and terrestrial plant and animal species. • Roads can have indirect negative ecological impacts by facilitating resource extraction activities such as logging and mining that have their own set of ecological impacts. • Roads can have cumulative impacts associated with road densities and distribution in a given area that far exceed the sum of the impacts of individual road segments. • Roads are manmade structures that require careful planning and responsible maintenance and management. Roads that are not well planned or maintained have an increased risk of failure – which may cause dramatic ecological harm. Building a road is therefore a long-term commitment to its maintenance. American Whitewater was founded specifically to protect wild rivers, the wildest of which flow through roadless lands. Roadless lands are literally few and far between. We consider them precious and limited resources with unique values that are deeply important. There are essentially two types of roadless lands – those that have been designated as Wilderness under the Wilderness Act, and those that have not. The areas that have not been formally designated as Wilderness are at risk of being logged, mined, roaded, and otherwise developed. It is these lands that the Clinton Administration set aside with the Roadless Area Conservation Rule, and that the Bush Administration is now attempting to reopen to road building. American Whitewater will be maintaining our support of protecting roadless areas and the Roadless Area Conservation Rule. Wildlands CPR has created and regularly updates a Bibliography of scientific literature specifically focused on the ecological impacts of road building and the science of road removal. You can search this database using key words and then view abstracts for various articles relating to your topic of interest. We recommend this resource as well as additional background and bibliographical information from KRIS (Klamath Resource Information System) to anyone confronted with challenging a road building project. 3.7.2 Dam Building American Whitewater and the greater environmental community have a long history of defeating proposed dams. While at one time dams were considered essential steps in the progress of industrializing wild America, the public perception of dam building has largely changed. Many dams that are currently in place would never be built today because of environmental and social concerns. This view is largely based on the now well documented impacts (see Section 2.2 of the Toolkit) that dams have on the environment. It is reported that there are 70,000 dams in the United States alone and that most or all of the acceptable locations for large dams already have dams built on them. Indeed, it appears that we have entered an era of dam removal in this country, and have left the era of dam building. With this being said, there are regular proposals for new (typically small) dams in the US, and massive efforts to build dams in Canada, China, and developing nations. Preventing new dams is largely a matter of showing the true costs of the project which are usually paid by the public and the environment, versus the benefits of the project which is usually reaped by a single corporation. Recreationists like whitewater boaters have been successful at showing the economic value of free flowing rivers. Economic and recreational arguments hold sway with elected officials, local residents, and other organizations. Environmental arguments generally resonate with state and federal resource agencies and non profit organizations. The most recent example of American Whitewater’s dam prevention efforts was the successful resolution of a dam building attempt on British Columbia’s Ashlu Creek. Canada is currently involved in a significant dam building effort. Much of the emphasis is on developing Micro-Hydro projects on small steep creeks, but there are proposals for dams on large rivers like the Magpie. Stuart Smith, chair of the Whitewater Kayaking Association of British Columbia’s River Impacts and Access Committee is leading the charge against dams in western Canada. Here in the US, boaters have a great legacy of preventing dams on incredible rivers like the Gauley, the North Fork of the Payette, Boundary Creek, and many others including the classics we helped protect through our efforts to see the Wild and Scenic Rivers Act passed. American Whitewater staff members are always available to discuss the prevention of new dams. American Rivers and the Hydropower Reform Coalition are other national groups that regularly oppose new dams. 3.7.3 Logging Few paddlers have not witnessed the environmental impacts of large scale logging firsthand. Logging can have devastating impacts on rivers if too much of the watershed is logged, if roads fail, or if logging encroaches too near to the riparian areas of the river or its tributaries. The primary river impacts caused by logging relate to sedimentation. Additionally there are significant terrestrial habitat impacts associated with logging as well as aesthetic and recreational impacts. Oftentimes fire – either past or potential – is used as a justification for logging. The science of fire ecology rarely if ever supports these arguments. The Reporters Guide to Wildland Fire provides a good discussion of these topics. The Western Fire Ecology Center also provides a wide range of educational and advocacy materials regarding fire management and ecology. The North Fork of the Blackfoot in Montana was the scene of an unusually large natural crown fire.

Many national, regional and local environmental organizations share whitewater paddlers’ interests in preventing irresponsible logging practices. Partnering with such organizations is strongly recommended in efforts to prevent logging or improve logging practices. American Land Alliance is one of the primary national organization that provides support and information regarding logging on public lands. Paddlers have tackled logging issues on rivers across the country including for example the Upper Yough, Cheat, and Blackwater, and rivers in California Tennessee, Virginia, the Southeast, and across the Nation. Logging is often a legal activity on private or public lands, however logging companies must abide by environmental regulations that are overseen by the land managing agency if the tract is on public land, and in some cases by the US Fish and Wildlife Service, state water quality agency, or the Army Corps of Engineers. If you witness logging activity that you feel is infringing on the riparian area or that is impacting water quality, consider contacting one or all of the above agencies to inquire about the legality of the logging. 3.7.4 Mining Mining has unique physical and chemical impacts that can radically transform the ecology or rivers, streams, and their watersheds. Mines can radically alter the habitat in streams by changing the ph and other water chemistry characteristics to the point that some streams are uninhabitable by most aquatic organisms. The same water quality changes can kill riparian vegetation which leads to the unraveling of what ecological integrity remains in such streams. Coal mining is the primary mining risk to Appalachian rivers. Some of the most striking impacts of coal mining are evident in the Stony Creek watershed in Pennsylvania, and Cheat watershed in West Virginia. A relatively new form of coal mining known as Mountaintop Removal Mining is particularly devastating to rivers and streams. Many streams that are impacted by coal mining have dramatic water quality problems, most notably a condition known as Acid Mine Drainage (AMD), which leaves streams orange and largely devoid of life. The Clean Streams Initiative is one example of the many programs seeking to mitigate AMD impacts. Appalachian Voices has emerged as a leader in preventing the most impactful forms of coal mines in the Southern Appalachians. The mining of heavy metals has also extracted a toll on eastern rivers like the Ocoee, however the majority of metals mining occurs in mining regions of the Rockies. Mining has drastically impacted many western rivers including the Clark Fork River in Montana, the Animas River in Colorado, and the South Fork of the Coeur d'Alene in Idaho, and is currently threatening high quality rivers like the Blackfoot. Mining pollution is generally managed by the state water quality agencies, and by the Environmental Protection Agency, and many regional NGO’s are focused on mining issues. There are many restoration efforts underway to clean up abandoned mines across the country and many rivers are rebounding from past mining abuses. That being said there are still new mines being built all the time, some of which will spell disaster for water quality if not stopped or strictly regulated. We recommend that river enthusiasts partner with local and regional NGO’s, and work closely with state and federal agencies when addressing mining issues. Chapter 4:Collaboration, Coalitions and Negotiations: The Zen of Getting to Yes

4.1Working with State and Federal Agencies

It is the job of natural resource agencies to responsibly manage public resources, which include public lands, fish and wildlife, the air, rivers, and lakes. These resources belong to everyone – which is very different than belonging to no one. Because they belong to everyone they belong - in part - to you. Therefore, when an individual or corporation damages those natural resources they are damaging your property. This is precisely why natural resource agencies have conservation oriented missions, and all have mandated policies for listening to the public and addressing our concerns. Most agency personnel genuinely want to do the right thing for the environment and the public good. However, not everyone will agree (sometimes very rightfully) with their opinion of what the right thing is, including the President of the United States, congressmen, politically appointed department heads, other agency personnel, industry lobbyists, environmental organizations, and individuals. All of these groups of people play a role in natural resource decisions in what often feels like a great multi-directional tug of war. In the center is the agency decision maker that needs to strictly follow their agency’s regulations, address the public and political concerns, and if at all possible make a decision that actually accomplishes resource management objectives that are consistent with the agency’s mission and hopefully good for the environment. The tug of war for our natural resources is often pulled in two primary directions. On one end of the rope are the people who wish to capitalize on public natural resources in a manner that yields them all the profits while the costs are borne by the public in the form of poor air quality, lost biodiversity, lost recreation opportunities, increased water treatment costs, environmental clean up efforts, etc. Under this scenario the profits are focused while the costs are dispersed, the profits are NOW while the costs often last for decades or even centuries. On the other end of the rope are the people, plants, and animals that pay the costs, who are often represented by environmental NGO’s. Going back to the premise that most agency personnel want to do the right thing – the river advocate’s job is to help them do just that. Specifically, we must pull hard ceaselessly on the ever taut tug-o-war rope, and get as many other people to join us, including political representatives. We do this through filing comments on decisions, using the media, organizing letter writing campaigns, and other grassroots techniques – and we can also use the court systems when the law is being broken. Doing so will only help well meaning agency personnel do their jobs, and insulate them from others that might not be as good intentioned. This chapter is meant to give river advocates a general understanding of each of the primary natural resource management agencies. By understanding an agency’s mission, activities, and history, one can form the groundwork for helping agencies carry out their mission work in support of protecting and restoring rivers and their watersheds. Agencies are a wellspring of information and assistance, and developing sound relationships with agencies can be incredibly fruitful and fulfilling.

Federal Agencies

 United States Forest Service: http://www.fs.fed.us Established in 1905, the Forest Service is an agency of the U.S. Department of Agriculture. The Forest Service manages public lands in national forests and grasslands. The USFS mission is "to provide the greatest amount of good for the greatest amount of people in the long run." National forests and grasslands encompass 191 million acres (77.3 million hectares) of land, which is an area equivalent to the size of Texas. The USFS has a multi use policy that encompasses recreation as well as timber management and other forest uses. They manage many whitewater rivers, and in some instances charge fees for facilities, issue permits for river access, and have in only one case banned paddling on a river (the Chattooga River). Typically, they allow and support whitewater recreation. The USFS has “mandatory conditioning authorities” during dam relicensings that effect USFS lands, which give the agency a significant and unique power in these processes.

 National Park Service: http://www.nps.gov/

The National Park Service is part of the Department of the Interior, and acts to preserve unimpaired the natural and cultural resources and values of the national park system for the enjoyment, education, and inspiration of this and future generations. The Park Service cooperates with partners to extend the benefits of natural and cultural resource conservation and outdoor recreation throughout this country and the world. The NPS manages different parks in very different ways with regards to recreational paddling. Generally, paddling is allowed and encouraged within National Parks, however there are noteworthy exceptions. It is illegal to paddle all rivers in Yellowstone National Park.

The Rivers, Trails, and Conservation Assistance Program (http://www.nps.gov/rtca/), also known as the Rivers & Trails Program or RTCA, is a community resource of the National Park Service. Rivers & Trails staff work with community groups and local and State governments to conserve rivers, preserve open space, and develop trails and greenways. RTCA can be an excellent resource for local projects and they have written some very helpful publications. Their interests are very similar to ours and are highly compatible.  Bureau of Land Management: http://www.blm.gov/nhp/index.htm

The Bureau of Land Management (BLM), an agency within the U.S. Department of the Interior, administers 261 million acres of America's public lands, located primarily in 12 Western States. The BLM sustains the health, diversity, and productivity of the public lands for the use and enjoyment of present and future generations. The BLM also owns and manages many dams throughout the Western US. The BLM is typically in charge of non-forested rangelands and dams in regions in need of irrigation. The are considered by many to be the most “use oriented” of the large federal agencies. They typically allow and support river recreation.

 United States Fish and Wildlife Service: http://www.fws.gov/ The U.S. Fish and Wildlife Service is a bureau within the Dept of the Interior. Their mission is working with others to conserve, protect and enhance fish, wildlife and plants and their habitats for the continuing benefit of the American people. The Service manages the 93 million-acre National Wildlife Refuge System of more than 520 National Wildlife Refuges and thousands of small wetlands and other special management areas. Under the Fisheries Program it also operates 66 National Fish Hatcheries, 64 fishery resource offices and 78 ecological services field stations. Among its key functions, the Service enforces Federal wildlife laws, protects endangered species, manages migratory birds, restores nationally significant fisheries, conserves and restores wildlife habitat such as wetlands, and helps foreign governments with their international conservation efforts. It also oversees the Federal Aid program that distributes hundreds of millions of dollars in excise taxes on fishing and hunting equipment to State fish and wildlife agencies. The USFWS does not generally endorse or oppose recreation as it is not within the agencies’ mission, however other DOI agencies can be more supportive.  Environmental Protection Agency: http://www.epa.gov/

The mission of the Environmental Protection Agency is to protect human health and the environment. Since 1970, EPA has been working for a cleaner, healthier environment for the American people. EPA is led by the Administrator, who is appointed by the President of the United States. This situation creates a vastly flexible agency that reflects the whim of the president, nearly as much as the health needs of the American Public. EPA works to develop and enforce regulations that implement environmental laws enacted by Congress. EPA is responsible for researching and setting national standards for a variety of environmental programs, and delegates to states and tribes the responsibility for issuing permits and for monitoring and enforcing compliance. Where national standards are not met, EPA can issue sanctions and take other steps to assist the states and tribes in reaching the desired levels of environmental quality. The EPA, while politically controlled, can be an asset in environmental work. Their web page hosts a vast reservoir of knowledge that is spatially organized.

 Army Corps of Engineers: http://www.usace.army.mil/

The ACOE’s mission is to provide quality, responsive engineering services to the nation including planning, designing, building and operating water resources and other civil works projects (Navigation, Flood Control, Environmental Protection, Disaster Response, etc.) The ACOE builds and operates dams, including several dams on whitewater rivers (Examples include Gauley, Youghiogheny, and Lehigh). They typically manage the dams for the purposes for which they were built, which sometimes include recreation and sometimes do not. The manager of each dam has a great deal of discretion as to its management. The ACOE also regulates and issues permits for streambed alterations. They are the primary contact if you witness and wish to report the alteration of a streambed, or if you are involved in a whitewater park or access project that requires significant modification of the streambed.

 Federal Energy Regulatory Commission: www.ferc.gov

The Federal Energy Regulatory Commission regulates and oversees energy industries in the economic and environmental interest of the American public. The Federal Energy Regulatory Commission, or FERC, is an independent agency that regulates the interstate transmission of natural gas, oil, and electricity. FERC also regulates natural gas and hydropower projects. The FERC issue licenses for privately owned hydro projects nationwide that expire every 30-50 years. Upon expiration the FERC oversees a 5-6 year relicensing process during which the dam owners generally are required to perform protection, mitigation and enhancement measures to offset the social and environmental impacts of the operation of their dams. American Whitewater is often involved in these processes and has successfully advocated for recreational releases, flow information, river access, and land conservation on relicensings across the country.

State Agencies

 Fish and Wildlife Agencies

Fish and wildlife are generally the responsibility of the state in which the fish and wildlife live, with the exception of federally protected species such as migratory birds and endangered species which fall under the jurisdiction of the USFWS. Every state is slightly different but in general there is a state agency in charge of fish and wildlife, but more to the point, fishing and hunting. These agencies issue hunting and fishing licenses and receive direct revenue from the sale of these licenses and from other taxes on fire arms, fishing tackle, gasoline, and other items. The agencies are therefore generally well funded and sometimes receive little to no funding from the general tax base. These agencies also often own and manage gamelands, lands specifically managed for hunting and fishing. Oftentimes, state wildlife agencies support paddling as a beneficial use, or are indifferent, but occasionally they actively oppose paddlers’ interests. The rare cases where these agencies have opposed paddling, have been based on the agency’s perspective that they are not funded to deal with us (hence the recent rash of propose kayak registration programs) or that our use of rivers somehow conflicts with hunting and fishing use. State wildlife enforcement officers have more authority and freedom to search than do police. In some cases of conflict, state wildlife agencies have been difficult to negotiate with because they did not feel paddlers are their constituents, and because of their regulatory and financial autonomy. Examples of conflict include paddling access to the Green River (NC), Chattooga River (SC, GA, NC), and the Obed System (TN).

 Water Quality Agencies The quality and quantity of water in a state’s rivers is ultimately the responsibility of a state agency charged with that responsibility through the Clean Water Act. All water quality issues should first be brought to the attention of the state water quality agency. These agencies must issue a water quality permit for each FERC regulated dam in the state, and thus have a great deal of authority in dam relicensing processes. The same state agencies, in concert with the state wildlife agencies are often the driving force (however strong or weak) behind the river access and navigability laws. Many states even have a specific department or program focused on river access. The state agencies often share interests with paddlers, and we generally find working with them very efficient and fruitful. The clean water act protects beneficial uses such as boating, and therefore the state water agencies generally do have a role to play in river access issues.

Future Partnership Opportunities

American Whitewater is developing a partnership program aimed at sharing information and resources with public land and water management agencies. This partnership would provide a familiar point of contact as well as information to agencies on river safety, use patterns, recreational impacts on the land and other recreational users, river access needs, etc. For American Whitewater and the paddling community this partnership provides an opportunity to provide positive input on river health and protection. In short this partnership approach enables the paddling community to add value to river management.

• Provide agencies with current and comprehensive information on whitewater use and users. • Share the River Stewardship Toolkit. • Pair agency personnel with a team of regional River Stewards that can answer questions regarding paddling use, participate in stewardship projects (stream clean ups, access area maintenance, NEPA/planning collaboration), and address safety concerns. • Foster strong relationships between the paddling community and agency personnel. • Offer the agencies the ability to communicate with the paddling community regularly and with a familiar face. • Allow American Whitewater to share our mission and interests with the agencies in a positive and proactive manner. • Insert volunteers into local stewardship issues like timber sales, road construction/closures, mining, and recreational permits.

4.2Collaboration and Coalition Building Collaboration leads to results and American Whitewater has a long history of collaboration and coalition building. We are proud to play a strong leadership role in two coalitions addressing hydropower reform, and a supporting role in several other coalitions. The benefits of collaboration and coalition building are vast but include workload sharing, institutional knowledge sharing, brainstorming creative solutions, combining advocacy power, professional relationship building, and reducing interference and duplication among likeminded organizations and most importantly consensus among diverse groups. The drawbacks of collaboration and coalition building can include increased time investment, drawn out decision-making processes, reduced flexibility and efficiency. Strong leadership, and explicit goals and work load distribution can reduce any drawbacks and capitalize on the significant benefits to working with others. Volunteers working on river stewardship issues are encouraged to openly collaborate with other agencies and organizations. Volunteers seeking to formally sign American Whitewater onto a coalition should first contact the appropriate American Whitewater staff for approval.

Hydropower Reform Coalition (HRC) and the California HRC American Whitewater is a member of the steering committee of the HRC and a founding member of the CHRC. The HRC and CHRC exist as forums for members to collaborate, network, and share information regarding the complex field of hydro relicensing. These two organizations offer excellent opportunities for volunteers to network with other members and to learn from others’ experiences. We encourage anyone interested in volunteering or otherwise working on hydro issues to check out the HRC and CHRC websites, and to use these organizations as a source of learning and expertise.

The Hydropower Reform Coalition is a consortium of national, state, and local conservation and recreation organizations working to achieve river conservation and restoration through improved operation of hydropower dams.

Formed in 1992, the Coalition is dedicated to improving the quality of rivers, ensuring continued public access to rivers, and reforming the relicensing process to ensure river protection in every FERC licensing. To achieve these goals, Coalition members intervene in relicensings across the country.

Through the relicensing process, the Hydropower Reform Coalition has made progress in restoring rivers impacted by hydropower dams, and has made FERC take seriously its legal obligation to give equal consideration to power and non-power river resources (such as fish, wildlife and recreation) when reviewing hydropower applications. Specifically, the Coalition advocates for:

• Improved instream flows • Restoration of flows to de-watered bypass reaches • Fish passage facilities, where necessary • Public access to the river for recreation • Protection of riparian habitat • Environmental restoration and mitigation trust funds • Planning for long-term dam maintenance or retirement • River-wide planning and cumulative analysis

The Coalition coordinates efforts to strengthen members' individual advocacy efforts; develops legal and strategic guidance documents for use in individual proceedings; and works with natural resource agencies on the state and federal level to improve their involvement in individual proceedings.

The Coalition also advocates policy and practice improvements at FERC and resource agencies and meets regularly with the hydropower industry to educate them to our issues and improve relationships in individual proceedings. More information on the HRC can be found at: http://www.hydroreform.org/.

The California Hydropower Reform Coalition (CHRC) is a diverse group of river advocates working to: protect, enhance, and restore California rivers adversely affected by hydropower expand stakeholder and public support for hydropower reform effectively leverage the coalition’s collective resources

The CHRC is uniquely situated to work with agencies and dam owners to craft creative solutions that reflect the public’s demand for healthy, vibrant rivers that support fish, wildlife, and recreation, as well as clean and renewable electrical power. The CHRC will continue to create and seize such opportunities and help bring about a new paradigm for California hydropower. More information on the CHRC can be found at: http://www.calhrc.org/ 4.3Interest Based Negotiations Interest based negotiations are a technique that can be incredibly valuable in resolving complex and contentious natural resource issue debates. In fact this technique can be used to resolve any type of dispute or impasse, and can also be used by an individual seeking to understand the motivations and goals of other individuals and organizations.

Interest based negotiations hinge on one single word: “why”

Generally speaking organizations, agencies, and individuals come to the table with predetermined outcomes that they desire and what some would call baggage. Often times these predetermined specific outcomes are mutually exclusive of other peoples preferred and predetermined outcomes. These predetermined outcomes are called positions. An example positions are: I want full reservoir levels, I want summer recreation flows, I want no paddlers on my river, we are opposed to any releases of water. Two or more people or groups that are rooted in their positions will often quickly reach a stalemate.

For example, two children run up to their mother severely upset. The mother calms them down and asks them what is wrong. One child says “I want that orange and there is only one!” The other child says the same thing. These kids are rooted in their position and it seems obvious neither will entirely get what they want. The mother of course considers cutting the orange in half as a means of teaching the kids to share. Before she does this though, she asks the kids why they want the orange. It turns out that one needed the peel of the orange for a craft project, and the other wanted to eat the orange. She was able to make both kids happy. Their positions were mutually exclusive, but their interests were totally compatible. While a very simple example, this same dynamic can play out in large rooms of people with diverse goals for one resource or area.

The goal in an interest based exercise or negotiations is to boil down everyone’s interests to the smallest most basic level by continually asking why, why, why, etc.

For example:

I don’t want paddlers on my favorite trout stream. - why ?– Because they ruin my experience. - why – Because they scream and yell on the water. - why does that ruin your experience? - Because I prefer quiet while I am fishing. - so if they were quieter you wouldn’t mind their presence?- I guess not.

In this hypothetical example, the angler was lead from a position that was a stone wall, to an interest (his interest is a quiet angling experience) that allows for paddlers and the angler to both enjoy the river if measures are taken to educate paddlers to be quieter. By pressing the question of why, positions can be boiled down to one, or a series of interests that underlie the position. While positions can typically only be responded to with a yes or a no, interests can have real and meaningful resolutions.

If a large room of people all write down a handful of their interests, an amazing thing happens. There is overlap, and lots of it, often in unexpected ways. You may find allies that you never anticipated and will find that many issues you thought were going to provide friction are actually easily resolved. What is left over after removing these mutually compatible interests is a list of the work you have ahead of you. You may find that your position of wanting summer recreational releases cannot be met in concert with other’s interests, but your interest of restoring reliable paddling opportunities to the river is easily met and compatible with other interests. In short, “you can’t always get what you want, but if you try sometimes, you just might find, you get what you need.”

There is another side to asking why a lot. It will sometimes lead others to make statements that are, well, somewhat incriminating. Sometimes at least someone at the table has money and greed behind their positions. Calling this out through forcing them to explain their interests can place their requests in the appropriate light. Other times there are false or flexible assumptions behind people’s positions that can be revealed through asking why. A very common example of this is that homeowners on reservoirs very often falsely assume that recreational releases will quickly drain their lake and therefore stake out positions opposed to releases. In still other situations the true interests behind some people’s position is simply illegal or inappropriate and asking them why a lot will lead them to a point where they have no credible answer. An example of this came from a meeting with some government officials regarding a ban on paddling a stretch of river. As we pulled layers away from their position that paddling was inappropriate on the reach, the final defense they offered was that paddlers “impacted its specialness.” At that point we knew that whatever the true interest behind the ban was, it was not for us to know, and was therefore indefensible and inappropriate. With that in mind, we appealed their ban.

It is important to realize that not all interests carry equal weight. Some are required by the weight of law (such as protecting endangered species), some are simply supported by law (such as river access), some are irrelevant to the law (such as higher reservoir levels), and others are downright illegal. Likewise, some interests have a strong ethical basis, while others are unethical. Some interests are economically supported and others are not. In other words, there are accepted, and at times required lenses with which to analyze specific interests and proposals. It is critical to understand the power structure created by law. Know your rights, and defend them. The following is a list of recommended steps toward successful negotiations:

• Negotiate with Integrity – Be honest and upfront because you have nothing to be ashamed of and nothing to hide. River stewardship is something that is supported by law, ethically defensible, good for rivers, and good for communities. Integrity matters, and it is our strongest asset in negotiations. • Be Respectful – No matter how other groups or individuals try to steer discussions, keep it professional and respectful. When other people veer from a respectful dialog it only makes them look bad and out of control. Keep your temper in check - there is a fine line and a huge difference between passion and anger. It is ok to challenge proposals and interests, but it is not advisable to attack individual people. • Build and Foster Relationships – Be yourself, and talk to people. It is amazing how productive it can be to really get to know people on all sides of an issue and it can really help you understand where they are coming from. When shared interests are found, make a note of them and foster coalitions on individual issues. • Represent with Focus – Most organizations have a mission statement. AW volunteers should be familiar with the AW mission and use it to reflect on all proposals and on their own interests. It should be your negotiations mantra, and you should not waver from representing rivers and the people that enjoy them. Oftentimes, one must put one’s community before oneself. • Agree to Disagree – sometimes you have to let small differences of opinion go in order to keep the greater dialog moving ahead. You don’t have to concede, just let the person know you can agree to disagree, and your relationship and pride can remain intact. If issues are not likely to come back up as stumbling blocks, consider putting them behind you. • Be Creative – Good ideas resonate. If you have a good idea and can promote it to your negotiating group, the chances are that it will be endorsed by the group. Brainstorm ideas on how to meet other people’s interests as well as your own and present proposals in as appealing a format as possible. Admit it openly when you overlook things, but don’t stop thinking and dreaming and throwing ideas out there for consideration. • Really Listen – Nothing is more important than listening to other people’s interests and ideas. Listening is the foundation of respect, and showing that you really are listening to people, even if you disagree, will build respect. Listening is also your best tool in building proposals and ideas that work. • Employ a Neutral Trained Facilitator – A third party with training in facilitation and dispute resolution can be invaluable in reaching the best possible resolution to an issue. Good facilitators can map out parties’ interests and guide the group through the process of respectfully resolving issues in an organized manner. A bad or biased facilitator is far worse than no facilitator, so chose carefully, or go it alone. • Agree on Ground Rules – Each meeting or negotiation session should have a set of ground rules that all parties agree on. These could include listening while others are talking, not sharing statements made with the press, challenging ideas not attacking people, staying on task, etc.

Finally it should be noted that there are usually, although not always, alternative pathways to a resolution if negotiations fail. Often these options are in the form of litigation or otherwise having your issue resolved for you by a third party. Ultimately, it is widely accepted that the most meaningful, mutually beneficial, and workable resolutions come from agreement on the local level, and therefore abandoning negotiations should be a last resort. While negotiating you should always have your BATNA (best alternative to a negotiated agreement) and your WATNA (worst alternative to a negotiated agreement) in mind. When the negotiations impact your interests at a level below what you feel certain you could get through other pathways, let the other parties know that your “threshold of pain” has been reached and that you are ready to walk away from the negotiations unless the negotiations change course.

Know your rights, know your interests, and know your BATNA and WATNA before starting any negotiations. Good Luck!

4.4Writing Effectively

The outcome of many stewardship issues comes down to communication and often this communication is in the form of written letters, emails, or formal comments. While teaching writing skills is beyond the scope of the toolbox there are some basic ground rules and formatting rules that will help individuals effectively communicate in writing. The following are some general guidelines to consider before writing letters or comments to governing bodies, potential allies or opponents, or the public at large.

• Write to your audience – but realize who reads your writing is beyond your control the moment you send it. You should use formal language when addressing any public official, and in any public comments. You should use more conversational and persuasive language in the press and in appeals to your community. ALWAYS expect that every word you write will be read by everyone – friends, foes, the President, your mother, etc. • Speak the truth! – This goes without saying, but stick to statements that are absolute fact. If you feel opinions and assumptions are critical to make your point than be sure to state clearly that they are just that – opinions and assumptions. • Never state a problem without suggesting a solution and/or offering to work out a solution. Often times proposing a process for reaching a solution together is better than attempting to unilaterally propose one. There is little room for punishment in advocacy work – so keep doors open and propose resolutions. • Do not offend. When writing to someone for the first time, keep things simple. Complex letters go a lot better after a phone or face to face meeting, or at the very least after an initial exchange of cordial greeting emails or letters. Resist the urge to say offensive things, even subtly, especially when you are mad or upset. The goal is more important than your personal feelings, and offending people will never lead to a faster or better resolution. • Order you arguments from strongest to weakest. In public appeals it may be an emotional or ethical argument that should come first, while in filing legal and regulatory comments your strongest legal arguments should come first. • Always restate your basic arguments or request in a conclusion paragraph. • Always have an “Ask.” Letters and comments should by design lead to the next step, make your “ask” absolutely clear. Why are you writing the letter – are you requesting a meeting, a legal analysis, a response, etc? Letters and comments should pave the way for, and almost force the next step.

With these basic principles in mind, use your best judgement! In general letters and comments should follow the following format:

[Address of person/entity you are sending this to] [Date]

RE: [state what your document refers to]

Dear [appropriate formal title]

Introduce yourself and who you represent. Express why you have standing - in other words why you care and why you should be listened to.

Provide background on the issue, including your involvement.

Describe the current status and the problem or problems.

Describe you interests in the issue. Interests are “why” you are concerned with the issue, not your ideas on how to solve the problem. Your interests may include things like being able to access a river (not specific access solutions), maintaining great water quality and aesthetics (but not how to reach those objectives), or protecting a species (but not specific protective measures).

Describe potential solutions or a process that could lead to solutions. Do so with humility and openness to other solutions.

Express your willingness and enthusiasm to work on a solution.

Thank the audience for considering your issues, and encourage them to call or email you with any questions or just to talk.

Sincerely,

[Signature] [Name] [Title] [Contact Information] 4.5Working with the Media Working with the press can be a very effective tool to accomplish specific river stewardship goals. Chapter 4.5 is designed to assist anyone working on issues that, either intentionally or unintentionally, involve communicating with the public through the press. American Whitewater has regularly worked with magazines, newspapers, radio stations, films, and television stations to get our general message out as well as targeted messages on specific issues. These communications provide the general public with what may be their only information on American Whitewater, or on specific stewardship issues. We therefore request that all press communications representing American Whitewater be made through an AW staff member – or with permission of an AW staff member. The following guidelines though, will help river stewards to work with the press either directly or through American Whitewater.

THE SIMPLE SIX

Every communication, especially when it comes to the media, must answer the following six questions:

1) Who? 2) What? 3) Where? 4) When? 5) Why? 6) How?

While we learned these simple elements in grade school, many times press releases and public service announcements are disseminated without this proper information. When the proper information is clarified, be sure to use words and phrases in which the general public will understand and relate.

WHAT TO TALK ABOUT?

Each communication effort to the media and/or public should further the overall mission and five main areas of American Whitewater as stated below:

The mission of AW is to conserve and restore America’s whitewater resources and to enhance opportunities to enjoy them safely. EDUCATION: Through publication of its American Whitewater Journal, and by other means, AW provides information and education about whitewater rivers, boating safety, technique and equipment. CONSERVATION: AW is a national expert on restoration of rivers through hydropower relicensing, maintains a complete national inventory of whitewater rivers, monitors threats to those rivers, publishes information on river conservation, provides technical advice to local groups, works with government agencies, and when necessary, takes legal action to prevent river abuse.

EVENTS: AW organizes events, contests and festivals to raise funds for river conservation, including the annual Deerfield and Gauley River Festivals in Massachusetts and West Virginia, respectively, the latter being the largest gathering of whitewater boaters in the nation.

SAFETY: AW promotes paddling safety, publishes reports on whitewater accidents, and maintains both a uniform national ranking system for whitewater rivers (the International Scale of Whitewater Difficulty) as well as an internationally recognized AW Safety Code.

RIVER ACCESS: To assure public access to whitewater rivers AW seeks to protect the right of public passage on all rivers and streams navigable by kayak or canoe, resists unjustified restrictions on government-managed whitewater rivers, and arranges for river access through private lands by negotiation or purchase.

SANDWICH THEORY

We recommend only sending out communications that have a purpose, asking the community to take action: e.g., a) writing a letter or b) becoming a member. Effective communications that are easily understood, embraced and acted upon follow a standard format with familiar components. Following the recipe that follows, you’ll send out a message that is more likely than not to yield a response.

Check your outgoing communications for the following:

1) FIRST PIECE OF BREAD = AW’s MESSAGE. Start with furthering AW’s mission. Concentrate on having the piece of communication further one area of AW’s mission. (See “What to talk about.”) 2) THE MEAT & CHEESE = EDUCATE! Include public information that the general population can understand. 3) LAST PIECE OF BREAD = COMMUNITY ACTION WITH AW’S MESSAGE AND WORK. End the communication with something like … “You too can make a difference by … ”

Always make it easy for people to contact you: phone number, website and so forth. Double check all phone numbers and websites by trying them out before you distribute the materials. K.I.S.S.

We’ve heard it before, but it is just that simple with media relations, and in our opinion, with all communications. If you don’t Keep It Simple, Silly, it just won’t get read. Period. When sending out media information, cut it down to a headline and some facts, that’s it. Assume the reader will go no farther than the first line or, at most the first paragraph!

WHO, WHAT, WHERE, WHEN, WHY, HOW CHECKLIST

o Who needs to say or see the message?

Answer this question to determine who needs to APPROVE the communication as well as who needs to GET the piece of communication. When you send out messages, make sure the people who can help you with your issue see it: politicians, reporters, paddlers, public spokespeople and so on.

o What exactly is the message?

Think about taking a ’rifle shot’ approach via the soundbite, or the elevator pitch. Be as precise as possible. Every message should forward one or all of the mission elements for AW, and should seek to resolve issues and should propose specific actions.

o Where do we need to say the message?

While most people think “local community” and “paddling community” we recommend really thinking in terms of local, state, regional and national messages. When you identify the geographic reach you want your message to take, you can better write (and get approved) your piece of communication. Also, with regard to the media, here are examples: 1) Local news – community 2) City news – city-wide information 3) State wires and state news venues 4) Regional news: Associated Press, United Press International (UPI) and Reuters are all wires that have regional bureaus that will print your news for free (if they are interested in the public message you provide). PR Newswire and Business Wire are examples of paid newswires that will get your communication up on the same wire where the Associated Press and UPI wire run. Also, smaller papers such as Hendersonville Times News and Greenville News are parts of larger regional papers, such as New York Times and Gannett Papers, respectively. When they run a story, it automatically gets fed to other reporting outlets.

o When do we need to say it? A general rule of thumb is at minimum 2 weeks out. Maximum is 3 months out. Magazines = 3-6 month lead Newspapers = 2 week lead time Radio = 1-2 week lead time TVs = day before lead time

o Why do we need to say this message?

Think in terms of: political, educational, financial and just public service messages. Once you figure out the “why” you are saying the message you can choose the quotes and distribution methods to fit your campaigns more effectively.

o How will we say and deliver this message?

With media relations, here are your choices: 1) Mail, fax or email the communication. ALL MUST BE BRIEF AND TO THE POINT. THINK HEADLINES. 2) Send to newspapers (mail with photo is best), TV (fax is best), radio (phone call with follow-up email is best) and magazines (phone and email is best).

DON’T FORGET: - EFAX.com can enable you to send hundreds & thousands of faxes - One time wire postings can be purchased through PR Newswire or Business Wire. - Try the public wires to see if they write about it: AP, UPI, Reuters and so forth. - Radio is always looking for good interviews; when traveling always call up a radio or two and see if you can publicly discuss a campaign that needs public attention. - NEWSPAPERS prefer full-length press releases; title it PRESS RELEASE - TV& Radio prefers tip sheets with the “Who, What, Where, When , Why format and only quick sentences or short paragraphs describing it all; title it MEDIA ALERT - MAGAZINES prefer personalized letters and phone calls.

o Follow-up is the KEY!

With each communication, personally outreach to a select group of people. While we have fax, email, phone and other technical wonders, the bottom line is people like people. There is nothing more important than personal phone calls when it comes to getting VIPs to stand by your campaign. Even if it’s a quick, “Hello, thought you should know …” it’s a personalized approach. No matter how pressed you get for time, ALWAYS MAKE TIME FOR PERSONALIZED PHONE CALLS to the media, politicians and so forth. o MEDIA COMMUNICATION TOOLS:

There are many pieces of information to send out to the media, but most journalists today accept an email with the WHO, WHAT, WHERE, WHEN, HOW and WHY laid out. Add your contact info and it’s as simple as that! However, if you are interested in the traditional tools, here’s an outline.

- Press Release - Article form: 1) first paragraph and headline tell the story 2) important quote 3) background on the topic 4) make the public ‘ask’ 5) AW background

- Media Alert (Who, what, where, when, how format)

- PSAs (radios will announce these for free; just prepare and mail them in 15 and 30 second announcements)

- Op-Eds and Letters to the Editor (these are biased articles written by community leaders; these can be from AW or outside AW.) Every campaign should use this free press to get community support, discussion and interest in AW.

- Press Conferences: These are just meetings where you invite the press to announce news. We recommend AGAINST doing these and suggest that you throw a “party” with information, instead. You’ll get a much larger turn-out and lots of people can digest the news you have to share in a fun and meaningful way.

This Chapter was prepared largely by Michelle Tennant, who lives, paddles and runs a PR firm, Wasabi Publicity, Inc. (www.PublicityResults.com) in Saluda,NC, home of the raging Green River. Wasabi specializes in non-profit and cause-related national and international campaigns. Email her at [email protected].

4.6Campaign Organization A campaign can be thought of as an organized and focused effort to accomplish a specific goal using multiple strategies simultaneously. Typically campaigns utilize the press and other techniques for motivating a specific mass public action such as calls to political representatives. Campaigns generally require planning, lots of help, money and resources, partners, and careful orchestration. When done right, they can be very successful at swaying public opinion and motivating changes that any single strategy or haphazard combination of strategies could never accomplish. An example of a successful campaign that AW has orchestrated is our work on the Upper Ocoee River. In order to secure recreational releases on the Upper Ocoee AW carried out the following measures simultaneously. • Filed comments on a traditional NEPA process that was considering the issue. • Participated on a steering committee guiding the NEPA process • Encouraged public comment on the NEPA process through our website and journal. • Used the Ocoee Freestyle event as a media platform and press conference to get our story on 4 TV stations and the front page of virtually every regional paper. • Had over 1,000 letters to the TVA board signed at the event, and then delivered to each of the commissioners. • Worked with outfitters as coalition members to apply pressure. • Met with regional business owners to share our interests with them and to have over 35 letters signed to TVA • Contacted congressional offices throughout the region urging action.

None of these actions alone would have swayed a massive goliath like the TVA but the combination of all of these tactics led to a positive reaction. Ultimately it was the public and congressional scrutiny that motivated TVA to come to the table to talk openly. While we never settled the philosophical issues that fueled the debate (ie public payment for water), out most basic interests were ultimately met. There is water in the river, where before there was none, and at a fraction of the cost. More information on our Ocoee River Project can be found at http://www.americanwhitewater.org/archive/article/964/ Chapter 5:The Paddler’s Footprint

Our Relationship with the Environment, Communities and Other Recreational Users 5.1Leave No Trace: The Paddlers’ Footprint.

