Feds Point the Finger at USACE
Canyon Lake parks were packed and county boat ramps so busy on Sunday that Water Oriented Recreation District of Comal County (WORDCC) had to implement a one-boat-in/one-boat-out rule to deal with overcrowding.
But the hottest tourist spot in the area — the service road atop Canyon Lake dam — remained closed during the Memorial Day weekend melee following a U.S. Army Corps of Engineers (USACE) announcement on May 21 that the road would be closed over concerns about public safety.
The Canyon Lake Area Chamber of Commerce explained on its Facebook page that the USACE was dialing back on “well-intentioned operational decisions that unfortunately excluded users with disabilities.”
U.S. Access Board Responds
However, in a Tuesday, May 29 email to MyCanyonLake.com, the U.S. Access Board, an independent federal agency created in 1973 to ensure access to federally funded facilities, said the USACE “flatly refused to make the trail accessible.”
Dave Yanchulis, who works in Public Affairs for the U.S. Access Board, said all the USACE needed to do to keep the road open was to widen pedestrian access points to 36 inches and provide greater maneuvering clearance.
“Simply put, there is no requirement that the road itself be widened, or that edge protection or handrails be installed along the length of the road. This is not a requirement for any recreational trail covered by the ABA (Architectural Barriers Act) – or any other recreational trail, for that matter,” he wrote.
Yanchulis also noted the USACE has updated its website and reclassified Canyon Lake Crest Trail as a road, which, the corps argued, would exempt the USACE from meeting ABA standards.
He said the board learned of the USACE’s decision to close the road from media reports.
Here is the complete text of Yanchulis’ email:
“We then began our preliminary investigation and subsequently wrote a letter to the Department of Defense’s Office of Diversity Management and Equal Opportunity (ODMEO) in the Office of the Under Secretary of Defense for Personnel and Readiness informing that agency of the complaint, and requesting that we be provided with certain information about the trail.
“In investigating ABA complaints concerning Federal buildings and facilities, we customarily reach out to the relevant Federal agency to request certain information so that we can first determine whether we have jurisdiction (which is based on when the facility was originally constructed and last altered, and whether Federal funds were used in the construction and alteration). ODMEO is our contact for ABA complaints related to any DoD building or facility.
“Our regulations require us to keep confidential the name of any complainant, and this information is not communicated to the agency or any other party or entity, absent the express written consent of the complainant.
“On September 12, 2017, USACE’s Fort Worth District wrote a letter to us indicating that “[w]hile the U.S. Army Corps of Engineers (USACE) has not prohibited the public from walking on this road, the road is not a trail, nor was it created for public use and recreational purposes. It is a service road necessary for the flood control and water conservation purposes of Canyon Lake, and its purpose is to allow USACE employees to operate the water spillway and inspect and maintain the dam.” The letter went on to note that the road “was improperly listed as a trail on the Canyon Lake website, and that the error has been corrected.”
“We responded by letter dated November 29, 2017, in which we indicated our determination that the road was covered by the ABA, that the DoD ABA Accessibility Standards applied, and that the pedestrian access points leading to the road did not conform to those Standards because they were too narrow and did not provide sufficient maneuvering clearance. We determined that an exception to the Standards would apply only if the road were “frequented only by service personnel,” and that public use of the road (and indeed active marketing of the road as a recreational trail by USACE – something substantiated by USACE’s Canyon Lake website, as well as numerous media reports and other websites) foreclosed the use of the exception in this case.
“By letter dated March 2, 2018, USACE disagreed with our determination that the road was covered by the ABA and stated that, even if the ABA applied, the above exception would be applicable. USACE once again asserted that the road was “improperly listed as a trail on the Canyon Lake website, and that the error has been corrected,” and stated that it would take steps to “ensure that public use of the road is restricted.”
“On April 19, 2018, we held a conference call with USACE staff to relay our concerns and discuss potential options for bringing the trail into compliance with the ABA. During this call, we reiterated that application of this exception is limited to situations where access to the area is reserved only for maintenance or service personnel (which was not the case here). We also urged USACE to remedy the barriers posed by the pedestrian access points such that all visitors – including persons with disabilities requiring the use of mobility devices – could access and use this popular recreational resource. Making the trail accessible, we observed, could be done in a cost-effective manner by simply widening the pedestrian access points; there would be no need for other modifications to the dam road, such as widening the road or railings.
