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Proposed Legislation to Amend Washington's Recreational Use Statute

Posted: 02/01/2011
by Thomas O'Keefe

Since 2009 Chelan PUD has been working to amend the State of Washington Recreational Use Statute (RCW 4.24.210) to specifically address whitewater recreation on the Chelan Gorge. American Whitewater has supported this effort as agreed to in our October 8, 2003 settlement agreement with Chelan PUD regarding opportunities for whitewater recreation in the Chelan Gorge.

The recreational use statute provides that public or private landowners who offer or allow their land to be used for purposes of recreation without charging a fee of shall not be liable for unintentional injuries to such users. Legislation introduced in the Senate as SB 5622 and in the House as HB 1231 would make the following basic changes to the recreational use statute:

1) While boating is currently listed as a recreational activity, kayaking, canoeing, and rafting would be added

2) In addition to "any public or private landowners", "hydroelectric project owners" would be specifically called out

3) the following section would be added:
Releasing water or flows and making waterways or channels available for kayaking, canoeing, or rafting purposes pursuant to and in substantial compliance with a hydroelectric license issued by the federal energy regulatory commission, and making adjacent lands available for purposes of allowing viewing of such activities, does not create a known dangerous artificial latent condition and hydroelectric project owners under subsection (1) of this section shall not be liable for unintentional injuries to the recreational users and observers resulting from such releases and activities.

We have supported the PUD's request but have identified three issues with the phrase "in substantial compliance with a hydroelectric license issued by the federal energy regulatory commission."

1) We are concerned that other dam owners, not under a federal hydroelectric license, who provide access for recreation will limit those opportunities if only those under federal license are called out in statute. This includes many dams that provide for flood control, municipal water storage, or irrigation such at the Tieton, Green, Cle Elum, and others.

2) Some projects have provided recreational opportunities that are not specifically called out in the license. It could also potentially affect flow studies where we are working to gain access and cooperation with the utility to study recreational interest prior to issuance of a new license.

3) No other state has a recreational use statute that calls out whitewater recreation on dam-controlled rivers and the model we set here could be a model for other states.

The full text of Senate Bill 5622 can be found here:
http://apps.leg.wa.gov/billinfo/summary.aspx?bill=5388&year=2011
Sponsors of the Senate Bill include: Parlette, Regala, Holmquist Newbry, Hatfield, Honeyford. A hearing was held before the Senate Natural Resources and Marine Waters Committee and American Whitewater provided testimony:

The full text of House Bill 1231 can be found here:
http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1231&year=2011
Sponsors of the House Bill include: Takko, Armstrong, Condotta, Warnick, Van De Wege, Crouse, Blake, Rodne. The bill has been referred to the Judiciary Committee.

Our testimony can be downloaded from the link to the right and we encourage our members to review the proposed legislation and our testimony. Please keep us informed of any discussions you have with members on the relevant committees or sponsors of the legislation.

 

Thomas O'Keefe
3537 NE 87th St.
Seattle, WA 98115
Phone: 425-417-9012


Associated Projects

Chelan (WA)
AW has worked to restore flows and provide public access to the Chelan Gorge

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