Paddlers have relatively small impacts on the river environment when compared with other users. We generally take only pictures and rarely leave footprints except when we access a river, scout, or portage. Most paddlers are driven by an environmental ethic to minimize their impacts on the rivers that they cherish and enjoy. By following some very simple recommendations paddlers can virtually eliminate any direct impacts to the river environment that they might have. We ask that all paddlers consider following the environmentally friendly paddling practices that we have laid out in our Leave No Trace Policy: 1. Use existing trails whenever possible to access the river, scout, or portage. Hiking off-trail can cause vegetative damage and erosion, and can begin user-created trails that are not designed to resist erosion and to drain properly. Using existing trails greatly minimizes any erosion or vegetative damage you may have otherwise caused. If you must hike off trail, minimize your disturbance to the soil and vegetation by staying on rock as much as possible, by maintaining secure footing to avoiding sliding, by avoiding very steep slopes, and by avoiding areas with obviously sensitive vegetation. 2. Dispose of human waste properly. The proper technique for disposing of human waste varies depending on an ecosystem’s ability to decompose or dilute the waste, and on the amount of use a river receives. Paddlers should follow the recommendations of the managing agency if the river is on public lands, and visit the Leave No Trace website for additional information. In general – solid human waste should be buried 6-8 inches deep, at least 200 feet from any water source. It is generally acceptable to urinate into large rivers, while urinating in small streams or directly on vegetation is discouraged. 3. Pack it in – Pack it out. Paddlers are encouraged to not only pack out their own trash – but also others trash that they may encounter while on the river or at an access area. If the job is too big – do what you can – and consider organizing a river clean-up. Remember that lost or damaged boats and paddles are litter that you have a responsibility to recover. Small plastic shavings that result from dragging boats should also be considered litter. 4. Camp Responsibly. Prevent ground scars by using firepans or existing firepits in designated areas, burn only dead and down trees, and keep fires small and manageable. Consider not having fires in the backcountry. Place tents in established locations or in areas devoid of vegetation whenever possible. Strain and pack out food waste, and broadcast dishwater away from camp. Double check to make sure that you have left your camp as you found it or better. 5. Treat wildlife respectfully. Obviously, paddlers should do all they can to not startle wildlife while driving, hiking, or while on the water. 6. Be Aware of River Management Issues – and Get Involved. As a paddler you have an obligation to be aware of the management issues associated with the rivers you paddle. Many whitewater rivers are subject to intense pressures to allow resource extraction and other potentially damaging activities to occur. By staying aware of such issues you can take actions to protect the rivers and your ability to enjoy them. Consider offering to do some volunteer work, and of course regularly check the American Whitewater website for conservation and access alerts. You have the ability to proactively make your rivers better places or to protect already great places. 7. Go Green. Choices you make every day impact rivers indirectly and directly, in ways you may not even think about. Consider living an environmentally conscious lifestyle to lessen these impacts and to free up extra cash for that new boat or paddle. Carpool to reduce your greenhouse gas emissions and their effects on acid precipitation and global warming. Conserve water in your home, yard, and garden to keep aquifers and rivers more fully charged. Reduce your electricity consumption to reduce your support of mining and hydro development. Recycle to decrease national energy needs, mining, and logging. Don’t waste paper and cancel all junk mail to reduce your impacts on forests. Vote with the environment in mind. 8. Learn and Practice the Leave No Trace Principles. American Whitewater staff played an integral role in the development of the Western River Corridors Leave No Trace Skills and Ethics book published April 2001. For more information about Leave No Trace practices visit: http://www.lnt.org/programs/lnt7/index.html 9. Join American Whitewater. Learn more about our Access & Conservation Programs and how you can resolve river access issues in your community.

5.2River Modification Regulations Rivers have been pushed around and modified by people in North America since at least the first European contact. Beaver were trapped by European trappers until almost completely gone, causing the unraveling of thousands of miles of stream and floodplain ecosystems. Logging operations built splash dams on headwater streams across the country that would pool water and logs and then send massive floods of water and wood down streams – scouring streambeds and banks – sometimes daily. Rapids were dynamited to ease log passage. Gold Miners dredged stream banks. Farmers straightened and ditched streams based on government encouragement. Railroads and then roads for automobiles were cut along many streams – with little regard for the stream ecosystem. Dams were built. Surely you get the picture: many of the rivers that we paddle have at one time been altered by the hand of man. That being said, many whitewater rivers in particular have recovered from these past abuses to a large degree, and have reached a new ecological equilibrium. The streambeds have been naturally reorganized by floods, the banks revegetated, and aquatic species have recolonized. Likewise paddlers have begun paddling rivers during this recovery period and have come to appreciate the existing nature of the rivers that we paddle. American Whitewater recognized long ago that river modification was a significant threat to rivers themselves as well as our enjoyment of them. In response to this recognition, AW developed a River Modification Policy. American Whitewater developed this policy to address all types of river modifications, including those made by paddlers or for paddlers, as well as those made for other reasons that may impact paddlers. Our policy addressed both the ecological and social aspects of river modification. It should be noted as well that most significant river modifications require a permit by the US Army Corps of Engineers in order to be legal. See Section 3.5.3 of this toolkit for more information on reporting or learning more about river modifications. Below you will find our complete river modification policy as well as specific examples of river modification projects that have recently become controversial.

5.2.1 American Whitewater River Modification Policy Overview American Whitewater's preference is for natural, free-flowing rivers, unchanged by mankind. The organization further recognizes that a controlled level of personal risk and responsibility is one of the challenges and pleasures of outdoor sports such as whitewater paddling, and that it is not desirable to remove that element of sport. However, the organization also recognizes that in rare and isolated cases, rivers are modified to reduce specific objective hazards without changing the fundamental characteristics of a rapid or to re-create hydraulic features in a previously altered river channel. American Whitewater adopts positions on proposed river modifications on a case by case basis.

Whitewater recreation opportunities nationwide, already in short supply, have been severely restricted by the widespread construction of dams, diversions, and other engineering works. American Whitewater's preferred mitigation to this damage is increased flows for recreation (and other use), improved public access, and other recreation facilities if needed. In the rare event these mitigation measures are not possible, or are not enough, construction of artificial whitewater courses may be accepted on a case by case basis. Artificial courses would only be appropriate when they would not significantly impact riverine ecosystems, existing rapids, or river use by other recreational groups.

Natural Rivers American Whitewater opposes modifications to natural, free-flowing rivers, to rivers that have been designated as wild or scenic in the Federal Wild and Scenic River System, and to rivers which have been named by managing agencies as eligible or suitable for such designation.

Case by Case Decisions American Whitewater views proposals for river modification with caution, recognizing that changes, once made, may be difficult or impossible to unmake and in many cases may create new and often more dangerous conditions. American Whitewater may oppose, not oppose, or endorse proposed modifications to rivers depending upon the specific needs, impacts and details associated with this action. American Whitewater may assist with planning or funding of river modifications if it endorses those modifications.

Authority Guided by this River Modification Policy, American Whitewater will either support or not support proposed river modifications. Before choosing to endorse a river modification, the Executive Director will consult with the appropriate Committees and seek ratification by the Board of Directors.

No Harm Policy American Whitewater will oppose proposals for river modifications unless it has reason to believe that the proposed modification will not adversely impact the enjoyment of rivers by other recreational groups and will not have a significantly adverse effect on the riverine ecosystem.

Categories of Modifications American Whitewater considers modifications to rivers associated with recreational paddling to be for one of three purposes: for enhancing safety, improving navigability, or enhancing recreational opportunities.

Enhancing Safety Modifications for the purpose of enhancing safety include changes that remove or reduce objective dangers, such as demonstrated entrapment hazards. A decision by American Whitewater in favor of safety modifications is more likely if (a) the modification does not change the physical or visual characteristics of a rapid, (b) the river receives a high level of use, and (c) the hazard in question has been demonstrated to cause drownings or near drownings. For added clarification please refer to the River Safety White Paper.

Improving Navigability American Whitewater opposes river modifications for the purpose of improving navigability including changes to rapids that make passage of boats easier or that reduce the difficulty rating of rapids. The organization recognizes that portaging is usually an option for avoidance of specific obstacles and that advances in technique, skill, and equipment have historically made impossible rapids possible and difficult rapids routine. Presently unrunnable or difficult rapids are tomorrow's first descents or play spots.

It is American Whitewater's position that there is a firm distinction to be made between improvements for the purpose of improving navigability and those made for reduction of objective hazards. For this reason, a proposed modification to remove a subjective hazard (such as a wave that routinely flips rafts) or to reduce the overall difficulty of a rapid is considered by American Whitewater as a modification for the purpose of improving navigability rather than safety.

Enhancing Recreational Opportunities Modifications for the purpose of enhancing recreational opportunities range from moving a few rocks to enhance a play hole to the construction of a completely artificial whitewater race course. A decision by American Whitewater on proposed recreational enhancements hinges on the degree of previous modification of the river, the degree of terrestrial development along a river, impact of the proposal on the riverine and riparian ecosystems, and impact on enjoyment or future enjoyment by other recreational users. For example, American Whitewater would oppose modifications for recreational enhancement of a pristine, wilderness river, but might choose to endorse the construction of a play hole in a highly modified, urban river.

Artificial Structures Obstructing Navigability American Whitewater opposes construction of structures or artificial placement of natural and synthetic materials which may interfere with navigation. These structures include but are not limited to dams, weirs, bridges, fences, and fish habitat structures. At existing lowhead dams, American Whitewater advocates dam removal or modification for safe passage. In cases where modifications are not possible, American Whitewater advocates availability of portage routes. For added clarification please refer to Section 24 in the River Safety White Paper. Stakeholder Involvement and Agency Approval American Whitewater will not endorse river modifications on whitewater rivers which do not seek public input and comment. Public comment must include American Whitewater, local whitewater clubs, and other local regional and national river recreation and conservation organizations. American Whitewater will also not endorse any river modification proposal that has not obtained the necessary managing agency permission prior to construction. In general, American Whitewater opposes river modifications made without consultation with a broad spectrum of user groups or made without agency authorization.

Adopted by the American Whitewater Board of Directors on this 25th day of September 1998.

5.2.2 Examples of Paddling Related River Modification Issues: • A merican River Alteration (CA) • Rus sian River (CA) • Route 3 Wave (NY) American Whitewater Article American Whitewater Comments • D imple Rock, Yough River (PA) • W hitewater Parks • Also See Section 5.6 of this toolkit

5.2.3 Additional Resources • American Rivers has published a book on ecologically sensitive designs for the development of riverfront parks and access areas. • The National Park Service has published a guide to building river access areas that take ecological issues into consideration.

5.3Large Woody Debris Removal Ecology and Ethics

How Much Wood Does a Paddler Chuck? By Kevin Colburn Originally published in the American Whitewater Journal 2001.

Strainers, filters, sweepers, wood, log sieves, log jams, timber, do you have a chill running down your spine yet? At every blind corner or blind drop we shudder a little and worry about a hiding log. Logs give us nightmares. Logs are the predators of paddlers and we treat them how our ancestors in this country treated wolves and mountain lions. They are generally disliked, their importance to the ecosystem is completely misunderstood, they are removed whenever possible, and if one is ever implicated in the injury or death of a human it is ceremoniously destroyed. We are not the first to pull logs from rivers. If you had been a paddler 300 years ago it would have been a very different experience. There would have been more beaver dams than you can imagine, and large numbers of logs scattered all throughout the creeks and rivers. It would have been a royal pain in the butt. Then the trappers came and killed all the beaver and on the heels of the trappers were loggers. Loggers cut all the trees that would have one day fallen into the river and built splash dams in steep creeks. These dams would hold back floating logs and then would be dynamited to flush the logs downstream. Logs were removed from large rivers to aid in passage of steam-boats, which were fueled with wood cut from the banks of the rivers. Later the army corps of engineers stepped in to do a really adept job of log removal in our large rivers to maintain their navigability. Farms, roads, railroads, and towns were built in the floodplains and along rivers. These structures required stable rivers that were free of logs and high flows. Many rivers were dammed, dredged, ditched, dyked, diverted, and dewatered to create straight simple manicured waterways. The policies of removing logs from streams persisted into the 1980s when it was still mandated that loggers remove all the logs from streams as part of cleaning up their mess. Three hundred years ago most US rivers would have been rich with fish and salamanders and other critters of astounding diversity and numbers. The banks would have been densely vegetated in almost every part of the country, and where there were trees, there would be trees in streams. The rivers and streams would flood, but the stream and floodplain ecosystems were adapted to flooding. Salmon and other fish would ride the floods to the ocean, nutrient rich sediments would be deposited on the floodplains and the vegetation would flourish. There would be a constant cycle of natural disturbance that would create a river system that offered a large diversity of habitats for all kinds of species of plants and animals. The European fear and hatred of things wild put an end to this amazingly rich and strong balance of natural forces and many river systems fell apart. Of the many damaging things our ancestors did to rivers, the worst was probably the removal of riparian (streamside) vegetation through logging, grazing, and development. A related impact that may be equally important was the removal of wood from streams. It turns out that logs have incredible ecologically importance in many river systems. Logs trap sediment that would otherwise be washed downstream. They are a food source to aquatic insects and trap leaves and other important nutrient sources like salmon carcasses. Logs create pools and overhead cover that act as critical fish habitat. Logs dissipate stream energy that would otherwise potentially cause erosion to the bed and banks of the stream. Logs can create and maintain islands and gravel bars that increase habitat complexity. When logs are removed streams tend to become simpler. They will cut off meanders, have long uniform riffles, begin to down-cut and erode laterally, and will lose much of their biodiversity. Obviously in most whitewater rivers complexity and erosion are not big issues because of the large boulders and bedrock that form the relatively stable bed, banks, and opportunities for fun. This is because whitewater rivers are typically steep and therefore have what ecologists call a high transport capacity. This simply means that they efficiently carry sediment and logs and anything else (us) through the area. When our rivers flatten out the water slows and sediment drops out of the water. Logs too are deposited on these floodplains. Logs typically enter whitewater rivers through random events like windthrow, mortality and decay, landslides, and avalanches. They will typically be removed by random events like floods, but may actually stay in the stream reach for long periods of time. The dynamics of logs in slightly flatter streams are very different and less random. Floodplains are fairly flat areas adjacent to a stream or river. These areas can be tiny little groves in mountain streams or massive expanses along big rivers. If you are on a stream and see that the banks are made of fine materials like sand, gravel, or cobbles, and the land next to the channel is flat you are probably looking at a floodplain. Floodplain rivers often meander and have a fairly large amount of natural erosion and deposition. Logs most often enter these systems when the river undercuts the banks and causes trees to fall. Logs also can wash down from upstream reaches during high water. Logs in these areas are incredibly important to the stream and its inhabitants. There is also a big difference in the role of logs in big rivers compared to small creeks. Logs generally stay where they fall in very small streams that are unable to move big logs. In medium sized streams logs are generally found individually and in jams that can be full spanning. In large rivers logs are generally found in large accumulations on islands and on the inside of meanders. In small streams one log can be very important, but in bigger rivers it is usually the accumulations that are critical. So what does all this scientific knowledge tell us paddlers? Hopefully it will influence our actions on the streams where we paddle. As regular users of these creeks and rivers we have an important stewardship role. The science tells us that our sport may have evolved under unnaturally safe and easy conditions. It tells us that as our rivers recover from past abuse we are likely to see an increasing number of logs in our rivers. River restoration efforts are likely to become more common. These programs will likely include the artificial placement of wood in rivers. It tells us, perhaps most importantly, that we should seriously consider the negative ecological impacts of removing wood. If you are considering removing a strainer from a floodplain stream you will likely damage the stream. Removal of logs from steeper rivers with bedrock or boulder channels will have much less of a negative effect, but that log may have one day washed downstream where it is needed or be serving an important ecological function in that mountain stream. If we as boaters cherish and respect these rivers then we have an ethical obligation to consider and lessen our impacts on them. When we are looking at strainers with pragmatism and disdain we should weigh the advantages that that log provides the stream with our own situation. In short, the stream’s health should be considered before our whimsical urge to spend a few seconds paddling a few feet of river. Surely there is a set of continuums of ecological importance and another set that defines the log relative to paddlers. Some combinations of factors tell us we should not remove the log, others tell is it is more okay. Here is a shot at outlining these continuums in a sort of key. Think about these things if you are considering removing a strainer. Do Not Remove Log ⇔ More OK to Remove Log Ecological Considerations Sand, Gravel, Cobble Banks ⇔ Bedrock Banks Floodplain Adjacent to Channel ⇔ Cliffs Adjacent to Channel Log Trapping Sediment ⇔ Log Above Water Level Log is Large and Long ⇔ Log is Small and Short Stream has Endangered Species ⇔ No Endangered Species No Riparian Vegetation ⇔ Dense Riparian Vegetation Heavily Impacted Watershed ⇔ Intact Forested Watershed

Paddling Considerations Log is Obvious ⇔ Log is Hidden Log is Avoidable While Paddling ⇔ Log is Unavoidable Log is Easily Portaged ⇔ Log is Impossible to Portage Log Unlikely to Entrap Paddler ⇔ Log Likely to Entrap Paddler Log in Seldom Paddled Reach ⇔ Log in Popular Reach Class V ⇔ Class II/III Wilderness ⇔ Urban

Most paddlers have a strong environmental ethic and respect and even love rivers. We pride ourselves on approaching Nature on Nature’s terms, not Man’s. If we wish to paddle on Man’s terms perhaps we can negotiate with Disney World, Dollywood, and 6 Flags to open their whitewater canyons to paddlers. However, if we wish to paddle on Nature’s terms we will have to negotiate with Nature, in our hearts and in Nature’s whitewater canyons. Lets come to that table well informed with ethics and caring and consideration. Lets leave the audacity so inherent in humans behind and work out an agreement that leads to rivers functioning up to their potential and paddlers safely exploring theirs. More information on the ecology of wood in rivers is available in a detailed scientific literature review article authored by Kevin Colburn, including a robust collection of scientific references.

5.4Sharing the Rivers: Managing and Minimizing Recreational User Conflicts

5.4.1 The Science and Management of User Conflict There are an ever increasing number and diversity of outdoor enthusiasts pursuing their preferred activities across the country. Likewise, there is an increasing number and diversity of interactions between these users and user groups. The vast majority of these interactions will have neutral or positive effects on an individual user’s experience, but occasionally an individual will experience a negative reaction to interactions or to the mere idea of interactions. These latter instances are referred to as user conflicts, and can lead to management decisions that directly impact the freedom of recreationists to choose where, when, and how to recreate.

Many, if not most user conflicts are personality based rather than based on anything that can or should be managed for. In other words, some people are just negative, angry, greedy, selfish, egocentric, prejudiced or otherwise upset and will therefore constantly be in conflict with themselves, the world, and yes: other recreationists. You will encounter these people in river stewardship projects and almost all public processes. Oftentimes these people are the loudest voices in the room, the most prolific writers, and the most capable of rallying support by spreading rhetoric. These people are highly opposed to changing their positions, and are often a lost cause in negotiations. When negotiating in a proceeding that involves such individuals it is best to rationally and calmly show the errors of their view while they quickly alienate themselves from the other stakeholders by being disrespectful and irrational. Ask the individual to document their convictions through scientifically defensible surveys. Alternatively, request the agencies conduct a scientifically defensible survey of users to verify if conflicts exist. Regardless, most research done on user conflicts overlooks these squeaky wheels and deals with more “normal” individuals and with big-picture concepts. While recognizing that you may encounter squeaky wheels, understanding these general concepts can help ease tensions and resolve many user conflicts.

First, it should be understood that user conflicts do not mean fights, although fights would certainly be a drastic example of user conflicts. There are essentially two different types of user conflicts, those that are perceived conflicts based on differing values (social values conflict), and those that are physical conflicts which limit one or both recreationist’s ability to meet his or her goals (goal interference or interpersonal conflict).

Social value conflict can arise between groups that do not share the same norms or values, independent of the physical presence or contact between the groups. Social values conflict is often driven by stereotypes, misunderstanding, intolerance, and occasionally prejudice. One vocal individual can instigate social values conflict within a group. Often one group dislikes another while the other is neutral about the first group. This is known as asymmetrical antipathy. An example of social values conflict can be seen in the following comment by a Chattooga River angler: “Obviously they [boaters] just don't understand backcountry anglers...and our low tolerance for encounters with others with different beliefs." This individual states that his conflict is based on a perceived difference in beliefs, rather than any problems associated with physical interaction. In summary; if a conflict is values based, or as one researcher notes “if people do not observe an event, but believe a problem situation exists”, then the conflict is a social values conflict.

Goal interference or interpersonal conflict can be defined as the presence of an individual or group interfering with the experiential goals of another individual or group. An example of interpersonal conflict would be if a meditation club and a motocross club began using the same area during the same times. In this case the motocross riders would interfere with the goals of the meditation club. Sometimes interpersonal conflict occurs when the sheer number of interactions with users exceeds personal limits of acceptability, regardless of the nature of those interactions. An example would be if you were to go hiking in a wilderness area seeking solitude and time alone and saw so many other hikers that your goals were not met by your experience. Obviously, interpersonal conflict is very complex, as many studies have shown. The proper management of these very different types of conflict may best be summed up in the following statement in a peer reviewed journal article:

“Understanding these sources of conflict (interpersonal conflict versus conflicts in social values) is important for natural resource managers because the solution to the conflict depends on the cause of the problem. Zoning, for example, may reduce conflicts stemming from interpersonal conflict because the user groups are physically separated. On the other hand, zoning is likely to be ineffective when conflicting values are involved (Ivy, et al., 19925, Owens, 19856). Because social interaction is not necessary for this type of conflict to occur, physically separating users will have little influence. In these situations, education may be more effective.”7

Social values conflicts can and should be managed using education. It is wrong to limit one group’s personal freedoms in the outdoors simply because another group dislikes them based on stereotypes, prejudice, and intolerance. Researchers have found that people are less likely to experience anger if they are aware of the roots of the behavior that would have otherwise angered or frustrated them.8 Accordingly, experts suggest that “interpretive efforts that help users to understand the behaviors, motivations, and land use needs of other user groups may reduce perceptions of conflict.”9 The same experts also state that “while it is obviously necessary to establish some behavioral protocols, it may be equally necessary to promote understanding and acceptance for the needs and motives of different user groups. If these educational efforts emphasize that different user groups have many similarities, especially regarding relationship to setting, perhaps fewer biased evaluations will occur… An emphasis on understanding and acceptance, if successful, would help to redefine the social situation in outdoor recreation settings. At present, other user groups are often viewed by recreationists as a source of interference and competition. By emphasizing tolerance in our interpretive efforts, we

5 Ivy, M.I., Stewart, W.P., and Lue, C. (1992). Exploring the Role of Tolerance in Recreational Conflict. Journal of Leisure Research. 24. 348-360. 6 Owens, P.L. (1985). Conflict as a social interaction process in environmental and behavior research: The example of leisure and recreation research. Journal of Environmental Psychology. Vol. 5. 241-259. 7 Vaske, J.J., Donnely, M.P., Wittman, K., and Laidlaw, S. (1995). Interpersonal Versus Social- Values Conflict. Leisure Sciences, 17, 205-222. 8 Dyck and Rule, 1978 as cited in Ramthun, R. 1995. Factors in User Group Conflict Between Hikers and Mountain Bikers. 159-169. 9 Ramthun, R. 1995. Factors in User Group Conflict Between Hikers and Mountain Bikers. 159- 169. may encourage the people in different user groups to see each other simply as fellow travelers in the outdoors.” 10

Goal interference or interpersonal conflict is most often managed in a manner that reduces the type or number of interactions through zoning or permits, or in a manner that lowers expectations of the user groups through education. Zoning is an example of a direct method of limiting or controlling use. Indirect methods of limiting or controlling use include education, limiting access through parking, limiting stocking of fish, and promoting alternatives. The USFS policy, and a good general rule, is that all indirect methods should be exhausted before direct methods are undertaken, and that if zoning or permits must be implemented that it is done so in a manner that provides equal opportunity for all potential users to access the resource.

American Whitewater’s access efforts on public lands have been based on the premise that whitewater paddling is a responsible very low impact non-motorized use of public lands requiring virtually no infrastructure or active management, and that paddlers generally are American citizens that have a solid environmental ethic, strong self rescue skills, a deep sense of place, and a high tolerance for others sharing the rivers we paddle. Based on this premise, we feel that paddlers should have equal rights and equal access when compared to other comparable non-motorized users. We also feel that open dialog and education can resolve most user conflicts and potential user conflicts, and that public resources must be shared, rather than divided up among “competing” uses. Most importantly we feel that paddling does not interfere with the goals of any other user group, and that we as a user group do not dislike any other user group based on their values.

American Whitewater’s discussion of user conflicts in our appeal of a USFS decision to ban paddling on the Chattooga River to benefit anglers provides a strong scientific discussion of user conflicts and draws on a large collection of peer reviewed scientific articles focused on the topic.

While we cannot control the reactions other recreational users have to our presence, we can seek to interact with other user groups in a positive or neutral manner. Often, common courtesy is enough to make most or all interactions positive or neutral but it helps to understand other users and their preferences to interact with them in a manner that does not disturb them. The following series of articles suggests ways of interacting with other users in those users’ preferred way.

5.4.2 Interacting with Local Residents and Other River Access Users. American Whitewater asks paddlers to use the following common sense guidelines when traveling to and using river access areas: • Drive courteously and within the speed limit. Paddlers should always remember that they have large neon signs on the tops of their vehicles that let everyone know that they are boaters. Thus, paddlers have a responsibility to be good ambassadors for the paddling

10 Ramthun, R. 1995. Factors in User Group Conflict Between Hikers and Mountain Bikers. 159- 169. community while driving in their cars. Good driving etiquette, particularly in residential areas, is essential for maintaining positive relationships with those that live near paddling destinations. • Park in designated areas making sure to not block driveways or interfere with traffic. • Change clothes discretely. • Do not play loud music. • Follow the laws and rules of the area that you are using. • Consider taking a few minutes to pick up litter left by others.

5.4.3 Interacting with Anglers American Whitewater asks paddlers to use the following guidelines when paddling past any angler, based on input from the angling community: • Stay in the main flow whenever possible while paddling past anglers or while paddling in heavily fished waters. Anglers generally work their way upstream while fishing so engage in this behavior as soon as you see a downstream angler. • Paddle past areas that are being fished consistently with minimal splashing. Fish can be disturbed by noise and surface activity. • Avoid shouting or being loud. Anglers and other backcountry recreationists generally appreciate quiet interactions with other recreational users. Voices carry well over water, so avoid shouting when in the presence of other recreationists unless necessary for safety reasons. • Avoid startling anglers. When possible, pass anglers in on a highly visible path down the river and make eye contact with the angler as far upstream as possible. When in heavily fished waters or narrow blind streams, act as if an angler is around every bend. Fly Fishermen generally cast upstream so this consideration is often easily accomplished. • Don't approach casting anglers. This should be obvious, but if you want to say hi or do a little PR for boaters, simply smile and nod. NOTE: if any member of the angling community has additional suggestions for this list please email me at [email protected]

5.4.4 Interacting with Horses and Horseback riders American Whitewater asks that paddlers encountering horses while carrying or dragging boats on a trail follow these general guidelines: • Give the right of way to the horse • Move slowly off the trail • If on a slope, move off the trail to the downhill side if possible • Talk to the rider and horses to comfort horses • Lay your boat on the ground • When in doubt, just ask the rider/packer what they would like you to do NOTE: if any member of the horseback riding or horse packing community has additional suggestions for this list please email me at [email protected]

5.4.5 Interacting with other boaters

• At put-ins and take-outs behave in a friendly, positive manner toward others and be helpful to those who might need assistance. Be mindful of the time that you are spending occupying the launch or take-out area so that you do not unfairly restrict opportunities for others.

• Allow for spacing up and downstream of others, particularly in a rapid, and seek to avoid collisions. Colliding boaters should not leave the scene without checking with the other paddlers and making sure that they are unhurt. Do not take any action that escalates conflict.

• When entering a rapid, the upstream craft has the right of way. Those entering the current should yield to those already in it. Never cut in front of an oncoming boat.

• When exiting the current, avoid eddies that are full, if possible, and take care when entering occupied eddies. Exit an eddy when you see approaching boats, to facilitate your safe exit and entry, respectively.

• When playing, avoid blocking navigation by yielding to oncoming, upstream craft. Exit a play spot after a reasonable time to allow someone else to use it.

• Always provide assistance to others who are in trouble or who are injured. Provide whatever assistance you are qualified to give or help them in obtaining assistance.

• When traveling on rivers and camping overnight, consult with other groups on the water about their stopping and camping intentions, and strive to cooperate by spreading out among desirable locations. Do not invade another parties’ campsite: If darkness, emergency or other factors require you to set a camp close to others, always explain the situation and attempt to gain their understanding while respecting their privacy. 5.5The Economic Impacts of River Recreation Whitewater paddlers contribute a significant amount of money to local economies surrounding the rivers that they paddle. Through spending money on gas, food, lodging and other items paddlers provide revenue to rural communities. This side effect of whitewater recreation is typically welcomed in these communities and comes at a very low cost, since the towns do not need to market rivers, and since a moderate level of paddling requires little to no investment in infrastructure or services. American Whitewater often shares economic data with communities and managers when river access is either being proposed or challenged in an area, in an effort to show tangible benefits of supporting whitewater recreation.

Many rural communities are suffering economic woes because of shifting economic factors that drive industry, and because natural resource extraction has seldom been managed at a sustainable pace. Paddling represents one part of a changing economy in many mountain areas – a change from resource extraction and industrial economies to a tourism based economy. Oftentimes, paddlers visit areas overlooked by other groups, and in times of the year when other tourism is greatly reduced. These factors can make paddlers’ contribution to local economies even more important.

One of the best ways for paddlers to encourage river stewardship in the communities that we travel to is through their spending patterns. Paddlers can maximize their economic and social benefit to river communities through spending money in those communities, and specifically in locally owned businesses, rather than filling up gas tanks and buying meals in outlying areas. Spending money in these communities shows local residents a tangible economic benefit associated with river conservation and access, since paddlers prefer rivers that are legally accessible and that have good water quality and natural scenery. American Whitewater encourages all paddlers to have positive social, environmental, and economic effects wherever they travel.

Several studies have measured or predicted the economic impacts of whitewater recreation on local and regional economies. We have collected these studies and have summarized the findings, as well as provided direct links to these studies whenever possible. Most studies have mostly or completely overlooked private boaters in their study designs, however this does not indicate that private boaters do not have significant economic influences.

Studies of Economic Effects

In 2002 Charles Sims, a graduate student at the University of Tennessee, wrote an excellent summary of several peer reviewed journal articles focused on the economic impact of whitewater paddling. This article is highly recommended as a starting point for anyone interested in the topic. The findings of his summary are described in Table 5.4.1.

Table 5.4.1. Economic Data as Summarized by Charles Simms, 2002. River # of People Total Economic Total Income ($) Value Jobs Year Output ($) Added ($) of Data Upper Delaware 232,000 13,351,000 5,582,800 6.222,200 291.93 1986 Delaware Water Gap 135,400 6,929,000 3,246,300 3,695,200 156.37 1986 New River Gorge 100,000 2,567,600 1,217,700 1,391,200 57.93 1986 Upper Klamath 3,000-5,000 490,500-817,400 245,300-408,900 - 16-26 1988 Chattooga 39,000 4,350,000 2,470,000 2,750,000 97.07 1992 Gauley 45,000 8,490,000 4,680,000 5,310,000 208.17 1992 Kennebec 36,000 10,650,000 5,980,000 6,650,000 271.32 1992 Middle Fork Salmon 4,500 9,700,000 5,160,000 5,830,000 237.70 1992 Nantahala 213,000 14,370,000 8,120,000 9,040,000 334.62 1992

A more recent study than those listed in Table 5.4.1 once again estimated the economic impacts of boating on the Gauley and New rivers, as well as the Cheat River. The findings of this study, Whisman et al, 1996, are summarized in Table 5.4.2.

Table 5.4.2. Economic Statewide Impacts of Boating Use as Estimated by Whisman et al, 1996. River # of People Total Economic Total Income ($) Value Added Jobs Year of Output ($) ($) Data Gauley 232,000 23,095,000 8,996,000 - 556.7 1995 New 135,400 33,924,000 13,019,000 - 805.4 1995 Cheat 100,000 2,251,000 868,000 - 53.5 1995

A recent in-depth study was carried out by NC State University (sponsored by and American Rivers and the US Park Service) found that in 2001 roughly 43,000 people visited the Chattooga River. Even in this low visitation drought year, the authors of the study found that boaters annually spent 1.8 million dollars in a 6 county area, resulting in a total economic benefit of roughly 2.7 million dollars. The full Chattooga Study is available online and is an excellent resource.

Predictive Economic Studies

In addition to these studies of actual spending patterns, several robust predictive studies have been carried out on regulated rivers prior to the restoration of flow. A 1997 US-Forest Service environmental impact statement regarding the Upper Ocoee River in Tennessee predicted that recreational releases would generate roughly $210,000 per day. American Whitewater and our partners were successful in 2004 in securing 54 annual releases on the Upper Ocoee which should result in an annual economic benefit of roughly $11,340,000. A similar Study carried out by the Licensee on the Cheoah River in western North Carolina predicted that each release would generate roughly $155,000 per day. While the actual number of recreational releases has yet to be determined, Table 5.4.3 shows the economic impact of a range of release numbers. Table 5.4.3 is based on the assumptions from the relicensing economic and recreation studies, specifically that an average day of releases would draw 576 commercial boaters spending $234.38 each, and 256 private boaters spending $79.84 each.

Table 5.4.3. Predicted Economic Impacts of Recreational Releases on the Cheoah River. Economic Output Total Annual New as % of Annual Number of In-season Output in Graham County Retail New Employment Whitewater Days County Sales (includes Guides) 0 $0 0.0% 0.0 1 $155,440 0.4% 5.1 2 $310,879 0.8% 10.2 5 $777,199 2.0% 25.4 10 $1,554,397 3.9% 50.9 15 $2,331,596 5.9% 76.3 20 $3,108,795 7.8% 101.8 30 $4,663,200 11.7% 153.0 40 $6,217,590 15.6% 203.5

Whitewater Park Studies

Whitewater parks are increasingly being built in towns across the country. While use of these parks is consistent and the towns are generally pleased with the aesthetic and health benefits of the park, few studies have reported the economic impact of the parks. One example is the recent Golden Whitewater Park Study, focused on the Clear Creek Whitewater Park in Golden Colorado, which reported positive results. The authors found that the annual value of the Whitewater Park (based on boater spending) is between 1.4 and 2.0 million dollars per year. The authors also estimated significant future increases in that value.

Study Your River

Oftentimes economic arguments prevail. However, while the economic benefits of dams, pollution, or development are readily at available, sound economic data on the economic benefits of river conservation and access is seldom available. To help river stewards effectively make economic arguments, American Whitewater developed a Methodology for gathering and reporting the economic benefits of river conservation and access. This methodology was designed to be user friendly and scientifically robust. More often than not, the true value of healthy rivers far outweighs the value derived from allowing them to be impacted.

Additional Resources

For further information on the economic benefits of river stewardship we encourage those interested to view two annotated bibliographies. The first is a document published by the National Parks Service’s Rivers, Trails, and Conservation Assistance Program titled The Economic Benefits of Conserved Rivers: An Annotated Bibliography. The second such resource is another Annotated Bibliography that was generated by American Whitewater. This document focuses on economic research methodology, recreation, and hydroelectric projects. A related resource for learning about whitewater boating use levels and trends is the Outdoor Industry Association, who publish an Annual Participation Study addressing many forms of outdoor recreation.

State tourism departments have economic impact analysis of tourism related activity and in some cases have grants for tourism development projects. Such funds have been used to build river access areas, and may be available for whitewater park and greenway development. Regional economic development offices and state departments of commerce are also good recourses for finding out about local economies and the impact of recreation and tourism activity at a local or county level. These economic development entities sometimes support destination marketing organizations, which have been very active in the promotion of heritage tourism (including outdoor recreation and whitewater paddling). A good example of such an organization is North Carolina’s Advantage West.

We encourage individuals seeking to make an economic case for river stewardship to utilize these resources.

5.6Whitewater Parks – Considerations and Case Studies.

By John Gangemi and Andy Craig

River recreation in the form of rafting, canoeing and kayaking is the fastest growing of all outdoor recreation activities in the United States according to the outdoor retail coalition of America with nearly 25 million people participating annually. Whitewater parks exist or are being built all over the United States and Europe and competitions or “rodeos” have been becoming more and more popular worldwide. Major purposes for whitewater park construction are urban renewal, restoring river structure impaired through previous human activities, and recreational enhancement.

One of the overriding goals for whitewater park construction should be the restoration of impaired river structure for native species aquatic habitat improvement. This goal can be accomplished while simultaneously enhancing whitewater recreation opportunities. Whitewater parks may also be designed in a fashion to be inclusive of broader socio-economic needs of local communities encompassing uses such as pedestrian and bicycle paths, fishing access, tubing, and swimming beaches while maintaining ecological integrity.

What is a Whitewater Park? “Whitewater Parks” are venues that have been partially or wholly augmented to facilitate whitewater recreation. Whitewater parks have been constructed at a wide range of sites including natural, modified, and artificial stream channels. Ideally, stream enhancements for whitewater recreation purposes will be located on degraded streams previously altered by humans. Previous human alterations or disturbances include but are not limited to dam construction, flood control chutes, riprapped shorelines, channelization, urbanization, and surface mining activities.

Why a Whitewater Park?  To create enthusiasm by attracting locals and visitors to the park.  To create a world-class venue for an international paddling competition.  To enhance the fish habitat and ecosystem in the river.  To restore riparian vegetation along the banks of the river.  To create a family-friendly and easily accessible creek/river-side park.  To improve the aesthetics of the site.  To provide local economic stimulation

Overall Design Objectives - Critical Components of River Restoration Effort

Modified Flood Control Channels Adding structure to concrete flood control channels can improve habitat for aquatic species and provide recreational opportunities particularly for boaters.

Urban Renewal Many urban rivers have tremendous potential for restoration. Old milldams, flood control chutes, and dewatered sluiceways are prime candidates for whitewater parks. For example, the Wausau Whitewater Park in Wisconsin “transformed a garbage-strewn, dewatered hydro side channel into a landscaped city park and event venue that draws thousands of people each year for whitewater events”. Another example is Denver’s confluence park that “has been credited in gentrifying the city’s long-neglected South Platte riverfront”(Paddler Magazine, May/June ’02, pg. 50).

Greenway Development Including a greenway in the whitewater park design can add a diversity of recreational opportunities at the site as well as provide spectator access and interaction among various recreation groups.. A greenway is a riverside recreation and conservation area that offers access to the waterfront for hiking, biking, fishing, boating and more. If done properly, a greenway will beautify the river and bring together many forms of outdoor recreation through shared usage of the site infrastructure while providing a picturesque setting for paddlers and non-paddlers alike. However, it is very important to maintain riparian vegetation in the overall park plan. Riparian forests play a vital role in filtering and absorbing pollutants in the air, stabilizing the river bank, providing a shade canopy for fish and aquatic life, and providing habitat for birds. Building paved trails on the banks of riparian areas can be very detrimental. It is important to balance trails and river access with resource protection.

Restoring Fish Habitat Whitewater parks should be designed in a fashion that restores riverine habitat for native aquatic species and ecological processes as well as providing a venue for whitewater recreation. Features such as pools, riffles and runs, which are advantageous to boaters and fishermen alike, should be part of the overall design. Habitat diversity in the river channel leads to increased aquatic biodiversity.

Economic Stimulation Whitewater Parks have the ability to stimulate local economies. There are many success stories tied to existing parks. For example, Clear Creek Whitewater Park in Golden, CO was built for $165,000 and now grosses between 1.4 and 2.1 million dollars annually for the city.

Recreational Enhancement Opportunity Building a water park in an urban area enhances recreational opportunities. It will provide a venue that will attract boaters from all over the area, perhaps even the whole country.

Who will be Using and Enjoying the Park? The whitewater difficulty of the park can be an attraction or a deterrent. The park design should be planned in accordance to the available hydrology to maximize use throughout the year. Some whitewater parks, Golden, Colorado’s park for example, have secured instream water rights, but at significant legal costs. Professional park designers will create features that are congruent with the stream’s hydrology.

Boaters All enhancements made to the river will be for the public’s enjoyment. The improvements should be designed to accommodate the entire spectrum of boating enthusiasts. Boating events such as slalom races and “rodeos” could also take place in the park. Youth programs could be held in the park to provide outdoor challenges and promote self-esteem for kids from the surrounding area.

Fishermen The stream enhancements will attract fish to the area which will in-turn attract fishermen. Fishermen will be able to frequent the area both during the boating season and during the off- season.

Hikers, Bikers, other Hikers, bikers, walkers and spectators will also be able to enjoy the park provided the creation of a greenway. Increased access will allow for greater educational opportunities along the river as well.

Access Considerations Whitewater park design must also give due consideration to access including parking facilities and footpaths to the water. Whitewater parks adjacent to Federal and state lands will undergo environmental analysis from the respective agency with oversight. This agency analysis will include access evaluation and requirements. Whitewater parks adjacent to private lands raise liability concerns. Most states have recreational use statutes that protect private landowners. Go online to view American Whitewater’s guidance document for working with private landowners.

Permitting Modifying a river channel for a whitewater park requires securing of necessary permits and approval from numerous state and federal agencies. Each agency has their own regulatory mandate for protecting public resources, which include water quality, fish, wildlife, and habitat. Agency jurisdiction is dependent on land ownership and issues associated with the park development. Most states have an agency that oversees state streams and rivers. The agency name varies by state but typically is referred to as the Department of Natural Resources (DNR). This state agency requires a stream alteration permit prior to any bank or channel modifications. Below is a list of agencies that may or may not have jurisdiction. Consult a map and respective agency staff to determine if approval is needed.

Federal Agencies U.S. Fish and Wildlife Service Army Corp of Engineers 404 permit National Marine Fisheries Service U.S. Forest Service

State Agencies Water Quality Fish and Game State Lands Local Zoning Department of Natural Resources Stream alteration permit

Design Resources Once you’ve acquired some money, resourcefulness and general connectedness, it’s time to really move in on the design. Below is a list of park designers. 1. John Anderson [email protected] 3707 Farragut Avenue Kensington, MD 20895 301-949-1090

2. Robert Blake Email: [email protected] www.geneseewaterways.org 585-328-3960

3. John Daniels 801-627-2623

4. Gove Associates 821 E. Kalamazoo St., Ste E Lansing, MI 48912 517-485-0555

5. Gary Lacy Email: [email protected] 485 Arapahoe Boulder, CO 80302 303-545-5883

6. Hydraulic Design Group Nick Turner [email protected] 605 North Grand Bozeman, MT 59715 (406)-581-5905

7. Lawson-Fischer Associates, P.C. 525 W. Washington Avenue South Bend, IN 46601 574-234-3167

8. Don Sorenson The Mall Cafeteria Albert Lea, MN 56007 507-373-4925

9. Richard Williams www.geneseewaterways.org 585-328-3960

Once you’ve found a designer, collaboration with your preferred local civil engineering firm and whitewater community should provide the hydrologic, environmental and overall design knowledge to turn your vision into a reality.

