A Work in Progress: Accessible Trails, Campsites, and Other Outdoor Recreation Areas
The most difficult area addressed by the Reg-Neg Committee was how to create a design guideline that would assure that newly constructed trails would be accessible, without destroying the very nature of trails.
By John N. McGovern for Taproot
The Americans with Disabilities Act has been in effect since January 26, 1992. During that time, a tremendous change has occurred in the field of parks and recreation. The federal government has developed and issued regulations governing the design and construction of new recreation facilities and areas, and continues to work in this area. Courts and administrative decisions have balanced the right to leisure and recreation opportunities for persons with disabilities, with the fundamental nature of certain leisure experiences. And through it all, states, counties, cities, and special purpose districts that do provide park and recreation experiences, and yes, private entities too, have changed the way in which they plan, allocate resources, and promote their facilities and sites.
One of the areas where work remains is establishing final design guidelines for trails, campsites, picnic areas, and beaches so that new construction is accessible to and usable by people with disabilities. This article will review progress to date, discuss considerations in this process, and discuss a likely timetable for activity in this arena.
What is the Americans with Disabilities Act?
The Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) is a comprehensive federal civil rights law for persons with disabilities, protecting access for 48,000,000 or more Americans. Two provisions of the Act affect outdoor recreation environments.
Title II of the Act requires the more than 85,000 units of state and local government to make programs, services, and activities accessible to people with disabilities, and to do so in the most integrated setting. This portion covers the many state and local park and recreation agency outdoor recreation areas. Title III of the Act requires private entities providing public accommodations, including services, goods, and facilities, to do so without discrimination on the basis of disability. This portion of the Act covers outdoor recreation settings managed by private nonprofit organizations and for-profit entities too.
The Act protects the rights of people with a condition or disorder that has a substantial affect on one or more major life areas. This broad definition includes people who had a condition or disorder before, as well as those who are perceived to have a disability. In short, people with physical impairments, cognitive impairments, and sensory impairments like vision and hearing loss, all have the right to use outdoor recreation environments.
What is the Access Board?
The US Access Board, also known as the United States Architectural and Transportation Barriers Compliance Board, is the federal agency responsible for developing accessibility guidelines under the Americans with Disabilities Act. The Access Board issued the Americans with Disabilities Act Accessibility Guidelines (ADAAG) in 1991 (36 CFR Part 1191). ADAAG is an excellent tool for the design and construction of buildings and facilities. The Department of Justice then issued implementing regulations, requiring public and private entities to comply with ADAAG.
The Access Board is a different kind of federal agency. Established in 1973, its primary mission is to promote accessibility for individuals with disabilities. The Board consists of 25 members. Thirteen are Presidential appointees from among the public, a majority of whom must be persons with disabilities. The other twelve are top-level federal agency representatives from the departments of Interior, Health and Human Services, Education, Transportation, Housing and Urban Development, Labor, Defense, Justice, Veterans Affairs, and Commerce, and the General Services Administration, and the United States Postal Service. Its small but diligent staff is committed to the principles of accessibility.
A Short History of Recreation Access Guidelines Since the ADA
Before the ink was dry on the Act, the federal government recognized that recreation environments do need a different approach in rulemaking. In the earliest dates of rulemaking under the Act, the original plan was that the Department of Interior would issue guidelines for accessible recreation facilities and areas. That authority was later ceded to the Access Board, and in July 1993, the US Access Board appointed the Recreation Access Advisory Committee.
This Committee worked for one year and completed a 200 page report addressing access in six areas: sports facilities, amusement parks, golf courses, playgrounds, recreational boating and fishing areas, and outdoor recreation areas, including beaches, trails, picnic areas, campsites, scenic overlooks, and ski areas. In September of 1994, the Access Board published an Advance Notice of Proposed Rulemaking (ANPRM) regarding the Advisory Committee report. This was intended to seek public feedback on the recommendations of the Advisory Committee. The Access Board, in reviewing the public comment, felt there was sufficient consensus to proceed with design guidelines in four areas: golf courses, sport facilities, recreational boating and fishing areas, and amusement parks. It proceeded to develop guidelines in these areas, using public hearings and other methods of soliciting feedback to assure it stayed on track. It published a Notice of Proposed Rulemaking in 1998 and will likely publish a final guideline for these four areas before the end of 2001. These will become an amendment to ADAAG.
