MD: Response to UPRC (June, 2001)

Posted: 07/09/2001
by Jason Robertson

Mr. Jim Taylor
Upper Potomac River Commission (UPRC)
528 Maryland Avenue
Westernport, MD 21562
June 19, 2001

Re: Meeting Congressional Obligations for Whitewater Releases on Maryland's Savage River 2000 & 2001

Dear Mr. Taylor and UPRC Board,

Thank you for the response from your agency through the Walsh law firm of May 4, 2001 regarding whitewater recreation on the Savage River. In the future, we respectfully suggest that the UPRC, as a public agency, should work directly with constituent groups such as ourselves to discharge its duties willingly and openly.

The Walsh letter fails to account for the fact that downstream recreation is one of the Congressionally mandated project purposes and that whitewater recreation is specifically identified as a project objective. The Walsh letter also restates several UPRC objections and preconditions for whitewater releases which are not valid, particularly in view of the project purpose of providing whitewater. These objections and preconditions include: (1) debris removal, (2) participant liability waivers, (3) event access for UPRC staff, (4) protection of water supply to Westernport, and (5) flow and water availability. These preconditions are unjustified. Contrary to statements in your response, all five conditions were responded to by the public boating community, Maryland Department of Natural Resources, or Army Corps prior to the scheduled releases. Each of these topics will again be addressed in turn in this letter.

Congressional Directives to Provide for Recreation: The Water Resources Development Act of 1988 (Public Law 100-676, Section 6) provides legislation authorizing downstream recreation, inclusive of fisheries and whitewater recreation, for both Savage River Reservoir and Jennings Randolph Lake. The Act states:

The Secretary shall ensure… that each water resources project referred to is operated in such a manner as will protect and enhance recreation associated with such project. The Secretary is authorized to manage project lands at each such project in such manner as will improve opportunities for recreation at the project. Such activities shall be included as authorized project purposes at each project…

The Act then defines "recreation":

Recreation Defined - As used in this section, in addition to recreation on lands associated with the project, the term "recreation" includes downstream whitewater recreation which is dependent on project operations, recreational fishing, and boating on water at the project.

As a public agency, the UPRC is obliged to meet the statutory responsibility to make white water releases available.

UPRC Must Discharge Its Statutory Duties Without Imposing Preconditions and Costs on Non-Profit Groups: The Walsh letter reiterates the UPRC's inappropriate efforts to impose UPRC responsibilities on outside public groups prior to discharging its own responsibilities under the statute.

The UPRC's attempts to impose prerequisite requirements on the public before discharging its own legal responsibilities to provide recreational flows have no precedent on other Army Corps projects. Though the Corps has a role in managing hundreds of dams around the country, the Savage River is the only facility where nonprofit groups are burdened with needless and substantial costs and duties. As a point of interest, such requirements do not exist at any of the other dam projects listed in the Water Resources Development Act of 1988. As described below, Summersville Dam on the Gauley River provides guaranteed releases for whitewater recreation over six weekends every fall and the Deep Creek facility on the Upper Yough in Garrett County provides 63 guaranteed recreational releases every year under the statute.

The UPRC is tasked with managing the Savage River site in cooperation with the Army Corps and Maryland Department of the Environment. The actions of each group reflect on the others. On the matter of recreational whitewater releases, these agencies clearly have a difference of opinion. While the Maryland DNR approved the release request, and the Army Corps indicated that there was more than enough water in the reservoir to support the requested releases, the UPRC was non-communicative with representatives of the public boating community and even submitted comments to the DNR actively opposing the request for releases.

Debris Removal Not at Issue: The photographs Mr. Walsh provided with his letter show a natural stream ecosystem that is healthy, other than encroachment by trees and smaller vegetation within the high water mark due to flow management problems related to construction and operation of the dam. The debris is a natural component of the landscape, and is not unique to the Savage River.

No other project manager in the country requires the public to clear debris prior to conducting releases. Further, there is no case law supporting the UPRC's prerequisite that the public be tasked with maintaining a stream as "safe." Nor is there case law supporting the premise that a public institution is required to maintain a stream as "safe.". The conditions that the UPRC have imposed do not have precedent elsewhere and are simply not supportable. Finally, no where in the law does Congress provide or require for the public and interest groups to maintain the stream as "safe."