Safety, Insurance and Liability Although injuries at parks throughout the world are rare, the potential for injury related liability must be addressed. Liability will be shared by requiring insurance from on-site operators, event organizers, and public users. Generally, special events require special insurance while the river parks are covered under umbrella policies. Basic risk management and common sense site planning that is documented and applied throughout the process can easily mitigate the risks associated with most parks. Following the AW safety code when applicable greatly simplifies this process. Simple measures such as posting warning signs, clearly marking boundaries where boating is and is not permitted, and design measures that facilitate self-recovery are a few of the methods that have been employed by existing facilities to improve user safety. Removal of any in-stream hazards is recommend when feasible and will improve the safety of all park users. Minor site adaptation can further mitigate the risks of any remaining hazards. The increased presence of paddlers will also improve the overall safety for other river users. The use of any facility employing such measures should then be considered low risk.

Coalition Building – Raising Political Awareness Securing local and state political support is an essential and often first step for successfully developing a whitewater park. Providing the chamber of commerce, local retailers, agencies and manufacturers with relevant examples of existing whitewater parks whose design and construction issues are similar to your situation is a good first step. The positive aspects that the project would bring to your community should be stressed. These include economic stimulation, environmental improvements, outdoor recreation, river beautification, and overall improved quality of life for the surrounding community.

Funding How do you fund the design and construction of your whitewater park concept? Most existing whitewater parks were funded through county or city departments. Funding is often incorporated into the city or county tax structure. A few funding options are concessionaire fees, donations, capital funds, bonds, short-term borrowing, government grants and private foundation grants. For more detailed information on these options, link to funding.

Additional Resources Table of Whitewater Parks Golden Whitewater Park Economic Benefits Susquehanna Whitewater Park Alliance Chapter 6:American Whitewater’s River Access Program 6.1American Whitewater Access Toolbox The American Whitewater Access toolbox is accessible on the American Whitewater website. American Whitewater fights for public access to America's rivers. Access means being able to 1) get TO and FROM the river, and 2) the right to float ON the river in a responsible manner.

American Whitewater’s mission "to conserve and restore America’s whitewater resources and enhance opportunities to enjoy them safely" provides direction to our Access Program. Thus we strive to secure access that also ensures long term resource protection. We achieve this conservation objective through education, advising agencies, and sharing information such as that contained in this toolbox.

The navigability research in American Whitewater’s Access Toolbox serves as a starting point for educating the public about our nation's laws. These laws are not static; they are in constant flux. Therefore, you should seek independent legal counsel regarding your state statutes before relying on our analyses.

Recreation access is likely the greatest unresolved land management issue in America. While conservation, resource protection, and restoration get much attention from federal agencies and recreationists, access is often overlooked.

Navigability laws are used to determine, in part, where the public is allowed to canoe, kayak, raft, fish, and recreate.

Liability laws are used to defend landowners against injury claims from recreational trespassers. These laws are designed to ease landowner concerns about allowing paddlers, hikers, and fishermen on their property.

This article discusses how river guides and outfitters can protect themselves from liability litigation. Liability and litigation are ever-increasing facets of river management; it is useful to be aware of trends in risk mitigation.

Advice for approaching private landowners to ask for permission to park and access rivers via their private property.

American Whitewater occasionally acquires land to protect river access. We typically protect smaller land parcels (1 to 5 acres); however, we have successfully secured larger acquisitions for conservation purposes (>500,000 acres), such as the Alberton Gorge in Montana. Learn about the risks and benefits.

Links to federal agencies, Congress, and the White House.

AW's advice on saving a streamgage.

Your actions on and off the river affect how people perceive boaters in their communities. Here are 10 things you can do to reduce your impacts and protect access to your favorite rivers.

American Whitewater is often approached to endorse or otherwise support the development of new whitewater parks, the construction of new features, and the "repair" of hazardous features that have been associated with drownings. Here is our policy for deciding whether to modify streambeds.

Most paddlers have a strong environmental ethic, we pride ourselves on approaching Nature on Nature’s terms. Here is advice for deciding whether to remove strainers and other large woody debris from rivers.

American Whitewater often assists boaters in finding legal representation when they are charged with navigability violations.

Consider making a donation to support American Whitewater's legal defense of boaters charged with navigability violations. Our ability to defend your right to float is made possible through member donations. 6.2Recreational Access As I went rumbling that dusty highway I saw a sign that said “private property” But on the other side it didn't say nothing That side was also made for you and me.

- from "This Land is Your Land" by Woody Guthrie

Access! Recreation access is likely the greatest unresolved land management issue in America. While conservation, resource protection, and restoration get much attention from federal agencies and recreationists, access is often overlooked and there is often a lack of funding, direction, and expertise for working in this frequently contentious arena. Part of the problem is that recreationists, law enforcement officials, land and river managers, and landowners have entirely different expectations about appropriate activities and levels of use. Another part of the access problem is that these individuals also have misunderstandings about the law and their rights, duties, and protections. The bottom line is that most serious access issues are the result of rooted dogmatic differences, which can only be reconciled by the passage of time, education, through careful negotiations and discussions, money and acquisition, or the legal system. The most effective means of addressing these issues is to face them proactively and work on easing tensions before they flare into conflicts. American Whitewater’s Access Director Jason Robertson is the only person in the world working full time on river access issues. Robertson is the recognized expert in this field and is writing “Access America: A citizen’s guide for obtaining and preserving recreational access in America (sched. for pub. in 2003)” to address the subject. The lessons and solutions learned from river access for canoers, kayakers, and fishermen also translate effectively into resolving terrestrial access for hikers, mountain bikers, hunters, climbers, and skiers. Lessons also apply equally well to rural and urban communities. Robertson brings his unique expertise to these issues and is a regular consultant for private, state, and federal audiences on a diverse array of access related topics including:

6.2.1How does “access” fit into American Whitewater’s Mission? American Whitewater is dedicated to conserving and restoring America’s whitewater rivers and enhancing opportunities to enjoy them safely. Access is of particular importance to our mission because people must be able to access the country’s rivers in order to enjoy them.

6.2.2What does American Whitewater’s Access Program do? American Whitewater's Access Program is unique, in fact our Access Director is the only person working full-time on preserving river access in America. The Access Director is responsible for locating and securing river access locations through land acquisitions and negotiation; tracking and influencing legislation and policies that affect river access; organizing grassroots support and volunteers for everything from legal defense to trail construction; drafting legislation; lobbying; guiding and developing national policies; developing legal strategies; drafting policy positions; and advocating for stronger rights of passage on rivers that flow through private lands (the "navigability" issue).

6.2.3Barbed Wire Fences & Other Obstructions Question: Does barbed wire constitute a potential or a realized threat to boaters?

Answer: A search of AW’s accident database does not turn up anything relevant to the words, “barb”, “wire”, or “fence”. Thus, we currently consider barbed wire a potential threat, though we are aware of numerous anecdotal stories of near misses.

The following data support the premise that there is a high chance that this "potential" threat will eventually turn to a "realized" hazard: 129 of all 342 accidents reported to AW through 1/1/2000 involved victims trapped or snagged under water (78%). 12 of those were trapped underwater by their equipment (11%), 3 were trapped by misc. debris (including an industrial power belt), 28 involved trees while in their boats and 12 more swam into trees (8.5% and 3.5%).

For example, at one Ocoee Rodeo a contestant got pinned underwater by a small sharp object on an old bridge support and his shorts!

Any wire or linear structure across a waterway is capable of entrapping or “clothes-lining” anything moving downstream including people. The sharp nature of barbed wire increases the risk of entanglement and also presents the possibility of additional injury.

While the fencing serves a clear and understandable land management purpose, anyone who strings a barrier a navigable or legally floatable waterway needs to be aware that not only are they endangering the public, but they are also exposing themselves to a great liability risk. Many landowners have sought to creatively address their range management needs and the welfare of the public. They have accomplished these dual objectives by encouraging or facilitating safe navigation through:

1. Clearly marking the wires at 4-foot intervals with bright surveying or flagging tape; 2. Posting a “Caution Fencing” sign upstream of the wire; 3. Building a marked fence crossing near the water for portages; 4. Pulling fencing up to dry land at high water; 5. Raising fencing at lease 30 inches above the water surface, to allow passage below; 6. Installing a latch on a floating trigger that allows the fence to swing free and open “automatically” at high water; 7. Retrieving loose wire that has washed into the river channel; and 8. Only partially extending fencing 10 feet into a river.

These actions will help boaters avoid potentially dangerous situations, and will help landowners by reducing snags or line felling by passing boaters. Boaters can also help by: 1. Not cutting fences that block safe navigation; 2. Portaging fences; 3. Closing fences after opening them; and 4. Meeting with landowners to cordially discuss concerns before there is a life-threatening problem.

If you have any questions or concerns about the placement of a fence across a river, American Whitewater is glad to assist in assisting with improving visitor safety. Contact the Access Director at [email protected] or call 866-BOAT-4-AW (866-262-8429).

6.2.4“Don’t Park on My Property!” By Jason Robertson

The Scenario: You’ve been using the same roadside parking area and put-in for years. Today, as you’re driving up, you see a man putting notes on the cars parked on the side of the road. As you pull off the road and park, he approaches your car and starts yelling that you’re trespassing on his property. What do you do?

Be Polite: Always remember to be polite. Just because he’s yelling at you, doesn’t mean that he’ll become more cooperative if you yell back at him. Courtesy will open more doors than a single thoughtless comeback on your part. Try to defuse the situation by remaining calm. Whatever, you do don’t escalate the situation, and don’t get in his face. You don’t want him to call the police and have you arrested (see Plot Twist IV below). In the absence of hard physical evidence of an easement, the police are likely to side with the landowner before coming around to your way of thinking.

Get Information: Try to find out why the guy is mad, who he is, who he’s mad at, and what you can do to ease the situation. Appear cooperative regardless of how cooperative you’re really feeling. In a best case situation, the guy is just looking for a sympathetic ear and will back off after he’s had a chance to vent. If he backs off, go ahead and report the event to American Whitewater so we’ll have a record of it if it comes up again, or so we can address the issue proactively before it turns into a real conflict.

Back Off and Regroup: The guy may let you run the river today, just this “one last time.” If so, have a great trip. If not, back off, and look for an alternative access point or even consider running another river.

Do Some Sleuthing: Later, when you get off the river, and you’re still in the area do some sleuthing. Head over to the county courthouse or records office and ask for copies of the property map for the area and a copy of the landowner’s deed. Copies of these documents will cost about $5. Then, find out how wide the easement is on the side of road by asking for a map showing the public right-of-way or highway easement for the road. If this information is not available, call the county DOT office or Sheriff’s office and they should be able to help you, or direct you to someone that knows the answer, and can provide documentation of the width of the easement. If you normally park on the side of road and hike down to the river by a bridge, ask for a map or description of the property and easement boundaries around the bridge and trail area too.

Contact American Whitewater: With the deed, property map, easement information, and name and address of the landowner in hand, make a copy and send, fax, or e-mail the documents with a description of the incident and copies of any tickets or previous correspondence to American Whitewater’s Access Director at [email protected], or 1430 Fenwick Lane, Silver Spring, MD 90210, fax 301-589-6121.

Contact the Troublemaker: After notifying American Whitewater about the problem, we will work with you to develop a strategy for resolving the problem. Normally our first course of action is contacting the landowner via mail and seeing how he responds. Depending on whether there is an easement, we may simply lay down the law, or propose alternative solutions to address the landowner’s concerns. For instance we might describe the state Recreational Use Statutes if he’s concerned about liability, provide documentation of the state’s easement if he’s concerned about property rights, or we might offer to patrol the area for trash. If he backs down and stops hassling you that’s ideal. However, we normally have to follow up with at least a phone call, personal visit, or a second letter. Regardless, it’s important to document all of these interactions and keep your cool.

Getting the Law on Your Side: If the landowner keeps raising a stink even after being contacted by yourself or American Whitewater, then it’s probably time to contact the sheriff. Generally the first contact with the sheriff is by a personal phone call. Briefly explain your experience, where and when it happened, and what has transpired since your first encounter. If you’ve done your research, you should let the sheriff know what you found – especially if the landowner is blocking access to a public easement. Again, it is important to keep a record of whom you’ve spoken to as well as the content of your discussion.

“I want to Sue!”: Legal action is almost always the last option. In the event that legal action is necessary, you should be prepared to show the documentation from your initial research, and your earnest attempts to resolve the situation via letters and other correspondence. American Whitewater may help you find a pro bono attorney or provide other advice at this stage. Be aware that legal action is often expensive and that American Whitewater has a limited budget. Sometimes the state or local District Attorney will intervene and offer to represent you for free.

Plot Twist: “He had a gun!”: There are exceptions to every rule. What do you do when the landowner has a gun? If the landowner is waving a gun around and pointing it at you, stay calm, get out of the way, and call the sheriff. It is never OK for someone to threaten you with a gun, and this type of threat generally constitutes 3rd degree assault. If you are threatened by a gun- toting local, it is especially important to make sure the incident gets reported to the police. This record can help to protect you and every other boater if there is future legal action. Also, if there are other witnesses, try to get the guy ticketed and press charges. The exception in this case is that, if the guy has a gun sitting in the back of his pick-up, or has a pistol holstered, that is generally within his right unless he starts threatening you. Again, treat threats seriously and report them to the police.

Plot Twist II: “I was trespassing”: During your research you discover that the guy actually owns the property, that there isn’t a public right-of-way along the highway where you parked, or that the there’s no easement by the bridge where you normally hike down to the river. What do you do? Unfortunately there’s no easy answer to this question. First, contact American Whitewater. Second, we’ll work with you to try and figure out whether there’s anything that you can do to ease the landowner’s concerns. Extend an open hand and offer to pick up trash in exchange for permission to park there, or describe the state Recreational Use Statutes if he’s concerned about liability.

Plot Twist III: “He wants to sell the property”: If the guy is just causing trouble in order to sell the property, find out what you can about purchasing the site. Then work with your local clubs and American Whitewater to either purchase the property or find a cooperative purchaser. Sometimes local land trusts are willing to purchase these access sites, and at other times state, county, or federal agencies can help. We can work with you to find potential purchasers.

Plot Twist IV: “I was arrested and my car was towed!”: So you slipped up and didn’t back off in time and were arrested, or your car was towed or ticketed while you were off running the river. What do you do? First, get your car back if its been towed. Second, do your sleuthing. Third, contact American Whitewater and we’ll work with you to find legal assistance. Depending on the regional or national importance of the issue, we may intervene directly, or we may help to fund an attorney. Our participation will depend on the circumstances, funding, and your cooperation.

Plot Twist V: “He owns the river”: You’ve solved the parking issue, but now the guy claims he owns the river. What do you do? Tune in next issue (Nov/Dec 2000) for the answer.

The Whitewater Legal Defense Fund: We can help more people on more rivers through adequate funding of American Whitewater’s Whitewater Defense Fund. Please consider making a tax-deductible contribution to our Whitewater Legal Defense Fund (send donations to Legal Defense Fund, Access Director, American Whitewater, 1430 Fenwick Lane, Silver Spring, MD 90210). We tap into this fund whenever it’s apparent that our legal assistance will help to resolve issues of regional or national significance. In 2000 we have already provided successful legal assistance and advice to boaters on the Taylor (CO), Platte (CO), American (CA), Grand Canyon (AZ), John’s Creek (VA), and Mokelumne (CA) among others.

The Last Word: Remember, even if a stream is navigable, you cannot access the stream via private property without the consent of the owner or a legal access easement. The research that we listed above is designed to help determine whether there is a public easement, or alternate means of legally accessing the river.

6.2.5Opening Access to a Waterfall

American Whitewater’s members often ask us to help them open or reopen access to waterfalls. Access at waterfalls is often closed by government agencies that are concerned about liability issues related to waterfall running.

When AW is contacted, we make a choice about the extent of our staff involvement. Generally, we find that waterfall closures either affect few or many. Our staff are more likely to become heavily involved in solving closures that affect the most people. However, we will gladly offer strategic advice and other assistance to more marginal closures.

Opening a waterfall may only take a few days or it may take years. Much depends on whether the decision to close the falls was made at the local level by an administrator (shorter), or at a higher level through regulation (longer) or legislation (longest).

When we start to delve into opening a waterfall, we have several strategic guidelines that we have found useful. We encourage our volunteers to:

 Be persistent;  Be courteous;  Be patient;  Be rational;  Be flexible;  Be informative and helpful;  Listen carefully;  Recall that these are people you are talking with and that they have feelings, do not alienate anybody who may be a decision maker;  Find out who the policy and decision makers are that can help if the person we are talking to does not know the answers to our questions; and  Keep a notebook with information about who we called, what their title is, and how to contact them again in the future. STEP 1: Collect Information

When our staff learn about a waterfall closure, the first thing we do is try to get the story straight. This means separating the facts from the rumors, and talking directly to the person or agency that has closed the waterfall, issued a trespass citation, or intervened to stop a boater from running a drop. Our goal is to talk to a real person who is aware of the waterfall running policy on the river.

During our initial conversation we seek the following information:

1. Is the waterfall closed to whitewater boating? a. If yes, why is the waterfall closed? (Skip to #2) b. If no, what is the policy regarding boating? (Skip to #8) 2. Who made this decision? 3. Why was the decision to close the waterfall made? 4. How is the closure addressed under the agency’s regulations? Alternately, what legal authority was used to close the waterfall? 5. Was the public involved in reviewing the decision to close the waterfall? a. If yes: i. What was the process for inviting public comment? ii. Was the private boating community involved? iii. Did the public comments indicate support for the closure or not? (Skip to #6) b. If no: i. Why not? ii. Does the decision rise to the level of a NEPA review or require an environmental risk (EA) assessment or environmental impacts statement (EIS)? (Skip to #6) 6. What alternatives to closing the waterfall were considered? Could the agency have taken other actions, which would meet their management goals, rather than totally closing access? 7. How is the closure marked near the waterfall? Is a marked portage route around the illegal section provided? (Skip to #10)

8. Is there an agency regulation that addresses whitewater boating or waterfall running? 9. Why would AW’s members have been under the impression that waterfall running was not permitted? (Skip to #10) 10. How can we work with the agency to protect long-term access at this site? 11. What are the agency’s unique management concerns for the site?

Note that we do not address the issue of Navigability in this stage. Navigability is a bit of a red herring and rarely helps us clarify an access issue on agency lands, particularly on rivers flowing through federal lands. The problem with the navigability argument is that several legal decisions11 have given the agencies the ability to “regulate conduct on non-federal land when reasonably necessary to protect adjacent federal property or navigable waters.”

STEP 2: Strategize

After we have confirmed that the waterfall is actually closed to boating, then we develop our strategy, define our objectives, and determine how to address the agency’s concerns or propose alternatives that we would like the agency to consider.

We start with the following action matrix and then exp

1. What are our objectives? What do we want the agency to do? a. Do we want the waterfall reopened 24-7 365 days a year? b. Would we settle for a compromise that limits access to the early morning and evening, weekends or weekdays, seasonally, AW members only, or only when the river is above or below a certain level? c. Should the closure remain in place? Have we learned something in our information collection stage that makes us agree that the waterfall should remain closed? 2. What resources do we have? a. Passionate volunteers? b. Attorneys? c. Property owners?

11 Lindsay v. US, Court of Appeals, 9th Cir., No. 78-1036, April 11, 1979 (595 F.2d 5). Defendants were charged with violating regulations issued by Secretary of Agriculture in camping and building a fire without permits. The Court of Appeals held that the fact that title to land on which the violations occurred was in the State of Idaho, in that campsite had been located on the riverbed, did not deprive United States of regulatory control over conduct of defendants who allegedly, without proper permits, camped and built a campfire on portion of river which was surrounded by national forests. Article IV, Section 3, Clause 2 of the United States Constitution provides in part: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. “It is well established that this clause grants to the United States power to regulate conduct on non-federal land when reasonably necessary to protect adjacent federal property or navigable waters.” In Kleppe v. New Mexico, 426 U.S. 529, 538, 96 S.Ct. 2285, 2291, 49 L.Ed.2d 34 (1976) the Court noted that the "power granted by the Property Clause is broad enough to reach beyond territorial limits." d. Local businesses? e. The ear of the Governor, a Senator or Representative, a mayor, a sheriff, an agency official? f. Money and/or time? g. Experience or knowledge? 3. Who is our volunteer leader, StreamKeeper, or Regional Coordinator on this project? 4. Who in the agency will make the decision to lift the ban on waterfall running? Is it the superintendent, a ranger, a director, Congress? 5. What leverage can we bring to bear on the decision maker? Can we target their bosses, their employees, their coworkers, or other partnering agencies? 6. What kind of campaign will be most helpful to our cause? a. Friendly or casual meeting with the decision-maker b. Meeting with the decision-maker’s supervisors c. Letter-writing d. Phone calls e. Email with follow up phone call f. Legislation g. Legal h. Media and Press 7. Do we want to address the agency’s real concerns, or do we want subtly manipulate them to strengthen our argument and marginalize the decision-making process? 8. What will we ask for in the campaign? Is our “ask” different from our objectives from above? 9. Summarize the issue and what we are seeking in a single page fact sheet, the sheet might include answers to the following: a. What do we want? b. What is the problem? c. How can the problem be fixed? d. Is there an economic reason for allowing access? e. How does our solution meet the agency’s goals and our own (win-win)? f. Who to contact for more information or to help? g. Where is the problem? 10. How are we going to initiate our campaign and rally the troops? 11. Review our strategy, simplify, and simplify some more.

Simplifying the message is the hardest part of the strategic process. We practice breaking down your “ask” and background on the subject into a 30-second spiel, a one minute spiel, and a three- minute monologue. If somebody wants more information, we can always generate that and give it to them at a later date. The main thing is to be ready with a message and to stick to that message.

STEP 3: Initiate Action

Once we have our background information and our strategy, we are ready to initiate action. Typically we want to achieve the most with the least. This means that we want to leverage our volunteers and make sure that they are fired up, know what we are asking for, and know who and how to ask for it.

Case Studies Letchworth Gorge of the Genessee Ohiopyle Falls Great Falls Celestial Falls Little River, NC (http://www.americanwhitewater.org/archive/article/522/) Chapter 7:Navigability Primer

By Jason Robertson

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. - The Daniel Ball (1870)

American Whitewater advocates for the public right and privilege of floating on rivers that flow through public and private lands. We work to make this policy a reality by convincing state governments, federal agencies, and courts to recognize recreational use as the legal standard for commerce and navigation. The Access Program defends and protects the public right to travel in canoes, kayaks, and rafts on the waters of all rivers and streams reasonably susceptible of passage. This includes rivers where either a public or private entity owns the shorelines and the streambed. This policy is entirely consistent with commonly held ideas of the “public trust.” However, the legal standard for establishing navigability under the public trust vary on a state-by-state basis, which is why our staff developed this American Whitewater Navigability Primer. In general, if a stream is "navigable," the public has the right to float on it. However, navigability is one of those widely used terms that is often misused or misunderstood. This confusion arises from the fact that many people improperly refer to “navigability” when they are actually describing “floatability.” There is further confusion because every state has its own legal standard for determining navigability, and state laws may differentiate between navigable waters, non-navigable waters, tidewaters or water-based uses, portage and scouting rights, and bank use.

7.1Importance of Proper Legal Representation Though this handbook was constructed with properly cited authority and clarifies the public's rights in navigable and non-navigable rivers, it is not a definitive source for many reasons. One is that the “law” is always changing, and therefore all of this information will need to be reconfirmed prior to going to any court. Additionally, this handbook does not replace proper legal representation because a local attorney, besides having a background in the local law, will have an understanding of how the local community applies and reacts to navigability issues. This would include relationships with the court system, police, and possibly politicians who may be able to have an impact on a pending situation. Another aspect to consider is tact. When confronted with a landowner or public officer (police/park service) it can at times be frustrating at best to try to explain the laws of navigability and the right to float through someone’s property once legally on a navigable river. However, having an understanding about where it is and is not appropriate to assert navigability rights may save a bit of hassle in the future. Most importantly, though, the impact one case can have on subsequent cases is great, and therefore it is important not to create a restrictive legal precedent. A case should be looked at not only from the perspective of the party going to trial, but also with foresight as to its possible effects on boaters, fishermen, and other recreationists that may desire access to the same area in the future. Most of the time it is therefore helpful to have capable legal counsel when addressing any issue in a court of law. American Whitewater and local paddling clubs will help boaters find adequate legal counsel regarding navigability questions. American Whitewater has a network of attorneys throughout most of the country. If you are interested in volunteering your legal assistance or donating to AW's Access & Legal Defense Fund, we would appreciate your assistance.

7.2Federal Navigability Interests: The legal basis for federal public trust navigability was determined under The Daniel Ball and the equal footing doctrine of the Constitution. The equal footing doctrine established that when new states entered the union they were placed on an equal footing with the original thirteen colonies. In regard to navigability, the original colonies joined the union owning the beds of navigable waters within their boundaries, except where particular parcels were deeded to a private owner by the King of England. By entering the union, each state agreed to federal oversight of commerce under the Constitution, and hence federal oversight of navigation. The Daniel Ball ruling established that a river is navigable if the bed of the river belongs to the state and the river is capable of supporting travel. In essence, this ruling established that states serve as trustees or stewards of the rivers for the public. This stewardship carries the public right to boat on the water above the state-owned river bottom. In summary, The Daniel Ball set precedent in three major areas:

1. A river is regarded as a “public navigable river” if it is susceptible of being used in its ordinary condition as a highway for commerce over which trade and travel are or may be conducted in the customary modes of travel and trade on water.

2. A river that is navigable in fact is navigable in law.

3. The test of navigability, as applied to “navigable waters,” is the capability of being used for useful purposes of navigation, of trade and travel in the usual & ordinary modes, and not the extent and manner of such use. The federal tests of navigability for determining title and defining Congress's power differ slightly. Both determine whether the body of water was navigable in fact as of the date a state came into the Union, not the time the determination was made. However, the natural & ordinary condition of the body of water at statehood determines navigability for title; whereas, the turning issue for commerce clause and congressional management purposes is determined by whether the body of water could be made navigable by reasonable artificial improvements. 7.3State Navigability Interests: Unfortunately, the federal definition of navigability does not apply to every tributary. And there are difficult problems in establishing what uses a river was susceptible to when it entered the Union. The first question is whether the state has to prove the river was actually used for trade or travel before the state entered the union, or whether it was merely capable of use. The second question is what constitutes the usual and ordinary mode of travel and whether the state courts acknowledge that recreational use by a canoe or kayak is the customary mode of travel. The beds of streams that are non-navigable under the federal title test are generally owned by streamside landowners. However, if a river does not meet the federal test for navigability (and most whitewater streams do not) they may still meet the navigability requirements under state law. State cases regarding public rights of passage and state concepts of navigability often expand on the federal test dramatically. In some states, the Public Trust Doctrine is a key factor. In those states and a few others, the State may hold a public "easement" or right of passage on behalf of the public at large. This allows the public to pass over private lands on the bottom of streams, which may not be considered navigable under Federal or state law. If you're lucky you live or boat in one of those states.

7.4Navigability Defined Navigability is defined legally by the Federal Commerce Clause and is determined under a streambed title "test". This test can be made in state or federal courts, and is used to determine whether private landowners or the state owns the bed and banks of the river. The test is based on whether the river was "susceptible" of use for "commerce" in the "usual and ordinary mode" at the time the state entered the Union. This standard definition of navigability was the result of a federal court decision called The Daniel Balli. This case acknowledged that though America’s laws were based on English Common Law, America needed a different standard for determining navigability from England. Justice Field observed:

The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length.

Justice Field then provided the basis for all future federal decisions regarding navigability, when he wrote: Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

Susceptibility for Use The courts have generally accepted either of two standards for proving susceptibility of commerce: historic evidence or capability of use. Most courts have based rulings on whether there is evidence that the river was in fact used for commerce prior to statehood. However, proving whether a river meets The Daniel Ball navigability criteria at the time of the state's admission to the union is an evidentiary nightmare, which depends upon proving historical use of the stream (e.g. log drives, barging, etc.). If the river has ever been demonstrably been used for commerce, then it can readily be found navigable under federal law. However, many states have also accepted demonstrations that the waterway is merely capable of commerce as proof of susceptibility.

Commerce Commerce refers to the ability to transport goods to or from market, or for sale. The courts are clear that commerce inherently includes the right of navigation. There is little debate that commerce and therefore navigation includes transportation of timber, as well as transport by barge traffic or oceangoing ships. Some states have also accepted evidence of use by a commercial raft company, or kayak or canoe school as evidence of commercial navigability. If the river was used for transporting goods for sale prior to statehood, then the river is clearly navigable by federal definition. As such, the bed and the bank up to the mean high water mark are owned by the state and held in trust for the public. You have the right to boat these streams.

Travel Travel is used as a broad standard. According to The Daniel Ball, the ability to travel in the ordinary mode should constitute commerce. Mean High Water Mark The mean high water mark or ordinary high water line is broadly defined as a line visible on the ground, being the division between land and vegetation that are affected by submersion during high water, and land and vegetation that are not affected.

Usual and Ordinary Mode The Daniel Ball references commerce in the usual and ordinary mode. The standard for defining what is usual and ordinary varies on a state-by-state basis. However these definitions tend to follow one of three standards: transport of commerce by barge, floating timber, or floating of small oar-powered craft. Some states like Georgia have narrowly defined the usual mode of commerce by the ability of a river to convey barges. In Georgia, the courts have relied on an anachronistic 1863 statute to conclude that "a navigable stream must be capable of transporting boats loaded with freight. The mere rafting of timber or transportation of wood in small boats shall not make a stream navigable." Georgia's courts have even defined the width, length, and draft of the barges required under the state's streambed title test. Virginia and Michigan have used historical records of log drives as evidence of commerce and navigability. Courts in other states are enlightened about the validity of recreational rights. For instance California and North Carolina, have defined navigability as the ability to float an oared craft such as a kayak or canoe under a broad recreational use test. In the California court case of People v. Mack, the ruling stated, "The public has the right to navigate below the high water mark on rivers which are capable of being navigated by small recreational craft." In other words, the definition of navigability in California rests on whether the river is capable of floating a canoe or kayak. American Whitewater strongly advocates this test of navigability.

Transport Until recently, the standard definition of transportation for navigability purposes meant carrying goods to or from market. Over the last century this definition has evolved to include the transportation of people too. For instance, South Carolina courts have recognized a “tendency of modern judicial thought that water is navigable which is of such character as to be of general use by the public for pleasure boating”.

Highways of Commerce Article I, Section 8 of the Constitution gives Congress the authority to “regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.”

Article III, Section 2 of the Constitution gives the Supreme Court judicial powers over “all cases of admiralty and maritime jurisdiction.” If a river is useful as a highway of commerce between states or foreign countries, then it falls under federal jurisdiction and is navigable under the Commerce Clause. Federal authority to regulate rivers is protected under the Commerce Act. Commerce is understood to include navigation. As highways of commerce In Escanaba & Lake Michigan Transp. Co, v. City of Chicagoii Justice Field stated: The power vested in the general government to regulate interstate and foreign commerce involves the control of the waters of the United States which are navigable in fact, so far as it may be necessary to insure their free navigation, when by themselves or their connection with other waters they form a continuous channel for commerce among the states or with foreign countries. The Daniel Balliii. Such is the case with the Chicago river and its branches... Power to keep rivers open and free from obstruction for navigation (including fees?) Justice Lurton in U. S. v. Chandler-Dunbar Water Power Co.iv, quoting Gilman v. Philadelphiav: Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstructions to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders [admiralty law]... In Economy Light & Power Co. v. U Svi, Justice Pitney stated: We concur in the opinion of the Circuit Court of Appeals that a river having actual navigable capacity in its natural state and capable of carrying commerce among the states is within the power of Congress to preserve for purposes of future transportation, even though it be not at present used for such commerce, and be incapable of such use according to present methods, either by reason of changed conditions or because of artificial obstructions... Improvements in the methods of water transportation or increased cost in other methods of transportation may restore the usefulness of this stream; since it is a natural interstate waterway, it is within the power of Congress to improve it at the public expense; and it is not difficult to believe that many other streams are in like condition and require only the exertion of federal control to make them again important avenues of commerce among the states....

7.5The Submerged Lands Act and navigability The Submerged Lands Act holds that each State owned the land beneath the navigable waters of that State.

7.6The "equal footing” doctrine The equal footing doctrine says that each state enters the union on an equal footing with the original 13 colonies. Those colonies joined the union owning the beds of navigable waters within their boundaries (except where particular parcels were deeded to a private owner by the King of England). When each state entered the Union, they agreed to the federal government’s constitutional right to oversee commerce. In Pollard’s Lessee v. Haganvii, the court related the equal footing doctrine to navigability: The Supreme Court has grounded the states’ watercourse sovereignty in the Constitution, observing that ‘[t]he shores of navigable water, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the states respectively.’

7.7The "Public Trust” Doctrine The public trust doctrine withholds for all citizens certain resources such as air, wildlife, water and the lands beneath navigable waters from private ownership. This philosophical doctrine establishes the legal context under which the public has the right to use, protect and enjoy these resources, for fishing, boating, and other incidental purposes. In New York v. New Jersey, Justice Holmes expressed the public trust doctrine when he made the simple observation that, “A river is more than an amenity; it is a treasure.”viii Riparian or waterside landowners have property rights weighted with the public trust, and the public has certain recreational rights on those properties. In California, the courts have found that a public trust in the waters flowing through private lands is an encumbrance on the property. This encumbrance authorizes a number and variety of public uses.ix A public trust easement or right-of-way incapable of private ownership exists in these waters and authorizes the public to make limited use of the waters for fishing, hunting, and boating.x As the legal system has proven insufficient for providing adequate access to rivers and other natural resources, federal and some state governments have slowly enlarged the public’s access to America’s waterways under the public trust doctrine. Roman Emperor Justinian established the basis of the modern public trust doctrine. Justinian recognized that communities shared certain rights in natural resources, and declared that by “natural law, these things are common property of all – air, running water, the sea, and with it the shores of the sea.”xi This philosophy later served as the basis for English Common Law, which in turn provided the foundation for colonial America’s legal system and Constitution. The idea of the public trust was first expressed in American law in the 1800’s. By the end of the 19th Century the doctrine had been applied in a number of cases and it was apparent that the doctrine applied to rivers flowing through both public and private landsxii.

7.8Applying the public trust on rivers flowing through public lands The beds of rivers flowing through public lands are usually owned by either the federal or state government. These rivers are open for public use, and subject only to regulation by the agency managing the adjacent lands.xiii As described below, several cases have established the fundamental understanding that the management of public trust natural resources must avoid substantial impairment of natural resources, the appearance of discrimination between competing uses, and implementation of discriminating fees. The application of these cases remains largely unexploredxiv.

Use of public lands is protected under the public trust doctrine In Trampealeau Drainage Dist. Merwin v. Houghton,xv the courts found that the administration of public trust natural resources must avoid substantial impairment of public uses. In other words, public agencies are required to allow citizens use of public lands.

Fees must be fair In Neptune City v. Avon-by-the-Seaxvi, the court established that under the public trust, government agencies must not impose discriminatory fees on one segment of the public.

Government agencies must balance competing uses In State v. Public Serv. Comm’nxvii the court ruled that the government agency must achieve a fair balance among competing uses under the public trust doctrine.

The public trust includes recreation Cases such as Neptune City v. Avon-by-the-Seaxviii, have made it relatively clear that the public trust doctrine includes protections for public outdoor recreation, as well as traditional uses of navigation such as commercial navigation and fishing.

7.9Applying the public trust on rivers flowing through private lands A complex sea of state and federal navigability laws regulates access to rivers flowing through private lands. Federal law determines who owns the streambeds of federally navigable rivers and also determines the right to use the surface of those waterways. State law determines who owns the streambeds of rivers which are not navigable under federal law. More importantly, state law determines what rights the public has to use those surface waters for boating, fishing, swimming, and other recreation. The public trust doctrine influences the public’s rights to use both types of rivers.

States own streambeds of rivers navigable under federal law Federal law determines who owns the streambeds of federally navigable rivers and also determines the right to use the surface of those waterways. The streambeds of rivers that are navigable under federal law are owned by the state. The limited exceptions to this rule are the streambeds of rivers that, prior to statehood, were granted into private ownership by the King of England or in even rarer circumstances the United States. In 1842, the Supreme Court established state ownership of these federally navigable streambeds in Martin v. Waddell.xix Chief Justice Roger Taney declared “dominion and property in navigable waters, and in the lands under them, [were] held by the king as a public trust.” This public trust was a property right which passed to the people of each state “when the Revolution took place.” Though Martin v. Waddell only applied to the original 13 colonies, the principle set forth by Taney was later conveyed to the remaining states under the equal footing doctrine.xx The court’s finding of state ownership of the streambeds was ratified and explicitly passed into law under the Submerged Lands Actxxi. The public right of navigation is secure on rivers where the streambed is owned by the state. These rights are limited only by federal or state regulationsxxii and administration of these public trust natural resources must avoid substantial impairment of public uses or discrimination between uses.

States will determine limits of private ownership of the beds and banks of state-held navigable waters. The rights of streamside landowners, where the waters are above the influence of the tide, will be limited according to the law of the state. State laws vary on whether private landowners property lines extend to the low or high water mark, or even to the middle of the stream. Justice Shiras in Eldridge v. Trezevantxxiii: In Packer v. Birdxxiv… it was claimed that… the title was derived by a grant from the United States afforded a reason for decision, Mr. Justice Fields states the question as follows: The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the states for their grants; but whatever rights or incidents attach to the ownership of property conveyed by the government will be determined by the states, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee. As an incident of such ownership, the rights of the riparian owner, where the waters are above the influence of the tide, will be limited according to the law of the state, either to low or high water mark, or will extend to the middle of the stream. The language of Barney v. Keokukxxv was cited with approval, and the conclusion reached was that the law of the state, as construed by its supreme court, was decisive of the controversy. The question was again presented in Hardin v. Jordanxxvi, and, after a review of the cases, Mr. Justice Bradley stated the conclusion as follows: We do not think it necessary to discuss this point further. In our judgment, the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the state in which the lands lie.

Justice Hughes Philadelphia Co. v. Stimsonxxvii: The established doctrine is invoked that the title to the soil under navigable waters within their territorial limits, and the extent of riparian rights, are governed by the laws of the several states, subject to the authority of Congress under the Constitution of the United Statesxxviii.

As stated by Chief Justice Taft in Brewer-Elliott Oil & Gas v. U.S.xxix: We said in Oklahoma v. Texasxxx: Where the United States owns the bed of a nonnavigable stream and the upland on one or both sides, it, of course, is free when disposing of the upland to retain all or any part of the river bed; and whether in any particular instance it has done so is essentially a question of what is intended. If by a treaty or statute or the terms of its patent it has shown that it intended to restrict the conveyance to the upland or to that and a part only of the river bed, that intention will be controlling; and, if its intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the state in which the land lies. Where it is disposing of tribal land of the Indians under its guardianship the same rules apply.' In government patents containing no words showing purpose to define riparian rights, the intention to abide the state law is inferred. Mr. Justice Bradley, speaking for the court in Hardin v. Jordanxxxi, said: In our judgment, the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the state in which the lands lie.

Treatment of ambiguities in private ownership of streambeds Mindful of the public trust, Congress rarely granted private title to waters or streambeds prior to statehood. The courts have been similarly cautious and have demonstrated an unwillingness to interpret ambiguous pre-statehood deeds as transferring streambed lands out of government ownership. xxxii

Applying the Federal Streambed Title Test Determination of stream navigability under the federal streambed title test can only be decided on a case by case basis, and only after conflict occurs and the question of navigability is raised to the courts. Furthermore, the federal definition relies on historical evidence, which can be hard to verify.

Establishing whether a river is navigable under federal law Under the federal title navigability test, any river on which, in its natural and ordinary condition, small craft could transport people or goods in commerce at the time of statehood is deemed navigable. Even the floating of timber has led courts to determine navigability under federal law. Rivers not navigable under federal law If a river is not navigable under the federal title test, then the streamside or riparian landowners generally own the stream bed.xxxiii However, generalizations in this area are dangerous. For non- navigable rivers, streambed ownership and the public rights to float, swim, fish and wade are determined under state law and the resolution of disputes concerning ownership and public rights varies widely from state to state. States formed from the original 13 colonies may have also retained ownership of streambeds on lands gifted to the state prior to the Revolution under a King’s Grant even though the river may not be navigable under the federal title test. Under the public trust, these state-owned rivers are also available for public uses such as boating, fishing, swimming, and wading.

King's Grants In a few states from the original 13 colonies, such as Virginia and Connecticut, the British monarchy gave some large land grants to private individuals before the Revolution. Following the Revolution, ownership of these lands was grandfathered over to the new states as the King’s successors at the time of the revolution. The state may still own the riverbed of a stream which is not navigable under federal law. Some of these grants conveyed ownership of the air, water, wildlife, and mineral rights to private owners. These gifts were called King's Grants. Some landowners claim that these grants give them ownership of navigable rivers and allow them to control commerce and traffic. However, the courts have generally held that moving waters can't be owned. Therefore conflicts have arisen on rivers like John's Creek in Virginia over the ability of an individual to own a public resource: water.