In two areas though, public comment did not agree with the Advisory Committee: playgrounds and outdoor recreation areas. In 1996, the Access Board appointed a regulatory negotiation committee (reg-neg committee) to create a consensus guideline for newly constructed accessible playgrounds. It worked, a guideline emerged, and it was published as a Notice of Proposed Rulemaking on April 30, 1998, and after reviewing public comment, the Access Board published a final guideline on October 20, 2000. These too will become an amendment to ADAAG.
Filled with hope near the conclusion of the playground reg-neg committee, the Access Board appointed a second reg-neg committee on Outdoor Developed Areas. It met from June 1997 to September 1999. The rest of this article tells the story of that committee.
When is a Campfire too Hot?
Some people might say that a campfire is too hot when the ambient air temperature at a distance of 5' or less from the source of flame exceeds a specific temperature, perhaps 110 degrees. Some people might say that a campfire is too hot when the mean temperature for campfires in that region during the months of July and August, reduced by factors such as wind and precipitation, exceeds a set temperature. Some people might say a campfire is never too hot, as campers can remove layered clothing, drink more fluids, or move away from the heat.
But we would all agree that a campfire is too hot when everyone sitting near the campfire moves further away from the fire. If you understand this analogy, you understand the reg-neg process. It is when we agree it isÉwith of course some strong rationale.
The Outdoor Reg-Neg Committee included representatives of 25 different organizations, each with a distinct and different interest in outdoor recreation. Some were conservation groups, some were advocacy groups, some were federal or state land managers, and one represented design professionals. (See Table 1).
As did the Playground Reg-Neg, the Outdoor Reg-Neg used an interest-based approach to developing the rule. "An interest-based model relies on individual members of the committee to negotiate for their respective constituent groups, with the outcome of the whole in mind. Committee members do not represent their individual opinion, but instead, the opinion or "interest" of the other members of their associations." (pg 3, Final Report, Regulatory Negotiation Committee on Accessibility Guidelines for Outdoor Developed Areas, September 30, 1999, US Access Board). This model forced association representatives to seek compromises acceptable to the membership they represented, instead of holding out for their own personal view. In a practical sense, this definition meant that agreement was reached when there was no objection.
The Federal Mediation and Conciliation Service (FMCS) played an important role. Facilitators lent their considerable expertise and skill to the Committee throughout the process. FMCS staff helped bridge the differences between the Reg-Neg members so that common ground was easier to identify.
The Outdoor Reg-Neg met across the country, from Miami to Albuquerque, Seattle to Washington, D.C., and Bradford Woods, Indiana to Empire, Colorado. Lively meetings were open to the public and were attended by more than 250 persons. The Committee struggled in the beginning to identify a common ground. It eventually agreed to a set of principles to guide in the negotiations. The Committee agreed that accessibility guidelines should:
The Committee also looked to other approaches in use by federal and state agencies, and relied heavily on the work of the Recreation Access Advisory Committee. The Committee reached a consensus in the end on campsites, picnic areas, beaches, and to a great extent, trails. This consensus is found in the Committee's final report, available online at www.access-board.gov/outdoor-rec-rpt.htm.
Without a doubt, the most difficult area addressed by the Reg-Neg Committee was how to create a design guideline that would assure that newly constructed trails would be accessible, without destroying the very nature of trails. In concept, all agreed it was "doable". But the problems were numerous: soil conditions, natural slope, prohibitions in certain environments on certain equipment or materials, just to name a few. Before settling on the method described in the following pages, the Committee considered three other approaches, discarding each for failure to live up to the principles described on page 6.
No Agreement, But Great Exercise!
One method considered was to require a percentage of miles of new trails constructed by an entity to be accessible. For example, if a county was constructing 10 miles of new trails in a fiscal year, 3 miles might have to be accessible. But as discussion ensued, no agreement on the percentage to be made accessible could be reached once the trail left an urban or suburban setting. There was also a concern about trail construction projects that are phased in over time and how access might be diminished in a phased approach.
Another method considered was to divide trails in categories and require different degrees of access in each category. This approach has worked in classifying ski runs. Most of us know green (easy), blue (harder), and black (hardest). The Committee could not agree on the degree of difficulty for the categories. In addition, there was a fear that only the "easy" trails would be accessible, an objective that was inconsistent with the principles on page 6.
