With Washington, D.C.'s Potomac River recently reaching the near-flood level of 60,000 cfs, prompting big water dogs to come out of the woodwork, C&K can’t help but hearken back 20 years ago when former US Slalom Team member Davey Hearn was arrested by the park service in 1996 for paddling the Potomac — and surfing an epic wave — at more than 100,000 cfs. Which got us thinking: two decades later, can the park service legally ban paddlers from the Potomac at flood?

Andrew McEwan, son of the late Jamie McEwan who won the C1 slalom bronze in 1972, paddles the Potomac at 80,000 cfs.

Andrew McEwan paddles the Potomac at 80,000 cfs.

To address the issue, law firm Longman & Van Grack, which regularly advises clients regarding sports and recreation legal issues within its Sports and Recreation Law Practice, offers the following statement (view more HERE)

Can the NPS ban paddlers from the Potomac River when it approaches flood level?

By Adam Van Grack

The Potomac River contains many regularly-paddled whitewater and non-whitewater sections. However, once in a while, such as this past week, the Potomac River near Washington, DC approaches flood level — which creates approximately 124,000 cubic feet per second of water rushing through the Potomac Gorge. The flooded Potomac River establishes many newly-formed, dynamic whitewater rapids within Great Falls and the Gorge below the Falls.

The Potomac River is also the primary training ground for many nationally-renowned whitewater kayakers and canoeists. In fact, one of the United States' training centers for the sports of Canoe Slalom and Wildwater (Downriver) is located on the banks of the Potomac River. Thus, when the flooded Potomac River appears, many expert whitewater paddlers, including U.S. Olympians, often look forward to kayaking or canoeing on the flooded whitewater rapids.

However, when the Potomac River approaches flood level, the National Park Service ("NPS") often closes river-access points, and in one case, NPS arrested a whitewater canoeist for paddling on the swollen river.

So, can the NPS ban these paddlers from the Potomac River when it approaches flood level? According to U.S. District Court Judge Peter Messitte in the 1996 case of NPS vs. David Hearn: Not yet. In 1996, U.S. Olympian Davey Hearn was paddling his whitewater canoe on the flooded Potomac River when he was called over to the river bank by NPS Police. Upon approaching the river shore, Davey Hearn was arrested for violating NPS's "river closure" notice. Judge Messitte ultimately ruled that (1) because the Potomac River is controlled by Maryland, NPS could not order Hearn off of the Potomac River, and (2) even though NPS could arrest Hearn for being on the NPS-controlled river shore, because NPS essentially "brought him over" to the shore, NPS could not penalize Hearn for obeying their come-ashore request. Judge Messitte dismissed the charges against Davey Hearn.

Maryland has control of the Potomac River, and Maryland can (with certain restrictions) make laws regarding the river's use. NPS has control of the C&O Canal National Historic Park (which is adjacent to the Potomac River between Washington, D.C. and Cumberland, Maryland), and NPS can (with certain restrictions) make laws regarding park use. Maryland also allows NPS to enforce Maryland's Potomac River laws.

Thus, NPS can (a) fine/arrest individuals from entering an NPS-controlled park for safety reasons (such as C&O National Historic Park) and (b) fine/arrest individuals for not obeying existing Maryland laws on the Potomac River (such as swimming and safety equipment).

However, Maryland has no laws regarding high-water paddling of the Potomac River (or any other river). Thus, NPS cannot fine/arrest any individual for high-water use of the Potomac River (or any other Maryland-controlled river). This fact is true even though NPS is permitted to fine/arrest individuals for entering C&O Canal National Historic Park when NPS closes certain park areas for safety reasons (such as high water).

It is also important to note that the degree of skill necessary to safely paddle on the Potomac River at flood level is extremely higher than at normal or moderately-high levels. Only expert whitewater boaters should be paddling the flooded Potomac River. However, for those that have the necessary skills, once on the Potomac River, you are only subject to existing Maryland laws, and because no high-water use laws exist, no high-water use restrictions can be enforced.

Longman & Van Grack regularly advises clients regarding sports and recreation legal issues within our Sports and Recreation Law Practice. In fact, Longman & Van Grack attorney Adam Van Grack has not only represented sports and recreation entities, but has also been a member of the boards of several sports safety and Olympic training nonprofits. Call us at (301) 291-5027 if you have any further questions or if you think we can help you out.

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