If a river fails to meet the federal title test, what are the state tests? If a river fails the federal title test, the bed and the banks are privately owned and state law defines boating rights. State law varies wildly on these rights, therefore it is important to research these rights individually. American Whitewater has surveyed navigability case law and legislation in all 50 states and has posted this information at www.awa.org/navigability/states. The doctrine of equal footing establishes that a navigable water body at the time of statehood is sovereign land. Most states have adopted the English common law interpretation that the beds and banks of tidal water bodies are navigable, and that beds and banks of non-tidal navigable streams were owned by the state and held as a public trust. As stated by Justice Van DeVanter in Scott v. Lattigxxxiv: Coming to the effect to be given to the admission of Idaho as a state and to the disposal of the fractional subdivisions on the east bank, it is well to repeat that Snake river is a navigable stream, for there is an important difference between navigable and non-navigable waters in such a connection. Thus, Rev. Stat. 2476, U. S. Comp. Stat. 1901, p. 1567, which is but a continuation of early statutes on the subjectxxxv, declares: 'All navigable rivers within the territory occupied by the public lands shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both;' and of this provision it was said in St. Paul & P. R. Co. v. Schurmeirxxxvi, 'the court does not hesitate to decide that Congress, in making a distinction between streams navigable and those not navigable, intended to provide that the common-law rules of riparian ownership should apply to lands bordering on the latter, but that the title to lands bordering on navigable streams should stop at the stream, and that all such streams should be deemed to be and remain public highways.' Besides, it was settled long ago by this court, upon a consideration of the relative rights and powers of the Federal and state governments under the Constitution, that lands underlying navigable waters within the several states belong to the respective states in virtue of their sovereignty, and may be used and disposed of as they may direct, subject always to the rights of the public in such waters and to the paramount power of Congress to control their navigation so far as may be necessary for the regulation of commerce among the states and with foreign nations, and that each new state, upon its admission to the Union, becomes endowed with the same rights and powers in this regard as the older ones.xxxvii Bearing in mind, then, that Snake river is a navigable stream, it is apparent, first, that on the admission of Idaho to statehood the ownership of the bed of the river on the Idaho side of the thread of the stream-the thread being the true boundary of the state-passed from the United States to the state, subject to the limitations just indicated, and, second, that the subsequent disposal by the former of the fractional subdivisions on the east bank carried with, it no right to the bed of the river, save as the law of Idaho may have attached such a right to private riparian ownership. This is illustrated by the statement in Hardin v. Sheddxxxviii. 'When land is conveyed by the United States, bounded on a non-navigable lake belonging to it, the grounds for the decision must be quite different from the considerations affecting a conveyance of land bounded on navigable water. In the latter case the land under the water does not belong to the United States, but has passed to the state by its admission to the Union… When land under navigable water passes to the riparian proprietor, along with the grant of the shore by the United States, it does not pass by force of the grant alone, because the United States does not own it, but it passes by force of the declaration of the state which does own it that it is attached to the shore.' United States v. Chandler-Dunbar Water Power Co.xxxix, is to the same effect...

How do state constitutions affect navigability? Several states, including California and Montana have state constitutions that hold the river and streams in the public trust, meaning that the state owns all waters and waterways.

Non-navigable rivers in which the streambed is privately owned Non-navigable rivers where states authorized private ownership of the streambeds have created muddy legal waters regarding the public trust and the public’s recreation rights. However, under the public trust doctrine, private ownership of land does not extinguish the public trust in associated natural resources. The public trust applies to all natural resources, wherever located.xl Former American Whitewater board member Pope Barrow explained that “This is a critical issue for whitewater boaters seeking smaller creeks since many of these may not be navigable under the federal navigability test, and under the original land grant the government may not have retained streambed title. Yet these are often streams which offer outstanding recreational opportunities, especially for experts who favor steep and challenging whitewater.”

The worst applications of the public trust Two states, Georgia and Colorado, make the worst applications of the public trust for their citizens. In Georgia, the state legislature gave streamside or riparian landowners the exclusive right to use the waters of all non-navigable streams.xli While a Colorado court in People v. Emmertxlii prohibited customary recreational uses of rivers flowing through private lands where the streamside landowner also owns the streambed. This controversial decision has been cast in doubt by a subsequent opinion written by the Colorado Attorney General and by uniformly critical scholarly review, however it continues to serve as the basis for state interpretations of navigability.

Moderate applications of the public trust Most state courts have applied a variety of statutes and legal doctrines in developing a body of case law supporting public rights of passage on many streams which flow through private lands. Some states like Wyoming, have relied on provisions in the state constitution to assert a public right of navigation on these streams.xliii Others, like Maine, have relied on state statutes xliv or on common law and expansive state law concepts of public navigational easements.xlv

The strongest applications of the public trust The public trust is deeply entrenched in California, Wisconsin, and Montana’s constitutional provisions and case law. The doctrine could be used to sustain public river access rights to streams flowing through private lands and over privately owned streambeds.xlvi In Wisconsin, the courts found a direct link between the public trust doctrine and public rights of access to small inland streams. In one case, the courts found that Four Mile Creek, a stream floatable by logs and small boats, as open to public recreational use as a public highway. This right of access was held in trust for the public by the state irrespective of the private ownership of the streambed. As a result, there was no need for the court to determine streambed title.xlvii In this case the judge noted, “navigable waters, in contrast with non-navigable waters, is but one way of expressing the idea of public waters, in contrast with private waters.”

Takings The notion of private land ownership and the associated right to do what you want with your land is a central tenet of American government and society. Some riverside landowners have expressed concern that navigability laws and public recreation on waters bordering or crossing their property have resulted in limiting their exercise of private property rights and that this limitation represent an unreimbursed “taking” of their property. While landowners’ concerns, such as protecting their property free from damage or litter, should be recognized, the “takings” claim is unfounded. The public trust doctrine is impressed in state and federal law as well property rights, and the public has the right to access public resources. American private property rights are generally very broad; they are adopted from English Law, which is a strain of Roman Law. The Fifth Amendment states that no private property can be "taken" without just compensation. Justice Roberts in US v. Chicago, M., ST. P. & P. R. CO., 312 U.S. 592 (1941) explained that the federal government's authority extends to the entire bed of any navigable stream, including the lands below the ordinary high water mark. Roberts stated "The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. The damage sustained results not from a taking of the riparian owner's property in the stream bed, but from the lawful exercise of a power to which that property has always been subject." Using recreation to demonstrate navigability Over the last 20 years, the federal courts have generally begun recognizing recreational use as a test of navigability. The area of greatest progress has been in the arena of hydropower relicensing. The Federal Energy Regulatory Commission (FERC) has issued several important precedent-setting decisions recognizing recreation as the ordinary and common mode of commerce and transportation. The premise of this test is that the purchase and sale of kayaks and canoes represents commerce, and that these watercraft are intended for transportation and use on even the smallest rivers and streams. In Alaska v. Ahtna, Inc.,xlviii the court found the Gulkana legally navigable on the basis of rafting, floating in aluminum power boats, and guided fishing activities, and therefore found the bed and banks of the river to be public land up to the ordinary high water mark. The court observed that to “deny that this use of the river is commercial because it relates to the recreation industry is to employ too narrow a view of commercial activity.” In two non-title cases, the courts also found that evidence of contemporary, commercial recreational use can satisfy navigability. In the first, State ex. rel New York State Dept. of Conservation v. Federal Energy Regulatory Comm.,xlix the court found that New York’s Salmon River navigable for Commerce Clause purposes, based in part on evidence of contemporary drift boat use by commercial fishing guides. In the second, Sawczyk v. US Coast Guard,l the court found the Lower Niagara navigable for admiralty law purposes based in part on evidence of intermittent, commercial whitewater rafting. In another case, Goodman v. City of Crystal City,li the court found that Florida’s Three Sisters Springs was navigable for Commerce Clause purposes based solely on small craft use, including commercial fishing and sightseeing. The court, in Swan Falls Corp.,lii found Maine’s Saco River navigable under the federal Commerce Clause test based mostly on extensive, contemporary canoe use including some commercial use. Likewise, Indiana’s Fawn River was determined navigable under the Commerce Clause in David Zinkie.liii This case was particularly interesting because the decision was based solely on the river’s potential for commercial recreation though no evidence was presented of any actual commercial recreation. There were also two conflicting cases in North Dakota on using a recreational standard for using recreation to determine navigability. The first, State of North Dakota v. Hoge,liv found that Painted Woods Lake navigable for title purposes based on evidence showing that the lake had been used for recreational boating, hunting, and fishing since the early 1900’s. In contrast, the second, State of North Dakota v. US,lv found that modern recreational canoeing on the Little Missouri River was not a reliable indicator of the river’s navigability for title purposes at statehood. In US v. Utah,lvi the court wrote: “[A]s the title of a State depends upon the issue [of navigability], the possibilities of growth and future profitable use are not to be ignored… The question remains one of fact as to the capacity of the rivers in their ordinary condition to meet the needs of commerce as these may arise in connection with the growth of the population, the multiplication of activities and the development of natural resources.” In Bohn v. Albertson,lvii the court wrote: Many, if not most, of the meandered lakes of this state, are not adapted to, and probably never will be used to any great extent for, commercial navigation; but they are used – and as population increases and towns and cities are built up in their vicinity, will be still more used – by the people for sailing, rowing, fishing, fowling, bathing, skating, taking water for domestic, agricultural, and even city purposes, cutting ice, and other public purposes which cannot now be enumerated or even anticipated. To hand over all these lakes to private ownership, under and old or narrow test of navigability, would be a great wrong upon the public for all time, the extent of which cannot, perhaps, be now even anticipated. In another case testing Commerce Clause jurisdiction, US v. Appalachian Electric Power Co.,lviii the court stated “Nor is lack of commercial traffic a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial traffic.” XXX-Puente de Reynosa, S.A. v. McAllen, 357 F. 2d 43, 51 (5th Cir. 1966).lix XXX-Connecticut Power & Light Co. v. Federal Power Comm., 557 F.2d 349, 354-357 (1st Cir. 1977).lx XXX-Nickel Enterprises v. State of California, Kern Co. Sup.Ct. No. 199557.lxi XXX-In National Audubon Society v. Superior Court,lxii the court states “A waterway usable only for pleasure boating is nevertheless a navigable waterway and protected by the public trust.”

"Floatability" v. "Navigability" Floatability refers to the purely physical ability to float a craft on a stream or waterway. Whereas navigability refers to the unquestioned legal ability to float a craft on a stream or waterway. In many states it is legal to float a non-navigable river if you can get to it without trespassing. However, it is generally illegal to use the beds and banks of the river for fishing or wading on these non-navigable streams. Navigability generally conveys other incidental public rights such as fishing, wading, swimming, and camping within the mean high water mark.

Are infrequently floatable streams and steep creeks navigable? Whether an infrequently floatable stream is navigable varies on a state by state basis.

Natural obstructions The presence of waterfalls or other natural obstructions do not limit navigability. Man-made obstructions The presence of dams or other man-made obstructions do not limit navigability. In Shively v. Bowlby, Justice Gray writing for the majority on the Supreme Court quotes Lord Chief Justice Hale favorably. In describing English Common Law in De Jure Maris, Hale wrote: That the people have a public interest, a jus publicum, of passage and repassage with their goods by water, and must not be obstructed by nuisances… for the jus privatum of the owner or proprietor is charged with and subject to that jus publicum which belongs to the king's subjects, as the soil of an highway is, which though in point of property it may be a private man's freehold, yet it is charged with a public interest of the people, which may not be prejudiced or damnified. This in essence, states that private landowners may not obstruct the public privilege of using the navigable waterway, beds, or banks below the mean high water mark.

7.10 Landowner Or Riparian Ownership Rights Can a landowner own the water in a navigable river? No. However the landowner may own the beds and banks; thereby limiting terrestrial contact. The water flows freely across property lines in the same way as game animals. As established under English common law, the game is the property of the state. Likewise, the water is the property of the state. The exception is for Kings Grant properties, which affects some land, principally in the original 13 colonies.

Can a landowner restrict navigation if the property line is in the middle of the river? A landowner that only owns the streambed to the middle of the river cannot obstruct or restrict navigation.

Landowner Streambed Rights Subordinate to Public In navigable streams, landowner’s rights are clearly secondary to the public rights of navigation. Justice Harlan in West Chicago St. R. Co. v. People of State of Illinois Ex Rel Citylxiii: Great stress is placed by the railroad company on the fact that it is the owner in fee of the bed of the river at the point where the tunnel was constructed. But that fact is not vital in the present discussion; for it was adjudged by the state court-in harmony with settled doctrines, as will presently appear-that 'the title to land under a navigable river is not the same as the title to the shore land:' that 'in a navigable stream the public right is paramount, and the owner of the soil under the bed of such a stream can only use and enjoy it in so far as is consistent with the public right, which must be free and unobstructed;' that 'the title to the upland is absolute and paramount, while the title to the lands over which the navigable water flows is subordinate to the public right of navigation;' and that 'the city could not, if it would, grant the right to obstruct the navigation of the river, or bind itself to permit anything which has become an obstruction to be continuedlxiv.'...... The principle is thus declared by a leading text writer: 'The privilege of navigation upon all waters which are capable of such use in their natural condition, and are accessible without trespassing upon private lands, is a common and paramount right. . . . At common law the right of navigating a public stream is paramount to the right of passage across the stream by means of a bridge.' Gould, Waters, 86, 88. ...The state court has well said that to maintain the navigable character of the stream in a lawful way is not, within the meaning of the law, the taking of private property or any property right of the owner of the soil under the river, such ownership being subject to the right of free and unobstructed navigation.lxv What the city asks, and all that it asks, is that the railroad company be required, in the exercise of its rights and in the use of its property, to respect the public needs as declared by competent authority, upon reasonable grounds, to exist. This is not an arbitrary or unreasonable demand. It does not, in any legal sense, take or appropriate the company's property for the public benefit, but only insists that the company shall not use its property so as to interrupt navigation.

Justice Harlan in Union Bridge Co. v. U.S.lxvi stated: Although the bridge, when erected under the authority of a Pennsylvania charter, may have been a lawful structure, and although it may not have been an unreasonable obstruction to commerce and navigation as then carried on, it must be taken, under the cases cited and upon principle, not only that the company, when exerting the power conferred upon it by the state, did so with knowledge of the paramount authority of Congress to regulate commerce among the states, but that it erected the bridge subject to the possibility that Congress might, at some future time, when the public interest demanded, exert its power by appropriate legislation to protect navigation against unreasonable obstructions...

Stated Justice Hughes, in Philadelphia Co. v. Stimsonlxvii: Nor is the authority of Congress limited to so much of the water of the river as flows over the bed of forty years ago. The alterations produced in the course of years by the action of the water do not restrict the exercise of Federal control in the regulation of commerce. Its bed may vary and its banks may change, but the Federal power remains paramount over the stream, and this control may not be defeated by the action of the state in restricting the public right of navigation within the river's ancient lines. The public right of navigation follows the streamlxviii, and the authority of Congress goes with it."

...In Gibson v. United Stateslxix, the construction of a dyke in the Ohio river under the authority of the Secretary of War had substantially destroyed the landing on and in front of a farm owned by Mrs. Gibson 'by preventing the free egress and ingress to and from said landing' to 'the main or navigable channel' of the river. The court said (pp. 271, 272, 275 ): 'All navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various states and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the Federal government by the Constitution…lxx The 5th Amendment to the Constitution of the United States provides that private property shall not 'be taken for public use without just compensation.' Here, however, the damage of which Mrs. Gibson complained was not the result of the taking of any part of her property, whether upland or submerged, or a direct invasion thereof, but the incidental consequence of the lawful and proper exercise of a governmental power.'

Again, in Scranton v. Wheelerlxxi, the question arose with respect to the riparian owner whose access from his land to navigability was permanently lost by reason of the construction by the United States of a pier resting on submerged lands in front of his upland. The court said in its opinion:

The primary use of the waters and the lands under them is for purposes of navigation, and the erection of piers in them to improve navigation for the public is entirely consistent with such use, and infringes no right of the riparian owner. Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation.

Justice Black, in U. S. v. Commodore Parklxxii stated: ..."The only land for which compensation was awarded because of mud and silt deposits was that part of the creek's bed between high and low water mark. That Virginia recognizes respondent's title to such land cannot give respondent a right to compensation if its market value is impaired as a result of work done by the United States in the interest of improvement of navigation. United States v. Chicagolxxiii, set at rest any remaining doubt concerning the dominant power of the government to control and regulate navigable waters in the interest of commerce, without payment of compensation to one who under state law may hold 'technical' legal title (as between himself and others than the government) to a part of the navigable stream's bed.

Second. Nor does a riparian owner acquire a unique private right distinct from that held by all others, to have access to and enjoyment of navigable waters and to recover compensation from the government because deprived of that privilege by an authorized governmental change in a stream. Respondent's property was always subject to a dominant servitude; it did not have a vested right to have this navigable stream remain fixed and unaltered simply because of the consequent reflected additional market value to adjacent lands. Whatever market value of riparian lands may be attributable to their closeness to navigable waters, does not detract from the government's 'absolute' power in the interests of commerce, to make necessary changes in a stream. In short, as against the demands of commerce, an owner of land adjacent to navigable waters, whose fast lands are left uninvaded, has no private riparian rights of access to the waters to do such things as 'fishing and boating and the like', for which rights the government must pay. Riparian rights of access to navigable waters, cannot, as against the government's power to control commerce, be bought and sold.

Justice Rehnquist in Kaiser Aetna v. United Stateslxxiv stated: The navigational servitude is an expression of the notion that the determination whether a taking has occurred must take into consideration the important public interest in the flow of interstate waters that in their natural condition are in fact capable of supporting public navigation...lxxv Thus, in United States v. Chandler- Dunbar Co.lxxvi, this Court stated that "the running water in a great navigable stream is [incapable] of private ownership. . . ."

The nature of the navigational servitude when invoked by the Government in condemnation cases is summarized as well as anywhere in United States v. Willow River Co.lxxvii:

It is clear, of course, that a head of water has value and that the Company has an economic interest in keeping the St. Croix at the lower level. But not all economic interests are `property rights'; only those economic advantages are `rights' which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion.

If a portion of a river is navigable, is the whole river navigable? With few exceptions, if a stream is navigable, then it is navigable in whole. The idea is that XXX

7.11 The Sea and Its Arms are Navigable The oceans are obviously navigable waters. Likewise all tidal waterways are navigable, including: estuaries, sounds, and bays. Furthermore, all rivers or “arms of the sea” where the tide ebbs and flows are navigable. In reviewing the English Common Law, which serves as the basis for America’s legal system, regarding the "sea and its arms," Justice Gray, in Shively v. Bowlbylxxviii, stated: "By the common law, both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high- water mark, within the jurisdiction of the crown of England, are in the king. Such waters, and the lands which they cover, either at all times, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement; and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the king's subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the king, as the sovereign; and the dominion thereof, jus publicum, is vested in him, as the representative of the nation and for the public benefit. The great authority in the law of England upon this subject is Lord Chief Justice Hale, whose authorship of the treatise De Jure Maris, sometimes questioned, has been put beyond doubt by recent researches. Moore, Foreshore, (3d Ed.) 318, 370, 413."

7.12 Tribal and Indian Land Grants and Treaties Streambed and ownership of waters flowing through tribal lands or reservations is determined via individual treaties. In some circumstances these rivers are reserved as sovereign lands for the tribes, in other cases the government reserved ownership. Chief Justice Taft in Brewer-Elliott Oil & Gas v. U.S.lxxix reminded the court that Oklahoma v. Texaslxxx the court stated: Where the United States owns the bed of a nonnavigable stream and the upland on one or both sides, it, of course, is free when disposing of the upland to retain all or any part of the river bed; and whether in any particular instance it has done so is essentially a question of what is intended. If by a treaty or statute or the terms of its patent it has shown that it intended to restrict the conveyance to the upland or to that and a part only of the river bed, that intention will be controlling; and, if its intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the state in which the land lies. Where it is disposing of tribal land of the Indians under its guardianship the same rules apply.' In government patents containing no words showing purpose to define riparian rights, the intention to abide the state law is inferred.

7.13 Expanding and Preserving Navigability Access Rights If you live in a state that has recognized the right for recreational use of streams, consider yourself lucky. And if you don't, be careful. While we state in our Access Policy that every stream reasonably susceptible of being navigated by kayaks and canoes should be open to the public, this is not a reality. As illustrated above, some states like Georgia still rely on anachronistic definitions of navigability.

Judicial Approach Which brings us back to July 3, 1976 and People v. Emmert. As stated above, Emmert contested his trespass charge. Thanks to a hostile judicial environment, Emmert lost and this flawed decision has cast a long shadow over Colorado boating since 1979. Like Emmert, we need to push for stronger rights for downstream recreation, but we need to choose our battles very wisely. One lost trespass case like People v. Emmert can have ripple effects that harm boater's rights for decades. In Georgia, a similarly hostile judicial environment has resulted in a losing effort on Armuchee Creek. Boaters should only go to court if they are well-funded and very well-researched about both the law and the procedure. And to be successful, you must have a strategy. Getting arrested and backed into a legal corner is not an advisable way to start your effort. It puts you on the defensive from the beginning. In contrast to the Colorado effort, New York boaters successfully litigated a trespass case last year on the South Branch of the Moose River in the Adirondacks. One of the keys to their success was that the boaters were supported by the Sierra Club Legal Defense Fund and chose to get arrested as a "test case." The result: a progressive ruling that New York's navigability standard (that a stream had to show evidence of log drives) was an anachronism and that recreational use was a sufficient test for navigability. An identical approach was successful in Montana.

Legislative Approach Of course, if a judicial approach is not feasible or wise, there is always the legislature. The state of the law in Colorado is such that legislation is the most effective and direct solution to counter the flawed and anachronistic string of judicial decisions that discourage boating. New legislation is the best solution to what otherwise would be haphazard litigation. American Whitewater and the Colorado White Water Association are pursuing a legislative approach in Colorado right now. Our effort strikes an acceptable balance between landowners and boaters and to provide benefits to each group. By clarifying the existing confusion, legislation would provide a fair and consistent alternative to continued litigation by recognizing the right of boaters to make incidental contact with streambeds and banks. In addition, legislation could strengthen liability concerns of landowners. We have started our effort by approaching the two largest private property groups in the state and listening to their suggestions.

Diplomatic Approach When you're face to face with an irate landowner or sheriff, diplomacy is the best strategy. Especially if they're armed. Avoiding conflict is always better than inciting it. As illustrated by the losing efforts above, it's better to pay the trespass fee and be on your way than to be backed into fighting a losing battle. And maybe the time isn't right for either a judicial challenge or a legislative effort. Time then to tend to your grassroots. With help from AW, Georgia has turned towards building a statewide river group that both highlights the incredible river resources of the state and builds a larger constituency for future efforts. In September, Georgia hosted a very successful statewide rivers conference.

Public Trust Approach We would also like to advocate for a stronger recognition of the public trust doctrine in the law. In the landmark case of National Audubon Society v. Superior Court of Alpine County, the courts stated "The very purposes of the Public Trust Doctrine have evolved in tandem with the changing public perception of the values and uses of waterways." If this doctrine were incorporated more fully into modern law, we wouldn't face the current risk of being excluded from public resources.

Historical Research and Litigation Proving navigability can be extremely difficult. Therefore it is important to gather a solid team to work on the issues including a historian, commercial boater or guide, hydrologist, surveyor, as well as an attorney and someone to research titles and deeds.

7.14 History of Navigability

7.14.1Justinian Law served as the basis for English Common Law Roman Emperor Justinian established the basis of the modern public trust doctrine. Justinian recognized that communities shared certain rights in natural resources, and declared that by “natural law, these things are common property of all – air, running water, the sea, and with it the shores of the sea.”lxxxi This philosophy later served as the basis for English Common Law, which in turn provided the foundation for the colonial American system.

7.14.2English Common Law provided the foundation for US navigability laws English Common Law served as the basis of American public law, where the Constitution did not apply or was silent on matters of law as with the question of navigability.

In England, the monarch owned all the waters and beds of rivers within the kingdom; however the public retained a right to navigate, fish, and hunt under the public trust. In pre-revolutionary America, the title to rivers and waterways was passed on by the king to his representatives and the colonies.lxxxii

Initially, the colonial American courts held that sovereign ownership of the "sea and its arms" only included tidal rivers as in England where virtually all waters were in fact tidal. However, recognizing that the tidal "fall-line" was terribly close to the ocean, the American courts quickly expanded the concept of "navigable rivers" to include commercially navigable rivers beyond the direct ebb and flow of the tides.

Justice Gray in Shively v. Bowlby, 152 U.S. 1 (1894), described the historical shift from English Common Law to the American standard: By the law of England, Scotland, and Ireland, the owners of the banks prima facio own the beds of all fresh-water rivers above the ebb and flow of the tide, even if actually navigable, to the thread [middle] of the stream, usque ad filum aquaelxxxiii.

The rule of the common law on this point appears to have been followed in all the original states,-except in Pennsylvania, Virginia, and North Carolina, and except as to great rivers, such as the Hudson, the Mohawk, and the St. Lawrence in New York,- as well as in Ohio, Illinois, Michigan and Wisconsin. But it has been wholly rejected, as to rivers navigable in fact, in Pennsylvania, Virginia, and North Carolina, and in most of the new states. For a full collection and careful analysis of the cases, see Gould, Waters, (2d Ed.) 56-78.

The earliest judicial statement of the now prevailing doctrine in this country as to the title in the soil of rivers really navigable, although above the ebb and flow of the tide, is to be found in a case involving the claim of a riparian proprietor to an exclusive fishery in the Susquehanna river, in which Chief Justice Tilghman, in 1807, after observing that the rule of the common law upon the subject had not been adopted in Pennsylvania, said:

The common-law principle is, in fact, that the owners of the banks have no right to the water of navigable rivers. Now, the Susquehanna is a navigable river, and therefore the owners of its banks have no such right. It is said, however, that some of the cases assert that by navigable rivers are meant rivers in which there is no flow or reflow of the tide. This definition may be very proper in England, where there is no river of considerable importance as to navigation which has not a flow of the tide, but it would be highly unreasonable when applied to our large rivers, such as the Ohio, Allegheny, Delaware, Schuylkill, or Susquehanna and its branches.' Carson v. Blazer, 2 Bin. 475, 477, 478.

7.14.3Admiralty and Maritime Laws Article III, Section 2, Clause 1 of the Constitution of the United States declares that "The judicial power shall extend... to all cases of admiralty and maritime jurisdiction..."

"Maritime" meaning cases arising on the high seas, whereas "admiralty" meaning those arising upon rivers or other tidal "arms" of the sea.

Judicial authority over the rivers was given to by the founding fathers under the Constitution, but the roots of the admiralty and maritime laws came from England.

The standard for English admiralty and maritime laws was described in the Year Book, 8 Edw. 4. 19, a. S. C., cited 5 Co. Rep. 107, which outlined how the admiral was given jurisdiction over "every thing done on the water" between the tidal low water marks at all times, and on the water when the lower lands were covered by high tides. Under common law, authority for actions on land and ownership over land exposed at low tide was reserved for the county. In Sir Henry Constable's case, 5 Co. Rep. 106, 107 it was clarified that 'Below the low water mark the admiral hath the sole and absolute jurisdiction; between the high water mark and low water mark, the common law and the admiral share jurisdiction (under divisum imperium).' Spelman, in the Admiralty Jurisdiction, Works, 226. Ed. 1727 wrote: The place absolutely subject to the jurisdiction of the admiralty is the sea, which seemeth to comprehend public rivers, fresh waters, creeks and surrounded places whatsoever, within the ebbing and flowing of the sea at the highest water, the shores or banks adjoining, from all the first bridges sea ward, for in these the admiralty hath full jurisdiction in all causes criminal and civil, except treasons and right of wreck.

At the United States' founding, Congress initially described "navigable waters of the United States" as those which could be approached from the sea by ships carrying 10 or more tons. The Judiciary Act of 1789, 1 Stat.77, ch. 20, s. 11, stated that Federal judiciary were given oversight for: …all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen [sic], within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it;...

However, from the first years of the new nationlxxxiv, the American courts began broadening interpretations of admiralty and maritime jurisdiction from English law to maritime law. The courts sought to raise the federal jurisdiction to the standards of the Law of Nationslxxxv, which was respected by maritime courts around the world. By 1848, the Court had observed the broader role of admiralty and maritime jurisdiction. In New Jersey Steam Navigation Co. v. Merchants' Bank of Boston, 47 U.S. (6 How.) 334, 386 (1848) the court stated: ...whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed.lxxxvi

The courts continued preserving admiralty and maritime jurisdiction for the federal government, rather than letting those authorities devolve to the states. Federal authority came from the admiralty grant as supplemented by the "second prong" of the necessary and proper clause, which empowered the government to act.lxxxvii In Butler v. Boston & S.S. Co., 130 U.S. 527 (1889), the courts stated: ...as the Constitution extends the judicial power of the United States to 'all cases of admiralty and maritime jurisdiction,' and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature and not in the state legislatures.

It is unnecessary to invoke the power given the Congress to regulate commerce in order to find authority to pass the law in question. The act was passed in amendment of the maritime law of the country, and the power to make such amendments is coextensive with that law. It is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but, in maritime matters, it extends to all matters and places to which the maritime law extends.

Federal authority over maritime and admiralty law was recently reaffirmed in Kaiser Aetna v. US, 444 U.S. 164 (1979): Congress, pursuant to its authority under the Necessary and Proper Clause of Article I to enact laws carrying into execution the powers vested in other departments of the Federal Government, has also been recognized as having the power to legislate with regard to matters concerning admiralty and maritime cases. Butler v. Boston S. S. Co., 130 U.S. 527, 557 (1889). See also, e. g., In re Garnett, 141 U.S. 1, 12 (1891).

Returning to the English common law premise that county retains authority over acts made on land within the high water mark, in US v. Bevans, 16 U.S. 336 (Wheat) (1818,) the court found that a murder on a ship at anchor in Boston Harbor was not under the umbrella of admiralty law by the federal district court. Instead, Chief Justice Marshall described how the responsibility for the case lay with the state, which had jurisdiction for the bay: Can the cession of all cases of admiralty and maritime jurisdiction be construed into a cession of the waters on which those cases may arise. This is a question on which the court is incapable of feeling a doubt. The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction. It is obviously designed for other purposes. It is in the 8th section of the 2d article, we are to look for cessions of territory and of exclusive jurisdiction. Congress has power to exercise exclusive jurisdiction over this district, and over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.

It is observable, that the power of exclusive legislation (which is jurisdiction) is united with cession of territory, which is to be the free act of the states. It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the framers of our constitution had not in view any cession of territory, or, which is essentially the same, of general jurisdiction.

It is not questioned, that whatever may be necessary to the full and unlimited exercise of admiralty and maritime jurisdiction, is in the government of the union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power. Still, the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Massachusetts....if two citizens of Massachusetts step into shallow water when the tide flows, and fight a duel, are they not within the jurisdiction, and punishable by the laws of Massachusetts? If these questions must be answered in the affirmative, and we believe they must, then the bay in which this murder was committed, is not out of the jurisdiction of a state, and the circuit court of Massachusetts is not authorized, by the section under consideration, to take cognizance of the murder which had been committed.

The third section enacts, 'that if any person or persons shall, within any fort, arsenal, dockyard, magazine, or in any other place, or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of willful murder, such person or persons, on being thereof convicted, shall suffer death.'

Although the bay on which this murder was committed might not be out of the jurisdiction of Massachusetts, the ship of war on the deck of which it was committed, is, it has been said, 'a place within the sole and exclusive jurisdiction of the United States,' whose courts may consequently take cognizance of the offence."

The objects with which the word 'place' is associated, are all, in their nature, fixed and territorial. A fort, an arsenal, a dock-yard, a magazine, are all of this character. When the sentence proceeds with the words, 'or in any other place or district of country under the sole and exclusive jurisdiction of the United States,' the construction seems irresistible that, by the words 'other place' was intended another place of a similar character with those previously enumerated, and with that which follows. Congress might have omitted, in its enumeration, some similar place within its exclusive jurisdiction which was not comprehended by any of the terms employed to which some other name might be given; and, therefore, the words 'other place,' or 'district of country,' were added; but the context shows the mind of the legislature to have been fixed on territorial objects of a similar character.

...Upon these reasons the court is of opinion, that a murder committed on board a ship of war, lying within the harbor of Boston, is not cognizable in the circuit court for the district of Massachusetts; which opinion is to be certified to that court.

7.14.4Commerce Clause The Commerce clause of the Constitution gives the responsibility for regulating commerce between the states to Congress, article 1, 8, cl. 3. This clause includes navigation: The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. 7.14.5The Commerce Clause applies to navigation: Gibbons v. Ogden The Supreme Court found in Gibbons v. Ogden, 9 Wheaton 1; 6 L. Ed. 23 (1824) and 22 U.S. 1 (1824), that the state could not grant exclusive rights for navigating its waters to an individual. This was the first time that a navigability case had gone to the Court under the Commerce clause. The case was in response to a decision by the state of New York giving exclusive navigation rights within the jurisdiction of the state of New York to a couple of individuals. In the decision, Chief Justice Marshall explained that Congressional power to regulate commerce is un-limited, other than by the Constitution, and that federal law was supreme to state law:

The subject to be regulated is commerce...Commerce, undoubtedly, is traffic [buying, selling or the interchange of commodities,] but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals, in the actual employment of buying and selling, or of barter.

If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word 'commerce,' to comprehend navigation. It was so understood, and must have been so understood, when the constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense; and the attempt to restrict it comes too late.

...The word used in the constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning; and a power to regulate navigation, is as expressly granted, as if that term had been added to the word 'commerce.'

To what commerce does this power extend? The constitution informs us, to commerce 'with foreign nations, and among the several States, and with the Indian tribes.' It has, we believe, been universally admitted, that these words comprehend every species of commercial intercourse between the United States and foreign nations. No sort of trade can be between this country and any other, to which this power does not extend. It has been truly said, that commerce, as the word is used in the constitution, is a unit, every part of which is indicated by the term.

If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which alters it.

The subject to which the power is next applied, is to commerce 'among the several States.' The word 'among' means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.

Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power was to be extended, would not have been made, had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.

But, in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power, if it could not pass those lines. The commerce of the United States with foreign nations, is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction, pass through the interior of almost every State in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State.

This principle is, if possible, still more clear, when applied to commerce 'among the several States.' They either join each other, in which case they are separated by a mathematical line, or they are remote from each other, in which case other States lie between them. What is commerce 'among' them; and how is it to be conducted? Can a trading expedition between two adjoining States, commence and terminate outside of each? And if the trading intercourse be between two States remote from each other, must it not commence in one, terminate in the other, and probably pass through a third? Commerce among the States must, of necessity, be commerce with the States. In the regulation of trade with the Indian tribes, the action of the law, especially when the constitution was made, was chiefly within a State. The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several States. The sense of the nation on this subject, is unequivocally manifested by the provisions made in the laws for transporting goods, by land, between Baltimore and Providence, between New- York and Philadelphia, and between Philadelphia and Baltimore.

We are now arrived at the inquiry-What is this power?

It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution....

The power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with 'commerce with foreign nations, or among the several States, or with the Indian tribes.' It may, of consequence, pass the jurisdictional line of New-York, and act upon the very waters to which the prohibition now under consideration applies.

7.14.6The British tidal test was not applicable for defining navigability in the United States: The Genesee Chief v. Fitzhugh The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, established that the tidal test, which was used in England for determining navigability, is not universally applicable to this country. Further the case affirmed that “the admiralty and maritime jurisdiction granted to the federal government by the constitution of the United States is not limited to tide-waters, but extends to all public navigable lakes and rivers”.12

12 The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058. 7.14.7State ownership and distribution of lands established on navigable rivers: Barney v. Keokuk & Donnelly v. US Barney v. Keokuk, 94 U.S. 324, 338, 24 S. L. ed. 224, 228, established the state's rights to determine ownership of navigable waters within their borders and the riparian lands adjacent theretolxxxviii. Speaking for the court, Mr. Justice Bradley observed (94 U.S. 338):

The confusion of navigable with tide water, found in the monuments of the common law, long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British island and that of the American continent. It had the influence for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas; and under the like influence it laid the foundation in many states of doctrines with regard to the ownership of the soil in navigable waters above tide water at variance with sound principles of public policy. Whether, as rules of property, it would now be safe to change these doctrines where they have been applied, as before remarked, is for the several states themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. In our view of the subject, the correct principles were laid down in Martin v. Waddell, 16 Pet. 367, 10 L. ed. 997; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; and Goodtitle ex dem. Pollard v. Kibbe, 9 How. 471, 13 L. ed. 220. These cases related to tide water, it is true, but they enunciate principles which are equally applicable to all navigable waters. And since this court, in the case of The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the states by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water. The cases in which this court has seemed to hold a contrary view depended, as most cases must depend, on the local laws of the states in which the lands were situated.

In Donnelly v. US, 228 U.S. 243 (1913,) Justice Pitney stated:

The question of the navigability in fact of nontidal streams is sometimes a doubtful one. It has been held in effect that what are navigable waters of the United States, within the meaning of the act of Congress, in contradistinction to the navigable waters of the states, depends upon whether the stream in its ordinary condition affords a channel for useful commercelxxxix.

But it results from the principles already referred to that what shall be deemed a navigable water within the meaning of the local rules of property is for the determination of the several states. On the question of states retroactively changing the navigable status of a river, Chief Justice Taft in Brewer-Elliott Oil & Gas Co. v. US, 260 U.S. 77 (1922) observed:

...It is not for a state by courts or legislature, in dealing with the general subject of beds of streams to adopt a retroactive rule for determining navigability which would destroy a title already accrued under federal law and grant or would enlarge what actually passed to the state, at the time of her admission, under the constitutional rule of equality here invoked.

7.14.8T he Daniel Ball defined navigability under the Commerce Clause In 1868, an unlicensed ship called the "Daniel Ball" was caught on the Grand River in Michigan carrying unregistered goods between Grand Rapids and Grand Haven. The Court was asked to review the questions of whether the "Daniel Ball" was operating on a navigable river, and whether it was engaged in interstate commerce? The Supreme Court found that both parts of the answer were "yes," and that the ship's owners had violated the Commerce Clause.

In the Supreme Court's decision on the case, Justice Field found in The Daniel Ball, 77 U.S. 557 (1870) that: ...The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water... {emphasis added}

This decision redefined the role of the federal government in managing commerce on non-tidal interstate rivers and the scope of navigation in the United States.

7.14.9Shively v. Bowlby (1894) 7.14.10Setting the "navigability in fact" standard: Levoy v. US A century ago, in a review of early cases relating to navigable waters of the United States, Justice Shiras in Levoy v. U S, 177 U.S. 621 (1900) found that a river which was navigable in fact was navigable in law. Citing The Montello, 20 Wall. 441, sub nom. United States v. The Montello, 22 L. ed. 394, Justice Shiras wrote:

The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway. Vessels of any kind that can float upon the water, whether propelled by animal power, by the wind, or by the agency of steam, are, or may become, the mode by which a vast commerce can be conducted, and it would be a mischievous rule that would exclude either in determining the navigability of a river. {emphasis added}

7.14.11"Navigability in Fact" is limited by a river's general usefulness for trade or agriculture: US v. Rio Grande Dam & Irrigation Co Justice Brewer in US v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899) found that navigational use of minor commercial value to trade and agriculture would not necessarily qualify a river as being "navigable in fact":

...Examining the affidavits and other evidence introduced in this case, it is clear to us that the Rio Grande is not navigable within the limits of the territory of New Mexico. The mere fact that logs, poles, and rafts are floated down a stream occasionally and in times of high water does not make it a navigable river. It was said in The Montello, 20 Wall. 430, 439, 'that those rivers must be regarded as public navigable rivers in law which are navigable in fact; and they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.' And again (page 442): 'It is not, however, as Chief Justice Shaw said ([Rowe v. Bridge Corp.] 21 Pick. 344), 'every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and commonly useful to some purpose of trade or agriculture. {emphasis added}

7.14.12Seasonal water bodies are not necessarily "navigable in fact": Levoy v. US Again in Levoy v. US, Justice Shiras cited the decision in Egan v. Hart, 165 U.S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300, that shallow seasonal water bodies without channels were categorized non-navigable, even though they could be artificially modified to become navigable: The [Louisiana] trial judge, as to the contention that Bayou Pierre was a navigable stream, said: 'From Grande Ecore, where it (Bayou Pierre) enters Red river, to a point some miles below its junction with Tonre's Bayou,-a stream flowing out of the river,-Bayou Pierre has been frequently navigated by steamboats. But from the point of junction to the dam in question it has never been navigated, and is unnavigable. Between these two points it is nothing but a highwater outlet, going dry every summer at many places, choked with rafts, and filled with sand, reefs, etc. It has no channel; in various localities it spreads out into shallow lakes and over a wide expanse of country, and is susceptible of being made navigable just as a ditch could be if it were dug deep and wide enough and kept supplied with a sufficiency of water.'

And accordingly it was found by the trial court that Bayou Pierre was not a navigable water of the United States. Its judgment was affirmed by the supreme court of Louisiana, and the case was brought to this court and the judgment of the court below affirmed. Egan v. Hart, 165 U.S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300.