Participant Liability Not at Issue: Participant liability waivers are not required at any other Army Corps project in the country. Neither the UPRC nor Army Corps have any realistic risk of liability for providing dam releases. As a federal project, the agencies are immune under the doctrine of sovereign immunity.

In addition to Congressional directives providing for recreation, there are other legal arguments for providing releases. Under navigability law and the Commerce Act, whitewater access would otherwise be available in the absence of the project. The dam has obstructed the river, 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.

Further, according to recreational release challenges reviewed by the Federal Energy Regulatory Commission (FERC), the fact that access is compelled by law at a dam project provides some incremental protection against liability.

Army Corps Does Not Require Waivers or Insurance: Mr. Walsh's assertion that the Army Corps requires insurance on the release of recreational flows is simply wrong. Again, a look at the scheduled whitewater releases on other projects listed under the Water Resources Development Act in 1988 reveal the fallacy of this argument. Tens of thousands of boaters enjoy releases from Corps projects on West Virginia's Gauley River and Maryland's Youghioheny every year without facing this non-essential hurdle. Such a requirement is simply an inexcusable deterrent to meeting the downstream recreational project purposes at the Savage River.

No Evidence of Liability Exists: Before fantasizing about liability issues, we should have some evidence that there is a problem. To date, American Whitewater and many hydro-electric 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 as a result of recreational releases. It is simply not valid for the UPRC to assume that it will be treated any differently under the law from hydropower companies in the same state with the same essential management objectives and protocols.

Volume of Approved Recreation Releases is Minimal: Mr. Walsh's assertion that water release requests have increased in recent years may be accurate, and I request documentation of this statement. However, the number of approved recreational whitewater releases has clearly decreased, which is easily documented by the fact that no such releases occurred in 2000.

The sole reason that the Adventuresports Institute dropped its request for the release for the slalom event in 2000, (transferred to the ACA and American Whitewater for simple public recreation access) "was the lack of a clear application process and timely responses from the multiple river management agencies (Lubbers to UPRC, 9/19/00)."

Maryland Residents and Garrett County Benefits from Recreation Flows: The UPRC requests evidence that there is economic benefit to Garrett County by providing releases.

A USFS study by Ken Cordell emphasizes that outdoor recreation is an important factor in defining probable economic boosts for local economies.

…protecting and managing rivers for outdoor recreation may provide a clean, economically viable means for enhancing local economic development, as well as for providing needed recreational opportunities for the nation. Moreover, recent experiences with declining farm and forest incomes in rural communities points toward recreational uses of natural resources as an added means for diversifying local economies.

Whitewater boating, or recreation in general, can provide the needed economic stimuli that poorer regions in the nation can profit from.

The 1988 World Championships brought more than $10 million to Garrett County. However, the UPRC questions whether that is a valid expectation of future economic value. Therefore, we have selected a handful of realistic comparisons that might serve to better demonstrate the economic benefit from scheduled recreation releases on the Savage. Note that (1) all examples are on dam-controlled rivers, (2) the public is not tasked with signing liability waivers for accessing any of these rivers, (3) the public is not tasked with clearing natural or man-made debris on any of these rivers, and (4) several examples are from other rivers managed under and subject to Congress' Water Resources Development Act of 1988.

The Class III-V Gauley River is subject to the 1988 Water Resources Development Act of 1988 and is instructive of the benefits from whitewater recreation to a rural economy when the dam operator, state, and Army Corps cooperate to facilitate access and use. In 1999 there were 59,132 commercial rafting trips down the Gauley River. In 1995 each 1,000 commercial users on the Gauley generated an estimated $319,100 in total output, $127,300 of personal income, $87,500 in employee compensation, $20,100 in taxes, and 7.9 local jobs. For the 65,438 commercial boaters on the Gauley River in 1995, these estimates translate into local impacts in Fayette county of $20.9 million in total output, $8.3 million in personal income, $5.7 million in employee compensation, $1.3 million in taxes, and 513.5 jobs for the 6-week season.

