ACCESSIBILITY

Issue: Accessibility in outdoor-recreation areas.

Background: The Architectural and Transportation Barriers Compliance Board (aka-Access Board) is promulgating regulations to address the issue of accessibility of outdoor-recreation environments for individuals with disabilities. Once complete, those regulations will become the standards used by the Forest Service, National Park Service, and other federal agencies that provide opportunities for outdoor recreation on lands under their respective jurisdictions. Other providers of outdoor recreation, including state and local parks and forests, and even private-sector providers, must comply with the Access Board regulations as well. How those regulations are applied to trails, perhaps especially long-distance trails, may have a significant impact on the experience provided by the trails, as well as the financial and human-resource costs associated with construction and maintenance of accessible trail segments and associated recreational elements, such as campsites, shelters, bridges, etc.

The Legal Environment: The Architectural Barriers Act of 1968 (Public Law 90-480) simply states: "Any building or facility constructed in whole or in part by federal funds must be made accessible and usable by the physically handicapped." In short, any construction, site development, renovation, restoration, or remodeling of buildings and developed facilities in the national forests or national parks by the involved federal agencies and their permittees, concessionaires, and cooperators must be done so that facilities are accessible and usable by physically disabled visitors and employees. The Architectural Barriers Act required the development and use of "uniform federal accessibility standards" (UFAS) to ensure that those facilities would be accessible to/and usable by people with disabilities.

The Rehabilitation Act of 1973 (Public Law 93-112), as amended, was passed to ensure that federal programs and activities do not, in and of themselves, prevent participation by the disabled. The act also established the Architectural and Transportation Barriers Compliance Board, which subsequently developed uniform federal accessibility standards for the design, construction, and alteration of buildings located on federal lands or constructed with federal funds, so that disabled persons will have ready access to, and use of, these facilities.

The Americans with Disabilities Act of 1990 extended those rights and protections for physically disadvantaged individuals to the private sector. That act requires state and local governmental agencies and private businesses that provide public services to conduct their programs and provide their services so that they are readily accessible to and usable by individuals with disabilities, unless such a change would result in a fundamental alteration of the program or service or result in undue financial or administrative burdens. The law also requires parks and other providers of public recreation to (1) remove physical barriers in existing areas of public accommodation, where readily achievable, or (2) develop and implement an alternate method of providing services to the physically disadvantaged. In 1994, the Department of Justice incorporated into the Code of Federal Regulations (28 CFR Part 36) the Americans with Disabilities Act Accessibility Guidelines (ADAAG), which describe requirements for ADA compliance, primarily in buildings and developed settings.

Accessibility to the Outdoor Environment: In 1992, the Access Board selected a group of professionals and citizens from the disabled community and various outdoor-recreation organizations and agencies to develop guidelines for outdoor-recreation facilities, from theme parks to wilderness settings.

In 1994, this group presented to the Access Board a set of guidelines (not regulations) for consideration. Due to much contention, regulations were never adopted. Instead, a “Recreation Access Advisory” (also known as the RAAC report), issued in July 1994 by the Access Board, contained “Recommendations for Accessibility Guidelines: Recreational Facilities and Outdoor Developed Areas.” Those guidelines addressed access to common elements in developed recreation settings, such as picnic tables, fire rings and grills, hand pumps and hydrants, tent pads, recreation trails, and access routes.

Given the lack of agreement resulting from the 1992–1994 process, the Access Board adopted the strategy of regulatory negotiation: Get all the parties to the table and negotiate a rule. In April 1997, the Access Board sought, through publication in the Federal Register, additional interested parties who would be affected by its proposed rule-making on accessibility in outdoor developed areas. In addition, the Appalachian Trail Conference (ATC) was contacted by a staff representative of the Access Board and asked to consider participating in the process as a representative not only for the Appalachian Trail, but for other trails—especially long-distance trails—as well. ATC agreed to participate in the regulatory-negotiation process, referred to as “reg-neg.” Peter Jensen, a member of ATC’s Board of Managers with extensive experience in trail design and construction, serves as ATC’s official representative to the reg-neg group. Dave Startzell, ATC’s executive director, serves as an official alternate. Both Jensen and Startzell have participated in the majority of the group’s meetings. In addition, representatives of the American Hiking Society (AHS) also have participated in a number of the meetings.

