Ohiopyle Falls Access Proposal
Photo: Jeff Snyder Strides with pride over Ohiopyle Falls in 2000. Photo by Marty Lamp, courtesy of www.IPlayOutside.com. Abstract photo of Secretary Oliver courtesy of Tom Uhlman.
In August, 2001 American Whitewater learned that the Pennsylvania Department of Natural Resources dismissed our proposal to open Ohiopyle Falls on a permanent basis. However, the DNR did indicate that the falls may be opened in a few more years based on the safety record at the annual Ohiopyle Falls Race:
...the Bureau would prefer to monitor the falls running for several more years as a special event where adequate safety measures can be implemented before we make a final decision regarding the "regular" running of Ohiopyle Falls.The response continues:
Reasonably safe running of Ohiopyle Falls is very dependent on the self-rescue ability of the boaters involved, and in its absence, on the provision of safety boaters. The Bureau feels that launching at the take-out on the Middle-Yough and the boating downstream to the falls will add to the confusion and congestion at the take-out and places boats on the segment of river downstream of the take-out. Middle-Yough boaters upon seeing other boaters proceeding past the take-out may unwittingly make a decision to also go beyond the take-out, with possibly disastrous results. There is no control over boater experience or ability, persons who are, at best, intermediate paddlers may be tempted to boat the falls. With or without adequate safety personnel on hand, this may eventually result in tragedy, but the risk is significantly higher without safety personnel on site.This last sentence is an obvious cop out, since the potential for an intermediate boater to flush downstream to the falls continues to exist and occurs on occasion under the present management system. However, American Whitewater will continue to work with the DNR to address their concerns, maintain a strong safety record at our events, and work to open Ohiopyle Falls permanently.
American Whitewater's Proposal
On April 4th, 2001 American Whitewater formally requested a meeting with Superintendent Doug Hoehn at Ohiopyle State Park to discuss a permanent arrangement for allowing safe, legal access to the waterfalls year round. Here is an abridged copy of the proposal that we forwarded to Superintendent Hoehn as well as Pennsylvania's Conservation and Natural Resources Secretary John C. Oliver. Secretary Oliver ran the Falls in September 2000 as part of the second annual Ohiopyle Falls Race.
Daily Access to Ohiopyle Falls
Dear Secretary Oliver and Superintendent Hoehn,
Thank you for working with American Whitewater and our volunteers over the past two years, and permitting whitewater boaters to run the Ohiopyle Falls. As you know, these safe and popular events benefiting the local rescue squad and volunteer fire departments were made possible through your direct cooperation. In fact, almost 500 boaters made nearly 4,000 descents over the 18-foot waterfall in the last two years with no reported injuries. Now, we would like to strengthen our partnership with you and your staff by developing a system that allows safe, legal access to the waterfalls year round.
We have given the matter of allowing access to Ohiopyle Falls much thought, and have concluded that if access is permitted, the Park should strive to make it as safe, controlled, and consistent as possible while finding ways to avoid stretching the State's resources. To facilitate this, here are some ideas that we would like you to consider:
Access: We propose allowing boaters to run the Falls only if they launch at the existing Middle Yough take-out. Permit boaters to stop and scout from the river left bank at the current location of the safety boom. Do not permit boaters to exit at the Lower Yough launch site to re-run the Falls or take-out; instead require them to run the entire "Loop" section and take-out at the railroad bridge (1 mile downstream). This caveat functions as a passive discouragement.
Safety: Allow boaters to stop and get out on the bedrock to set safety at the Falls as they and their group deem personally appropriate and responsible. Require all Falls boaters to wear Coastguard-approved Type III personal floatation devices (pfd's) and helmets.
Liability: Ultimately, running the Falls is a matter of personal choice and responsibility. A risk of injury is inherent in any endeavor, particularly those that are athletic in nature. Allowing boaters to run the Falls above the common Lower Yough run is analogous to allowing skiers to choose whether they are qualified and prepared for the consequences of running a Black Diamond versus a Blue, Green, or Bunny slope.
Liability is partially mitigated through the assumption of risk doctrine, and further mitigated through the principle of sovereign immunity under 42 Pa. CSA § 8522, which establishes that the Commonwealth can only be liable in specific circumstances (in this case: real estate). Furthermore state employees are protected under the entitlements legislation, 4 Pa. CSA § 39A, and the state as a landowner is protected under the recreational use statute, 68 Pa. CSA § 11.477.