7.14.13Rivers must be navigable in their natural state or "ordinary condition" to be found "navigable in fact": US v Cress In US v. Cress, 243 U.S. 316 (1917), Justice Pitney explained that for a river to be determined a "public navigable river," the river must be "navigable in fact" in its natural state or "ordinary condition":

In Kentucky, and in other states that have rejected the common-law test of tidal flow and adopted the test of navigability in fact...numerous cases have arisen where it has been necessary to draw the line between public and private right in waters alleged to be navigable; and by an unbroken current of authorities it has become well established that the test of navigability in fact is to be applied to the stream in its natural condition, not as artificially raised by dams or similar structures; that the public right is to be measured by the capacity of the stream for valuable public use in its natural condition; that riparian owners have a right to the enjoyment of the natural flow without burden or hindrance imposed by artificial means, and no public easement beyond the natural one can arise without grant or dedication save by condemnation, with appropriate compensation for the private right....We have found no case to the contrary....

This court has followed the same line of distinction. That the test of navigability in fact should be applied to streams in their natural condition was in effect held in The Daniel Ball, 10 Wall. 557, 19 L. ed. 999...The point was set forth more clearly in The Montello, 20 Wall. 430, 22 L. ed. 391, where the question was whether Fox river, in the state of Wisconsin, was a navigable water of the United States within the meaning of the acts of Congress. There were rapids and falls in the river, but the obstructions caused by them had been removed by artificial means so as to furnish uninterrupted water communication for steam vessels of considerable capacity. It was argued (p. 440) that although the river might now be considered a highway for commerce conducted in the ordinary modes, it was not so in its natural state, and therefore was not a navigable water of the United States within the purview of The Daniel Ball decision. The court, accepting navigability in the natural state of the river as the proper test, proceeded to show that, even before the improvements resulting in an unbroken navigation were undertaken, a large and successful interstate commerce had been carried on through this river by means of Durham boats, which were vessels from 70 to 100 feet in length, with 12 feet beam, and drawing, when loaded, from 2 to 2 1/2 feet of water. The court, by Mr. Justice Davis, declared (p. 441) that it would be a narrow rule to hold that, in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway. 'The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway....'

Justice Pitney in U S v. Cress , 243 U.S. 316 (1917) continued: Many state courts, including the court of appeals of Kentucky, have held, also, that the legislature cannot, by simple declaration that a stream shall be a public highway, if in fact it be not navigable in its natural state, appropriate to public use the private rights therein without compensationxc.

7.14.14Temporarily or intermittently flooded rivers are not necessarily "navigable in fact": State of Oklahoma v. State of Texas Justice Van Devanter in the State of Oklahoma v. State of Texas, 258 U.S. 574 (1922,) clarified that "exceptional" use for navigation confined to "irregular and short periods of temporary high water" did not meet the requirements for designation as "navigable":

While the evidence relating to the part of the river in the eastern half of the state is not so conclusive against navigability as that relating to the western section, we think it establishes that trade and travel neither do nor can move over that part of the river, in its natural and ordinary condition, according to the modes of trade and travel customary on water; in other words, that it is neither used, nor susceptible of being used, in its natural and ordinary condition as a highway for commerce. Its characteristics are such that its use for transportation has been and must be exceptional, and confined to the irregular and short periods of temporary high water. A greater capacity for practical and beneficial use in commerce is essential to establish navigability... 7.14.15Defining "navigability in fact": Brewer-Elliott Oil & Gas Co. v. US & US v. State of Utah Chief Justice Taft in Brewer-Elliott Oil & Gas Co. v. US, 260 U.S. 77 (1922) summarized navigability: A navigable river in this country is one which is used, or is susceptible of being used in its ordinary condition, as a highway for commerce over which trade and travel are or may be conducted in the customary modes of trade, and travel on water. It does not depend upon the mode by which commerce is conducted upon it, whether by steamers, sailing vessels or flat boats, nor upon the difficulties attending navigation, but upon the fact whether the river in its natural state is such that it affords a channel for useful commercexci.

Justice Hughes in US v. State of Utah, 283 U.S. 64 (1931,) provides a comprehensive summary of "navigable in fact" as defined by the Court:

...The test of navigability has frequently been stated by this Court. In The Daniel Ball, 10 Wall. 557, 563, the Court said: 'Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.' In The Montello, 20 Wall. 430, 441, 442, it was pointed out that 'the true test of the navigability of a stream does not depend on the mode by which commerce is, or may be, conducted, nor the difficulties attending navigation,' and that 'it would be a narrow rule to hold that in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway.' The principles thus laid down have recently been restated in United States v. Holt State Bank, 270 U.S. 49, 56, 46 S. Ct. 197, 199, where the Court said:

The rule long since approved by this court in applying the Constitution and laws of the United States is that streams or lakes which are navigable in fact must be regarded as navigable in law; that they are navigable in fact when they are used, or are susceptible of being used, in their natural and ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water; and further that navigability does not depend on the particular mode in which such use is or may be had-whether by steamboats, sailing vessels or flatboats-nor on an absence of occasional difficulties in navigation, but on the fact, if it be a fact, that the stream in its natural and ordinary condition affords a channel for useful commerce.

"The question of that susceptibility in the ordinary condition of the rivers, rather than of the mere manner or extent of actual use, is the crucial question. The government insists that the uses of the rivers have been more of a private nature than of a public, commercial sort. But, assuming this to be the fact, it cannot be regarded as controlling when the rivers are shown to be capable of commercial use. The extent of existing commerce is not the test. The evidence of the actual use of streams, and especially of extensive and continued use for commercial purposes may be most persuasive, but, where conditions of exploration and settlement explain the infrequency or limited nature of such use, the susceptibility to use as a highway of commerce may still be satisfactorily proved. As the Court said, in Packer v. Bird, 137 U.S. 661, 667, 11 S. Ct. 210, 211: 'It is, indeed, the susceptibility to use as highways of commerce which gives sanction to the public right of control over navigation upon them, and consequently to the exclusion of private ownership, either of the waters or the soils under them.' In Economy Light & Power Company v. United States, 256 U.S. 113, 122, 123 S., 41 S. Ct. 409, 412, the Court quoted with approval the statement in The Montello, supra, that 'the capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use.'

7.14.16Non-Navigable Rivers This English common law principle of granting lands riparian to any river not affected by the ebb and flow of the tide (as a “fishery” or as incidental to the “right of the soil”) was brought to the American colonies and applied to land patents later issued by the United States. As stated in Shively v. Bowlby, 152 U.S. 1 (1894):

By the acts of congress for the sale of the public lands...it is provided 'that all navigable rivers within the territory to be disposed of by virtue of this act shall be deemed to be and remain public highways; and that in all cases where the opposite banks of any stream not navigable shall belong to different persons, the stream and the bed thereof shall be common to bothxcii.'

...The court [Railroad Co. v. Schurmeir] also expressed an unhesitating opinion that 'congress, in making a distinction between streams navigable and those not navigable, intended to provide that the common-law rules of riparian ownership should apply to lands bordering on the latter, but that the title to lands bordering on navigable streams should stop at the stream, and that all such streams should be deemed to be and remain public highways.'

[As further clarified in Shively]...The later judgments of this court clearly establish that the title and rights of riparian or littoral proprietors in the soil below high - water mark of navigable waters are governed by the local laws of the several states, subject, of course, to the rights granted to the United States by the constitution. 7.14.17The federal government retains ownership of the beds and banks on navigable streams: US v. Chicago The rights of the riparian landowner and state are subordinate to the dominant power of the federal Government in respect to navigation. Justice Roberts in US v. Chicago, M., ST. P. & P. R. CO., 312 U.S. 592 (1941) explained:

The respondents assert that the power of the Government to take private lands for the improvement of navigation is confined to the natural widths, levels, and flows of the river and that if more is taken compensation must be made. Their position is that the embankment can be injured without compensation only if it constitutes an encroachment and thus a hindrance or obstruction to actual navigation. The Government, on the other hand, insists that its power is not confined to the mere making or clearing of channels and removing hindrances and obstructions to their navigation, but embraces the exercise of every appropriate means for the improvement of navigable capacity and that, in the provision of any such means, it is entitled to deal with and alter the level of the stream to any extent up to ordinary high water mark without being answerable to riparian owners for injury to structures lying below that line.

Commerce, the regulation of which between the states is committed by the Constitution to Congress, article 1, 8, cl. 3, includes navigation. 'The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress.' And the determination of the necessity for a given improvement of navigable capacity, and the character and extent of it, is for Congress alone. Whether, under local law, the title to the bed of the stream is retained by the State or the title of the riparian owner extends to the thread of the stream, or, as in this case, to low water mark, the rights of the title holder are subordinate to the dominant power of the federal Government in respect of navigation.

The power of Congress extends not only to keeping clear the channels of interstate navigation by the prohibition or removal of actual obstructions located by the riparian owner, or others, but comprehends as well the power to improve and enlarge their navigability.

The bed of a river is 'that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.' The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary high water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. The damage sustained results not from a taking of the riparian owner's property in the stream bed, but from the lawful exercise of a power to which that property has always been subject.

7.14.18Defining the bed of the river: US v. Chicago Justice Roberts in US v. Chicago, M., ST. P. & P. R. CO., 312 U.S. 592 (1941) stated:

The bed of a river is 'that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.'

7.14.19Federal navigation servitude As stated by the Army Corps of Engineers13, the Federal navigation servitude is the sovereign power of the “Government to use lands under navigable waters for navigation related purposes without payment under the Fifth Amendment. The power includes the right to remove any structures within the servitude.” The Corps continues: The navigation servitude is derived from rights recognized under Roman civil law and English common law for the public to use navigable waterways without payment, despite the private ownership of the bed or bank. The navigation servitude was incorporated into United States law as part of the Commerce Power under the U.S. Constitution. Hence, in exercise of Congress' power over navigation stemming from the Commerce clause of the Constitution, no further Federal real estate interest is required for navigation projects in navigable waters below the ordinary high water mark. Further, the courts have also generally held that, under the navigation servitude, claims of consequential damages arising from Federal development for navigation, with respect to property values or otherwise, are not compensable. However, Congress has, to a degree, foregone that advantage through what some may view as a definition of compensation for Federal real property acquisitions (Section 111, Public Law 91-611, 31 December 1970)and the definition of non-Federal sponsor cost-sharing requirements (Title I of Public Law 99-662, 17 November 1986).

13 Army Corps of Engineers, Water Resources Policies and Authorities - Digest of Water Resources Policies and Authorities, Publication number EP 1165-2-1, 30 July 1999, Chapter 1. 7.14.20Privately constructed canals are not subject to the federal navigation servitude: Vaughn v. Vermilion Corp In Vaughn v. Vermilion Corp., post, p. 206 the Louisiana Court of Appeal held that privately constructed canals, connected to navigable waters of the United States, navigable in fact, and used for commerce, are not subject to the federal navigational servitude. 356 So.2d 551, writ denied, 357 So.2d 558 (1978).xciii

7.14.21Kaiser Aetna v. US In a footnote to Kaiser Aetna v. US, 444 U.S. 164 (1979), the court found that artificially navigable waters having become navigable in fact where under the jurisdiction of federal admiralty and maritime laws:

Footnote 7: 'Navigable water' subject to federal admiralty jurisdiction was defined as including waters that are navigable in fact in The Propeller Genesee Chief v. Fitzhugh, 12 How. 443 (1852)xciv. And in Ex parte Boyer, 109 U.S. 629 (1884), this Court held that such jurisdiction extended to artificial bodies of water:

Navigable water situated as this canal is, used for the purposes for which it is used, a highway for commerce between ports and places in different States, carried on by vessels such as those in question here, is public water of the United States, and within the legitimate scope of the admiralty jurisdiction conferred by the Constitution and statutes of the United States, even though the canal is wholly artificial, and is wholly within the body of a State, and subject to its ownership and control; and it makes no difference as to the jurisdiction of the district court that one or the other of the vessels was at the time of collision on a voyage from one place in the State of Illinois to another place in that State.' Id., at 632.

Congress, pursuant to its authority under the Necessary and Proper Clause of Art. I to enact laws carrying into execution the powers vested in other departments of the Federal Government, has also been recognized as having the power to legislate with regard to matters concerning admiralty and maritime cases. Butler v. Boston S. S. Co., 130 U.S. 527, 557 (1889). See also, e. g., In re Garnett, 141 U.S. 1, 12 (1891).

States may not cede, sell or in any way convey the streambed under navigable waters unless it promotes a clear public purpose.xcv 7.14.22Submerged Lands Act The Submerged Lands Act of 195314 was passed by Congress with the intent of returning to the states, title to submerged lands for the exploration, development, and production of petroleum and mineral resources in coastal waters.

7.15 Learn More about Navigability American Whitewater publishes the National Navigability Handbook. This handbook provides concise one to two page analyses for every state's navigability legislation and case law. This is one of the best introductory resources for learning about navigability for your home state. If you would like copies of any of the above case law, please contact American Whitewater's Access Director, at [email protected] or call (301) 589-9453.

7.16Access Closures for “Security” Following the terrible events of 9/11, many rivers have been closed or threatened with closure by officials citing "security" concerns. A realistic appraisal of these closures reveals that few have actually increased public safety, though they have been successful in limiting public recreation opportunities. The objectives of these closures need to be defined and the security concerns need to be examined to determine whether the closures really satisfy America’s security needs and are truly in the public's interest. American Whitewater is working to develop access solutions that simultaneously balance identified security concerns and protect existing public access, privileges, traditions, and freedoms of use on America’s rivers.

A partial list of closures and boater restrictions made in the wake of 9/11 includes:

Mongaup River, NY is closed below Rio Dam. Sultan River, WA is closed below Spada Lake. New River, VA was threatened with closure through the Radford Army Munitions Plant. New rules that AW advocated for allow continued opportunities for fishing and boating access. Ausable River, NY is threatened with closure. South Fork of the Flathead, MT is closed below Hungry Horse Dam. Lower Blue River, CO below Green Mountain Reservoir was closed but re-opened in July following pressure from AW volunteers. The success of the AW volunteers in convincing the Bureau of Reclamation to re-open the Blue River provides a model for future cooperation and action between the public and dam managers. Statewide boater registration requirements proposed, temporarily blocked in Connecticut.

14 43 U.S.C. §§1301-1315 (2002). Green River, WA is closed for the first mile of the Headworks run to create a security buffer for the new water treatment plant.

There is no evidence that recreational canoe and kayak access downstream of America’s dams poses a security risk. In fact, the evidence indicates that canoe and kayak access does not pose a threat. For example:

In June 2002, the Washington Post quoted Assistant Attorney General Michael Chertoff, when he remarked that "to destroy a dam physically would require 'tons of explosives.'" Such a volume of explosives is far in excess of the volume or carrying capacity of a canoe, kayak, or fishing bag.

In response to questions about the Sultan River closure, Dave Harris, a spokesman for the U.S. Army Corp of Engineers in Seattle, affirmed for HeraldNet.com that there have been no confirmed incidents of any security breaches regarding any dams or water sources under the Corps' jurisdiction.

The past year has been a difficult one for the nation. In response to President Bush's plea to continue supporting the economy and protecting core American values, AW is committed to safeguarding the special places that make this country such a wonderful land.

It is our civic responsibility to rise and support both our war efforts and the way of life we had before 9/11. We are fighting a war to protect our security, freedoms, public services, and a way of life that we value. Whenever we sacrifice any of those freedoms, then in the words of President Bush "We are letting the terrorists win." That is not an acceptable outcome.

Please join American Whitewater in protecting and restoring access to the country's rivers, which have long traditions of public use and heritage.

A Report from February 2003

Let me tell you where there is a play spot that makes Rock Island look lame. It’s on the Keowee River just upstream of Hwy 183 in upstate SC. It’s controlled by Duke Power, and the hole is just downstream of where the water comes out of the dam. One day I was driving home and noticed they were finally releasing water from the Dam. So I went home and got my boat, then cam back. It was amazing! The water was warm and clear, and the play hole has a huge eddy running back into it. This hole was perfect. It was about 7 boats wide, with a long green face, and a 4-foot foam pile with nice corners.

But, there was one big problem. While I was out there playing I heard someone yelling at me from the bank. I turned to look and saw two heavily armed Duke Power musclemen. They were yelling at me to “get the hell off the water and away from the dam.” I ferried over to them and got out of my boat where we were joined by two more guards on the bank. We walked back to my truck where there were two more guards at my truck running my tags. After scaring me and sending my license and ID information they gave me a warning and let me go. Someone please let me know if you have any info on how to get this thing running I have called Duke Power and talked with them but with no luck.... Chapter 8:Boater Registration

By Jason Robertson, Access Director & John Gangemi, Conservation Director April, 2003

States with Registration Requirements States Proposing New Registration Requirements Reasons to Oppose Registration Requirements What Should Be Included in a Registration Law How To Fight a New Registration Bill A Sample Letter

You can always tell a canoer or kayaker from Ohio, that’s because they have been required to register their craft, pay a fee, and place big numbers on the side of their baots ever since the Ohio legislature figured out a way to “cheat” on their federal taxes and get more money from the federal government. The Ohio legislature figured that if they required all canoes, kayaks, and rafts to be registered along with motorboats as recreational watercraft, then they would be eligible for more Wallop-Breaux and other federal transportation funding.

Ohio is one of only seven states that currently require canoe and kayak owners to register or pay special taxes on their boats. The other states are Alaska, Illinois, Oklahoma, Iowa, Minnesota, and Pennsylvania. Arizona repealed their registration requirements in 2000 due in part to high administration costs and an ineffective ability to return services to the public.

However, in 2003, the number of states requiring new boater registrations could double!

Connecticut, Oregon, Washington, Maine, and Montana are all considering new registration requirements and Alaska’s legislature is considering substantive changes to their existing state laws.

8.1Reasons To Oppose Registration Requirements The arguments against forcing the public to register their canoes and kayaks are numerous. The first argument is that taxes and registration requirements are unpopular; however, there are many more serious and logical reasons for NOT requiring boaters to register.

1. Registration fees are rarely used to benefit the paddlesports public. Typical boater registration legislation fails to establish a revenue mechanism for a non-existent program lacking a management plan and associated annual budget. Fees tend to be diverted for use at motor-boat launch sites, to fish and wildlife programs benefiting fishermen, or are returned to the state general fund. 2. Registration programs are not cost effective. Most or all revenue generated is consumed by the cost of administration and what little remains is consumed by enforcement. Arizona finally dropped boater registration requirements in 2000 after years of operating in the red. 3. Regulators rarely know who will be impacted. Regulators should not consider a registration requirement without first obtaining a realistic estimate of the number of human powered watercraft meeting the bill’s definition. 4. Regulators rarely know how much revenue will be generated. Without realistic participation estimates, there can be no clear estimate of the revenue potentially generated. 5. Heavily developed public access and boat ramps are not typically desired. Most whitewater boating occurs in areas where the concept of public boating areas is unnecessary and obtrusive (the many creeks, trailheads, road crossings, pullouts, etc). Simply put, most boaters would rarely benefit from their registration expenditure nor would they want heavy development along the river corridor. 6. Access typically exists where Wallop-Breaux funds would be used. Typically, the rivers that receive heavy use already have access areas or are located in state or federal parks or forests where access fees are already being charged. 7. Permanent registration numbers are difficult to apply without damage to the craft and reduce resale values. The large coast-guard approved registration decals do not remain attached to kayak hulls very long because the boats are subject to heavy abrasion from rocks, trees and other objects found on rivers and streams. Further, the use of more permanent identification markings reduce the resale values of boats. 8. Fees tend to be more punitive for canoe and kayak owners than motorboat owners. Whitewater boaters typically own more than a single canoe, kayak or raft. As a result, they pay a disproportionate share of boating fees as compared to the owner of a single, much more expensive powerboat. There is also a high rate of turnover of whitewater boats that make it difficult for both the owners and the administering agency to keep up with registration paperwork. 9. Registration laws increase the operating costs for organizations. Thus the overhead increases for church and civic organizations, university programs, tour operators, commercial angling outfitters and whitewater outfitters, which might chill participation in the sport and the market. 10. Registration requirements deter tourism. Since only a small handful of states require the registration and numbering of canoes, kayaks and rafts it creates an inconvenience and added cost for paddlers visiting a state with registration requirements. This discourages paddlers from coming to the state spending money for campgrounds, motels, food and gas eventually causing a decrease in tourism revenues and thereby negatively impacting the state economy. 11. Registration does not increase or improve paddlesports safety. For instance in Connecticut, a bill was introduced in 2003 under the premise that it would improve safety; however, a study by the American Canoe Association found that the number of paddlesports fatalities in Connecticut has averaged 1.6 over the past 6 years. A registration requirement will not reduce the number of fatalities below 1.6 from the entire population of the state. Further, in a 1998 study, American Whitewater found that there were less than 2 fatalities per 100,000 participants. Again, registration will not reduce that rate since it is below the threshold for legislative efficacy and response. 8.2States With Canoe & Kayak Registration Requirements Alaska Requires registration of all paddlecraft

Registration requirements repealed in 2000 due to lack of funding, high cost of Arizona administration, and ineffective ability to return services to the paddlesports community at a level corresponding to the fees.

Illinois Requires registration of all paddlecraft

Ohio Requires registration of all paddlecraft.

Oklahoma Requires registration of all paddlecraft

Iowa Requires registration of all paddlecraft

Minnesota Requires registration of all paddlecraft

Requires registration of all paddlecraft using Fish & Boat Commission access Pennsylvania points.

STATES PROPOSING NEW REGISTRATION REQUIREMENTS Alaska Connecticut Maine Montana Oregon Washington

8.3Determining Whether a Registration Bill is in The Public Interest? If your state legislators are considering a proposal to require canoe and kayak registrations, you should read the proposed language and determine whether it includes the following elements, if it does not, then the bill is not likely to be in your best interests.

1. A budget dedicating the specific allocation of funds (with percentages) to natural resource protection and non-motorized river recreation programs including safety, education, acquisition, development, and maintenance of river access sites for paddlecraft. 2. The establishment of a single agency with clear jurisdiction for managing river recreation throughout the state and the development with public participation of a comprehensive river recreation plan to manage use and funding needs. 3. The recipient agency for the registration fees must have staff with expertise in whitewater education, safety, and rescue. 4. In the development of potential government regulations, a management plan should be developed first to resolve user conflicts and protect natural resources, and only after the plan is complete should the revenue mechanism be designed and tailored to meet the plan to benefit the user groups being managed. 5. A realistic estimate of the number of human powered watercraft meeting the bill’s definition. Without this information, there can be no clear estimate of the revenue potentially generated or impact to the state’s residents. 6. A realistic estimate of the impact to the state’s economy from negative impacts to tourism.

8.4How Can You Fight A Bill That Proposes The Registration Of Paddlecraft? Whenever a bill is being consider that would require canoe and kayak registrations, AW is deluged by phone calls and email asking how to fight the legislation. Here are our recommendations based on our experiences.

1. Forward an action alert to every boater you know (residents and non-residents), contact American Whitewater and the American Canoe Association. 2. Send a letter expressing your objections and concerns to every member of the State House and Senate transportation committee and the committee where the bill is introduced indicating opposition and reasons. Call the Majority and Minority leaders and Committee Chairs. A sample letter is attached later in this document. 3. Send a letter expressing your objections and concerns to the State Tourism Director. 4. Call the media and write a letter to the editor of your paper explaining the negatives. 5. Non-residents should inform Legislators that this registration fee would change your travel plans to the state, that you have other choices, and that the state will lose your tourist dollars. 6. Express that this type of legislation should be the result of collaboration between paddling community and boating registration agencies. The legislation should not be drafted behind closed doors by a special interest lobby (such as motorboat owners) without participation by the paddling community. 7. Express that this legislation will hurt the relationship between state boating coordinators and the public. 8. Encourage the legislators to evaluate the potential first, and only then consider action. 9. Express that registration requirements do not improve safety, since the fatality rate is super low, and will not be affected no matter how well intentioned the legislation. 10. Dave Jenkins of the American Canoe Association (ACA) is a participating member of the Titling and Numbering committee of the National State Boating Law Admin (NSBLA). Jenkins has found that making an analogy to bicycling is an effective argument. Under this analogy, Dave asks “why should paddlesports such as canoeing and kayaking be treated any differently from bicycling?” The states put hundreds of thousands in bike trails, but they do not require them to be registered like cars because bicycling is viewed as a public good since it encourages health, is non-polluting, and reduces traffic congestion. Boating should be treated similarly, since it too benefits the environment compared to motor boating, reduces congestion on lakes, and contributes to public health. 8.5River Safety and Boat Registration

Non-Powered Boat Registration & Mandatory Education: Bad Ideas for Good Reasons

Paddlesport safety has become a legislative issue. Bills requiring registration of non- powered boats or mandatory training for non-powered boaters (or both) have been developed in Montana, Maine, Oregon, Connecticut, North Carolina, and Washington State. This may be the beginning of a national trend.

It’s a mistake to characterize these efforts strictly as a fund-raising effort by government agencies. Granted, registered boats do qualify states for various federal transportation dollars. But these subsidies are declining, and administration fees quickly eat up the monies raised from these efforts. State boating agencies know this. Rather, registration is seen by these agencies, and the U.S. Coast Guard itself, as a way to further their statutory mission to improve safety on the nation's waterways. Registration is seen as a way to help them get a better count of the actual number of non -powered paddlers, and to help them communicate with an audience which, up until now, has been rather elusive.

The U.S. Boating Safety Community

After World War II recreational boating in the United States increased sharply, as did the number of accidents. The U.S. Coast Guard Office of Boating Safety was created to anchor a federal effort to reduce accidents on U.S. waterways. The Boating Safety Act of 1972 required each state to designate a boating law administrator to enforce federal boating laws and to report serious accidents to the Coast Guard. The designated agencies, which vary by state, include Departments of Environmental Protection, Natural Resources, Parks, Fish, Game, and Marine. In a few instances the designated agency is the State Police. The National Association of State Boating Law Administrators (NASBLA) is made up of all of these department heads, plus U.S. Coast Guard personnel. They meet regularly to discuss future safety strategies. Like many disciplines, their interests and focus changes. Right now a lot of them are looking at canoes and kayaks.

There are two other important boating safety organizations. The National Water Safety Congress (NWSC) was founded in 1951 to coordinate the educational and safety programs of affiliated organizations. Here organizations with extensive areas of water, like the Corps of Engineers, power companies, water districts, state parks, and federal land managers meet to discuss common problems. The National Safe Boating Council (NSBC) serves as a bridge between government agencies, businesses and non-profits. It is quite diverse: member organizations include powerboat interests and manufacturers as well as groups like the Boy Scouts, American Canoe Association, and the American Red Cross. These two organizations jointly put on the Water Safety Summit each year which is heavily attended and very influential.

There are about 13 million registered powerboats in the U.S. The “marine industry” is much bigger than paddlesports, and most government officials come from this background. Powerboat manufacturers and industry groups are strongly represented in boating safety organizations, and discussion usually centers on issues important to them. All powerboats are registered, and as with automobiles and there are good reasons for doing this. The funds help support the investments in channel marking devices like buoys and lights and provide a law enforcement presence on heavily used ocean and lake venues. Registration numbers are helpful to law enforcement officers when probing thefts or investigating accidents involving several boats. They are also useful to finance companies when keeping track of the boats that they’ve helped people buy. Considerable money has been invested in access areas with the large parking areas and concrete launch ramps that these users require.

Non-powered boats are extremely diverse. Sailboats range from sporty sailfish or sailboards to large ocean-going ships. There are specialized craft like rowing shells, utilitarian vessels like rowboats, dinghies, and john boats, and of course, all types of canoes and kayaks. Most are used on inland waters, far from any powerboat. Launch areas are usually informal, and seldom require extensive construction. The “rules of the road” are not particularly relevant except when paddlers go into a high-traffic powerboat areas. Financing and law enforcement issues are minimal, and buoys are seldom required. Many people in state and federal boating agencies come from a powerboat backgrounds, and are unfamiliar with non-powered craft. While it’s true that some people in state agencies have made solid attempts to reach out to the canoe and kayak community, it’s also the case that a determined minority is truly hostile to our interests.

Safety in non-powered craft depends less on its design and much more on the skill and judgment of the user. It’d hard to visualize a meaningful mandatory education program that works for all types of non-powered craft. You can’t teach skills because the audience is too diverse. So you provide classroom or on-line instruction followed by multiple-choice tests that cover basic information that can be easily summarized in a short pamphlet. The bureaucracy needed to distribute the tests, teach the classes, track the results, and issue the “cards” is not cheap to operate. There’s also a real problem with carrying the cards themselves in wet, active sports.

The challenge is clear. We are a small minority in the recreational boating community. The challenge is to be a smart and well organized to protect our interests. We must pay attention to this vital sector of government, cooperating when it’s possible and organizing opposition when necessary. The American Canoe Association has been working on this stage for years, and is becoming increasingly effective. They deserve our support.

The Argument For Registration

Much of the pressure to register canoes and kayaks stems from an undisputed fact: paddlesport fatalities have remained relatively constant for the past 20 years while powerboat fatalities have declined. There are roughly 700 boating fatalities nationally, of which about 500 involve powerboats. About 90 involve canoes and kayaks and less than half of these occurred in whitewater.

Recently the respected U.S. Coast Guard "JTS Study", which evaluates the risks of using different types of watercraft, singled out paddlesports as being the most dangerous form of boating activity. But according to the ACA publication “Critical Judgment”, their study was flawed in the way it collected vital paddlesports data. To determine the actual time spent in each type of boat, a key part of evaluating risk, the JTS Study only surveyed registered boaters. Since non-powered boats are registered in only five states, most of the people interviewed were powerboat owners who also own a canoe, kayak, or inflatable. Naturally they spent most of their time in their powered craft, and relatively little time in a paddle boat. This made it appear that paddlesport fatalities resulted from a relatively small amount of user time.. this ignored use patterns of the vast majority of canoe, kayak, and raft paddlers who do not own powerboats and spend their entire boating time in unregistered non-powered craft. If the study was expanded to include the hours these boats are paddled by a typical user the results would be quite different. This could be done by contacting buyers through paddlesport manufacturers and dealers

But while the paddlesport death count has not moved beyond the range established in the early 80's, the sport has grown dramatically. The U.S. Forest Service, in their 1982-83 Nationwide Recreation Study, estimated that about 15 million people participated in canoeing and kayaking. In their 2000 National Survey on Recreation and the Environment they estimated that there were 19.7 million canoeists and 6.6 million kayakers nationwide. This is a growth of 75%, much of which occurred during the last decade. During this same period powerboat registrations have increased by only 35% and they have been pretty flat for the last 10 years. The fact that the accident rate is so low is a tribute to the efforts of many people, including the U.S. Coast Guard, state boating agencies, and a variety of nonprofit and volunteer organizations nationwide.

The death rate among paddlesports enthusiasts is often overestimated by the boating law community. Advocates for canoe and kayak registration in Connecticut, for example, claimed that registration would reduce the number of canoe and kayak fatalities. The Marine Trades Association oweighed in, claiming that canoes and kayaks accounted for over half of all the state’s boating deaths. ACA research found that in Connecticut there was an average of 1.5 canoe and kayak fatalities per year over the past six years. Out of a total of nine, alcohol, stolen canoes and drugs were the involved in four of these deaths. Low-head dams were involved in two, and strong current or whitewater in the other three.

Although American Whitewater shares the goal of improving the safety of recreational paddlers, we feel that these agencies have not yet made a good case for boat registration or mandatory education. We believe that wider education can be provided voluntarily, without creating an intrusive government program and unnecessary bureaucratic hurdles for participants. The challenges we face today remain the same as they were 20 years ago. The vast majority of fatalities would not have happened if the victims had worn life vests, and many others could be prevented if they avoided alcohol or drugs. Other deaths could be eliminated if paddlers who lack specialized equipment and advanced training stayed away from cold water, high water and extreme weather conditions. We feel that the current approaches used by government agencies and user groups have made good progress, and stand ready to help improve and refocus these efforts.

Another major argument used frequently by state boating agencies is that paddlers “are not paying their share”. To this we can respond than paddlers, like bicyclists, make few demands on the infrastructure. Unlike hunters or fishermen, they take nothing from the environment. Except when investigating fatal accidents and dealing with occasional hooligans, state boating agencies provide very useful few services to us. Although paddlers do make use of a few powerboat access areas, state boating agencies seldom help out with the vast majority of conservation and access issues we face. Sometimes they have actually hindered our efforts. Fish and Game commissions in several states have actively opposed recreational whitewater releases because of alleged (but unproven) environmental damage. They have also blocked access to several popular whitewater rivers that flow through their property, requiring that paddlers seek much less convenient launch areas. Until there is a concerted effort to build a partnership that improves whitewater paddling opportunities, American Whitewater will actively oppose boat registration wherever it is proposed.

8.6Sample Letter

This letter is being used in Montana to fight proposed legislation. It can be easily modified to reflect the legislation that is being proposed in your state.

[Insert Date]

Senator [First Name] [Initial] [Last Name] P.O. Box 201706 Helena, MT 59620-1706

RE: Senate Bill 287: Bill to establish Montana Boater Registration Fee

Dear Senator [Last Name],

I urge you to oppose Senate Bill 287 or amend the current language so that watercraft powered by paddle, oar or sail are exempted from the $8.50 decal registration requirement. The bill is simply an attempt to generate revenue for the Department of Fish, Wildlife and Parks but promises nothing in return to the non-motorized paddling community.

SB 287 parades as a revenue source for maintenance of fishing access sites yet the bill contains no language specifically dedicating a percentage of the funds for this purpose or any other program within Fish, Wildlife and Parks. Furthermore, requiring “boaters” to shoulder the burden for maintenance of fishing access sites assumes these sites are only occupied by this user group. Fishing access sites are utilized by a wide variety of shore and water based user groups. Most whitewater boaters also fish. As such, $1 of their fishing license fee is already dedicated to the acquisition and maintenance of fishing access sites. For anglers this equates to an additional fee to access Montana waters. In addition, private whitewater boaters rarely if ever use the few fishing access sites on whitewater reaches because they are inappropriately located relative to the desired put-in and take-out locations.

Clearly, river runners and in particular whitewater boaters will be taxed but receive no benefits. Most importantly, this Bill will discourage river recreationists from coming to the state causing a decrease in tourism revenues further impacting the state economy. This Bill is simply a funding mechanism with no clear management plan in place for administering the funds fairly and equitably to those that are taxed.

I urge you to oppose or amend this bill so that canoes, kayaks and rafts are exempted from the registration. The bill was drafted prematurely without a management plan in place identifying the user groups that should fund the program as well as allocation of the revenue fairly and equitably.

Sincerely,

Your name Address phone number email

The Wallop-Breaux fund was established in 1984 and grew out of the Sport Fish Recreation Program of 1950. The fund is supported by fees and taxes on the sale of recreational fishing tackle and non-commercial motorboat fuel. The revenues are reallocated to the States, on a formula basis, to protect natural resources and enhance recreational fishing and boating opportunities for millions of Americans. Since its inception, more than $2 billion has been collected and allocated to the States.

While thousands of fish and boat access points have been developed with the use of these funds, the sites are typically designed to benefit recreational motorboat owners, rather than paddlesports enthusiasts. Doug Alcorn of the U.S. Fish and Wildlife Service wrote in the American Fisheries Society’s journal “Higher rates of fishing and boating participation mean more license sales as well and Wallop-Breaux funds that support state resource management programs....Joe Janisch, president of the (AFS) Fisheries Administrators Section and chief of fisheries for the Arizona Department of Fish and Game, concurs, “....As biologists or administrators there is only so much we can do without customer support. Marketing to maintain or increase a recreational market share is where our power base lies. If we don’t have the public (anglers and boaters) on our side, seeing the issues from our point of view, they will be on the other side asking us why.” Chapter 9:Safety

9.1American Whitewater’s Safety Program: Education, Not Regulation American Whitewater has been working to make whitewater river paddling safer for over fifty years. Because we believe that individual paddlers are personally responsible for their safety, our goal is to do this through education, not regulation. This starts with an effort to learn from the mistakes of others. When a fellow boater is badly hurt or killed, paddlers, just like climbers or pilots, need to know what happened. By collecting and publicizing the stories behind these accidents we can share the lessons learned. We see how others dealt with trouble, identify danger spots in popular rivers, and publicize better rescue and risk management strategies. Sometimes these accounts just reinforce what we already know, but on other occasions they teach us something new. This work also demonstrates to the non-paddling world that we care about our fellow paddlers and that we are doing what we can to minimize the risks. American Whitewater collects reports of fatal accidents and near-misses from our membership. These cover a cross-section of the sport and include paddlers of all skill levels from inside and outside the American Whitewater community. We’re not trying memorialize or glorify the victims; we want to learn from their mistakes! These accounts are the real-world foundation for our safety program and have been the driving force behind innumerable innovations in equipment, technique, and rescue. They taught us about the importance of life vests and the perils of high water in the ‘50’s and ‘60’s, the risks of foot entrapment and vertical pinning in the ‘70’s and ‘80’s, and the dangers posed by sieves and waterfalls in the ‘90’s. As long as people are injured or killed while paddling rivers we will try to learn from their experiences. The AW Journal is our primary method of soliciting these accounts and getting the word out afterwards. We regularly discuss accidents in our bimonthly magazine American Whitewater. A summary of the year’s fatalities is a regular feature that is closely read by our membership. Since the vast majority of our members will never encounter a serious accident, each report is actually a distillation of the hardest lessons from thousands of paddling careers. The magazine also features other articles that focus on avoiding accidents, making effective river rescues, and other safety-related issues. The American Whitewater Website (www.americanwhitewater.org) covers all aspects of whitewater sport, including safety. The safety section contains the largest whitewater accident database in existence, searchable by rivers, boat type, and date. It also features an extensive collection of safety articles. There is also an online guidebook covering the all the whitewater runs we know of in the United States. It’s linked to river gauges maintained by the U.S. Geological Survey so paddlers can find out the water level before they head for the river.. While this is not, strictly speaking, a safety function, it has real potential to help paddlers find a river most appropriate for their skills. American Whitewater also compiles accident statistics and performs safety studies using this information. We closely examine the material collected by the U.S. Coast Guard’s Office of Boating Safety and compared it to our less complete, but considerably more focused data. We publish our findings in American Whitewater and provide it to government agencies, commercial outfitters, and private organizations to assist their educational efforts. The American Whitewater Safety Code is widely recognized as the most concise and useful summary of safe whitewater practice now available. It had its origins in the trials and mishaps of the sport’s pioneers and continues to reflect the accidents and injuries that occur on the river. First published in 1959, it has been reprinted in hundreds of instruction manuals and river guidebooks and is frequently posted at river access points. Hundreds of thousands of copies have been printed and distributed by clubs, organizations, manufacturers, and government agencies over the past 45 years. Communicating the difficulty and danger posed by rivers and rapids is one of our greatest challenges. American Whitewater developed the earliest written descriptions of the six-point International Scale of River Difficulty back in the ‘50’s. Based on a scale in use in Europe, it has been included in the AW Safety Code from the beginning. It is now used widely in the United States and has been featured in virtually every river guide published in North America. These descriptions are also used in many foreign countries and have a wide influence on river rating throughout the world. Because the actual river rating process is subjective and voluntary, there are wide variations in how this scale is interpreted. To make the process more consistent, Former Safety Chair Lee Belknap developed the Benchmark Rapids Listing. This allows paddlers from distant areas to discuss river difficulty more precisely. The Listing provides examples using popular rapids in each class in the Northeast; Southwest, Rocky Mountains, and Pacific Coast. We urge our members to be aware of regional variations in the scale and to paddle conservatively when they first arrive in a new area. American Whitewater has created other publications that support our river safety goals. Our waterproof Whitewater Safety Flash Cards summarize vital information needed in river emergencies and are designed to be carried along. It’s a self-supporting venture and thousands have been distributed nationwide. The cards are now published and distributed by Adventure Medical Kits of Berkley, California. Accidents can have negative political effects for whitewater recreation. Members of American Whitewater have encountered problems ranging from unjustified river closures by government agencies to well-meaning but life threatening conduct at the scene of accidents by emergency responders. Decisions to permit river access or allow recreational water releases invariably have a safety component. To counter this, the Safety Committee writes detailed accident reports following any death that occurrs at any whitewater release or events connected to AW. Since power companies often cite "unreasonable dangers" in an effort to end recreational water releases, we must be thoroughly professional in our response to all problems. In each case we interview whitewater paddlers who were actually there and work closely with local whitewater experts. There have been three deaths during hydro releases during the past few years: on the Nisqually River in Washington State ( 2000 ), the Raquette River in New York (2002), and the North Fork of the Feather River in California (2003). In the case of the Nisqually, this fatality was one of several factors that caused releases to be ended. In the other two cases the release program was unaffected. We will write similar reports on any high-profile accident of interest to our membership or the authorities. Safety work at American Whitewater is done by the Safety Committee, which is lead by the Safety Chair. We work closely with American Whitewater professional staff and volunteers to support them in their conservation and access work. The committee uses a Safety Advisory Board to get additional feedback on issues. It includes key experts throughout the country and any member with a special interest in this field. Our knowledge of the river and understanding of its risks give us a unique ability to put accidents into perspective. Park and recreation managers know from sad experience that death is the inevitably byproduct of any human activity, and often need our help in dealing with the emotional public response. By facing each accident openly and projecting an image of caring and responsibility, we can help our membership and the public at large learn from these events.

