Steve,
Thanks for your time and effort on this explanation. It's answers 99% of the questions raised in the last 24 hours on this matter.
On Fri, May 31, 2013 at 9:07 AM, Steve Moore <catchguide@gmail.com> wrote:
Matt Smith pointed me at this thread. My input only applies to the section above Chain Bridge where the river lies in Maryland.
When I wrote my book, I saw the same loosely worded restriction on wading. I brought this up with Brad Clawson who is the (or was...not sure if he is still there) the Chief Ranger of the C&O Canal NHP and asked him to review my chapter on rules and regulations. To make a longer story short, he agreed that fishing is OK and his officers would not ticket wading anglers. In fact, this became an issue last year when a US Park Police officer issued a citation to an angler fishing in the river in the Gorge area. I connected with him again in September 2012 to obtain clarification. He wrote back and agreed to discuss this with them ("I'll let you know if there interpretation is different than mine.") After the meeting he indicated "The USPP agrees that fishing with a PFD on is allowed in the Potomac River in the Gorge" ... to match the C&O interpretation.
While I am certainly not a lawyer and relied on Mr. Clawson for confirmation that the book is correct, it is possible that the interpretation of the Maryland and Federal regulations have changed since late 2012 and, as I indicated in the book, the angler is ultimately responsible for being in compliance.
If anyone knows of a change in policy between Chain Bridge and the upper boundary of Montgomery County, please let me know (steve.moore@catchguide.com) so I can pull the book out of circulation.
Here is the background:
The river is in Maryland and the Park boundary is the mean high water mark (average over a year). Two things here. First, for the nitpickers the weak argument is that if the river is below the high water mark, you are entering the water from Maryland and if you look at the map, there are a number of places where you can stay on dry land and move onto an island without getting your feet wet and officially be outside the park in Maryland. The Fairfax County Park/NVRPA emphasized this to me when they related the story of "Naked Ned." Ned liked to swim/wade in his birthday suit and the NVRPA could not arrest him in the river... since he was outside of Virginia in Maryland.
Second, Maryland specifically defines fishing as a separate activity from wading as long as you are wearing a PFD. Here is the extract from my book - the text I coordinated with Mr. Clawson:
"In Maryland, the C&O Canal NHP extends the entire length of the river from Chain Bridge all the way up to and beyond Harpers Ferry.
The governing regulation can be found in 36 CFR Ch. 1 (7-1-01 edition).
You can find a current copy of this regulation on the National Park Service website (http://www.nps.gov/nama/planyourvisit/permits.htm).
Here is the section that establishes the regulatory framework for the Potomac covered in this book:
§ 7.96 National Capital Region.
(a) Applicability of regulations. This section applies to all park areas administered by National Capital Region in the District of Columbia and in Arlington, Fairfax, Loudoun, Prince William, and Stafford Counties and the City of Alexandria in Virginia and Prince Georges, Charles, Anne Arundel, and Montgomery Counties in Maryland and to other federal reservations in the environs of the District of Columbia, policed with the approval or concurrence of the head of the agency having jurisdiction or control over such reservations, pursuant to the provisions of the act of March 17, 1948 (62 Stat. 81).
Basically, what this says is that the regulations in subsequent paragraphs are applicable to the entire extent of the C&O Canal NHP up to the northern boundary of Montgomery County as well as to the George Washington Memorial Parkway that sits across the river in Fairfax County.
Here are the specific sections that govern your activity on federal property:
(d) Fishing. Unless otherwise designated, fishing in a manner authorized under applicable State law is allowed.
(e) Swimming. Bathing, swimming or wading in any fountain or pool except where officially authorized is prohibited. Bathing, swimming or wading in the Tidal Basin, the Chesapeake and Ohio Canal, or Rock Creek, or entering from other areas covered by this section the Potomac River, Anacostia River, Washington Channel or Georgetown Channel, except for the purpose of saving a drowning person, is prohibited.
Section 7.96(d) confirms that Maryland regulations apply to fishing in the Potomac River. Maryland does not prohibit wading while fishing. In fact, Maryland has its own view, specifically authorizing fishing/wading with a few constraints, which I discuss in the next section.
Section 7.96(e) prohibits swimming, bathing and wading and the word "or" connects those activities to entering the Potomac River from Park property. The boundary between the Park and Maryland is the mean high water mark with the river rising and falling with the weather.
The interpretation of these two sections matters because there are a number of access points that have prominent "No Wading" signs displayed. Does wading include fishing or is it separate?
I discussed this with the Chief Ranger of the C&O Canal NHP and he told me that Maryland law prevails. Since Maryland law defines fishing as a different activity than wading and section 7.96(d) defers to state law regarding fishing, the C&O Canal NHP permits anglers to wade while fishing. Since this book will be in print for years and regulations will evolve, I recommend that you take one additional step to ensure that you fall in the "fishing" category. A close read of section 7.96(e) reveals that there are three things that the Park wants to constrain; swimming, bathing, and wading. Typically, individuals engaged those activities do not do them while wearing a PFD. Therefore, if you wear a PFD, you push yourself farther into the fishing category. Besides, in the areas specifically called out with the signs, it's the prudent and safe thing to do.
Maryland State Regulations
In addition to the generic guidance from Maryland quoted in the common sense section, there are specific restrictions associated with the more dangerous areas of the Potomac. These are captured in Title 08 (Department of Natural Resources), Subtitle 06 (Recreational Water Uses), Chapter 01 (Potomac River Safety) of the Maryland code.
Specifically, section 03 establishes two special regulatory zones:
Zone A. A person may not enter the Potomac River for the purpose of recreational use in that portion of the Potomac River beginning 200 yards above the crest of Aqueduct Intake Dam (Great Falls) and extending downstream to the base of Stubblefield Falls.
Zone B. A person may not enter the Potomac River for the purpose of recreational use in that portion of the Potomac River beginning 100 yards above the crest of Dam No. 1 (Brookmont Dam) and extending downstream to the western Maryland and District of Columbia boundary line.
The law goes on to further define "recreational use" in section 08.06.01.02 and makes an exception for fishing:
(2) Recreational Use.
(a) "Recreational use" means activities on the Potomac River, including swimming, bathing, wading, diving, tubing, rafting, and other uses involving contact with the water.
(b) "Recreational use" does not include:
(i) Boating, if each person involved is wearing the U.S. Coast Guard approved flotation device required by law or regulation;
(ii) Fishing, when a U.S. Coast Guard approved personal flotation device is worn;
(iii) Life-saving efforts;
(iv) Swimming or wading as part of a training course having the prior written approval of the Department of Natural Resources or U.S. Park Service.
The bottom line is that if you fish in the two special zones, you must wear a PFD.
One final point is that the above regulation is in conflict with the quote I pulled from the Maryland DNR publication that indicated "Wading in the waters around Great Falls is prohibited." I was unable to find that in a state law, but fully agree that it should be a law. It may exist… buried in the code somewhere.
It is this section of Maryland law, until changed or reinterpreted, that provides the opportunity for anglers to wade while fishing in compliance with the federal regulation:
(d) Fishing. Unless otherwise designated, fishing in a manner authorized under applicable State law is allowed.
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