A third method was considered for some time but eventually discarded too. It would require a level of access based upon the location of the trail in settings ranging from urban to rural to primitive. Also included in this model was the notion that persons have "expectations" of access in certain settings, and that in urban settings, more is expected, while in primitive settings, less is expected.
The Committee struggled with definitions in each category, and recognized that in some highly urban settings there exist some preserved primitive or more difficult settings. Further, some took offense at the notion that "expectations" of access should dictate whether a trail is designed to be accessible. In the end, the Committee found this approach unworkable.
The Solution for Trails
While the spirited discussion of other options did not yield an agreement, it did help the Committee. Some consistent concerns arose in each discussion and those became the frame for the eventual solution recommended by the Committee. The Committee imposed a requirement that 100% of newly constructed trails be accessible (meaning that these trails comply with the requirements). Then the Committee described four sets of conditions where a trail construction project can depart from the provisions for accessibility. A key point here was an agreement that once the condition abated, the trail should resume compliance with access provisions.
Condition 1: Where compliance would cause substantial harm to cultural, historic, religious, or significant natural features or characteristics
Some trails offer users a significant experience while on the trail, like hiking through the bole of a giant redwood, or through a water feature like a waterfall. Where such exists, compliance with trail access provisions may not be required because it would destroy that feature.
Some trails meander through religious burial grounds. Where widening the trail would infringe on the burial grounds, it is not required. Some areas might be protected by federal or state laws, such as a wetlands area. Certainly the technology exists to make a trail through the wetlands, but in doing so, it may destroy the wetlands. This provision allows trail planners to depart from the technical provisions for trails and preserve the wetland, but where the surface allows compliance and does not destroy the wetland, it shall comply with technical provisions.
Condition 2. Where compliance would substantially alter the nature of the setting or the purpose of the area, or a portion of the area
If a trail is intended to scale a mountain, and the experience is to be a rugged steep ascent, then requiring continuous switchbacks and a reduced grade destroys the nature of the trail. Other examples include trails that traverse boulders or outcropping stonesÉascending and descending over and through the boulders and stones is indeed part of the experience. Removing the boulders and stones is possibleÉbut then the trail is not the same.
The Committee recognized that in some settings "people are generally looking for a higher degree of challenge and risk where they can use their outdoor/survival skills. This condition is intended to address these concerns." (pg 9, unpublished draft Final Report, Regulatory Negotiation Committee on Accessibility Guidelines for Outdoor Developed Areas, July 9, 1999, US Access Board).
Condition 3: Where compliance would require construction methods or materials that are prohibited by federal, state, or local regulations or statutes
In some settings, such as a wilderness area, mechanized equipment may be prohibited. Trail construction there occurs by use of hand tools. In other settings, imported soil materials may be banned to preserve the integrity of the natural ecosystem. Methods and materials used in designated wetlands are limited. Federal statutes, such as the Wilderness Act, the National Trail Systems Act, the Endangered Species Act, and state and local regulations or laws, impose restrictions to address environmental concerns. This provision allows the trail planner to depart from one or more specific technical provisions only as necessary to comply with other requirements cited here.
Condition 4: Where compliance would not be feasible due to the terrain or prevailing construction practices
Some slopes just can't be made level. To use an earlier example in Condition 2, a trail ascending the base of a mountain is likely to be steep. Any engineer will be able to describe how to flatten the running slope, widen the trail, make a compliant cross-slope on the trail, and remove natural barriers in the trail tread. But in doing so the trail planner may literally run out of mountain. In addition, soil conditions vary greatly and imposing a flatter and by necessity longer trail may cause more runoff, which will cause more erosion.
These conditions are powerful tools for planners. The 100% requirement sets the bar high and the conditions allow planners to make decisions based on the unique conditions at the trail site. Why this approach? "We included 100% scoping because no other obvious solutions workedÉwe've ended up withÉan agreement to consider accessibility for all new trails, but to allow exceptions for a variety of common sense situations." (unpublished June 2, 1999 email from Stuart MacDonald, representative of the National Association of State Trail Administrators).
The Trail Technical Provisions impose requirements for surface firmness and stability, clear width, size of openings, size of protruding objects, tread obstacles, passing space, running slope, rest intervals, cross slope, edge protection, and signs. Most of these provisions are subject to modification under the application of the four conditions discussed earlier. Technical provisions for trails differ from those for built structural environments, such as sidewalks or hallways, and acknowledge the uniqueness of the outdoor environment.