9.2Risk, Safety, and Personal Responsibility

"Risk is essential. There is no growth or inspiration in staying within what is safe and comfortable." Alex Noble "…an emphasis on self-sufficiency, individualism and personal achievement - preferably under adverse circumstances - admiration of risk taking, admiration for skilled performance, especially in competitive situations, and high regard for freedom from both authority and tradition." Sociologist David Klein

Outdoor and wilderness recreation has expanded dramatically in the U.S. during the past two decades. Today 77% of Americans view outdoor recreation as an important part of their lives. All outdoor activities, and indeed most elements of daily life, contain some potential for injury. Some outdoor enthusiasts will seek the additional physical and mental challenges found in risk sports. These are skill-based, high-energy activities that contain unavoidably dangerous elements and require special training for prior to participating. Whitewater paddling and activities like skiing, rock climbing, and mountain biking are considered risk sports. Whitewater enthusiasts are often stereotyped as mindless thrill-seekers with a death wish. The reality is quite different. Paddlers represent a true cross-section of American society and include many highly educated professionals. They know the limits of their skills, and by choosing what rapids they run, they control the intensity of their experience. It is a life-long sports that nurtures a love for wild places and an appetite for low-impact, human powered travel. Extreme paddlers are especially calculating when exposing themselves to danger. Today 28% of all Americans currently participate in -- or intend to participate in -- this type of activity. Whitewater paddlers, like other risk sport enthusiasts, approach their activity with a focus and intensity not often found in traditional outdoor recreation. They’re aware of the dangers and take concrete steps to avoid them. They purchase highly specialized equipment and work hard to develop the skills they need. They condition themselves mentally and physically and learn first aid and rescue skills before setting out. They have a strong sense of personal responsibility and a full understanding of the consequences of their actions. Drug and alcohol abuse is quite rare. Because of their expertise and involvement the actual risks they face are not much more than those encountered by inexperienced people in traditional outdoor recreation. The risks of any active outdoor sport can be managed, but never eliminated. Dealing intelligently with danger is at the heart of the experience, and outdoor education programs are popular precisely because of this challenge. It’s not just about thrills. Learning paddling skills and executing them under pressure helps people develop coolness and courage. This in turn helps a person become more confident and self-reliant. In addition, teaching anyone, especially young people, to deal intelligently with danger helps develop good judgment. This has broad positive implications beyond the river. Politicians, land managers, and field personnel may be uncomfortable with risk sports as opposed to more traditional forms of recreation. They sometimes view whitewater paddlers in general, and cutting edge river runners in particular, as an irresponsible fringe element. They seldom appreciate the technical skills that underlie the sport, or recognize that large numbers of people participate in it without problems. They worry about accidents and their aftermath. Dealing with a fatality is emotionally draining. It’s often followed by a mind-numbing quantity of paperwork and tough questions from superiors. At worst, career-ending publicity or litigation follows. Their antipathy is shared by the general public because the average person is not particularly active or adventurous. Neither group distinguishes between well-trained sportsmen and casual “spur of the moment” participants. Some problems arise for paddlers because our sport’s most basic philosophy contrasts so strongly to that of the public at large. We live in a risk-averse society where people blame anyone but themselves when something goes wrong. After a murder newspaper articles blame the gun, rather than the shooter. People spill coffee in their laps at a drive-through and blame the coffee-seller. Legal judgments come down in favor of those injured by a tool or product even if the injured person misused it. So it’s not surprising that here, unlike in Canada or Western Europe, some government officials feel that it’s their job to protect us from ourselves. Misunderstandings about legal liability lead to seem like an easy solution to a safety problem. American Whitewater often encounters these challenges in its conservation and access work, and safety and liability concerns are often given as the reason to block access to whitewater rivers. Our goal is to educate politicians, land managers, and the general public about responsible whitewater paddlers practice their sport.

What are the actual dangers of whitewater?

Although certain risks, particularly those connected with automobile travel, are widely known, many people become especially disturbed about death on the river. But while any fatality is tragic and upsetting, numbers give a more accurate overall picture. As more people are exposed to a given risk, whether we’re talking about driving a car, playing football, skateboarding, rock climbing, or whitewater paddling, more will be injured or killed. It’s notable that the death rate among American troops during the first Gulf War was not much higher than what the Army experiences during normal peacetime operations. There are inherent risks in any kind of hard, physical outdoor work. Cha pter American Whitewater calculated the fatality rate for whitewater boating can in two separate studies. Using 1: available government and industry data for participation in whitewater sport, Dr. Jennifer Plyler estimated the number of whitewater kayaking participants in the United States at Rivers Studied 700,000. Then, after studying both American Whitewater and American, South Fork U.S. Coast Guard accident data, she identified 20 whitewater Arkansas kayak deaths in the United States in 1998. From this she Chattooga calculated a fatality rate of 2.9 per 100,000 for whitewater kayaking. Colorado (Cataract) Colorado (Grand Canyon) In a second study, AW researcher Laura Whitman contacted Colorado (Westwater) the managers of 30 whitewater rivers in the U.S. These Deschutes stretches contain rapids of all degrees of difficulty. She found Dolores a total of 7,420,563 whitewater boaters traveled these rivers Green between 1994 and 1998, and that there were there were 64 whitewater boating deaths during this time (26 commercial (Desolation & Gray) and 38 private). Eleven non-boating deaths were also reported Green (Dinosaur) but omitted from our study. From this, she calculated an Illinois overall whitewater fatality rate of 0.87 deaths per 100,000 Kennebec user days for all whitewater boaters, including private and commercial boaters as well as kayakers, canoeists, and rafters. Nantahala This breaks down as follows: 2.25 per 100,000 for private Ocoee boaters and 0.45 per 100,000 for commercial boaters. In the Owyhee worst year of the study period, 1998, the fatality rate for all whitewater boaters in the United States was 1.15 fatalities per Rio Chama 100,000 user days. Rio Grande (Big Bend) Rio Grande (Taos Box) It’s likely that the overall whitewater fatality rate would have Rogue been lower if more accurate count of private boaters had been Salmon, Main available. We believe that number is almost certainly low. For example, here is anecdotal evidence that many private boaters fail to complete voluntary pre-registration requirements at some locations. We also believe that some commercial, self-guided river users were counted as private visitors. Additionally we could not always ascertain the manner of death for each recorded fatality because of concerns about victim privacy. Thus we may have inadvertently included some drownings that did not involve paddlers. Commercial rafting companies are required to keep accurate records of their numbers each season, so their totals are probably more accurate.

Using widely available public data we can compare whitewater paddling against a number of familiar activities. Its accident rate ranked well below those reported for recreational swimming (2.6) and for bicycling (1.6) Whitewater kayaking had a higher fatality rate, 2.9 per 100,000. This ranks well below well below the figures of 3.5 for scuba diving and 3.2 for rock climbing. Whitewater paddling thus falls near the bottom of the risk sport family, and kayaking sits comfortably in the middle. Looking at the big picture, 62 fatalities among whitewater paddlers comprises about .026% of the total drownings in this country (2400) each year. This, in turn, is dwarfed by the more than 41,000 people who die in automobiles each year.

Fatality Rates b in the United States

FATALITY b ACTIVITIESa RATES - 1998

Scuba Diving (1996) g 3.5 Climbing: rock, snow, ice kk 3.2 (1997) Kayaking Whitewater 2.9 Recreational Swimming g 2.6 Bicycling g 1.6 Drowning (in public places) 0.9 Whitewater boating 0.86 (based on 94-98 user days)h Hunting e (1997) 0.7 Skiing and Snowboarding g 0.4

Total Number of Deaths in the United States

ACTIVITYa TOTAL DEATHS (1998) Passenger Automobile travel 41,200 Falls at home 10,700 Pedestrians 5,900 Fires at home 3,300 Drowning (in public places) 2,400 Swimming g 1,500 Recreational Boating f 815 (registered vessels) Bicyclingg 700 Firearms (accidental) 200 Hunters e 99 Whitewater Boatingh (1998) 62 kayaks 20 canoes 16 rafts 6 other (ie: swimmers & tubers) 20 Lightning (1997) 42 Climbing: rock, snow, ice (1997)k 31 Ski / Snowboarding g 26 Hang Gliding 9

Unless otherwise noted, statistics are from the National Safety Council (1999). Injury Facts. Fatality rates are per 100,000 participants (except Lightning, Falls, Fires, Drowning, Motor Vehicles, Pedestrians, and Firearms, which are per 100,000 population). g National Sporting Goods Association (1998, 1997). Sports Participation. As reported in “NSAA Report on Skiing/Snowboarding Safety.” (Oct. 1999). http:/www.skinet.com/instruction/00/983.html. h Wittmann, Laura (Sept. / Oct. 2000). “Whitewater Boating Fatality Study.” American Whitewater Journal. k The American Alpine Club (1998). 1998 Accidents in North American Mountaineering. kk Williamson, Jedd. Editor of Accidents in North American Mountaineering. Phone Conversation July 12, 2000. l Plyler, Jennifer. (2000). “Comparison of American Whitewater Safety Statistics to the U.S. Coast Guard.” Unpublished Data. American Whitewater Safety Assistant.

But if whitewater sport is so safe, why do we hear so much about paddling fatalities nowadays?

To begin with, participation has grown tremendously. The U.S. Forest Service, in the 1982- 83 Nationwide Recreation Study, estimated that about 15 million people participated in canoeing and kayaking. The 2000 National Survey on Recreation and the Environment estimated that there are 19.7 million canoeists and 6.6 million kayakers nationwide for a total of 26.6 million participants. This is a 75%growth rate, much of which occurred during the last decade. Most recently, the Outdoor Industry Association released a report showing that the number of first time paddlers had grown significantly. There were 37% more new kayakers and 33% more new canoeists taking up the sport between 2000 and 2001. Whitewater kayaking has often been singled out as a major growth area in the outdoor retailing business during the past decade.

The business side of whitewater has grown explosively. Kayaking, which wasn’t even listed as a separate activity in the 1983 Forest Service Recreation study, is now growing at a much faster rate than canoeing. In 1985 Perception Kayaks dominated the market, producing five whitewater boat designs. There are now five major U.S. whitewater kayak companies: Perception, Dagger, Necky, Wave Sport, and Liquid Logic, offering a total of 63 different designs! There are also several successful imported lines, each offering 6-12 different design choices. There has been tremendous innovation in equipment and technique during last two decades. Features like keyhole cockpits and bulkhead footbraces make modern boats much safer to paddle than their predecessors. Instruction, especially in schools and colleges, has grown too, making the sport more accessible to the public. Improved training allows talented athletes to progress more rapidly. The sport is much safer today than it ever was.

As gear and skills improved, the next generation of paddlers used shorter, more nimble boats and safer outfitting to run harder whitewater. The leaders are an elite corps of full-time professional kayakers, sponsored by manufacturers, who travel the world and paddle difficult whitewater 200-300 days a year. They and their high-level, non-professional colleagues run more difficult drops in a month than the average paddler sees in a lifetime. They’ve opened up many very difficult runs during the past decade and their skill and knowledge has worked its way into the mainstream.

Today’s river activities reflect these changes. “Old-school” cutting-edge expert runs like the Gauley and Upper Youghiogheny are now crowded with hundreds of mainstream paddlers, and more difficult rivers like the Green and Tallulah, once considered unrunable, are now quite popular. For example, in the late ‘70’s a handful paddlers first ran the Class V+ “Bottom Moose” in upstate New York, portaging many of the big drops. In the ‘80’s this stretch became the site of one of AW’s first successful FERC interventions. Safety was an issue when a paddler died there during this process, and a number of paddlers wondered why we were putting so much energy into a difficult stretch that few people would ever use. Today hundreds of paddlers line up to run these very same rapids at a popular river festival each fall. The new generation built on the experience of those who went before it, innovated, and advanced. By standing up for our values - free access and personal responsibility – many years ago we gave today’s paddlers a valuable recreational resource.

In the end, safety still depends on individual judgment. Casual cruisers and top experts must both match their skill to the demands of the river. American Whitewater believes that informed, prepared paddlers should have the freedom to make these decisions and take the responsibility for what happens as a result. We don’t believe that government, no matter how well-meaning, should have a role in this decision-making. We have seen the sport evolve continually over the past 50 years, during which time rapids which were once considered impossible have become popular. Based on this experience, we oppose any efforts to set a “cap” on the limits of what is possible. There’s no such thing as a risk-free environment, especially in the outdoors. Any efforts to create one will restrict responsible sportsmen without protecting the less informed.

9.3Representing Whitewater to the Public

American Whitewater’s Safety Program has two audiences: members of the whitewater community and the general public. The second group cannot be ignored. As a part of a larger society we must communicate effectively with the non-paddling majority. We are often called upon to defend the safety of river running when working against restrictive regulations or building support for our conservation and access goals.

Whitewater paddlers come from all walks of life, and represent a true cross section of today’s America. If anything, we tend to be more educated than the public at large. Our number includes many noted doctors, scientists, and engineers. We share an appetite for adventure, a love of wild places, and a preference for active, human powered recreation. Feeling the power of a living river under your boat is a unique thrill, and exploring wild places via rivers is deeply rewarding. Men and women of all ages paddle, and for many it becomes a lifetime sport. As with any activity, there are risks. We choose to accept them, and take full responsibility for our actions. We have studied whitewater thoroughly and have developed skills needed to traverse it safely. Our decisions to run a river or rapid are made with great care, and we are prepared to deal with the inevitable mishaps. We naturally believe that paddlers should have the freedom to make independent river running decisions independent of government regulation.

Because whitewater paddlers watch out for each other on the water, strong friendships develop quickly. Active river runners are usually part of a tight community, and most of their friends are paddlers or other adventurous, risk sport athletes. It’s easy for us to forget that and that most people do not think the way we do.

The public has many misconception about whitewater boaters. Despite the growth of the sport, most don’t know any paddlers personally. They see us on TV and read about us in the newspapers. The media normally focuses on either high-end performance or tragedy; both extremes are not a part of the mainstream paddling experience. Even when someone has been rafting, or has seen paddlers on the river, they don’t understand the in-depth knowledge and training we have. The risks seem greater because they don’t understand what‘s being done to mitigate them. This makes the sport seem irresponsible and reckless, and allows them to categorize responsible paddlers as thrill-seeking maniacs with a death wish.

But there’s more to it than that. Whitewater taps into one of the most widely-held, deep- seated human fears. Most people are wary around the water and some are truly terrified. Lots of people think accidental drownings, unlike other fatalities, should to be totally preventable. Jason Robertson, American Whitewater’s managing director, explains it this way:

“Drowning is fundamentally more disturbing at a primeval level than other accidental deaths. Most people, including whitewater boaters, have a primitive fear of water that is evidenced by their hesitation to learn to roll and exacerbated by visions of floods and whitewater. Perhaps it is a fear of chaos, or a fear of that which lurks beneath the surface. At some level, it must be a fear of the unknown. How else can we justify overcoming our fears and pursuing greater adventures and challenges than in our quest to know and learn what lies beyond the next horizon?

”Unfortunately, our passion for the unknowable is not shared by many in society, and some individuals in positions of authority translate their personal fears for our well being into well-intentioned attempts at preventing us from approaching or enjoying these flooded or falling waters. For these people, our safety is best secured by denying access to the very areas we enjoy the most. For these people, every drowning they see on Fox News or hear about from other sources is a testimony to the wisdom of their decision to bar or limit access on the river they manage.”

Behold A Pale Horse: Safety Concerns Can Result in Lost Access American Whitewater Web Site Sometimes the story of a river tragedy captures the public eye and develops surprising momentum. In the 1984 the death of a group of soldiers at Brookmont Dam on the Lower Potomac dominated headlines in the nation’s capitol for weeks. Arguments flew about, targeting the dam’s structure and the helicopter rescue, passing between politicians, the media, and a slew of government agencies. It eventually resulted in a multi-million dollar modification to the dam itself.

The Wild and Scenic Chattooga River, known for it’s undercut geology, has seen many calls to alter the river for safety reasons. In 1990 the family of a boater who drowned on Section IV asked the Forest Service to fill Crack In The Rock to “make it safe”. American Whitewater successfully argued against this idea, saying the modification might not solve the problem and could set a dangerous precedent requiring the agency to modify other ‘dangerous’ rapids throughout the basin.

Then in May 29, 1999 a 16 year old girl hiking with her boyfriend attempted to wade across the Chatooga River just upstream of Raven Rock Rapid. The river was running low, at 1.2’. The pair lost their footing and were swept into the rapid. The young woman was washed into an undercut rock and pinned under 8 feet of water. Although an underwater camera was able to pinpoint her location, area rescue squads were unable to touch, (much less release) her body,

The girl’s distraught parents applied political pressure to continue the recovery efforts. In late June, following pressure from South Carolina Senators Strom Thurmond and Earnest Hollings, a portable dam was carried into the gorge and erected to divert the water. This body recovery involved several hundred people, including a convict labor squad, first responders, and forest service personnel. Dennis Kerrigan, a long-time Chatooga guide, rescue instructor, and extrication expert, was flown down from Maine to assist. Unfortunately the water rose, and they could not divert enough water to make the recovery. Plans were then laid to return with a bigger dam and a larger crew to try again. Prior to this attempt, the underwater carrier searched the area and could no linger locate her body.

Litigation adds to these concerns, and a fear of lawsuits is routinely mentioned in our communications with landowners and park managers. This is understandable; not only are payouts from drowning cases rather high, but juries often view drowning as a preventable accident. Six Flags Inc. recently agreed to pay $4 million to the young daughter of a woman who drowned on their Roaring Rapids amusement park ride. Rivers are not amusement rides, of course, but anyone with significant assets can be a tempting target. Their goal is often to threaten litigation and obtain a quick settlement of $50,000 dollars or more. This works because it will cost 4-5 times that amount to defend a client at a week-long trial, and the risk of losing the case still remains.

Public opinion about river running ranges from interest to indifference to outright hostility. Certain groups of people tend to have certain opinions. People with some background in competitive sports or the outdoors are often inclined to be sympathetic. In rural areas, where many people never learn to swim and most know of someone who has drowned on a river or creek, many people think kayakers are crazy. Some people who work hard, physical jobs can’t image why someone would want to “relax” by doing something physically taxing. A city person who isn’t looking for an intense outdoor experience may not understand why anyone else would. A hard-driving workaholic may see any recreation, particularly one where you can be injured, as needlessly frivolous. We don’t have to agree with any of these ideas, but understanding why people think the way they do is the first step towards developing a professional and effective response.

Dealing with the Government

Europeans are seldom concerned when paddlers or mountain climbers die, but things are different here in America. Issues of personal freedom versus government control has been debated throughout our history, and a vocal minority seeks to reduce the role of personal responsibility in our society. . They do not share the outdoorsman’s philosophy of taking personal responsibility for accidents. They think dangerous activities like running whitewater rivers should be prohibited, licensed, or restricted. They expect government to protect people from themselves. There’s a national tendency to blame someone whenever a person is hurt or killed on rivers, and that “someone” often works for the government.

Public officials are aware of these feelings, and some may share them They often limit or block river access because of concerns for public safety. Most are sincere, hard working people who are trying to craft decisions that make sense to them, and can be justified to their bosses and the public at large. But you don’t get ahead in government by being innovative; you advance by avoiding career-ending mistakes. This makes them risk averse by nature and cautious when dealing with people like us.

Park rangers and managers deal with all the outdoor recreation on a given piece of land, and river running is just one of a number of activities. Top people are chosen for their administrative skills, and it’s not unusual for an important river-centered park to be run by a non-paddler. Lower level field people, with notable exceptions, are not whitewater enthusiasts. Keeping visitors safe is their primary responsibility, but their focus is on the general public, not the skilled enthusiast. Regulations designed to protect the average person will often seriously restrict our activities.

The fallout from accidents is always bad. There is considerable paperwork to deal with after a fatality, and park personnel frequently spend considerable time with family of the deceased. Their bosses and the press may start asking tough questions, even suggesting that the mishap was somehow their fault. The fact that these managers don’t want to deal with a drowning is understandable, but if their concern restricts our freedom and reduces paddling opportunities we must respond.

Politicians and government professionals officials have much broader responsibilities and deal with a wider spectrum of interest groups. Recreation in general, and whitewater in particular, is pretty low on their list of priorities. Unless they have a special interest in river running, and some do, they may view our concerns as a distraction. When tragedy strikes, they frequently over- react. They may “take the path of least resistance”, banning the activity or closing rivers, before moving on to other, more important things.

Our goal is to oppose this tendency and to work towards a responsible solution. A lot can be accomplished when someone stands up for the interests of river runners in a reasoned professional way, and that’s what the staff and volunteers of American Whitewater have been doing for the past 50 years. Here are some things to keep in mind when talking to government officials

• Dress well for meetings, as if you were going to a job interview. Paddlers are often stereotyped as hippies, punks, or slobs, and professional dress will get you respect. If in doubt, overdress.

• Listen carefully to find out the concerns and needs of all parties, and try to understand their vales. There’s often a solution that will satisfy everyone, but you can’t craft it if you don’t pay attention. Use your understanding of their core beliefs to show them respect, and build a good working relationship.

• Try to bridge the divides between you and other interest groups, rather than emphasizing conflicts. Government officials are often attacked from all sides and are quite used to being abused. A group that takes a moderate position and shows respect for other interests is more attractive as a partner.

• Be reasonable and even-keeled in your discussions. Righteous indignation and outbursts of temper hurt your credibility. Sometimes people will say things at meetings that are designed to provoke your anger. Don’t allow yourself to be baited into saying things you’ll regret later.

• Don’t let an issue get personal. Oppose the policy without insulting the person representing it. Often that person is just passing the word on policies decided at higher levels. Name-calling creates animosities that remain long after the issue has been settled. Politicians and managers often have long careers and long memories. Remember that you’ll probably be dealing with them again!

• Don’t issue threats. You may have to go over someone’s head, work the media, or develop political pressure, but a threat seldom works. End the meeting gracefully, and decide on your next course of action in private when your mind, and not your emotions, are in charge.

Although these rules are also useful in dealing with officials from private companies. Many large landowners will work with you to generate positive publicity for themselves, but others won’t. They don’t have to bother with the public unless they want to, and can be relatively immune to bad publicity. Some corporate individuals will even relish the role of “standing up” for their rights publicly and bashing the environmental community.

Working with the Media

Reporters and other Media Representatives cover a wide variety of issues, spending a short time with one story before moving on to the next. River accidents often get attention because they are unusual and dramatic. The best reporters are sharp investigators who research the stories they are covering and let the facts write their articles. Others write the story in their head prior talking with you and base their ideas on stereotypes rather than fact. They look for conflicts and are quick to play them up.

Here are some things to keep in mind when talking to reporters. • Remember our goal is to educate the public about the safety skills which make our sport possible, always maintaining that education, not regulation, is the best approach to whitewater safety

• Remember that even though the reporter is friendly, and most are, he or she is not your buddy. They’re using you to do their job; be sure you use them to get your message across!

• Stay focused and on point, and avoid rambling. Long-winded answers often confuse your audience. Give short answers, and let them ask for additional details.

• Lead with your conclusions, and repeat important ideas often. Reporters seldom paddle whitewater and will not pick up on the most important ideas without your help. If the reporter asks the wrong questions, answer them briefly, then say, “but the real issue here is....”

• Think in sound bites, and keep your answers short and simple. This is especially important for radio and TV interviews

• Name calling and blame assignment will come back to haunt you. Focus on the issue, not the personality. Be straightforward, not cute or sarcastic. If the subtleties of your statement can be missed, they will be.

• If you say something that you wish you hadn’t, immediately ask that it be considered “off the record.” Most reporters will honor this request.

• You will sometimes be misquoted and misunderstood. A lot of times you should just let it go. If it’s really important, call the reporter and ask for a correction.

If the accident occurs at an American Whitewater event we will always designate a press spokesman. This will probably be the senior staff or board member most closely connected to the event. We want to be certain that the person talking to the press is the one who knows the most about the accident and is most qualified to comment. What we say may have far-reaching consequences, and we want to avoid mistakes.

Having a reporter call on you for information makes is exciting and flattering Sometimes this gets will get you to comment on what happened even if you don’t really know much, or get you to pass on second and third hand rumors as fact. That’s not a hood idea, but saying “no comment” or “I can’t talk to you guys” doesn’t feel right and creates an impression you have something top hide. Your best approach is to say something like, “Yes, there was an accident, but I don’t know exactly what happened. But I do know who you need to talk to.” Then give them the name of the designated spokesman.

It’s always appropriate to express personal sorrow for what happened and concern for the victim’s family and friends. But a compassionate response is not the same as admitting responsibility for a tragedy. Beware of saying things like “it’s all our fault” or “it never should have happened”, especially if you are upset. After careful reflection you may find that the event was much more complex than you thought, and that initial statement will come back to haunt you!

It’s often worthwhile to approach reporters at newspapers or TV with your own story ideas. This is the essence of public relations, but you don’t need a big office or a fancy salary to do it. For example, you can call a day after a widely publicized river accident and ask if they’d like to do a safety follow-up. This is a good opportunity to explain what skilled whitewater paddlers do, which helps distinguish between them and the often inexperienced victim. With TV you can gather a group of paddlers for a good visual background. Start by identifying the reporter who normally covers this area; it’s often the same person who handled the story of the accident. Then call up and make your pitch.

Here are some useful safety "talking points":

• Whitewater paddling is no more dangerous than other active outdoor sports like bicycling, scuba, or rock climbing. The studies mentioned in the introduction can give you good numbers for comparison.

• Trained paddlers are safer running difficult whitewater than untrained paddlers attempting easier stretches. Deaths involving experts comprise a very small percentage of accidents.

• When a skilled paddler has died, emphasize the concept of “challenge by choice”. Explain that the person knew exactly what they were getting into and derived pleasure from doing a difficult thing well. Discuss the victims experience, and the safety precautions that he took.

• Today's gear and training is better than ever. The increase in reported fatalities in recent years is due primarily to a significant growth in the sport, and to a lesser extent on improved communications via the Internet.

• Whitewater sport has risks which can be minimized but never eliminated. Sound individual judgment is our most important safety tool.

• Each individual paddler is ultimately responsible for their own safety. All paddlers, even the most extreme, take routine precautions. It's not the government's job to try to control their behavior.

• To stay out of trouble, follow these simple rules:

1. Wear a PFD; most fatalities could be avoided by simply wearing a life vest.

2. Avoid alcohol and illegal drugs, which reduce both skill and judgment.

3. Stay away from extremes of weather and water. This caution includes high water and cold water conditions, as well as cold weather and storms on open water.

Almost all canoe, kayak, and rafting deaths occur when the victim ignores one or more of these rules. Case History: Ohiopyle State Park

The history of paddler – government interactions at Ohiopyle State Park in Pennsylvania illustrates many of the different challenges we have discussed. The Lower Youghiogheny River, which runs through the park, was first run by whitewater canoeists in the early ‘50’s. It’s been long-time focal point of Mid-States paddling and was the first river in the country to become truly popular. When Wilderness Voyageurs began offering guided rafting in 1964, there were no regulations at all. Soon after the park was established in 1971 three scuba divers drowned while trying to swim the Yough at a high (7 foot) water level. This prompted Chuck Rea, the park manager, to close the river to boating at water levels over four feet.

In the late 60’s and early 70’s Dartmouth College slalom racers held an annual spring training camp on the Lower Yough in early March. In 1973 the river was over 7’ for the entire week. Dozens of top-ranked slalom paddlers ran the river anyway, and because of the early season no one noticed what was going on for days. Paddlers argued that this showed that the four-foot rule was unnecessary, and the restriction was lifted for kayakers but maintained for rafts. In late ‘70’s Yough outfitters who had been running the Cheat Canyon at high levels petitioned to run the Lower Yough commercially at high flows. The rules were amended to require the use of a 15 foot-long raft at levels over four feet. The length requirement was deliberately set: large rafts are not owned by the sort of inexperienced people who get into trouble on rivers. In the late 80’s the American Canoe Association (ACA) lobbied successfully for a similar exemption for inflatable kayaks with thigh straps and foot braces.

River use increased dramatically in the ‘70’s. The park established limits on commercial rafting in 1973 just as Larry Adams took over the manager’s job. In 1976, following the Penn State study, a quota of 2000 paddlers per day was established, split 50-50 between private and commercial users. Private paddlers did not regularly fill their half of the quota until 1981, when Stu VanNostdelin, the mayor of Ohiopyle, acquired a lease on some riverside property and started renting rafts. The other outfitters first tried to run him out of business, then began renting rafts themselves. These renters were considered private paddlers, and threatened to consume the entire private quota. AW and ACA intervened, and an agreement was reached to divide the private quota into two parts: 50% for hard boats, and 50% for inflatables. Launch permits became hard to get, and people had to settle for late afternoon trips on the “Loop”. This is a three-mile long section that bends back on itself, allowing a person to “run shuttle” on foot.

A serious access crisis developed in 1979 when the B&O railroad closed the Lower Yough takeout at Stewarton. Paddlers and fishermen had been crossing the railroad tracks here for decades, but as their numbers increased, problems developed. There were many close calls with fast-moving trains, which are surprisingly quiet on their downhill runs through the gorge. When open canoeists laid their boats across the tracks the aluminum gunwales completed the circuit between the rails, setting off warning lights for 50 miles in each direction. Once someone backed a van across the tracks. The wheels got stuck between the rails and the van stayed put until it was hit. No one got hurt, but the railroad’s patience wore thin. The state had promised for years to develop a new takeout, but each year plans were shelved due to lack of funding. Local outfitters sued to keep Stewarton open, and failed. The company posted private security and turned back anyone who tried to take out. Yough outfitters worked with AW and ACA and came up with a temporary solution. They gained access to a railroad right-of-way that runs from Route 381 down to the river along Indian Creek. This added about four miles of flat water to the run, but kept the river open. A bus company ferried people and boats out to the highway. A road was finally constructed to the current Bruner Run takeout despite last minute opposition from the Pittsburgh Chapter of the Sierra Club. The bus company moved its operation over there, and the shuttle continues during the busy months.

In the early ‘90’s local paddlers became increasingly upset at the difficulty they were having getting on the water. Various paddling groups met with the new park manager, Doug Hoehn. After this meeting, unlimited launches for full river trips (as opposed to loop runs) were allowed after 3:00 pm, a change that primarily benefited people living nearby. With the park phone and computer systems stretched to the limit, Hoehn instituted a $2.00 fee for launches to raise needed money for improvements. This sparked a lengthy protest by local paddlers which included picketing, shouting matches, and arrests. The fee was changed to apply to reservations only, as opposed to walk-ons, and the protests died down. But hard feelings remained.

In the summer of 2000 there were three drownings involving raft rental guests in the vicinity of Dimple Rock. One of the victims, an attractive teenaged girl, washed under the rock and pinned. A huge outcry followed. There were lots of stories in area newspapers and the girl’s friends and relatives began a letter writing campaign to remove the rock. The Fayette County Coroner supported this idea publicly. At the Coroner’s Inquest Charlie Walbridge, American Whitewater’s safety expert, explained the challenges of riverbed modification. He noted that there were several other rocks downstream which could become a problem if the rock was removed. Any changes were had to be done right or there would be a day of reckoning in the future. Based largely on his testimony, the Coroner's jury recommended that warning signs be placed at Dimple Rapid indicating that people had drowned there, that safety education be improved, and that the state begin a study as to the feasibility of filling the undercut on the upstream side of Dimple Rock.

Afterwards, a lawyer from Pennsylvania’s Department of Conservation and Natural Resources told Walbridge that the State was wary of modifying the river because of liability concerns. She explained that people could not sue the state for what happens on a natural river, but the rapid, once modified, could make the state vulnerable to litigation. Park Manager Doug Hoehn convened a safety focus group and planned improved safety measures for the 2001 season. This included stronger warnings at the put-in, warning signs posted above the rapid itself, construction of a portage trail around the rapid, and an improved safety video for renters to watch at the put-in. Pressure to fill in the undercut upstream side of Dimple Rock continued, this time from a state senator. A feasibility study was done this past summer.

Access to Ohiopyle Falls is another ongoing issue. Locals swam over it regularly at summer flows for many years. Paddlers were more cautious, and the falls had not been run when the park was established. Although the falls were officially closed, in the mid-70’s a few experts managed to slip through early or late in the day when rangers weren’t around. By the mid-80’s it was pretty common for paddlers to run falls of this height and difficulty. The “cat and mouse” game with the authorities intensified; large fines were levied and several paddlers were arrested and jailed.

American Whitewater applied for a permit to run a “Falls Race” in the late ‘90’s. This would provide a legal outlet for frustrated falls runners and demonstrate to State Park officials that the drop could be safely run. The idea was quickly turned down by park management. Jim Greenbaum, manager of Whitewater Adventurers, knew the director of the Pennsylvania DCNR. The man was a paddler and Jim thought he might be sympathetic to the idea. The director was approached and the permit was issued. For the next four years hundreds of people made multiple runs of the falls without incident. We are now asking the park to consider opening the falls, and the work on this issue continues.

9.4Accidents, Emergency Workers, and Paddlers

Experienced whitewater paddlers are prepared for trouble, and routinely deal with swims and other minor mishaps on river trips. Mostly it’s pretty basic stuff, like helping a swimmer ashore or pulling a boat off a rock. Occasionally there’s a long swim or entrapment that’s pretty scary. Serious injuries or fatalities requiring outside help are rare, but when help is needed, we go to the phone and dial 911 just like everyone else. This taps into the emergency response system, and the call goes out to the group best able to help out.

Emergency responders belong to a variety of groups. East of the Mississippi a fire department or rescue squad usually responds. Paid professionals are the norm in big cities, but most rural areas are served by volunteers. In the rural west, search and rescue is usually handled by the sheriff. Although many units of the National Park Service have rescue teams on staff, state parks and national forests most often rely on local units. Specialized dive rescue water teams can be affiliated with the State Police, and you will occasionally encounter independent water rescue teams. In Greater Los Angeles, beach lifeguards are tapped for swiftwater rescue teams.

Volunteer rescuers are a noble, big-hearted bunch. They’ve signed up to leave their work, home, and family at all hours of the day and night to help someone they don’t know. They’re courageous, can-do people who willingly face danger even if they don’t always have the best training or gear. Although they thrive on excitement and challenge, they may feel “put out” by paddlers. Lacking much on-water experience with rivers, they don’t always make a distinction between a trained river runner and the reckless, intoxicated soul they helped out last time. They’re often surprised that anyone would try something as “stupid” as river running, and a few of them will say so!

All these things also apply to professionals, but they also tend to be more formal and less approachable than volunteers. Police and fire companies are paramilitary organizations and their officers are used to being in charge. The rank-and-file tend to be authoritarian, no-nonsense people who feel they are paid to know what they’re doing and don’t have time to fool with civilians. Both volunteers and professionals have the authority to control an accident scene, and professionals take this responsibility very seriously. They can and will arrest you if you don’t follow their orders. As public officials, they are being watched carefully. If something goes wrong at an accident scene they will have to explain it to their bosses and the press. This makes them more cautious about accepting help from people on the scene than the average volunteer unit. Although there's always been tendency to lump all types of water rescue together, the good news is that more and more agencies are getting specialized swiftwater training. Slim Ray and other Rescue 3 instructors make a point of suggesting that the rescuers they train try to work with paddlers because they know a lot more about water than they do. Many have even been in a class with paddlers, which helps further this understanding. That probably explains the increasing amount of cooperation we’ve seen in recent years. In addition to excellent medical training and plenty of advanced first aid supplies, emergency responders are also trained to work as a team. They are especially skilled at evacuations: if you need to move someone through rough country back to civilization, they have the manpower, vehicles, and communications needed to do it. The typical paddling group is not nearly as organized and well-drilled.

While a few paddlers are carried to safety by first responders each year, a "water rescue" usually means a body recovery. This is pretty depressing work, as American Whitewater's current managing director explains:

“...... many rescue workers have a certain brashness or bravado born of experience, training, and their badge. When I worked with a first responder and HazMat unit in college, we thought we were invulnerable. While we would race to fires, car accidents, and chemical spills, the race to a drowning scene was left to other emergency units. At some level our commander expressed to us that the visceral thrill of responding to an accident scene was missing at drownings. Drownings were grim and silent affairs with none of the heady romance we felt helping others at accident sites. Perhaps this was due to the fact that most drownings calls were simply body recovery operations rather than rescues.”

Jason Robertson “behold a Pale Horse” from the American Whitewater Web Site

Although some rescue squads are extremely well prepared, swiftwater rescue is pretty far down the list of priorities for other units. They prepare to fight fires and get people out of burning buildings. They learn to handle car crashes and deal with medical emergencies. Nowadays there’s a big push to prepare for mass casualties following a terrorist attack. Even though they learn a lot about rope handling, teamwork, and first aid, swiftwater rescue is overlooked. This is because most areas go for years without a single swiftwater incident. Then suddenly, during a bad flood, everyone is confronted with swiftwater problems all day. Without good gear and training, accidents are inevitable. Trained personnel with good basic gear make a difference, but this takes commitment and focus over years. Most departments with good swiftwater rescue programs happened because a lower-level person took an interest and built it up slowly.

Swiftwater Rescue Training has some definite limitations. A firefighter who takes Swiftwater Rescue Technician 1 and 2 (both three-day courses) and practices in rivers twice a year is the rough equivalent of a guy who learns to kayak in a couple of weekend clinics then paddles whitewater two or three times a year. Departments that can’t make even that investment may send firefighters to water rescue scenes in their heavy “turnout gear” rather than in life jackets and wetsuits. Groups with more resources sometimes think that buying an expensive piece of equipment will solve their problem. But without solid training and regular practice that gear is often useless. Several units have lost big-ticket items, like Airboats and Hovercraft, during floods.

Sometimes authorities have actually blocked rescues or over-reacted to events on the river. Here is a very old, but still relevant story of such an event:

On May 18, 1980 a man was trapped inside a pinned kayak at Mourner’s Corner, a long Class II rapid on California’s Kern River. Holding his head above the water with difficulty, he screamed for help. A woman walking along the road heard him and called the Sheriff. A deputy responded, decided that a shore-based rescue would be “too dangerous”, and called for a rescue helicopter.

Shortly thereafter a guided raft trip arrived. Seeing that the kayaker was in desperate trouble, the outfitter approached the Deputy and offered to help. The deputy warned that the outfitter would be held “legally responsible” for a failed rescue attempt. Confident in his ability, the outfitter began to organize a rescue. The Deputy then threatened him with loss of his commercial permit if he intervened. The outfitter quickly fired his head guide, who swam out into the river and held the kayaker’s head above water. The kayak could have been pulled free with ropes, but the deputies would not permit it.

Eventually the helicopter arrived. They lowered a rescue collar to the kayaker and pulled both him and his boat off the rock. There was no thought as to how much water might be in the kayak, or if this could be done without injuring the paddler. Suddenly the river caught the kayak and threatened to pull the helicopter out of the sky! At the last minute the ‘chopper regained its lift and got the kayaker ashore. After this scary scene, the kayaker was taken to the hospital where he was treated and released. No X-rays were taken, and a nurse remarked that anyone who was crazy enough to get on the river deserved whatever they got.

This event prompted a series of meetings between paddlers and emergency personnel which resulted in a better understanding on both sides. It pointed out the limitations of helicopter rescue and the need for coordination between paddlers and rescuers. A formula was developed by which paddlers would bring victims to shore whenever possible, and that the Sheriff’s Office and Forest Service would coordinate the rescue.

More recently, on April 8th, 2001 a novice paddler washed into a downed tree while running a Class II rapid on Slippery Rock Creek in Western Pennsylvania. He was pinned under water just 20 feet from shore. Other boaters in the vicinity rushed to the scene, but could do nothing. When firefighters arrived, paddlers told them that the victim had been underwater for 45 minutes and was clearly dead. They suggested using a chain saw to cut the downed tree loose while paddlers waited downstream to pick up the body.

The Volunteer Fire Department’s dive team rejected this idea and sent two men wading down to the strainer from upstream. Lines from shore were tied to static harnesses (with no quick release), a procedure which has caused many firefighter deaths nationwide. In addition, the two men were connected by second line that created an additional snag hazard. Minutes later something went terribly wrong. It’s not clear if the pair lost their footing or if a rope became snagged, but both men disappeared under water. A few minutes later the ropes were cut, but by then it was too late. The pair was dead when they washed ashore below Harris Bridge.

The next day firefighters cut the downed tree at the shoreline, allowing the man and his kayak to float free. Paddlers later approached the fire company and offered to provide swiftwater rescue training, but were turned down. Some local newspaper accounts blamed the kayaker for the death of the rescuers.

Sometimes paddlers are accused of endangering rescuers just by being on the river. Typically he does not understand the capabilities of modern whitewater paddlers. The argument is no more compelling than saying that we endanger rescuers by driving cars that crash or living in houses that catch fire! Firefighters have no problem refusing to send men into a building that’s about to collapse, and the same thing holds true for swiftwater rescue. Rescuers, like paddlers, must know their limits and refuse to compound the problem by becoming a victim themselves.

