Opening 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 is 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?
    • If yes, why is the waterfall closed? (Skip to #2)
    • 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?
    • If yes:
      • What was the process for inviting public comment?
      • Was the private boating community involved?
      • Did the public comments indicate support for the closure or not? (Skip to #6)
    • If no:
      • Why not?
      • 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 decisions1) 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 example

  1. What are our objectives? What do we want the agency to do?
    • Do we want the waterfall reopened 24-7 365 days a year?
    • 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?
    • 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?
    • Passionate volunteers?
    • Attorneys?
    • Property owners?
    • Local businesses?
    • The ear of the Governor, a Senator or Representative, a mayor, a sheriff, an agency official?
    • Money and/or time?
    • 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?
    • Friendly or casual meeting with the decision-maker
    • Meeting with the decision-maker's supervisors
    • Letter-writing
    • Phone calls
    • Email with follow up phone call
    • Legislation
    • Legal
    • Media and Press
  7. What will we ask for in the campaign? Is our “ask” different from our objectives from above?
  8. Summarize the issue and what we are seeking in a single page fact sheet, the sheet might include answers to the following:
    • What do we want?
    • What is the problem?
    • How can the problem be fixed?
    • Is there an economic reason for allowing access?
    • How does our solution meet the agency's goals and our own (win-win)?
    • Who to contact for more information or to help?
    • Where is the problem?
  9. How are we going to initiate our campaign and rally the troops?
  10. 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

1) 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.”
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