Since June, 1997, eight meetings of the regulatory-negotiation committee have taken place at various locations throughout the United States. The 25-member committee operates through a consensus process in which “negotiation” continues until everyone can “live with” recommendations proposed for any given issue or element. Those objecting are required to offer alternatives for the committee to consider. Two representatives from the Federal Mediation and Reconciliation Service serve as facilitators for the committee’s work. Time also is allocated for public comment on each day the committee meets.

Over the course of the various meetings, the group has focused on a variety of issues including developed campgrounds, picnic areas, campsites, signing and information kiosks, observation platforms, and, most recently, trails and beaches. Much of the initial work of drafting proposals has occurred in “working groups” consisting of five to ten people representing various interests. Jensen, Startzell, and AHS representatives have played an especially active role in discussions related to backcountry campsites and facilities and, of course, to trails. These working groups attempt to develop both technical specifications related to appropriate dimensions, grades, etc. for each type of recreational element and “scoping” provisions. Scoping provisions describe the number or percentage of a given element that should be required to be “accessible.” For example, for campground parking spaces, if the scoping objective is 20 percent, then for every five new parking spaces, one would have to meet the technical specifications for an accessible parking space. These recommendations are then shared with the full reg-neg group, discussed, and often referred back to the working group for further refinement.

The reg-neg group began focusing on trails issues in earnest beginning with the sixth meeting, which took place August 11 to 14 in Albuquerque, New Mexico. Although the group did receive reports from the earlier commissioned signage and display/kiosk subcommittees, the primary focus of the three-and-one-half-day meeting was trails. Specifically, the group focused on developing a “framework” for future scoping and technical provisions related to trails. The committee first developed a list of key criteria or “benchmarks” for evaluating different approaches to scoping. A list of more than 20 criteria was developed. This was later distilled to nine key points. Those criteria are instructive and can be stated as objectives—that is, any approach or framework should: (1) protect the resource and environment; (2) protect the visitor’s experience; (3) provide for equity of opportunity; (4) maximize accessibility (in balance with other factors); (5) be simple, understandable, reasonable, and achievable; (6) address visitor safety; (7) be enforceable, defensible, and measurable; (8) be consistent with ADAAG; and (9) provide for independent use.

Before the conclusion of the Albuquerque meeting, as many as six alternatives were proposed by various members of the group. However, consensus formed around one particular new approach and the hope was that this approach, with further refinement between that meeting and the next (October) meeting, might serve as the framework for developing scoping and technical provisions for trails.

In mid-October, the full reg-neg committee convened at the Easter Seal Rocky Mountain Village in Empire, Colorado. At the outset of the meeting the earlier proposed scoping framework for trails was rejected by the group. For much of the remainder of the meeting, two working groups—one focused on developing a scoping framework and another focused on developing technical specifications—met in separate sessions. Ultimately, the group proposed a new framework for scoping based on three broad categories to distinguish among trail types and settings, including “shared-use trails,” “backcountry trails,” and “front-country trails.” Different scoping levels were proposed for each trail type. Before adjourning, members of the committee were encouraged to make productive use of the time between that meeting and the January meeting by informing their respective constituencies of the draft definitions, scoping requirements, and standards and seeking their reactions.

Recent Actions: In December, Dave Startzell prepared and distributed a substantial package of information to leaders in each of the A.T.-maintaining clubs, as well as other long-distance trails organizations, and requested comment by early January in the hope of sharing those reactions with the reg-neg group at its January meeting in Miami. Despite the short time frame, many of those groups did respond with substantive and thoughtful comments.

At the eighth meeting in mid-January, the reg-neg group discussed the input it had received. Many of those comments cited difficulties with the classification scheme and definitions proposed, as well as concern about the possible impacts on trails development and reconstruction, especially along long-distance trails. Based on these comments, the group elected to abandon the framework proposed earlier at the Colorado meeting and to pursue a new and much more flexible scoping framework. A new scoping provision was developed and work continued on refining technical specifications. The new scoping provision is predicated on the assumption that the goal is (or should be) to maximize accessibility along trails, but also a recognition that, in many situations, accessibility will not be feasible. The new draft scoping provision now states:

• Cause substantial harm to significant natural, cultural, historic or religious characteristics of a site.
• Alter the fundamental experience of the setting or intended purpose of the trail.
• Require construction methods that are prohibited by federal, state, or local regulations.
• Where characteristics of the terrain (e.g.-slope, soils, geological or aquatic) prevent compliance with the technical specification.