Here’s a statement made by the head of a rescue squad to a newspaper following a body recovery:

“Carl Swain, assistant chief of Blue Ridge Fire and Rescue in Henderson County, said searchers worked until almost midnight Wednesday but could not find the victim because the water was high because of recent rains. The search resumed at 7 a.m. Thursday after the water receded 5 or 6 feet. Rueff's body was found about 9 a.m., wedged between two boulders about 100 yards downriver from where his kayak was found, Swain urged kayakers to stay off the Green River." "We do this two or three times a year, and it's never a good ending,'' Swain said. "Nine times out of 10 you've got a body recovery rather than transporting someone to the hospital with a bunch of broken bones. This is a Class 5 river, and it's just dangerous no matter how good you are. This guy had been down the river 50 times, but it just takes that one time.“

UNCA Student Dies Kayaking By Barbara Blake Asheville Citizen-Times Nov. 25, 2004

Body recovery is highly emotional work, and similar remarks may be made when rescuers are tired, frustrated, or provoked by aggressive media questioning. Statements like this should be respectfully countered by knowledgeable river runners. You can contact the reporter who covered the accident directly, or write letters to the editor. In this case, Mr. Swain’s remarks were challenged with thoughtful contacts and letters by Woody Calloway and Chris Bell. This resulted in a good follow-up article on the actual dangers of paddling the Green Narrows in the Hendersonville News. They were helped by these facts: there have been only two kayaking fatalities on the Green River Narrows and one kayak-related evacuation during the past decade. Most other rescues have involved hikers. Here is a more extreme example of this sort of conflict. When the Potomac River near Washington, DC reached high record levels in 1996, an epic surf wave developed near Brookmont Dam. Olympic canoeist Davy Hearn is one of the most soft-spoken and respectful individuals you will ever meet. Although the river was supposedly closed, he had not heard about the closure or encountered any authorities on his way to the water. He was surfing the wave when a park ranger called him ashore. Davy paddled over, hoping to convince the ranger to allow him to continue. Instead he was grabbed by several nearby park police officers. He was yanked from the water, shaken from his boat, and handcuffed. He was charged with a wide array of crimes, including resisting arrest.

The incident took place in full view of TV cameras and was broadcast on the evening news. Park Police argued that paddlers had no business being on the water. They said that that allowing anyone to run the river at near-flood levels put them at risk because the law forced them to attempt rescues regardless of the danger. Paddlers quickly pointed out that the “duty to respond” to an incident does not mandate an actual rescue if a situation is unmanageable.

Hearn argued he was qualified to make the decision to be on the water for himself. The question eventually went to court, and the judge threw out the case. The next time the river got that high he and his friends surfed the wave without interference.

Nowadays many paddlers and rescuers work together cooperatively. Here are several recent examples:

On April 13, 2003 a kayaker flipped and swam while running Big Splat, a class V rapid on the Big Sandy River near Morgantown, WV. He washed over the final 15’ high ledge and disappeared. Firefighters from the Bruceton-Brandonville VFD asked paddlers to assist with the on-water part of the search. A skilled group of boaters paddled down to the falls. They probed the entire downstream area without success. After communicating with rescuers who had hiked down by trail, they got back in their boats and completed the run.

For the next week the victim’s friends maintained a continuous vigil at the site. Active attempts to locate and retrieve the body continued for several days. Teams of paddlers from Morgantown and Fairmont worked with closely guides from Friendsville and Ohiopyle. They tried a number of strategies to locate the kayaker’s body, supported by local Fire and Red Cross workers who loaned equipment and provided food. Paddlers hiked in with the victim’s parents and brought gear so they could spend the night there. Signs were posted at all access areas asking paddlers and hikers to report signs of Mr. Mayfield’s whereabouts. Firefighters loaned them generator to illuminate the falls at night

The weather remained clear, and water levels gradually dropped. After the active part of the search ended his friends maintained a vigil until a memorial service a week later. During the service a hiker spotted a life vest circulating at the base of the falls and called it in. A group of the victim’s close friends returned early the next day and were able to recover his body. They placed him in a large duffle bag, lashed him to a ladder, and carried him out to Rockville. Here they turned him over to authorities.

On January 25, 2004 a well-known kayaker drowned on the Russell Fork River near Elkhorn City, Kentucky. He pinned vertically under several feet of water in Tower Rapids, the first Class V drop. His companions attempted to reach him from both sides of the river with throw ropes. They managed to snag his boat twice, but could not pull it free. After 30 minutes of fruitless effort they paddled out and notified authorities.

The Elkhorn City rescue squad rode a train up the gorge and reached the scene in at dusk. Since they couldn’t reach the pinned kayak from that side of the river they wisely postponed further recovery efforts until the next day. The kayak was found quickly, but despite an intensive effort using scent dogs and an underwater camera nothing more could be found. Kayakers from all over the east joined local rescuers in a lengthy attempt to recover the body. An intense search continued for several days despite frightfully cold weather. Rafts were used to ferry dive team members into place while kayakers ferried ropes and provided backup.

In the weeks that followed small groups of kayakers patrolled the river regularly. On February 24th his body was spotted in a river right eddy almost a mile downstream of the accident site.

On April 10, 2004 a woman was pinned in a mid-stream boulder sieve on New York’s Class IV-V Metawee River. Her group responded quickly, but she was pushed under water and drowned. Roughly 90 minutes after the accident a large group of New York State conservation officers and rescue squad personnel arrived. Initially they provided backup for the kayakers; after two hours they set up two high lines about 30 feet over the river. A grappling hook arrived and the two groups worked together to guide it into position. Radios were used to facilitate communication. On their third attempt they snagged her life vest and pulled it off. On their fourth attempt they got under her body and pulled her free. She was recovered by State Police divers who were waiting for her downstream.

On May 22, 2004 the Lower Youghiogheny River in Ohiopyle State Park was closed to rafting because of high water. Despite the advice of local guides, a group of rafters decided to try the Cheat Canyon. The Cheat was running at 6½’, well past the cut-off point for commercial outfitters. Here another outfitter warned them against launching, without success. Both of the group’s boats flipped in the huge breaking waves in Decision Rapids, less than a mile from the start. Everyone swam ashore except for one man, who was overcome by the violent water and washed downstream.

Several of the survivors worked their way back upriver to a campground and called 911. With two members of the group missing, local rescue squads approached guides from Mountain Streams and Trails and a group of local kayakers and asked them to help with the search. The two inflatables were found in Beech Run Rapids; the dead man and his nephew were found above Big Nasty on river left. The guides did CPR for about 15 minutes before one of the kayakers, a physician, pronounced the man dead. The outfitters then loaded the victim and his nephew on a raft and ferried him and his nephew across the river. There they tied the victim to a backboard and carried him up a very steep slope to a trail. There they met the rescue squad, turned his body over to them, and returned to their rafts to finish the run just before nightfall.

In other instances kayakers have provided critical assistance to squads rescuing non- boaters from rivers. On June 13, 2004 two women jumped into the Chattahoochee River near Atlanta, Georgia to rescue their dogs. They were washed downstream and ended up holding precariously to the bridge abutments of I-75. Rescue workers were preparing to rappel down when a kayaker saw the commotion. He stopped on the bridge to offer assistance, but was turned down. Undaunted, he headed upstream and met a friend. The pair suited up, paddled downstream, and eddied out at the bridge abutment.

By this time firefighters had hold of one woman, but a her friend was in a much more precarious place at the next bridge pier over. After checking with the incident commander the kayaker was given a spare PFD to take to the woman. He paddled over and coaxed the woman into an eddy just upstream of a nasty log jam. She donned the PFD and got on the back of his boat. He paddled her to shore as his friend provided backup. This story made the 6:00 news on all the Atlanta stations.

Building a Good Relationship

So what’s the secret to a good relationship with rescuers? It starts with being polite and respectful to the rescuers at the scene. It doesn’t matter if they’re clean-cut firefighters or a rough-looking group of country men. They have real authority, and challenging them gets you nowhere. Say “Yes, Sir” or “No, Sir” when appropriate. If a man introduces himself as “Chief” or “Lieutenant”, call him that. Ask to talk to the incident commander; that person is in complete charge of the rescue and makes all the decisions.

When talking to the incident commander, identify yourself and tell him about your training in whitewater and rescue. Emergency responders like to see formal credentials, so it helps if you’ve been through some sort of formal course like the ACA Swiftwater Rescue Course or the Rescue 3 Whitewater Rescue Technician and have a patch or card.. If the victim was a part of your group, explain what happened and what has been done. Treat the firefighters as respected colleagues in your discussions. Don’t insult their skills, but share your concerns for the safety of the victim and the rescuers. Offer to do the in-water work they need, under their command. This sort of arrangement is very common today.

If you come upon an accident and offer to help, don’t be surprised if you get turned down. They don’t know you; maybe you’re really who you say you are, but you could someone who’s watched too many episodes of “Rescue 911”. If you do something wrong and you or the victim dies they, not you, will be in trouble. If you live in the community and want to make a difference, get in touch with first responders before something happens. Not everyone has the time or energy to join a volunteer fire company, but there may be a way to help out without making that commitment. Maybe you know someone who is already in the department who can help you make contact. Introduce yourself to the Chief, and offer to help them find good instruction and gear.

Listen carefully to find out what they need. Although Rescue 3 and others provide first- rate instruction, it’s not cheap. A volunteer unit on a tight budget may welcome a one-day rescue introductory clinic taught by volunteers from your paddling club. Sharing information with these guys is very satisfying, and you will learn a few things too!

If you do plan to offer a course, remember that you’ll need to start with the basics. Plan a novice-level course that covers water reading, swimming, wading, and basic throw bag skills on class I-II whitewater. But never forget that your audience is trained firefighters. Don’t get uppity or condescending! They know a lot more than you do about many other things. Treat them as valued colleagues, and they’ll return the favor.

AW Conservation Directot John Gangemi reported that the Northern Paddle and Trail Club in Rhinelander, Wisconsin encountered strong opposition from local authorities when they attempted to schedule whitewater releases from a local power plant. Rather than arguing about the actual risks of the releases, the club tried a different tactic. They purchased life vests for area rescue squads and followed up with a day spent teaching them basic swiftwater rescue skills. This goodwill gesture turned the authorities opposition into solid support for the proposed releases.

9.5Search and Rescue: A Privilege for the Saved or Burden for Society?

Paying for Rescue (SAR) Costs

Search and Rescue: A Privilege for the Saved or Burden for Society?

By Jason Robertson Based in part on a letter from Lloyd Athearn, American Alpine Club to Mike Gauthier, Denali National Park 3.9.2001

A Successful Rescue at Initiation on the Gauley River Photo by Jeff Redding

Introduction Federal, State, and other government agencies have a moral and legal responsibility to conduct and bear the cost of search and rescue efforts for everyone in need of their assistance. This is both a privilege and a right, and is protected by international treaties, which effectively ensure your rescue regardless of your ability to pay for the service.

The issues surrounding equity, legal liability, and financial responsibility must be explored so that policy makers appreciate what actions are likely to help and harm the public’s interests. Our examination begins with a story from the Haw River, from which we move into an analysis of the 1999 National Search and Rescue Plan, and a discussion of the suitability of recovering costs for rescues as well as the propriety of requiring boaters to provide proof of rescue insurance prior to receiving a launch permit.

A Story from North Carolina’s Haw River

"When they were yelling at us to hurry up and rescue them, I was thinking, 'Well, ding-dong, I wasn't the one who put you out in the river.'" - Amy Isley, Burlington police officer and volunteer rescue squad member

I grew up near the Haw River in North Carolina and was witness to the near annual media circus surrounding the dramatic helicopter rescues of canoers. Inevitably, the stories demonstrated an individual exercising poor judgment, which was exacerbated by high waters.

By 1995 rescues of boaters on the Haw had become so common that the Chatham County Manager reported to the County Commissioners “there was recently another incident where a canoeist used the Haw River for recreational purposes when the river was above its normal elevation.” The Commissioners listened to concerns that rescue and emergency response teams might themselves be placed in danger when stranded boaters needed assistance in the river, which quickly led to a discussion of whether there should be a prohibition on entering the river at certain flood stages or a penalty for people whose actions were particularly irresponsible.

Tony Tucker, Emergency Operations Director, then described how each river rescue on the Haw cost approximately $3,500. Most of that expense was for the Army’s helicopter at Fort Bragg , but a lot of the remainder was in salaries. His position was that if a fine was imposed, it would be unlikely to help recoup costs but “to make a person think twice about entering the river.” Ultimately the Commissioners voted to have the Chatham County Attorney investigate an ordinance, though no regulations were changed in Chatham.

One county upstream, and six years later in February 2001, Charlie Frago, a staff writer for Burlington’s News & Record, reported that three canoers were pulled off a beaver lodge on the Haw River in North Carolina. The three chose to canoe the flooded river without lifejackets in rainy, wintery conditions. One reportedly said, "We just thought, the water's real high, it's going to be fun." However, Frago clarified that Alamance County taxpayers would not bear the burden of the rescue costs since the volunteer squad was funded largely through private donations and added that the three canoers were not billed. While the circumstances leading to this rescue were particularly grievous, the event ultimately served as one more opportunity for the regulators and media mavens to discuss whether the river should be closed during high water and who should bear the cost of rescues.

The tales of woe on the Haw are not unique to North Carolina, and the issue of who should bear search and rescue costs has been debated in every state in the Union . Whenever dramatic rescue images appear on the nightly news of boaters being lifted from a flooded river by helicopter or challenged by law enforcement, we find ourselves and our actions under the spotlight. This is true whether the victim is an inexperienced yahoo or even an Olympian like Davey Hearn.

The 1999 National Search and Rescue Plan

“The Participants agree that SAR services that they provide to persons in danger or distress will be without subsequent cost-recovery from the person(s) assisted.” – 1999 NSAR

In 1999 the United States Coast Guard issued the United States National Search and Rescue Plan (NSAR). The NSAR Plan, which was amended in 2000, establishes the national protocol “for coordinating civil search and rescue (SAR) services to meet domestic needs and international commitments.”

The Plan affirms that the United States has met SAR responsibilities agreed to by international treaty including the Convention on International Civil Aviation, the International Convention on Maritime Search and Rescue, and other appropriate international instruments to which the U.S. is a Party.

Civil search and rescue operations on whitewater and flatwater are explicitly covered under the “maritime” and “land” operations directives. Maritime operations are defined as rescue from a water environment; and land operations are defined as rescue operations associated with environments such as wilderness areas, swift water, caves, and mountains.

The signing federal agencies include the Interior and Coast Guard, as well as the Departments of Defense, Transportation, and Commerce, and Federal Communications Commission and National Air and Space Association. Each agency assumes varying degrees of responsibility for preventative measures to protect the visiting public. Ultimately though, NSAR promises “the effective use of all available facilities in all types of SAR missions”, and affirms that the rescued person(s) shall not be responsible for payment associated with their rescue. This component applies equally on land and water to all federal signatories including the Department of the Interior (DOI) and adjacent jurisdictions, including the National Parks and Forest Services.

Determine the suitability and feasibility of recovering the costs of river rescues.

He did not create the fall, but rather the capacity for the fall… And in creating the capacity to fall, He created the possibility to both stand and to be picked up. And that is very good. -Anon.

Despite its recognition of international treaties, NSAR does not compel state or local agencies to conform or participate. Instead it encourages cooperative agreements that allow these entities to direct and control their own responses within their boundaries. It is this loophole that some politicians and agency personnel, particularly at the state level, point to as they revive arguments to seek cost recovery payments from rescued victims. American Whitewater is opposed to charging boaters for these rescues and recoveries. It is our long established policy position that charging for river rescues, whether after the fact or beforehand in the form of a rescue fee or rescue bond, is bad public policy. We offer this as a truth for several reasons.

Lo, would you add despair unto despair? -Ridgely Torrence, The Lesser Children

Fees can create delays that can increase risks . From a practical level, charging for rescues often delays the initial request for help, which increases the risks for rescuers and subjects alike.

By the time a lost, capsized, or injured boater (or good Samaritan or witness) calls for a rescue, that boater may be in worse condition or in a less accessible location, and the weather or daylight may have deteriorated. All of these factors can increase the complexity and cost of performing rescue services. Because of these concerns, American Whitewater agrees with the Mountain Rescue Association, an organization representing 80 volunteer rescue teams from throughout the United States, Canada, and the United Kingdom, which is on record opposing charges for rescues because “no one should ever be made to feel they must delay in notifying the proper authorities of a search or rescue incident out of fear of possible charges.” NSAR recognizes this and affirms that the agencies “will not allow a matter of reimbursement of cost among themselves to delay response to any person in danger or distress.”

Fees proposals tend to be discriminatory : Charging one highly visible and readily identifiable user group – in this case, boaters – for rescue services that are provided free of charge to all other National Park visitors is blatantly discriminatory.

According to 2000 NPS data, 35.3 percent of all National Park search and rescue missions were for “other” causes, which generally are not recreation related and cannot easily be categorized. Hikers, boaters, swimmers, and climbers accounted for 24.4%, 10.3%, 9.8%, and 3.6% of rescues respectively; 9% of rescues were for “mutual aid” in which NPS officials responded to outside organizations on adjacent lands, such as a state park or Forest Service property.

No correlation to cost : There is no direct correlation between the type of visitor activity and the cost of a rescue. Searches for lost hikers and downed aircraft can be exponentially more expensive than locating and transporting an injured boater from a known location in a river valley.

Cumulative rescue costs are relatively low : In 1999, the total cost per visitor of performing all search and rescue activities was a mere 1.2 cents – a small fraction of the total cost of $6.90 per visitor for all NPS functions.

Though most of the search and rescue money in Alaska is spent on looking for missing planes, lost hikers and hunters, and disabled boats, that’s not what stirs the debate. It’s the rescues – often highly publicized rescues – of climbers on Mount McKinley. - Anchorage Daily News, August 1998

Debate driven by prejudice of risk rather than reality : Neither boaters nor climbers should be singled out to pay for services that are free to other Park visitors simply because they are highly visible, participants are few in number, or their recreational pursuit is perceived as dangerous by some.

A rescue! A rescue! Good people, bring a rescue or two! -Shakespeare, King Henry the IV, pt II

Rescues are an inherent management duty : Search and rescue is one of many public safety functions performed by land managers nationwide, as are attending to fires, motor vehicle accidents, and responding to criminal acts. All park visitors may at some point get lost or hurt while in our National Parks, whether it be a climber involved in a mountaineering accident, a rafter who is stranded in a rapid, or a tourist who succumbs to a heart attack while strolling on a paved nature trail. Similarly, all visitors may at some point be the victim of a crime or be involved in an automobile accident, and would customarily expect to have rescue services provided free of charge.

Fees increase liability risks : While charging for rescues may solve an immediate budgetary problem, it may create a bigger fiscal headache by reducing or removing the discretionary shield (see below) that protects the National Park Service from liability regarding if, when, and how the agency performs rescue services.

In 1991 the American Alpine Club (AAC) helped the NPS prevail in Johnson vs. Department of the Interior before the U.S. Court of Appeals for the Tenth Circuit [949 F.2d 332; 1991 U.S. App. LEXIS 26805]. This case established rescues as a discretionary function:

…the rangers’ decision if, when or how to rescue inherently involves the balancing of safety objectives against such practical considerations as staffing, funding and minimizing government intrusion. As such, these decisions are grounded in social and economic policy, and thus are shielded from liability under the FTCA discretionary function exception.

The Park Service retains the ability to recover costs from individuals if they believe an individual’s actions rose to the level of creating a hazard. However, charging for all rescues limits the agency’s flexibility and may open the agency to multi-million dollar lawsuits based on a person’s injury and ability to pay.

Fees increase “standard of care” expectations : Beyond removing the discretionary shield regarding when a rescue is launched, charging for rescues may force rescue agencies to provide a certain standard of care. One large legal settlement would wipe out many years of revenue brought in from charging boaters for rescues on a remote river such as the Grand Canyon in Arizona or even a more accessible river such as the Nantahala in North Carolina.

Fees violate the legally binding 1999 US National Search and Rescue Plan : As described earlier, charging for rescues is inconsistent with the National Search and Rescue Plan, a document that establishes policies and responsibilities for all U.S. government agencies providing rescue services to fulfill domestic and international obligations, which then-Secretary Bruce Babbitt signed on May 3, 1999 on behalf of the Department of the Interior. Based on NSAR, charging climbers or boaters for mountaineering or swiftwater rescues would violate national policies the Department of the Interior has pledged to uphold.

If fees are charged, fees should be limited : Rather than look only to recoup existing rescue costs, the agencies must evaluate more fully what costs legitimately should and should not be assigned to mountaineering and boating rescues.

As in the earlier case described on the Haw River, given costs often include the hourly rate for rescue or military personnel and helicopter flight hours, which can be substantial. For example, in 1992, the year with the highest mountaineering rescue costs on Denali, all search and rescue expenses totaled $431,245. Of this total, the military incurred $225,345, while the NPS incurred $206,000. However, recall that military rescue units must train constantly for various rescue scenarios – including mountain environments – so that they are prepared when called on to rescue downed military aircraft, damaged ships, etc. These training costs are billed to their training budget regardless of whether time is spent on training exercises or real-life rescues. It would be totally inappropriate to ask mountaineers to pay for military training exercises that are otherwise accounted for in military training budgets.

If actions must be taken to pay for search and rescue costs, we recommend that the National Park Service establish a national search and rescue fund. A small surcharge on all Park visitors would be the most equitable and defensible solution given that climbers and boaters account for such a small proportion of search and rescue operations system wide, and the potential need for search and rescue services exists for all Park visitors regardless of activity. As described later in this article, a mere two-cent surcharge on all NPS visitors for a national search and rescue fund would cover search and rescue activities system wide and would not discriminate against any specific user group

Rescue costs can be driven by new technologies : American Whitewater has learned anecdotally from the Park Service of an increase in the search and rescue costs along the Potomac River outside Washington, DC where the Park’s low-rotor-noise Eagle helicopter is being used increasingly to rescue swimmers, hikers, climbers, and the occasional whitewater boater.

Likewise, according to an American Alpine Club analysis of NPS data, the largest single factor in escalating search and rescue costs in Denali National Park between 1980 and 2000 was the introduction of the Lama helicopter, a specialized high-altitude rescue tool. In the 12 years prior to introduction of the Lama helicopter, rescue costs for Denali National Park averaged $56,807 per year, the most expensive season cost $114,770, and only one of the 12 years saw rescue costs above $100,000. In the nine years from 1992 to 2000 with the Lama helicopter in use, average annual rescue costs doubled to $112,045, the most expensive year cost $206,000, and five of nine years had rescue costs above $100,000. The Club contends that the Lama has allowed some rescues to be conducted that otherwise would not have been possible, and recognizes that some people who survived may have died without it. However, elimination of the Lama helicopter contract would be the most significant action the NPS could take to contain the costs associated with mountain rescues in the Alaska Range.

Rescue costs can be driven by new infrastructure and use of trained volunteers : Trained volunteer rescue groups perform most search and rescue activities on public lands nationwide. The agencies should seriously consider scaling back their rescue service infrastructure and explore how volunteer rescue groups could be better utilized to reduce rescue costs on both whitewater and flatwater rivers.

The last that dare to struggle with the Foe. ‘Tis well! from this day forward we shall know That in ourselves our safety must be sought; That by our own right hands it must be wrought; That we must stand unpropped, or be laid low. -Wordsworth, November 1806

Returning the backcountry to a more natural condition typical of American wilderness, will emphasize greater self-reliance : Beyond saving money, reducing the rescue infrastructure in the National Parks sends a powerful message to boaters and other visitors, that rescue services are no longer near at hand.

American Whitewater is somewhat concerned that the advent of new rescue technologies leads to new psychological crutches, which can in some ways have the opposite effect of improving safety. We caution the whitewater community to be wary of the purchase of excessive safety equipment by rangers for use on the rivers they paddle.

The mountaineers’ experience in Denali serves as a warning to us. In Denali the rangers point out in their educational materials that:

Rescue of injured or ill climbers, if possible at all, may be exceedingly slow and uncertain if weather conditions are not ideal. You should be prepared and equipped to perform self-rescue. Each party must rely on its own resources and cannot count on the aid of other climbers or rescue personnel.

Nevertheless, the highly visible ranger presence on Mount McKinley at the 14,000-foot camp and through the contracted Lama helicopter seems to have given many climbers a misleading sense of security that the NPS will launch a rescue if anything goes wrong. According to the American Alpine Club (AAC), there exists a belief among many climbers that rescues can and will be launched when needed by hurt or tired climbers. The AAC points to an accident report sent by Denali rangers for inclusion in the 2001 edition of Accidents in North American Mountaineering as illustrating the problem:

The D2K party was adamant that Lev Sarkisov be flown off from the 17,200-foot high camp without delay, regardless of the weather conditions. They learned very quickly that the Park Service doesn't provide a European-style helicopter rescue service and that Denali's weather dictates everything.

Reducing the rescue infrastructure in backcountry areas of our national parks is controversial; but it would send a clear message that the government intends to return these lands to a more natural condition typical of American wilderness, and that this change will require greater self-reliance by all visitors. Identification and removal of many psychological crutches, including cell phones, would encourage people to take greater responsibility for their actions, and to avoid pushing on when they should turn back. The removal of psychological crutches could lead to a decrease in emergency responses for frivolous purposes. INSURANCE COVERAGE REQUIREMENTS

Some river managers have suggested requiring boaters provide proof of insurance before receiving a launch permit. The climbing community has addressed this issue in recent years, and American Whitewater holds that their arguments also hold true for the boating community.

This issue came to a head in 1999 when Sen. Murkowski suggested that injured climbers were causing financial problems for local medical care providers by not paying bills following treatment. When he introduced a bill authorizing a study into this field, Sen. Murkowski said,

I want the Secretary to evaluate requiring climbers to show proof of medical insurance so that hospitals in Alaska and elsewhere are not left holding the bag as they sometimes are under present circumstances. It is a good neighbor policy that should be put into effect at the earliest opportunity.

Substitute the word “boaters” for “climbers” and the threat is apparent to our community. While the lack of health insurance is a widespread, serious, and longstanding problem facing many Americans, we question whether there is any information available showing boaters or climbers to be less insured than the population as a whole. We also assert that having health insurance coverage has no bearing upon whether a person should be allowed to visit our public lands and that a requirement that recreationists demonstrate proof of health insurance coverage before being issued a visitor permit would be discriminatory. Absent any compelling information from the Park Service or hospitals, this is an issue based more upon groundless speculation than fact.

More fundamental is the question of whether it is relevant or appropriate for the Park Service to ask any Park visitor about health insurance coverage. We think not and the Park Service appears to agree. The National Park Service’s Organic Act established National Parks:

…to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

The Act makes no mention of limiting access due to lack of health insurance, ability to pay, or any other factor. Given that the agencies incurs little to no expense for direct health care of injured visitors, we believe there is no legitimate reason for the government to force anyone to divulge whether they have health insurance coverage.

The working poor of this country, such as many raft guides, are the most likely segment of our society to lack health insurance, yet they pay taxes that support our public lands. They already face significant obstacles in paying entrance fees to enjoy their public lands without forcing them to show proof of medical insurance, which most simply cannot afford.

Significantly, the Department of the Interior is on record opposing requirements that climbers show proof of medical insurance before being issued a climbing permit. On May 13, 1999, when S. 698 was being heard before the Senate Subcommittee on National Parks, Historic Preservation, and Recreation, Department of the Interior Deputy Assistant Secretary Stephen C. Saunders testified against this aspect of the bill saying it would not be in the public interest. Again, substituting the word “boater” for “climber” makes the relevance of Saunder’s statement to American Whitewater’s members apparent:

With regard to considering the question of whether to require climbers to have medical insurance, we do not believe a study is warranted. We believe the issue of payment for medical treatment at a hospital or other medical facility should remain beyond the authority of the National Park Service or Department of the Interior. This is an issue between the private citizen, his family and his doctors. The National Park Service is responsible for the care of patients during a rescue and for their transportation to an appropriate medical facility, but should not be involved in assessing the adequacy of medical insurance for care that can extend for years beyond a person’s initial injury.

This is a fundamental question of fairness regarding access to public lands and discrimination of one highly visible user group. Unless all visitors are required to show proof of medical insurance (and by logical extension force all motorists entering the Parks to show proof of automobile insurance), we believe this is a blatantly discriminatory and unlawful requirement. Requiring proof of rescue insurance coverage (and billing policies after rescues have been completed) involves many of the same legal and practical pitfalls as charging subjects for rescues.

Another factor that must be addressed when considering the requirement of carrying rescue insurance is the impact claims will have on current rescue insurance policies. Former South District Ranger J.D. Swed, quoted in a Boulder Daily Camera news story, highlighted a major problem.

When someone pays for a service in advance, they expect to get it. If someone pays for an insurance policy and they get to the 14,000-foot mark and decide they need to come down, who is to say they don’t have to be taken down.

Consider the case of a boater on day 12 of a Grand Canyon trip instead of a climber at 14,000 feet, and again the relevance of this problem is apparent.

Up until the mid-nineties, Europeans could readily get rescue insurance for climbing and other activities; however, the abuse of this system led to the collapse of the underwriter’s market in this field and the insurance has become much more difficult to obtain. The experience in Europe shows conclusively that when people have rescue insurance they can and will call for rescues in situations the NPS today would not view as worthy of launching a rescue. If boaters can call for a rescue whenever they feel like it, the increased utilization of rescue services could have a disastrous impact on the number and cost of river rescues and evacuations, as well as drying up what market there is for rescue insurance underwriters.

American Whitewater is opposed to singling out boaters to provide rescue insurance coverage when other Park visitors are not asked to be financially responsible for their rescues. If rescue insurance proves to be a viable concept, it should be applied broadly among all visitors. Alternately, a mere two-cent surcharge on all Park Service visitors for a national search and rescue fund would cover search and rescue activities system wide and would not discriminate against any specific user group. Such a fund would rectify the current situation in which individual Park units must pay for rescue costs under $500 and regional NPS offices must pay for rescues above $500, both of which require diverting money from existing projects since there is no dedicated rescue fund.

CONCLUSION

Boaters want to be responsible, largely self-reliant visitors to America’s public lands. Our community does not desire to create a financial burden on the system as a whole. The issue of how the Park and Forest Services pay for and execute search and rescue services is a thorny one that cannot be addressed with simplistic responses. American Whitewater believes there are significant legal and discrimination issues surrounding charging boaters for rescue services, requiring medical and/or rescue insurance before being granted a boating permit, and determining how much visitors should pay directly for management services through user fees.

The misunderstandings that separate boaters from the rest of society are wide but not insurmountable; through education and political action we can bridge the gap. Write an opinion article for your local newspaper about a boating-related topic in your area. Write to local, state, or national elected officials about local boating access or policy issues. Organize a clean up effort at a local river. Then publicize your actions, share them with American Whitewater and your local governments. The more you do at an individual or group level to show that boaters are a positive force in your community, the harder it will be for policy-makers to treat us as fools.

“Stretch forth thy hand from above; Rescue me, and deliver me out of great waters” -Book of Psalms

By Jason Robertson for American Whitewater Based in part on a letter from Lloyd Athearn at the American Alpine Club to Mike Gauthier, Denali National Park 3.9.2001

9.6The Relationship Between Safety & Access By Jason Robertson The instinct not to breath underwater is so strong that it overcomes the agony of running out of air. No matter how desperate the drowning person is, he doesn’t inhale until he’s on the verge of losing consciousness. At that point there’s so much carbon dioxide in the blood, and so little oxygen, that chemical sensors in the brain trigger an involuntary breath whether he’s underwater or not. That is called the “break point”; laboratory experiments have shown the break point to come after eighty-seven seconds. It’s a sort of neurological optimism, as if the body were saying, Holding our breath is killing us, and breathing in might not kill us, so we might as well breath in. – Sebastian Junger, The Perfect Storm Behold a pale horse, and his name who sat on him was Death, and Hell followed with him. – Revelation 6:8 But little by little man adapts himself, as he must. Seeing a world transformed, he gradually moulds it to become his own. Confronted by the joint forces of mountains and elements he feels born in himself a power, a balance and reserve that normally lie dormant, withdrawn, but which reveal themselves in time of need. He calmly faces the problems. And so it was here. – Gaston Rebuffat, Starlight and Storm

Drowning is fundamentally more disturbing at a primeval level than other accidental deaths. Most people, including whitewater boaters, have a primitive fear of water that is evidenced by their hesitation to learn to roll and exacerbated by visions of floods and whitewater. Perhaps it is a fear of chaos, or a fear of that which lurks beneath the surface. At some level, it must be a fear of the unknown. How else can we justify overcoming our fears and pursuing greater adventures and challenges than in our quest to know and learn what lies beyond the next horizon? Unfortunately, our passion for the unknowable is not shared by many in society, and some individuals in positions of authority translate their personal fears for our well being into well- intentioned attempts at preventing us from approaching or enjoying these flooded or falling waters. For these people, our safety is best secured by denying access to the very areas we enjoy the most. For these people, every drowning they see on Fox News or hear about from other sources is a testimony to the wisdom of their decision to bar or limit access on the river they manage. There are two fundamental aspects behind river closures throughout America. The first, which I will not discuss here, as it is the normal subject of these Access pages, is a strong ‘property rights’ concept in which landowners wrongly believe that they are the king of all they survey. The second, which is the subject of this article, is a desire to reduce the role of personal responsibility in society, and legislate what risks are, and are not, acceptable. Unfortunately, whitewater kayaking and canoeing are often associated with unacceptable risks. Thus, we have observed the ripple effects arising from drownings affecting access outright, in the FERC relicensing process, recreational whitewater releases from dams, proliferation of permits, and a subsequent loss of access on many rivers. This article relates examples through which access has been limited by fears for safety.

Then said Jesus, Father, forgive them; for they know not what they do. And they parted his raiment, and cast lots – Luke 23:34: Access closures at Pennsylvania’s Ohiopyle Falls on the Lower Youghiogheny River and Celestial Falls in Oregon’s White River State Park fall under the heading of denying access for well meaning but misplaced concerns for safety. Park Managers at both sites have said that the waterfall closures in their parks are necessary due to safety concerns. However, after further probing, managers at both sites have admitted that the closures are as much about their personally negative reactions to working on body recoveries at drownings and with victims’ families, as they are about protecting the paddlers. The fact that these managers don’t want to work a drowning scene is understandable, but this fear robs us of our freedom of personal choice. It also drives dozens of people to boat the falls illegally at times when they believe Security will not catch them: this has the effect of reducing boater’s personal safety due to the onset of cold and dark. Thus, their concern is not without significance, but it goes too far. Yet, these managers will at least consider the issue, whereas park managers below Niagara Falls in New York have denied all boating within the Gorge. Though New York park managers have agreed to a system allowing access at increasingly higher waters in Letchworth Gorge State Park, which might provide an access model for Niagara. In another approach, rather than denying access outright, the river manager on Virginia’s James River, has told me that the high water permits, which were imposed in the 80’s following several high profile drownings, reduced use by inexperienced novices at high flows and resulted in a significant reduction in the number of drownings on the river. Though the permits are not overly popular within the boating community, the manager attributes the reduction in the drowning rate to them and argues that it justifies their long-term application. It’s no fish ye’re buying, it’s men’s lives. – Sir Walter Scott These approaches to closures are in some ways understandable. Drownings are intensely personal experiences for the victim’s family and friends. They’re also very difficult for rescue workers who may require specialized skills to rescue victims and initiate body recoveries. Tragic incidents, such as the 2001 double drowning of rescue workers on Pennsylvania’s Slippery Rock River in a body recovery of a drowned kayaker, reveal the need for specialized swiftwater training by rescuers. It also demonstrates the need for increased communication between rescuers and the paddling community, given the fact that the paddling community is typically more experienced with swiftwater environments. Nevertheless, many rescue workers have a certain brashness or bravado born of experience, training, and their badge. When I worked with a first responder and HazMat unit in college, we thought we were invulnerable. While we would race to fires, car accidents, and chemical spills, the race to a drowning scene was left to other emergency units. At some level our commander expressed to us that the visceral thrill of responding to an accident scene was missing at drownings. Drownings were grim and silent affairs with none of the heady romance we felt helping others at accident sites. Perhaps this was due to the fact that most drownings calls were simply body recovery operations rather than rescues? Our society’s discomfort with drownings is further documented in anecdotal stories of higher payouts by insurance companies and rafting corporations for drowning victim’s families. Recently, in a rare publicly disclosed settlement, Six Flags Inc. agreed to pay $4 million to the daughter of a woman who drowned on their Roaring Rapids amusement park ride. The payment was in part due to the fact that the surviving daughter was so young, and in part I believe to assuage fears of their wild whitewater. The fear of lawsuits is raised at all levels of communication with landowners and park managers. This is understandable because the size of payouts from drownings are high, but also because juries tend to view drownings as avoidable accidents that are attributable to poor decisions, faulty equipment, or inadequate responses rather than simple bad luck. Society’s discomfort with drowning is also evidenced in our over-the-top responses to incidents. After a kayaker drowned in 2001 on Chief Rapid on North Carolina’s Green River Narrows, rescue workers sought to build a road down to the river. Though the body of this victim had been recovered, the rescuers wanted to be able to bring heavy rescue equipment to the riverside in the event of a future rescue and avoid hiking down the heavily vegetated walls of the canyon through the poison ivy jungle. Thankfully boaters, including American Whitewater’s Safety Chair at the time, Lee Belknap, successfully talked them out of this costly and dubious idea. In another case, after a summer with three freakish drownings on Dimple Rock on Pennsylvania’s Lower Youghiogheny, the Fayette County Coroner sought to have the rapid’s namesake rock destroyed. Following a hearing on this, American Whitewater board member and safety guru Charlie Walbridge reported that the Coroner's jury recommended that warning signs be placed at Dimple Rapid indicating people had drowned there, that safety education be improved, that the state begin a study as to the feasibility of filling the undercut on the upstream side of Dimple Rock, and commended Park Manager Doug Hoehn and his safety focus group for their efforts in planning improved safety measures for the 2001 season. Afterwards a lawyer from Pennsylvania’s Department of Conservation and Natural Resources told Walbridge that the state was wary of modifying the river because of liability concerns. She explained that people could not sue the state for what happens on a natural river, but a rapid, once modified, could expose the state to lawsuits. Again, the original recommendation was of dubious merit and would have been costly. In yet another case, the family of a boater who drowned on Section IV of Georgia’s Chattooga River in the mid-90’s asked the Forest Service to fill Crack In The Rock to “make it safe”. American Whitewater successfully argued against this idea, saying the modification might not have the desired affect, would not necessarily solve the problem, was unjustifiable on an unmodified streambed, and could set a dangerous precedent requiring the agency to modify other ‘dangerous’ rapids throughout the basin.

Cardiopulmonary resuscitation, or CPR, is a proven life-saving technique that every whitewater paddler should know. For a drowning victim, the most important thing is to start it as soon as possible, even if this means doing ventilations in the water when you first make contact… Start CPR if the victim has been underwater for less than one hour. After that most experts agree that CPR has little, if any chance, of reviving a drowning vicitim. – Les Bechdel & Slim Ray, River Rescue Still, the last sad memory hovers round, and sometimes drifts across like floating mist, cutting off sunshine and chilling the remembrance of happier times. There have been joys too great to be described in words, and there have been griefs upon which I have not dared to dwell; and with these in mind I say: Climb if you will, but remember that courage and strength are nought without prudence, and that a momentary negligence may destroy the happiness of a lifetime. Do nothing in haste; look well to each step; and from the beginning think what may be the end. – Edward Whymper, Scrambles Amongst the Alps It’s not just rescuers who find this topic of drownings difficult to embrace; boaters are equally reluctant to face the subject. Big water pioneer Walt Blackadar was famously quoted in the 1976 movie, The Edge, saying, “Most kayakers will tell you they are not going to drown. I will tell you I will never drown. I know I could paddle Niagara Falls and not drown. I just can’t drown.” Regardless of his abilities, Blackadar drowned two years later when he got snagged on a strainer on the Payette. With this momentary lapse of judgment, Blackadar became just another mute martyr for safety. Drownings are the seldom-discussed dark side of our sport, though some suggest American Whitewater discusses them all too often in our effort to educate and caution our readers in the Journal’s annual safety reports. While there’s something ghoulish reading about these deaths, I know that the reports have a real value. They have made me respect my decisions and the decisions of my paddling partners at a deeper level. These reports have also made me a better paddler by teaching me the importance of first aid and CPR training, and picking an alternate or back up escape route before initiating any move. They have also made me ask myself how I would respond in an emergency and what equipment to carry. Thus, while whitewater drownings are relatively rare, anybody who’s ever put a spray skirt on their kayak or strapped their thighs in a canoe, knows that drowning is a worst case outcome or consequence of our personal decisions to participate in this sport; the potential exists.

We can’t entirely eliminate risk from the sport of running whitewater rivers and streams. But we can intelligently manage the risks we take, and the focus of that risk management means a sharpening of perceptions that brings greater awareness, pleasure, and – yes – safety to our experiences out there. – Gordon Grant, River Rescue Yet, the potential can be mitigated through training, experience, and good judgment. That is the message to convey to safety and rescue officials. Not long ago, in 1996, I witnessed Olympic canoer Davey Hearn getting tackled in the water by police and arrested for boating on the Potomac below Maryland’s Great Falls. The water on that day was very high and an epic surf wave had formed over Brookmont Dam. Davey was surfing the wave when the police flagged him over to shore. On approaching the shore he was assaulted by police in front of TV cameras and the incident was broadcast on the evening news. The Park Police and other rescue officials argued that he had no business being on the water that day; Davey argued he was qualified to make that choice for himself, and the question went to court. The judge sided with Davey and threw out the case. While this was a victory for boaters, the event revealed many of the safety prejudices we encounter on a regular basis at American Whitewater.