The Upper Youghiogheny is in Garrett County, Maryland. This river features some of the wildest whitewater in the East. According to Penn State University and the Pennsylvania Department of Natural Resources, some 8,000 boaters from around the nation pursue the sport on the Upper Youghiogheny generating about $3.3 to $5 million in the summer months. During these months boaters enjoy the river releases on Mondays, Fridays and the first Saturday of each month.

The Lower Youghiogheny is subject to the 1988 Water Resources Development Act of 1988 and is identified in the act as "Youghiogheny River Lake, Pennsylvania and Maryland." The Lower Youghiogheny in Ohiopyle State Park has calmer rapids that compliment the more difficult headwaters of the Upper Youghiogheny in Maryland. This river is comparable to the Savage. There is a dam upstream that provides moderate flow control to benefit recreation. According to the Pennsylvania DCNR Outdoor Traveler Study, the effects of outdoor travel equates to $7.92 billion in economic activity in Pennsylvania, generating 106,467 jobs, $2.04 billion in wages and salaries, and $1.07 billion in tax revenue. Rafters, boaters, and canoers make up 5.8% of all outdoor travelers in Pennsylvania, spending about $60 per day and staying in the region for an average of 2.5 days.

The Nantahala River in North Carolina is a nationally recognized recreational river. The dam-controlled Nantahala is a Class II-III river that offers adventure for both the novice and experienced boater. Using the 1996 Nantahala River numbers from the USFS, the estimated impact of whitewater boating on the Nantahala River was $16.8 million in goods and services within the North Carolina economy, $9.3 million in income to employees and business properties, and 526 jobs in the five month season.

The Ocoee River in Tennessee is America's only Olympic river. The Ocoee was host to the whitewater competition course for the 1996 Olympic Games in Atlanta, Georgia. The Ocoee is divided into two sections, the Upper Ocoee and the Middle/Lower Ocoee, with the Upper Ocoee developed for use as the whitewater venue during the 1996 Olympic Games. This required the riverbed to be reshaped to provide the required hydraulic action to ensure world class rapids. The Middle Ocoee is a seven-mile Class III-IV river that has been used for commercial rafting since 1976 when the wooden hydropower flume, operated by the Tennessee Valley Authority, was shut down for repair.

The Upper Ocoee is scheduled to run twenty days, May through September, during the 2000 boating season. American Whitewater is currently working to increase the amount of recreational releases on this section. The Middle Ocoee is open on weekends from March to November and in the months of June, July, and August the river also runs on Mondays, Thursdays, and Fridays, with additional holiday releases for Memorial Day and Labor Day. According to the Tennessee Department of Environment and Conservation the Middle Ocoee hosted 228,371 commercial users and 33,899 private users, while the Upper Ocoee saw 34,919 commercial users and 3,891 private users in 1999.

Obviously a major contributor to the Ocoee's gained recognition was the occurrence of the 1996 Olympic Games in Atlanta. The Ocoee competition course was the only site of the Olympics outside of Georgia. This event attracted some 42,000 people to the three-day event. According to the announcer at the Olympic events, the races attracted "the greatest crowd ever assembled for a kayaking competition." The Ocoee area attracted nearly 300,000 people and created $40 million in revenue in 1996. In a 1996 report, American Whitewater estimated that the Ocoee River area could generate an additional $24.8 million annually in new direct spending and gain 487 new jobs ($10.6 million in payroll) from improved recreation (54 days of recreational releases and 20 days of special event flows) on the Upper Ocoee.

Conclusion? If dam operators manage rivers responsibly for whitewater recreation, then there are huge economic benefits to rural economies. If the UPRC agrees to provide regularly scheduled recreational whitewater releases, then Garrett County and Maryland residents and economies would benefit.

Proposal for Releases: Ideally, the UPRC would agree to regularly schedule recreational whitewater releases (1000 cfs) on the second weekend of each month between March and November. This is of course contingent upon whether sufficient water is available. Releases need not be made around the clock, nor do they have to last from dawn to dusk. Instead, releases could be ramped up and down with a maximum flow lasting four hours from 11 AM to 3 PM. This release schedule would benefit the boating community, provide a stable tourism base in Garrett County, meet the UPRC's legal obligations, facilitate training by Olympic contenders, protect and restore the natural stream channel impacted by the dam, and facilitate Washington/Baltimore's bid for the 2012 Olympics.