The Committee also drew a distinction between trails and connecting routes. A trail is "a route designed, constructed, or designated for recreational pedestrian use or provided as an pedestrian alternative to vehicular routes within a transportation system" (pg 42, Final Report, Regulatory Negotiation Committee on Accessibility Guidelines for Outdoor Developed Areas, September 30, 1999, US Access Board). An Outdoor Recreation Access Route is a "continuous unobstructed path that connects accessible elements within a picnic area, camping area, or designated trailhead", such as a route from a parking space to concessions, or a picnic area to restrooms.
A beach is "a designated area along a shore of a body of water providing pedestrian entry for the purposes of water play, swimming, or other water shoreline related activities" (pg 50 unpublished draft Final Report, Regulatory Negotiation Committee on Accessibility Guidelines for Outdoor Developed Areas, July 9, 1999, US Access Board). The Committee agreed that in newly constructed beaches, a minimum of one accessible beach route shall be provided for every quarter of a mile of linear feet of new beach. The accessible beach route "shall extend to the mean high tide level, mean river bed level, or the normal recreation pool level" (Ibid).
Existing beaches were required to comply with this requirement when an existing pedestrian route, such as a sidewalk, bordered the beach. The Committee also agreed to the use of temporary means of access in existing beaches. Whether in new or existing beaches, accessible beach route technical provisions included surface firmness and stability, clear width, size of openings, passing space, maneuvering space, running slope, cross slope, changes in level, edge protection, and importantly, access into the water.
Picnic Elements and Camping Facilities
The Committee discussed picnic elements early in the process. It established scoping requirements (how many of the same of newly constructed picnic elements must be accessible) and technical provisions (what does access meanÉhow wide, high, sloped, etc.). Recommendations were agreed to for picnic tables, fire rings, cooking surfaces, trash containers, stoves and fireplaces, overlooks, telescopes, benches, deep sinks, storage facilities, pit toilets (yes, pit toilets), and utilities. Common factors in each were location near an accessible route; reach ranges; height, depth, and width; controls and operating mechanisms; surface characteristics; and clear surface space.
The Committee also established recommended scoping provisions for camping facilities. These addressed camping spaces, RV and trailer spaces, tent spaces, camping shelters, identification, and parking. Technical provisions provided the detail for tent pads, camp spaces, tent platforms, slope, edge protection, and other features found in the many different types of camping spaces.
The next step in this process is the preparation of a regulatory assessment. The Access Board contracts to examine the likely economic impact of the proposed guideline. Once completed, the regulatory assessment is published with the Notice of Proposed Rulemaking (NPRM). It is always difficult to predict the length in time between the end of an advisory committee's work and publication as an NPRM. It has now been more than two years.
In the interim, outdoor recreation managers face a difficult situation. The statute says new construction must be accessible and it does not exempt trails or beaches, nor does it exempt construction for features where regulations have not yet been issued. The regulation has not been issued, has not even been proposed. Drawing from other recreation environments may help. Before a playground guideline was completed, complaints under the ADA about playgrounds were resolved by looking at proposed guidelines or guidelines in progress. The same approach was applied to boating and fishing areas, swimming pools, and sports facilities. Decision-makers in these complaint processes could choose to deviate from a "work in progress" if situations and new solutions were presented. But entities facing complaints who had made no good faith effort to make access happen were sure to lose.
The best course of action involves three steps. First, invite persons with disabilities to work with you to examine existing outdoor recreation sites and plan changes to make some accessible. Where possible, use the Final Report available from the work of the Access Board. Second, require all new construction to comply with the Access Board's requirements. Impose a strict requirement that if compliance in new construction does not occur that a written justification, adhering to the four conditions discussed in this article, be approved and filed for reference. Third, watch for the Access Board Notice of Proposed Rulemaking on Outdoor Developed Recreation Areas. When it is issued, digest it and comment. To reach the Access Board, call 202/272-5434 or visit their website at www.accesss-board.gov.
Federal requirements will exist in the future for trails, beaches, camp sites, and picnic areas. In the meantime, remember that the reason for making those beautiful and wonderful features available to people with disabilities is for the beauty and the wonder, the experience, of nature. Experience in many states, many federal sites, and many private sites have shown over and over again that there are ways to balance access and the environment. However, those entities that don't try will never know success here... unless a court or administrative agency leads them to the water.
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Updated March 16, 2007