It should be noted that these conditions of departure are specific to each technical specification. Therefore, if one technical provision can not be met for any of the above reasons, the manager still would have to try to comply with the other technical provisions. (Recommendations for the various technical provisions appear at the end of this report). In addition, for some technical specifications, such as width and cross slope, the recommended provisions identify exceptions relative to the specification. For example, in the case of the specification for clear tread width, a recommended width of 36 inches is prescribed. However, a narrower width (32 inches) has been recommended as an exception. Thus, if a manager, due to a geological impediment, could not meet the 36-inch standard at a specific location, the manager would then seek to meet the 32-inch exception standard. If the manager could not meet either of these standards, only then would a full departure be permitted.

Despite this tendency, the group did acknowledge certain situations in which a more general departure from all or most of the technical specifications might be appropriate. One such circumstance would be situations where the affected trail segment is “in the middle of nowhere.” In other words, if new construction or reconstruction is contemplated on a trail segment that is not connected to an accessible trail head or to another trail segment that is accessible, then the manager would not be obliged to meet any of the technical specifications.

Another circumstance—which became known as the “what’s the point” exception—might be those instances in which certain key technical provisions could not be met. The key provisions have not been fully identified at this point. However, they likely would include surface, running slope, cross slope, and/or tread width. The thought is that, if those key provisions could not be met, there would be little point in attempting to meet the other technical provisions because the trail could not be considered “accessible.” Both the “in-the-middle-of-nowhere” departure and the “what’s-the-point” departure were provisions that trails representatives (ATC and AHS) and federal recreation managers strongly advocated.

The reg-neg group only briefly discussed the relationship of the proposed scoping approach to “alterations” of existing trail segments. In general, alterations are treated similarly to new construction. Thus, situations involving rehabilitation or reconstruction also would have to comply with the scoping and technical requirements. In the past, alterations have been defined quite broadly, such that almost any action beyond the most basic forms of maintenance would trigger accessibility requirements. However, at the Miami meeting, there appeared to be greater willingness on the part of accessibility advocates to allow a broader definition of maintenance, where access requirements would not be triggered. Since the Miami meeting, a working group has developed the following definition of maintenance:

• Removal of debris and vegetation such as downed trees or broken branches in the treadway, clearing the trail of encroaching brush or grasses, removing rock slides, etc. on a regular basis.
• Maintenance of trail treadway such as filling of ruts and entrenchments, reshaping trail bed, repairing trail surface, repairing washouts, installing rip rap, constructing retaining walls or cribbing to support trail tread, etc. on an as-needed basis.
• Erosion control and drainage improvements, replacing or installing necessary drainage structures such as drainage dips, water bars, or culverts, realigning of the trail to deter erosion or avoid boggy/marshy areas, etc. when necessary.
• Minor rebuilding of trail and/or trailhead structures to include replacing rotten, damaged, or vandalized elements of structures such as bridges, boardwalks, information kiosks, fencing, and railings; painting; removing graffiti, etc. on an as-needed basis.

Discussions are continuing among several working groups toward refining some of the draft scoping and technical-provision language that emerged at the Miami meeting. Members of the group also have once again been encouraged to seek input from their respective constituencies in advance of the next meeting of the reg-neg group in April. That meeting will be the final, substantive meeting of the group. One last meeting will occur in July. However, the purpose of that meeting is solely to present the recommen-dations of the reg-neg group to the full Architectural and Transportation Barriers Compliance Board. Since the group still has not finalized its recommendations related to a number of the other outdoor recreation elements it has discussed, it is unlikely the group will have time to explore any new approach for trails. At best, the group only will be able to refine some of the language that has been developed. However, the scoping framework as described above is likely to remain intact, unless there is a wholesale revolt among the members based on input received from their constituencies. In that case, it is unlikely the group will be able to reach consensus on a recommended rule affecting trails.

In addition to the report from the reg-neg group, the Architectural and Transportation Barriers Compliance Board also must consider a cost-impact analysis of the group’s recommendations, which is being prepared under contract by Wilderness Inquiry. Representatives of that organization are in the process of contacting various trails organizations and other recreation providers in an attempt to develop cost estimates. The Access Board also must make some provision for broader public comment on the group’s recommendations. Both the cost-impact information and public comments received could affect the final rule making.

Summary of (draft) Technical Provisions for Trails