The benefit to this proposal is that it would provide a stable base for the boating community and commercial rafting. It would provide an alternate destination for boaters other than Maryland's Upper Yough river (which is more difficult) and Pennsylvania's Lower Yough river (which is comparable). It would also be relatively close to the large boating communities in Washington DC, Baltimore, and Pittsburgh.

So, if the UPRC agreed to this proposal, would boaters come? Yes.

97% of Boaters Indicate Desire to Visit the Savage During Scheduled Releases: American Whitewater conducted a survey of paddlers at the 2001 Potomac Whitewater Festival in Great Falls. We found that 97% would plan on visiting the Savage River if there were reliably scheduled releases. Paddlers indicated that they would prefer a month's notice prior to the releases. Though 83% of the paddlers had heard of the Savage, only 26% had actually visited the river, and on average the last year of visit was 1995. 69% reported that the greatest deterrent from visiting the river was the lack of reliably scheduled releases. 48% reported that the second greatest deterrent was that there was no guarantee of releases from natural high water. Safety, whitewater difficulty, and travel distances were of minimal deterrence to the boaters. A copy of the complete report is attached.

Water Supply is Not at Stake: When reviewing requests for recreational releases, the Maryland Department of the Environment and Army Corps take into consideration whether there is adequate drinking water available. In 2000, both agencies found that there was adequate water and that reserves were higher than normal for the time of year. These agencies neither reported nor identified any impacts to water supplies in Westernport, Washington DC, or other municipalities as the result of proposed releases. In the future, we would expect recreation release decisions to be made with a similar regard for water supply and availability.

As for the UPRC's supposedly sincere concerns about Westernport's water supply, Maryland's Department of the Environment dismissed them in their impact statement, observing that "it is noteworthy that flows equal to or greater than the requested whitewater release (850 cfs) occur frequently in this section of the river due to natural causes." While these flows have no impact on the town's water supplies, it is unfortunate for boaters that these releases are unannounced and unpredictable, which does not provide tourism or promotional benefits to Garrett County.

Rivers Are Dynamic and Subject to Variable Flow: The UPRC states that it avoids sudden changes in flow to prevent "negative effects". However as the dam operators know, the river regularly rises and falls by 500 cfs in the course of a day from natural changes in flow, and changes of 1,000 to 2,000 cfs are not unusual following heavy rains. For example, the river jumped from 245 cfs to 5080 cfs in just 4 hours on June 7, 2001.

As a student at the University of North Carolina in Chapel Hill, I personally researched and modeled the effects of dams and release regimens on downstream ecosystems. Simply put, it is unnatural for rivers to flow at steady rates. River health requires dynamic variability to create and enhance niche space and substrate pore size. These spaces are essential for fish and macro-invertebrate shelter and reproduction. Dynamic flows also assist in the movement of organisms for reproduction.

Since the issue of flow variability is moot, the real issue becomes one of creating manageable ramping rates. If the UPRC has questions about the efficacy or propriety of these rates, American Whitewater requests to participate in identifying sound ramping rates using sound science.

Request to Participate in Water Audit: The UPRC notes that they have contracted to Hazen and Sawyer, P.C., for a water audit to be completed this summer. As representatives of the public boating community, American Whitewater asks that we be apprised of the audit and provided an opportunity to comment on its development and methodology. The outcome of this audit could have repercussions on the availability of water for whitewater recreation events in the future if the auditors assumptions about public demand are based on inaccurate data or inputs. It is important that these data points are confirmed prior to completion of the survey.

Request for Meeting: I again extend a fifth request to meet with the UPRC to discuss the agency's responsibility to discharge its responsibilities. It is unfortunate that the public did not obtain recreational whitewater releases in 2000, but we can put this sad fact behind us and work to define a regular release schedule in 2001 and future years. It would be tragic if the UPRC's intransigence and failure to act impacts future visitation and tourism in Garrett County or even America's bid to host the Olympics in 2012.

Sincerely,

{SIGNED}

Jason D. Robertson
Access Director
American Whitewater

Jason Robertson
635 Joseph Cir
Golden, CO 80403-2349