“In response to our statements and assurances during this conference call on April 19th, USACE technical staff stated that the Canyon Dam Crest Trail would not be made accessible to persons who use mobility devices because they feared that, if wheelchair users were to use the trail, they were would likely lose control of their wheelchairs or become distracted, thus causing them to drive off the side of the road, get injured, and potentially file lawsuits against USACE. We pointed out to USACE that such a view appeared to be facially discriminatory given that hundreds of thousands of outdoor enthusiasts (if not more) – including bicyclists, in-line skaters, or those pushing strollers, among others – have been permitted to use the road for recreational purposes for decades. USACE, however, flatly refused to consider making the trail accessible.
“In a subsequent letter to the District Commander, we observed that USACE’s position reflected precisely the type of stereotypical notions about persons with disabilities and discriminatory intent that lead to the passage of the ABA (and other civil rights laws). We also noted that USACE’s refusal to make Canyon Dam Crest Trail accessible contravened DoD’s ABA Accessibility Standards, as well as the draft 2017 Canyon Lake Master Plan, which called for more – not fewer – recreational trails and barrier-free facilities at Canyon Lake. We urged the District Commander to reconsider USACE’s position. Nonetheless, we presented two options for USACE to resolve this complaint: 1) widen the pedestrian access points to 36 inches in width and provide adequate maneuvering clearance, or 2) elect to use the exception, which by its text would require only service personnel be permitted to use the road. We also reiterated that the widening of the pedestrian access points to 36 inches and providing greater maneuvering clearance was all that was required by the standards.
“Simply put, there is no requirement that the road itself be widened, or that edge protection or handrails be installed along the length of the road. This is not a requirement for any recreational trail covered by the ABA – or any other recreational trail, for that matter.
“We learned from media reports last week that USACE had closed the road temporarily to public use.”
Here’s what the Corps said about the issue in a May 23 question-and-answer posted on Donna Eccleston, Comal County Commissioner Pct. 1’s Facebook page:
Q1. Why are you closing the trail over the dam?
A1. The service road on top of the dam is not part of an authorized trail, but the USACE did not prohibit pedestrian access to the road. In July 2017, the United States Access Board notified the Department of Defense Disability Programs Office of a formal complaint that alleged a violation of the Architectural Barriers Act of 1968 at Canyon Dam. The complaint stated that the walkthrough for pedestrian traffic was too narrow for individuals with disabilities to maneuver and access the Canyon Dam Crest Trail.
The reality is that the service road was never designed for recreation use, but over the years members of the public have viewed it more as a trail than a service road. In attempting to strike a balance between public accessibility, public safety, original design intent, and mission capability, the USACE’s well-intentioned operational decisions at Canyon Lake have unfortunately excluded users with disabilities.
To avoid further access exclusions of users requiring wheeled devices that are not able to pass through the walkthroughs, the USACE has reached a decision to close the dam to all public use. The USACE’s decision to close the road will allow the District time to determine the scope of work and the regulatory compliance requirements for any corrective measures and/or improvements, as well as addressing budgetary issues. Any action taken also needs to be done in consultation with dam safety and water control experts to ensure such actions do not interfere with Canyon Lake Dam’s primary purposes of flood control and water conservation.
Q2. Where else can I walk for free at Canyon Lake?
A2. In close proximity to Canyon Dam, Overlook Park and Guadalupe Park have nature trails. A little farther from the dam, the Madrone Trail can be accessed in Canyon Park. There are also day use and camping parks at Canyon Lake which do require a fee.
Q3. I walk the dam every day and have for years; isn’t there any other option than closing it to the public?
A3. Unfortunately, no. If the USACE openly invites the public to use the crest of Canyon Lake Dam as a paved trail, the USACE has to ensure the safety of all of the public using the paved trail. There are safety and accessibility requirements, such as curbing, handrails and possibly dedicated lanes, that are needed to ensure the safety of all users. Placing these types of safety and accessibility requirements need to be done in consultation with dam safety and water control experts to ensure such actions do not interfere with Canyon Lake Dam’s primary purposes of flood control and water conservation in addition to budgetary constraints.
Q4. I have some ideas that I would like to discuss with someone.
A4. Please call the Canyon Lake Office at 830-964-3341.