Hydropower Relicensing, Recreational Liability, and Access
"Hydropower Relicensing and Recreational Liability"
By: Jason Robertson, Steve Ledbetter, & Bob Glanville for American Whitewater
License requirements that project owners provide free river access, instream flows, or flow information simply recognize that, but for the construction of the dam, in many instances whitewater access would otherwise be available in the absence of the project. The dam has obstructed the stream and eliminated the upstream whitewater and altered downstream flows. To the extent that the river is navigable, the project operator must allow passage above, around, and below the artificial obstruction that it has erected. Thus, in permitting or even facilitating river access through modified flows, the project operator is merely acquiescing to that which the law of navigability already requires.
CHELAN CASE STUDY: In May 1999, the Chelan County Public Utility District (Chelan PUD) in Washington State wrote a letter to the Federal Energy Regulatory Commission (FERC) requesting a directive regarding a feasibility study for releasing recreational flows. The letter expressed concerns for the extent of the public ability to navigate difficult whitewater and the company's liability if an injury were to occur. Citing Ravenscroft v. Washington Water Power, 969 P.2d 75 (Wash. 1998), the utility claimed that re-watering a 4-mile bypass channel constituted an artificial condition for which their company bears liability responsibility.
If supported by other courts, the Ravenscroft decision could deal a blow to recreational rights on rivers with hydropower projects in Washington, and might have value as precedent in other regional courts. In essence, the court ruled that the utility was responsible for a boating accident that occurred at low water within a reservoir. The decision was based on the utility's ability to regulate the level, and their responsibility for maintaining a safe lake level.
The utility also cited an ongoing case in which the plaintiff claimed the company was liable for his injuries as the injury producing aspects were fluid, not fixed; because they changed, they were not patent. Schuyleman v. Chelan, No. 165612III, 1998 WL 303735 (Wash. Ct. App. III June 9,1998). The utility was reluctant to release recreational water flows since, in the event of a lawsuit, the courts might find that prior knowledge of a hazard on a dam-controlled river may constitute negligence and therefore liability.
Two of the cases cited were merely dealing with liability waivers and exculpable clauses. In both cases the waiver was upheld. Schuyleman v. Chelan County PUD didn't really mean anything in a legal sense. Chelan moved for summary judgment. The trial court granted it. However, the court of appeals reversed the decision because: 1) the trial court made a procedural error in not considering a supplemental declaration and memorandum; and 2) the court of appeals felt there could be an issue of material fact as to whether the condition was patent/latent. The bottom line is that none of the cases cited are actually on point with the facts of a hydro company releasing water.
American Whitewater and other national recreation organizations opposed Chelan PUD's interpretation of the relevancy of these cases. Likewise, FERC decided that the issue of liability was essentially irrelevant to the matter of conducting a recreation feasibility study for the license. The implication of the Commission's decision was that liability concerns were a non-issue; as long as a general standard of care was met, then liability concerns would remain a non-issue. In their decision, FERC reminded the utility "Whitewater boating is a public use of waters affected by a hydroelectric project that needs to be considered with all other uses."
Where the project owner won't consent to access, FERC has authority to resolve the dispute. In the Chelan case, FERC made it clear that, if the matter couldn't be worked out, they would order that access be allowed. American Whitewater suggested that, under those circumstances, the fact that access was compelled over the objection of the landowner would arguably provide some incremental protection against liability. Obviously, we don't like to rely upon either one of these conditions, or upon any obligation to provide the landowner with insurance against liability arising out of access. Hence our return to the primary argument that long established principles of navigational law apply: if the stream is otherwise navigable, persons navigating it have the right to portage around obstructions, whether natural or artificial. Thus, if the stream is accessible upstream of the dam and the water body is navigable, then we can get injunctive relief enabling boaters to exercise their right to navigate and, incidentally, to portage.
DISCUSSION: Recreation rights for boating and fishing on rivers that have been impacted by the hydropower industry should not be limited. The requirement that a project owner provide whitewater access, flows, or flow information simply represents a recognition that, but for the dam, in many instances whitewater access would be available upstream of the project. The dam has obstructed the stream and eliminated the upstream whitewater. To the extent that the river is navigable, the project operator must allow passage around the artificial obstruction that it has erected. Thus, in permitting access through the project area, the project operator is merely acquiescing in that which the law of navigability already requires. This was the point made by New York DEC to NIMO on the Sacandaga years ago: having obstructed the river with its dam, NIMO could not prevent passage down the river by prohibiting portaging on its land.
It is difficult to generalize about the significance of license-mandated access upon the potential immunity of the project operator under recreational use statutes; the language of the statutes varies from state to state and, even where the statutory language is the same, decisional law often varies from state to state. Interestingly, the Chelan PUD expressed the view that their liability might be reduced if access were required by FERC. It was for that reason that they insisted upon a FERC direction that a whitewater feasibility study be conducted.
While some utilities assert that whitewater boating entails greater risk of injury and thus greater liability potential for the project operator than other recreational activity that might take place on the project properties, this is a subjective claim not buttressed by any data. Rescue expenditures by public agencies disproportionately involve those involved in the more casual pursuits of hiking, swimming and non-whitewater boating, although climbing and whitewater rescues catch much more media attention. Moreover, in most jurisdictions, the assumption of risk doctrine is still a defense to liability and given the public perception that whitewater boating is a daredevil activity, that potential defense is likely to be a significant deterrent to litigation. Indeed, there are very few instances where private (as opposed to commercial) whitewater boaters have initiated litigation arising out of a boating incident and even fewer where they have prevailed. This bogeyman is an excuse, not a justification, for limiting access.
Even in California, where the state reportedly imposes a higher duty as to "invitees", it is not at all clear that, where access is mandated by FERC as part of the relicensing project, the user would be considered an "invitee." Most states have exceptions to the recreational use statutes that involve a duty to warn of latent hazards known to the landowner, particularly if artificially created. The recent Washington case dealt with this issue. These statutes don't impose a duty of inspection and our experience with projects across the country involving tens of thousands of river user days demonstrates that the risk to the project owner is minimal to non-existent.
On a somewhat related note, the EPRI Hydropower Relicensing Forum suggested in its interim report, dated December 2000, that one way to reduce liability risks is to "have defined periods of water releases, so the public knows what to expect, when." Common ways of defining release periods are via scheduled releases, 24-hour advance notification on the Internet and a phone recording system of releases, or even 3-hour advance notice of releases for peaking or spinning facilities.
Some project operators have also expressed concern that whitewater boaters are self-selecting and not screened for competence. That factor is the essence of the assumption of risk doctrine. If someone were foolhardy enough to assume responsibility for screening boaters for competence and implicitly assuring them or the project owner that the boater is competent to undertake the trip, that probably would enhance, not diminish, the potential for liability in the event of an accident.
OTHER THOUGHTS & OBSERVATIONS: Before fantasizing about an elaborate scheme to address the "problem" of facility operator liability, we should have some evidence that there is a problem. To date, American Whitewater and many utility companies have searched and failed to find any citations or cases where a project operator was sued, let alone held liable to a whitewater boater for a boating accident on or below project property. If there has never been such a case, then there may be no problem to be fixed.
In most jurisdictions, releases and assumptions of risks executed by the person seeking access can enhance the protection to landowners afforded by recreational use statutes. For example, if they contain an express acknowledgment that there may be latent hazardous conditions resulting from the artificial enhancement of flows, and that the boater assumes all risk of such conditions, that may afford the landowner protection beyond that provided in the statute. In many states, effect is given to such documents so long as they are sufficiently explicit and the landowner doesn't charge a fee for access.