I have an attached an opinion drafted by attorney Robert J. Behling with Pietragallo, Bosick & Gordon on this subject dated March 9, 2001. Mr. Behling has defended commercial rafting outfitters in liability suits on the Lower Youghioheny River for nearly a decade. Based on his legal expertise and research in this field, Mr. Behling concludes that "the potential for liability of a Commonwealth agency is quite remote, if at all."
These potential defenses pose significant deterrents to litigation. Nationally, there are very few instances where private (as opposed to guided) whitewater boaters have initiated litigation arising out of a boating incident and even fewer where they have prevailed.
Waivers: Liability could be further mitigated through a carefully drafted waiver, which boaters would sign at the launch site. A release and assumption of risk statement signed by the person seeking access could enhance the protections described in the Liability section above. If the State chooses to require a waiver, then American Whitewater volunteers to help draft an appropriate document. The document should contain an express acknowledgment that the individual knows about the presence of the Falls, that the State is not inviting the individual to run the Falls, that there may be latent hazardous conditions resulting from the artificial enhancement of flows at the dam upstream, and that the boater assumes all risk of such conditions. Generally, protection is given to such documents so long as they are sufficiently explicit.
Plan for the Future: Plan to re-evaluate the restrictions on an annual basis with American Whitewater. This would provide a forum for raising safety, social, and access concerns on a regular basis.
A program of annual re-evaluations at Tallulah Falls State Park in Georgia led to the lifting of boater permits and fees in 2001 after only 4 years of scheduled whitewater releases. In this case, the Tallulah has numerous Class V+ waterfalls. Safety concerns were effectively addressed by placing the burden of responsibility on visitors. This program has allowed nearly 1,000 boaters of all ages to run this exciting river every year since 1997.
Contact information for Tallulah Falls is attached at the end of this document. Waterfall Running in the Region: Valley Falls State Park in West Virginia provides an effective model for promoting positive interactions between whitewater recreation, swimmers, families, picnickers, and sightseers. The Park's Superintendent has posted a few simple and common sense guidelines for those wishing to run the falls, and these have served the public well in the decade since access was first granted. Spectators appear content to leave the stunts to those who know what they're doing and, in turn, boaters have acted responsibly.
On Maryland's Potomac River at Great Falls, a harder Class V rapid, access has been permitted for nearly 20 years. Pre-registration requirements were dropped in 1999 and visitors are no longer required to submit waivers. Boaters work closely with park officials to address concerns before they become conflicts, and have established a Great Falls safety advisory board. A high degree of respect has grown between the park and boating community over the last five years.
Contact information for Valley Falls and Great Falls are attached at the end of this document.
Ohiopyle Falls was closed to boating when the Park was established in the 1970's. Over the last 30 years, advances in technique, training, and equipment have opened these waterfalls to relatively safe navigation by whitewater kayakers and canoers. Unfortunately, the boating ban continues to be enforced, though kayakers and canoers run comparable waterfalls regularly without incident.
There is public interest in being able to boat these falls at Ohiopyle. In fact, despite the ban on boating, numerous kayakers have been ticketed for running them over the past 25 years and hundreds more have run the Falls illegally without getting caught. Many of these successful, albeit illegal, descents were even made in the evening after dark. To our knowledge, no injuries have been reported.
The relative safety of the Falls is further emphasized by the fact that in 1999 at the first Ohiopyle Falls Race, 236 boaters made 1354 successful descents on one day. Additionally, in 2000, the event stretched over two days with more than 2000 descents, including more than 30 descents by one boater alone. No injuries were reported at either event. American Whitewater volunteers posted dozens of safety boaters, rope throwers, and other rescue experts around the Falls for these events; however these volunteer safety teams were not responsible for any actual life-saving rescues in the 4,000 descents.
Despite the number of participants at the 1999 and 2000 races, we expect that if regular legal access is permitted, then use will remain relatively low. This is especially likely if our suggestions about making falls-boaters run the entire loop are enacted. In our experience, we have found that participation is much higher on event days where we have safety teams stationed around rapids, then on non-event days when visitors are entirely accountable for their own actions. For example, though nearly 300 boaters visit the Potomac at Great Falls on any given Saturday, fewer than 15 normally run the Falls. However, on annual race days, as many as 80 boaters may run the Falls.
The events of the past two years have demonstrated that American Whitewater can work cooperatively with you and your staff. We would like to continue this tradition by allowing regular access to the Falls. Additionally, we would like to donate funding to the Park to provide appropriate signage and any other infrastructure upgrades, which would facilitate access to Ohiopyle Falls.