The men could only look at each other through the falling snow, from land to sea, from sea to land, and realize how unimportant they all were. – Sidney Perley Man marks the earth with ruin – his control stops with shore. – Lord Byron This prejudiced perception of risk is generally amplified in the eyes of non-boaters. However, it’s not just a perception shared by rescue workers and river managers; recall how many times you’ve heard your parents caution you to be safe, come back safely, or even warn you against going out on a flooded or whitewater river. The perception even carries over into the dry world of seeking recreational whitewater flows from dams. On the Savage River, American Whitewater has been stymied in our efforts to convince the Upper Potomac River Commission (UPRC), which operates the dam, to provide whitewater releases. The UPRC’s reluctance follows from the drowning of a kayaker on the river in the early-90’s on a strainer. Though the family of the drowned victim did not sue the UPRC, the UPRC has indicated an outright unwillingness to provide water unless all of their safety and liability concerns are explicitly addressed and resolved. This includes insurance protection, removal of all snags and strainers prior to the releases, and other safety measures that are virtually unattainable. Likewise, the power company that owns Waterloo Power Plant on the Pigeon River Dries is very concerned about facilitating recreation or providing releases on this Class V section. Their concerns were amplified following the death of a kayaker at Chinese Arithmetic in 2001 when water was released at a steady rate for several months to facilitate repairs to the plant’s surge tank. In contrast, dam operators on the Nisqually in Washington State worked with American Whitewater to ensure continued scheduled releases on the Class V+ river even after a boater drowned there on a FERC ordered release in 2000.

Here was no man’s garden, but the unhandselled globe. It was not lawn, nor pasture, nor mead, nor woodland, nor lea, nor arable, nor waste land. It was the fresh and natural surface of the planet earth, as it was made forever and ever, – to be the dwelling of man, we say – so Nature made it, and man may use it if he can. – Henry David Thoreau, Ktaadn While most dam operators raise the specter of safety and liability during FERC relicensings, FERC consistently shoots these concerns down. For FERC, the dams present an unnatural modification to an existing navigable streambed, and lost opportunities for recreation should be mitigated through required releases or other actions. However, on non-FERC dams, which are used for municipal water supplies, irrigation, and other purposes, the boating community doesn’t have such an ally in their corner. In fact, we have seen a number of cases recently regarding lost opportunities for access in order to protect public safety and water quality. Hundreds of rivers around the country provide most of the public’s drinking water. These rivers are subject to a myriad of uses ranging from drinking water, to recreational playgrounds, to transportation. Occasionally these rivers are closed to boating for the stated reason of protecting municipal drinking water supplies. In recent months we have seen new restrictions the Little Sandy River in Oregon and old restrictions waived on the Mokelumne in California. We have also heard distant rumors from Colorado and North Carolina on the subject. In August 2001, Senator Wyden (D-OR), a politician who otherwise supports our recreation interests, ushered legislation through Congress that expanded the previous boundary of the Bull Run Watershed to include the Class V segment of the Little Sandy River. The expressed purpose of this closure was to protect Portland’s drinking water. The result was the closure of the river to boating and the authorization of a $5000 fine and/or six months in jail for boaters caught on this gem. In contrast, East Bay MUD serves 1.2 million San Francisco Bay Area residents with water diverted from the Mokelumne River and owns 28,000 acres along the river. Beginning in the 1950s, the utility's rangers have banned the public from its land along the 2 ½-mile stretch of river west of Highway 49 and east of the Pardee Reservoir. The property is surrounded with barbed wire and East Bay MUD warning signs: "Protected Watershed -- No Trespassing." East Bay MUD maintained that it restricted access to the river to protect water quality and drinking water safety, though boating is allowed downstream at MUD’s Pardee Reservoir. In January 2002, East Bay MUD agreed to provide river access and hiking trails following a suit brought by the State against them for charging kayakers with trespassing.

I sat at a table where were rich food and wine in abundance, an obsequious attendance, but sincerity and truth were not; and I went away hungry from the inhospitable board. The hospitality was as cold as the ices. – Henry David Thoreau, Walden Now, in the wake of 9/11, we’re seeing a whole new range of threats to access in the ‘spirit’ of national security. Homeland security is being used to threaten boating closures on rivers around the country. Most notably, Wayne Smith, President of the ConnYak club reported that Connecticut State Representative Peter Panaroni introduced legislation in February 2002 to require boater registration. Mr. Panaroni told boaters at the bill’s hearing that boater registration was a "Homeland Security" issue, and explained that residents of the Thimble Islands were concerned that terrorists would land on their property in kayaks, and blow up their multi-million dollar homes. The premise of the bill was that forced watercraft registration would somehow prevent that from happening. Boaters testified and reminded the representative that the truck that exploded in the WTC in 1993 was legally registered, the truck that Timothy McVeigh used in Oklahoma City was registered, and all 3 planes that were used on September 11th were too. Representative Panaroni then reportedly changed his stated reason to "We need to be able to find out who did it, and registration will allow that". Regardless, the bill was killed by the quick action of the local boating community, though Mr. Panaroni is still reportedly advocating for a modified registration requirement.

The temptation to go on was very great. We hesitated, then decided to turn back. We were in the state of mind of a child who sees his favorite toy snatched from him; and yet as we descended we felt a great peace within, the recognition of a virtue other than the mere climbing of a high mountain. – Gaston Rebuffat, Starlight and Storm Between the five of us there was the strong bond of the sea, and also the fellowship of the craft, which no amount of enthusiasm for yachting, cruising and so on can give, since one is only the amusement of life and the other is life itself. – Joseph Conrad, Youth In the spirit of protecting the rivers we value, American Whitewater’s is battling to protect your access to your favorite rivers. Sometimes, we ask for your help outright and emphasize the need for personal safety. Sometimes, you surprise even us, and demonstrate actions that are more eloquent than any words we could write. In a testimony to your preparedness, we were as wonderfully astonished as the dam operators and park managers at Georgia’s Tallulah when we reviewed the results of a safety survey of boaters from the first weekend of permitted releases. This survey revealed that nearly every boater had current first aid and CPR training and more than a third of all boaters had EMT training. Everyone was further impressed by the quick action boaters took to stabilize and help a couple of individuals who were injured on the run at different times and locations throughout the day. In conclusion, we want you to have a good time on the river. American Whitewater will work to secure every opportunity for you to access America’s rivers. But we also urge you to practice safe boating and review the American Whitewater Safety Code. Also discuss with your family what you want them to do if the worst happens and you don’t return from a boating trip. Express to them how you want to be remembered, and what actions they should take, or avoid taking, in your memory. Take this to heart: Your actions and decisions have consequences, and your actions and decisions reflect on the rest of the boating community. Have fun, be careful; and if you’re feeling a little uncertain, step back and consider praying to Jonah and Saint David, the patron saints and guardians of sailors, as you choose your portage route.

If you had just a minute to breathe And they granted you one final wish Would you ask for something like another chance? Or something similar as this? Don't worry too much It'll happen to you as sure as your sorrows are joys – Steve Winwood, The Low Spark of High-Heeled Boys Eventually all things merge into one, and a river runs through it. The river was cut by the world’s great flood and runs over rocks from the basement of time. On some of the rocks are timeless raindrops. Under the rocks are the words, and some of the words are theirs. I am haunted by waters. – Norman Maclean, A River Runs Through It

9.7 Risk Management Planning for AW Events By Tim Kelley, AW Safety Chair The following pages contain American Whitewater's Risk Management Policies. This information can help you reduce the potential for accidents, be prepared to react if an accident does occur, and understand your responsibilities as an event organizer for both on and off water activities. But no amount of information, planning or insurance can replace common sense and a cool head in the event of an emergency. No one likes to think that an accident will happen during his or her event. But if it does, considering risk and how to manage it ahead of time will help you be prepared so you can deal with the situation effectively and calmly. Thorough risk management practices will also help reduce your risk of liability.

One of the greatest risks of liability, besides not having a thorough risk management plan, is not implementing the steps identified to mitigate the risk. No safety plan can mitigate all risks, but ensuring reasonable precautions are in place to reduce or avoid identified hazards is necessary to prevent being negligent and liable.

American Whitewater recommends that an event safety officer is identified and present during the event. He or she should have no other responsibilities during the event except safety. The safety officer should develop the risk management plan, but at a minimum understand the plan completely. In some cases a safety support team is needed. This team should be well organized and not thrown together on event day. It goes without saying that the team should be able to perform the mitigation tasks with reason. It is important that all safeties fully understand their role in the plan. If possible safety teams should scout and rehearse possible rescue scenarios prior to the event. For flow studies and may on water events the participants themselves are there own safety support team.

Most events will not require extensive controls to mitigate risk, but all events should have a through risk management plan. The AW Staff and Safety Committee are available for consultation, but are not responsible for an event’s risk management plan, the event organizer is. Risk management plans should be completed well prior to an Event. Two months prior is the latest it should be completed so that any mitigation steps can be coordinated, resourced and implemented without impacting the event.

Risk management policies consist of four elements:

I. Five step risk management process II. An incident management plan III. Information on insurance to cover staff and volunteers involved in the event IV. Mandatory release/waiver signed by all participants in on-water events.

I. Five Step Risk Management Process

By taking all reasonable precautions against foreseeable injuries to persons or loss of property, you can minimize risk and avoid lawsuits. This primarily means using common sense to identify the risks associated with the event and implementing controls/countermeasures that reduce risks. Understanding the following risk management terms simplifies this process.

Hazard: Condition that can cause injury, illness, death or property damage Risk: The probability of exposure to injury or loss from a hazard. Expressed in terms of hazard probability and severity Exp osure: Frequency and length of time personnel or property are subject to a hazard S everity: Degree of injury or property damage C ontrols and/or Countermeasures: Actions taken to eliminate hazards or reduce their risk. R isk Assessment: Identification and Assessment of hazards Residual Risk: The level of risk remaining after controls have been selected for hazards (Controls are identified and selected until the risk is eliminated or until it cannot be practically reduced further.)

The following five-step risk management process is recommended for any type event to mitigate risk and make it safer for all this includes: festivals, rodeos, races, instructional classes, guided trips or flow studies.

1. I dentify Hazards Consider all aspects of the event, environment, and known historical problem areas. 2. A ssess Hazards to determine risks. Assess the impact of each hazard in terms of potential loss based on probability and severity. 3. D evelop Controls and Countermeasures that eliminate the hazard or reduce risk. Reassess hazards given the controls. Considering the reason for the hazard helps determine controls. Be sure to specify who, what, when, where, and how for each control. 4. I mplement Controls that will eliminate the hazard or reduce its risk. 5. S upervise and Evaluate. Enforce standards and controls. Evaluate the effect of controls and adjust or update as necessary.

Liability should be addressed like any other hazard in your plan. In addition to mitigating the risks, the following items are specifically designed to mitigate liability: a. Redundant system to share warnings and other information b. No outright guarantees of safety c. Certified medical personal on-site d. Written emergency and evacuation plan e. In the event of an accident, witness statements will be obtained on site f. A properly drafted and comprehensive release waiver/assumption of liability and indemnification form will be signed by all participants

1. Identify Hazards Start the risk management process by identifying potential hazards. Hazards and associated risks will largely depend on your venue and planned activities. Insure you look at all aspects of the event and guard against tunnel vision. Try to think about how and where participants, spectators or anyone else could be injured at the event. If the answer to one of the following questions is yes, then risk manage the hazard:

a. Is adequate rescue and medical support available? b. Is guidance or procedure adequately clear, practical, and specific enough to control hazard? c. Are pople assigned, ready, willing, and able to enforce controls implemented? d. Is the individual sufficiently skilled and self-disciplined to control hazard?

Using a matrix is an excellent means to ensure you look across the complete spectrum of your event to identify hazards. The potential hazards listed in the matrix below may not be all inclusive for every event. Consulting with an experienced event organizer or local whitewater expert is highly recommended. Local rafting companies and kayak schools are often good sources of information also.

Hazard Identification Matrix

Public/ Participants/ Photographers Safety Spt Others on Who/ Risk Spectators Vendors Team Pers. the water Paths Guy wires in traffic areas Cliffs/Steep areas Hidden holes Vehicle Traffic Viewing areas Transportation & parking plan Old Structures/ Debris Weather Whitewater Hazards: Refer to AW Safety Code Practice Time

2. Assessing risk potential When assessing risks you should assume the worst-case scenario. Crowds of people in unfamiliar surroundings are often more absent-minded than we'd like to admit. The drowning at the 1999 Freestyle World Championships in New Zealand reminds us just how easy a tragic accident can happen. (A girl swimming in a rapid without a life jacket, drown.)

When assessing risk, consider both the probability and severity of the hazard for the worst-case scenario. Assess the risk potential for each hazard keeping in mind that different risk groups may have different risk potential. Novice competitors obviously have a greater risk than professionals.

Using the matrix below, assess the initial risk level of the hazards identified in step one. This objective matrix still requires subjective assessments of the “degree” of probability and severity. The definitions below help to reduce subjectivity in addition asking the opinions of others and applying good common sense makes this easier that it may sound. The initial and residual risk assessment provides the warning that should be given to the corresponding group at risk. Making individuals aware of the initial and residual risk(s) and documenting this (release waivers, video safety briefs, Memo’s for record) are the steps to mitigate liability. Recreational use statutes vary by state, but all are based on the assumption that if the individual is aware of the risk then they assume personal responsibility for accidents caused by objective dangers.

It is important that the individual understands the controls and countermeasures they must perform to mitigate risks so residual risk levels are achieved. Assessing the risk and making sure the individual is warned allows individuals to make informed decisions when signing liability waivers and is a critical step in reducing the risk of liability.

It is important that each distinctive group is assessed because probability and severity can vary greatly for each group at the exact same hazard. Use common sense when determining which hazards you must assess. Most river hazards are mitigated to Low risk simply by the paddler acknowledging on the release form that he has the skill level to handle the “event”. If you have concerns consult with the AW Safety Committee or simply assess the hazard. Listing these assumptions and making sure they are clear in the release form or other warning methods is the methodology that deals with such hazards.

Risk Assessment Matrix

Probability Severity Frequent Likely Occasional Seldom Unlikely Catastrophic E E H H M Critical E H H M L Marginal H M M L L Negligible M L L L L

(Risk Levels) L- Low Risk M- Moderate Risk H- High Risk E – Extremely High

Hazard Severity – The expected consequence of an event in terms of injury or property damage a. Catastrophic – Death or permanent disability, major property damage b. Critical – Temporary or partial disability, head or neck injury, serious fracture c. Marginal – Minor injury or property damage and could require evacuation to a medical treatment facility d. Negligible – First aid or minor treatment

Hazard Probability - The Likelihood that an event will occur a. Frequent – Occurs very often, continuously experienced b. Likely – Occurs severa l times c. Occasional – Occurs d. Seldom – Remotely possible, could occur at sometime e. Unlikely – Can assume will not occur, but not impossible

3. Develop controls and countermeasures to mitigate risk a. For each hazard, develop one or more controls that will eliminate or reduce the risk of the hazard. Be sure to specify who, what, when, where, and how for each control. Considering the reason for the hazard helps determine controls. b. Determine the residual risk once again using the risk assessment matrix based on probability and severity taking into account the control(s) planned for implementation. Remember the controls are intended to reduce probability and/or severity. c. Decide whether to accept the level of risk remaining (residual risk) or implement more controls.

The countermeasures mentioned below are not all inclusive, but will hopefully get you thinking in the right direction to help reduce the risks associated with most whitewater events. • Site selection, if options exist, is often the simplest way to reduce risk. Select the site with the lowest risk potential. For on water events, take that section of river out of play in the venue if possible. • For festivals, large open areas with flat spaces for tents and even footing for crowds are prime locations. • Find out whether trained medical personnel are part of your event staff or invite a local emergency care agency to set up an information or first aid booth at your event. • Provide first aid kits at the registration site or other high-traffic areas to care for minor injuries, and let people know where the kits are located.

For competitive or on water events: • Make sure all participants are aware of potential hazards. If appropriate, suggest scouting the course or area downstream. Encourage each participant to evaluate his/her individual comfort and personal safety levels. • Consider safety needed during practices if that is organized as part of the event. Be sure to factor the differences between practice and the actual event. • The safety officer should develop the risk management plan. • If a safety support team is required it should be well manned, trained and equipped. This team should be well organized and not thrown together on event day. It is important that all safeties fully understand their role in the plan. • If possible safety teams should scout and rehearse possible rescue scenarios prior to the event. The week before is optimal so if changes need made it will not affect the event. The day before is often more realistic. Rehearsing a few hours before can drastically impact events when you learn planned countermeasures won’t work as planned. This can be especially true for communication checks. • Safeties should be distinctively marked for quick recognition. • If a rescue attempt or evacuation creates a hazard or prevents safeties from implementing controls the event should be paused until implementations can be re-established. • Safeties serve as course marshals to prevent non-competitors from creating hazards for competitors. • Ensure safeties have sufficient food, water and clothing for expected and unexpected conditions. • Safety teams should paddle in together and verify all equipment at the put-in • Ensure there is a safety plan to sweep the river and sufficient controls are emplace to support the safeties until all are off the river. • Be sure to consider experience, competence, and capabilities of assigned safeties and supervisors to implement the risk plan. Safeties should be familiar with part IV. “Guidelines for rescue”, and V. “Universal hand and arm signals”, of the AW Safety Code. Confirm special hand and arm signals required for the situation, during the rehearsal. • Make a detailed time schedule that is not rushed and follow it. • For the most part, participants will take care of themselves and each other. But there are cases where over-zealous competitors can get in over their heads (e.g., adventure races or multi-sport events). Try to include information in your registration materials that accurately details the competition and skills necessary to be involved safely. This may include: - Adequate ability level - Required equipment list (PFDs, helmets, floatation, headlamps, etc.) - A skills test the day before, where participants must demonstrate basic proficiency • Listing the residual risk level for the event and some of the hazards on the waiver and other mandatory registration information as well as the skill level and controls that individuals should have or be responsible to implement like (rescue a fellow racer in danger); reinforces the validity of the control(s) as well as provides a means of redundant warnings to prevent liability. The competitor’s safety briefing is another time to provide warnings. Other opportunities include at the practice or warm up area and the holding area prior to the start line. • Books on whitewater safety are a good source of controls for specific hazards. • Consulting whitewater experts at rafting companies or kayak schools is another excellent source to gain ideas for controls and countermeasures. • Document a detailed incident command procedure that addresses command and control and interface with law enforcement, SAR and any other outside agency that would respond to a accident. • Document a complete communications plan.

• Document the medical and evacuation plan • All participants and safeties should be familiar with the AW Safety Code and universal river signals. Include this requirement in the waiver or registration form.

Weather conditions, high water or low water and other factors can significantly change hazards and risk assessment. This can be dealt with by having risk assessments already done for such contingencies. The Safety Officer and Event Organizer establish. “Red flag” decision points based on these risk assessments. In some cases additional control measures or countermeasures will suffice, some situations will require changing the course or venue, and sometimes the event will need postponed. These contingencies and red flag decision points should be thoroughly discussed and agreed to in advanced so the pressure and emotion on event day don’t overshadow sound judgment.

The AW Safety Code is a great source to use for risk management of on water events. (www.americanwhitewater.org). Remember the AW Safety Code provides guidelines that are intended to minimize risk. Situations often require flexibility and countermeasures should not be constrained by a rigid set of rules. Varying conditions and the vary nature of some extreme events may combine with unpredictable circumstances requiring alternate procedures. Remember that good common sense and basic whitewater safety outlined in the safety code have worked for decades, so keep it simple.

A risk management matrix is a good tool to document the risk management plan. For areas requiring greater detail such as high or extremely high risk hazards, the incident command procedures, and the communication plan should be documented separately.

Risk Management Matrix Initial Controls How to How Assessment ID Risk & Residual Implement to of Task Hazard Level Countermeasures Risk Controls Supervise Controls

A separate matrix should be done for distinctively different groups as determined in the hazard identification matrix in step one. This allows better overall management and implementation of the plan.

4. Implementing Controls and Countermeasures The key to implementing any control is in understanding the intended purpose of the control, so that as the situation varies and unexpected results occur; the safety can make the necessary adjustments to keep the person at risk, safe. This is best accomplished through the following methods:  Understand the hazard  Rehearse the controls prior to event day, on site, and w/ the entire safety team if possible  Have a detailed equipment list for safeties  Stay on schedule

5. Supervise and Evaluate The most important part of the risk management process is making sure the controls are in place and they are working. The safety officer and subordinate safety leaders must not be so involved in actual rescues, that they can’t supervise, evaluate, and improve controls as required. This is very important in cases were a few of the safeties are not real experienced. Coaching and mentoring can make a real difference.

II. Accident Management Plan No event, no matter how well planned, can be made completely accident-proof. The following suggestions will help you formulate a plan for managing accidents at your event:

• Preplanning Goals The primary goal is to stabilize and localize the accident. This includes getting professional medical treatment to injured people as quickly as possible and ensuring that no one else gets hurt in the process. Secondary issues involve providing support to friends and family of the victim. Finally, appoint one event official to deal with law enforcement and the press in a professional and effective matter, and make sure that all evidence is gathered and preserved in case of litigation. In addition, be sure that all volunteers are instructed to refer all questions to your appointed official.

• What does a disaster plan include? 1. Information. Long before the event date, compile a short list of phone numbers, including numbers for the local rescue squad, ambulance or nearest hospital, local or state police, fire stations, emergency evacuation and medical care, or managing agency (i.e. NPS, USFS, BLM, etc.).

In areas close to urban centers, dialing 911 gives you immediate access to these emergency services, but some backcountry and rural settings may or may not fall under this system. Another thing to keep in mind is that 911 service dispatchers strongly prefer calls made from stationary phones (i.e. not mobile or cellular phones). When you dial for help from a land-based phone, emergency services are instantly able to locate your position, which speeds their response time and gets the help to you faster. If this is not an option at your site, radios or mobile phones are good alternatives, but make certain that coverage exists at your area.

This information should be available at central locations and with responsible individuals. It would also be advisable to contact these agencies before your event to give them your information. Get acquainted with each other and let them know what is going on, including the dates of the event and location.

2. Evacuation procedure. This means having evacuation routes from the river to the nearest road planned or stashing backboards and medical kits at various stations prior to the event. Many local outfitters are valuable resources. Typically, they are aware of all river access points, trails, forest service roads, etc., and often have excellent maps of their region. They have phone contacts with the railroads, dam keepers and private landowners that have gated roads to the river. Park personnel usually have similar information and may already have well-organized disaster/accident plans.

3. Accident Manager. Select individuals who will be in charge if an accident occurs before the event. Most outfitters designate one person as the “accident manager” who coordinates the rescue operation. S/he does not go into the field, but contacts appropriate outside resources, directs others and serves as the communications “hub” of the operation. With most outfitters it is the owner or river manager; with us, it should be the event organizer or the individual who is best acquainted with the resources of the area, and comfortable with the responsibility. Having one recognized leader helps to reduce the confusion and duplicated effort that often accompanies the chaos following an accident.

A second person is often designated as the “press contact”; sometimes the accident manager does double duty. There can be a lot of people with their own version of what happened. All those affiliated with the event should be asked to respond to questions from the press with “Yes, we did have a serious accident, but I really don’t know the details. You need to speak to the accident manager.” The press contact, working with the manager, will also assist law enforcement in their investigation if necessary.

A third person is left in charge with helping the friends and family of the victim, keeping them informed of the progress of the operation, making sure they have food and shelter, transportation to the hospital, etc. It is vital that these people be attended to, and not get shuffled aside in the commotion. Many lawsuits are instigated by poor treatment of, or little follow up with frightened family members at the scene!

4. Follow up. After an accident has been handled, it is important to try debriefing as many people as possible on the situation and to collect as much evidence as possible. This process helps each individual cope with their role in the accident and could provide you with important information that will help to reconstruct the event. Every attempt should be made to gather as much information as possible from everyone from bystanders to rescue personnel, specifically in written form. Written statements and reports should concentrate on the facts, and should not speculate as to cause or prevention. This information can assist the accident manager in preparing a report for the insurance company. An official report for the public and media should objectively focus on the facts and not get into “how it could have been prevented” speculation. If possible, consult an attorney with the collected information on the accident and prepare a file “in anticipation of litigation." This protects your statements under attorney/client privilege. Law enforcement interviews, by contrast, are a matter of public record. Statements, videotapes, waivers, and all other evidence should be packaged in a single • envelope or box and placed in a secure storage. Lawsuits, when they happen, typically • occur 2-5 years after the accident. Memories are often hazy by then, so this material is vital in preparing a defense.

III. Insurance Check with your organization to see if they can provide insurance for your event. American Whitewater can help in some instances. Occasionally a site carries its own insurance and will provide you with a certificate of coverage for your event. Insurance is an easy element to overlook or forget about. Be sure, for your own peace of mind, that you are covered.

Insurance generally covers any liability that may be incurred as a result of personal injury or property damage caused by an incident at the event due to negligence on the part of whomever is named in the policy. The insurance pays the costs of hiring a lawyer and will pay (up to the limits of the policy) any judgment awarded as the result of a successful claim.

IV. Release/Waiver If you are running an event on the water, be sure all of the participants sign a waiver. If the participant is a minor, the participant’s parent or guardian must sign an indemnification agreement under which the parent or guardian agrees to assume any liability for injury to the minor. The purpose of the waiver is to assure that participants understand that participation in a whitewater event involves a risk of injury and that they are voluntarily assuming the risk. The waiver is not absolute protection against a claim being made. Depending on the facts and circumstances may not always defeat the claim. State liability and recreational use statutes vary so make sure your waiver form is good in the state you are using it in.

Page a. Sample Volunteer Sign-in Sheet 41

b. Sample Volunteer Job Tracking Sheet 42-43

c. Sample Budget 44-45

d. Sample Press Release 46-47

e. Sample Media Tracking Form 48-49

f. Sample Media Sign-in Sheet 50

g. Sample Sponsorship Solicitation Letter 51

h. Sample Sponsor Response Form 52

i. Sample Sponsor Checklist 53 j. Sample Auction Poster 54

K. Sample Auction Bid Forms 55 l. Sample Registration Form (for competitive events) 56 m. Sample Liability Waivers (for competitive event) 57-58 n. Sample Schedule and Class Order Posting (for competitive events) 59 o. Sample Heat Sheet (for competitive events) 60 p. Sample Risk Management Checklist 61 q. Sample Event Materials List 62 r. Lighting Your Event – detailed information 63-64 Appendix p. Sample Risk Management Checklist The following pre-event checklist is intended to be a practical set of guidelines for a wide variety of events and venues. While most insurance carriers require many of these safety procedures, they are primarily common sense. In all cases, combining these guidelines with the good judgment of the event organizer will assure a safe and enjoyable event for everyone.

Risk Management Checklist

Event Support Team How many staff and volunteers do you plan to involve: ______

Who is the event safety Coordinator:______

Who is responsible for planning and leading emergency procedures:______

Who is responsible for coordinating officials and insuring that all rules are followed:______

Who is responsible for relaying event rules and possible hazards to participants:______

Emergency Plans All event management must be briefed on emergency procedures, both for spectators and participants. Briefing should include procedures to follow in case of medical emergency, including location of medical personnel, emergency evacuation plans, location of communication equipment, etc.

What are your procedures for medical emergencies?______

Are there emergency vehicles at site?______

What are your plans for emergency communication?______

What are your plans for emergency evacuation of spectators and participants?______River Stewardship Toolkit Page 228

______

Event Site How many participants are you expecting?______

How many spectators are you expecting?______

Are there safety boats, and if so, how many and how will they be used?______

What provisions are being made for shelter from sun, heat or cold?______

What provisions are being made for drinking water and toilet facilities?______

How will you manage spectators?______

© American Whitewater 2004-10-05 River Stewardship Toolkit Page 229

END NOTES

© American Whitewater 2004-10-05 i The Daniel Ball, 10 Wallace 557; 19 L. Ed. 999 (1871) ii Escanaba & Lake Michigan Transp. Co, v. City of Chicago, 107 U.S. 678 (1883). iii The Daniel Ball, 10 Wall. 557 iv U. S. v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913). v Gilman v. Philadelphia, 3 Wall. 713, 724, 18 L. ed. 96, 99. vi Economy Light & Power Co. v. U S, 256 U.S. 113 (1921). vii Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845). viii New York v. New Jersey, 283 U.S. 336, 342 (1930). ix Marks v. Whitney, 491 P.2d 374 (1971). x Forestier v. Johnson, 127 P.156 (1912). See Frank, Forever Free: Navigability, inland Waterways, and the Expanding Public Interest, 16 U.C. Davis L.R. 579 (1983). xi Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 Iowa L. Rev. 631, 634 (1986)(citing J. Inst. 2.1). xii Shively v. Bowlby, 152 U.S. 1 (1894); Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). xiii Pope Barrow, internal correspondence with American Whitewater. xiv Pope Barrow, internal correspondence with American Whitewater. xv In re Trampealeau Drainage Dist. Merwin v. Houghton, 131 N.W. 838, 842 (Wisc) (1911). xvi Neptune City v. Avon-by-the-Sea, 294 A.2d 47 (1972). xvii State v. Public Serv. Comm’n, 81 N.W. 2d 71, 73 (Wisc.) (1957). xviii Neptune City v. Avon-by-the-Sea, 294 A.2d 47 (1972). xix Martin v. Waddell, 41 U.S. 234, 16 Pet. 367 (1842) xx Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845). xxi Submerged Lands Act, 43 U.S.C. 1301-1315. xxii Shively v. Bowlby, 152 U.S.1 (1894). xxiii Eldridge v. Trezevant, 160 U.S. 452 (1896). xxiv Packer v. Bird, 137 U.S. 662, 11 Sup. Ct. 210. xxv Barney v. KeokukU, citation unknown xxvi Hardin v. Jordan, 140 U.S. 372, 11 Sup. Ct. 808, 838. xxvii Philadelphia Co. v. Stimson, 223 U.S. 605 (1912). xxviii Martin v. Waddell, 16 Pet. 367, 10 L. ed. 997; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Weber v. State Harbor, 18 Wall. 57, 21 L. ed. 798; Barney v. Keokuk, 94 U.S. 324, 338, 24 S. L. ed. 224, 228; Packer v. Bird, 137 U.S. 661, 669, 34 S. L. ed. 819, 820, 11 Sup. Ct. Rep. 210; St. Louis v. Rutz, 138 U.S. 226, 242, 34 S. L. ed. 941, 947, 11 Sup. Ct. Rep. 337; Hardin v. Jordan, 140 U.S. 371, 382, 402 S., 35 L. ed. 428, 433, 440, 11 Sup. Ct. Rep. 808, 838; Illinois C. R. Co. v. Illinois, 146 U.S. 387, 435, 452 S., 36 L. ed. 1018, 1036, 1042, 13 Sup. Ct. Rep. 110; Shively v. Bowlby, 152 U.S. 40, 47, 38 S. L. ed. 331, 346-348, 14 Sup. Ct. Rep. 548; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs, 168 U.S. 349, 365, 42 S. L. ed. 497, 503, 18 Sup. Ct. Rep. 157. xxix Brewer-Elliott Oil & Gas v. U.S. 260 U.S. 77 (1922). xxx Oklahoma v. Texas, decided May 1, 1922, citation unknown xxxi Hardin v. Jordan, 140 U.S. 371, 384, 11 S. Sup. Ct. 808, 813 (35 L. Ed. 428). xxxii Laurent, Judicial Criteria of Navigability and Federal Cases, 1953 Wisc. L. Rev. 8. xxxiii Donnelly v. US, 228 U.S. 243, 262 (1913), modified at 228 U.S. 708 (1913). xxxiv Scott v. Lattig, 227 U.S. 229 (1913). xxxv Acts May 18, 1796, 1 Stat. at L. 464, chap. 29, 9, U. S. Comp. Stat. 1901, p. 1567; March 3, 1803, 2 Stat. at L. 229, chap. 27, 17. xxxvi St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 288, 19 L. ed. 74, 78. xxxvii St. Clair County v. Lovingston, 23 Wall. 46, 68, 23 L. ed. 59, 63; Barney v. Keokuk, 94 U.S. 324, 338, 24 S. L. ed. 224, 228; Illinois C. R. Co. Illinois, 146 U.S. 387, 434-437, 36 L. ed. 1018, 1035-1037, 13 Sup. Ct. Rep. 110; Shively v. Bowlby, 152 U.S. 1, 48-50, 58, 38 L. ed. 331, 349, 350, 352, 14 Sup. Ct. Rep. 548; McGilvra v. Ross, 215 U.S. 70, 54 L. ed. 95, 30 Sup. Ct. Rep. 27. xxxviii Hardin v. Shedd, 190 U.S. 508, 519, 47 S. L. ed. 1156, 1157, 23 Sup. Ct. Rep. 685. xxxix United States v. Chandler-Dunbar Water Power Co. 209 U.S. 447, 451, 52 S. L. ed. 881, 887, 28 Sup. Ct. Rep. 579. xl People v Truckee Lumber Co., 48 P.374 (1897). xli GA Code Ann. 85-1304, 1305. xlii People v. Emmert, 597 P.2d 1025 (Colo. 1979). xliii Day v. Armstrong, 362 P.2d 137 (Wyo.)(1961); State v. Red River Valley Co., 51 N.M. 207, 182 P.2d 421 (1945). xliv Gratto v. Palangi, 154 ME, 308, 147 A.2d 455 (1958). See also Leighty, Public Rights in Navigable State Waters – Some Statutory Approaches, VI Land and Water L.R. 459 (1971). xlv Luscher v. Reynolds, 625 P.2d 1158 (1936); People v. Mack, 19 Cal. App. 3d 1040, 97 Cal. Rptr. 448 (1971). xlvi See Dietz v. King, 465 P.2d 50 (1970) enforcing public access to a beach access route. xlvii Nekoosa-Edwards Paper Company v. Railroad Commission, 228 N.W. 144 (1930) and 201 Wis. 40, 47 (1929). See also Collins v. Gerhardt, 237 Mich. 38, 211 N.W. 115 (1926). xlviii Alaska v. Ahtna, Inc., 891 F.2d 1401, 1405 (9th Cir. 1989), cert. denied, 495 U.S. 919 (1990). xlix State ex. rel New York State Dept. of Conservation v. Federal Energy Regulatory Comm., 954 F.2d 56, 60-62 (2d Cir. 1992) l Sawczyk v. US Coast Guard, 499 F. Supp. 1034, 1039 (W.D.N.Y. 1980). li Goodman v. City of Crystal City, 669 F. Supp. 394, 395-396, 399-400 (M.D.Fl. 1987). lii Swan Falls Corp., 53 FERC 61, 309 (1990). liii David Zinkie, 53 FERC 61, 029 (1990). liv State of North Dakota v. Hoge, Case No. Civil A1-83-42 (D.N.D. 1984) [unreported decision]. lv State of North Dakota v. US, 770 F. Supp. 506, 512 (D.N.D. 1991), aff’d., 972 F.2d 235, 240 (8th Cir. 1992). lvi US v. Utah, 283 U.S. 64, 82 (1931). lvii Bohn v. Albertson, 107 Cal. App. 2d 738, 744, 238 P.2d 128, 132-133 (1951), quoting with approval from Lamprey v. State, 52 Minn. 181, 53 N.W. 1139 (1893). lviii US v. Appalachian Electric Power Co., 311 U.S. 377, 416 (1940). lix Puente de Reynosa, S.A. v. McAllen, 357 F. 2d 43, 51 (5th Cir. 1966). lx Connecticut Power & Light Co. v. Federal Power Comm., 557 F.2d 349, 354-357 (1st Cir. 1977). lxi Nickel Enterprises v. State of California, Kern Co. Sup.Ct. No. 199557. lxii National Audubon Society v. Superior Court, 33 Cal. 3d 419, 435, n. 17, 658 P.2d 709, 720, n. 17, 189 Cal Rptr. 346, 357, n.17 (1983). lxiii West Chicago St. R. Co. v. People of State of Illinois Ex Rel City, 201 U.S. 506 (1906). lxiv 214 Ill. 9, 20, 21, 73 N. E. 393, 397. lxv People ex rel. Chicago v. West Chicago Street R. Co. 203 Ill. 551, 557, 68 N. E. 78. lxvi Union Bridge Co. v. U.S. 204 U.S. 364 (1907). lxvii Philadelphia Co. v. Stimson, 223 U.S. 605 (1912). lxviii Rolle's Abr. 390; Carlisle v. Graham, L. R. 4 Exch. 361, 367, 368, L. J. Exch. N. S. 226, 21 L. T. N. S. 133, 18 Week. Rep. 318. lxix Gibson v. United States, [166 U.S. 269, 41L.ed 996, 17 Sup.Ct. Rep.578] supra. lxx South Carolina v. Georgia, 93 U.S. 4, 23 L. ed. 782; Shively v. Bowlby, 152 U.S. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548; Eldridge v. Trezevant, 160 U.S. 452, 40 L. ed. 490, 16 Sup. Ct. Rep. 345. lxxi Scranton v. Wheeler, 179 U.S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48. lxxii U. S. v. Commodore Park, 324 U.S. 386 (1945). lxxiii United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 596-598, 61 S.Ct. 772, 775, 776. lxxiv Kaiser Aetna v. United States, 444 U.S. 164 (1979) lxxv See United States v. Cress, 243 U.S. 316 (1917). lxxvi United States v. Chandler-Dunbar Co., supra, at 69. lxxvii United States v. Willow River Co., 324 U.S. 499, 502 (1945). lxxviii Shively v. Bowlby, 152 U.S. 1 (1894). lxxix Brewer-Elliott Oil & Gas v. U.S. 260 U.S. 77 (1922). lxxx Oklahoma v. Texas, decided May 1, 1922, citation unknown lxxxi Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 Iowa L. Rev. 631, 634 (1986)(citing J. Inst. 2.1). lxxxii Martin v. Waddell, 41 U.S. (16 Pet.) 367, 412-3 (1842), noting that the sovereign held lands in a “high prerogative trust…, a public trust for the benefit of the whole community.” lxxxiii Lord Hale, in Harg. Law Tracts, 5; Bickett v. Morris, L. R. 1 H. L. Sc. 47; Murphy v. Ryan, 2 Ir. Com. Law, 143; Ewing v. Colquhoun, 2 App. Cas. 839. lxxxiv Such as DeLovio v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass. 1815) (Justice Story) and The Seneca, 21 Fed. Cas. 1801 (No. 12670) C.C.E.D.Pa. 1829) (Justice Washington,) lxxxv XXX-define law of nations or get more info - XXX lxxxvi See also Waring v. Clarke, 46 U.S. (5 How.) 441 (1847.) lxxxvii In re Garnett, 141 U.S. 1 (1891). The second prong of the necessary and proper clause is the authorization to Congress to enact laws to carry into execution the powers vested in other departments of the Federal Government. See also Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 42 (1934). lxxxviii Affirmed in Packer v. Bird, 137 U.S. 661, 669, 34 S. L. ed. 819, 820, 11 Sup. Ct. Rep. 210; Hardin v. Jordan, 140 U.S. 371, 382, 35 S. L. ed. 428, 433, 11 Sup. Ct. Rep. 808, 838; Shively v. Bowlby, 152 U.S. 1. 40, 58, 38 L. ed. 331, 346, 352, 14 Sup. Ct. Rep. 548; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U.S. 349, 358, 42 S. L. ed. 497, 501, 18 Sup. Ct. Rep. 157; Scott v. Lattig, 227 U.S. 229, 243, 57 S. L. ed. -, 33 Sup. Ct. Rep. 242 lxxxix The Montello, 20 Wall. 430, 22 L. ed. 391; Levoy v. US, 177 U.S. 621, 632, 44 S. L. ed. 914, 919, 20 Sup. Ct. Rep. 797; US v. Rio Grande Dam & Irrig. Co. 174 U.S. 690, 698, 43 S. L. ed. 1136, 1139, 19 Sup. Ct. Rep. 770; South Carolina v. Georgia, 93 U.S. 4, 10, 23 S. L. ed. 782, 783; The Robert W. Parsons (Perry v. Haines) 191 U.S. 17, 28, 48 S. L. ed. 73, 78, 24 Sup. Ct. Rep. 8 xc Morgan v. King, 18 Barb. 277, 284, 35 N. Y. 454, 459, 461, 91 Am. Dec. 58; Chenango Bridge Co. v. Paige, 83 N. Y. 178, 185, 38 Am. Rep. 407; Murray v. Preston, 106 Ky. 561, 563, 90 Am. St. Rep. 232, 50 S. W. 1095; Stuart v. Clark, 2 Swan, 9, 17, 58 Am. Dec. 49; Walker v. Board of Public Works, 16 Ohio, 540, 544; Olive v. State, 86 Ala. 88, 92, 4 L.R.A. 33, 5 So. 653; People ex rel. Ricks Water Co. v. Elk River Mill & Lumber Co. 107 Cal. 221, 224, 48 Am. St. Rep. 125, 40 Pac. 531. And see Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, 345, 18 Am. Rep. 184; Koopman v. Blodgett, 70 Mich. 610, 616, 14 Am. St. Rep. 527, 38 N. W. 649. xci Oklahoma v. Texas, 258 U.S. 574, 42 Sup. Ct. 406, decided May 1, 1922; Economy Light Co. v. United States, 256 U.S. 113, 41 Sup. Ct. 409; The Montello, 20 Wall. 430; The Daniel Ball, 10 Wall. 557, 563. xcii Acts May 18, 1796, c. 29, 2, 9; 1 Stat. 464; May 10, 1800, c. 55, 3; March 3, 1803, c. 27, 17; March 26, 1804, c. 35, 6; Feb. 11, 1805, c. 14; 2 Stat. 73, 235, 279, 313; Rev. St. 2395, 2396, 2476. xciii Quoted from Footnote 1, Kaiser Aetna v. US, 444 U.S. 164 (1979). xciv See also, e. g., The Belfast, 7 Wall. 624 (1869). xcv See Lake Michigan Fed’n v. U.S. Army Corps of Engineers, 742 F. Supp. 441 (1990).