CHAPTER VI

CONCLUSION

"To find the right trail is the problem.  And when found— from that moment until life's end— there is constant growth."

—Jens Jensen

As development encroaches on canals their informal and unmanaged recreational use will continue to grow, causing a corresponding increase in conflicts and concerns with the canal managers.  It is clear that it is to the communities and canal companies benefit and best interests to address these issues and begin to come up with solutions that will benefit everyone.  A crucial challenge for planners is to isolate, evaluate and address the concerns of the affected parties during the incipient stages.  Therefore, researching and getting to know the general issues and concerns before approaching the affected parties will exponentially increase the potential for success. This process requires an unwavering dedication to creating "win-win" solution to these issues and concerns.

It is only logical to include the affected groups throughout the planning process since it is they who will be living with it and looking after it for years to come.  Involving canal companies, adjacent landowners and the community in the decision making process will help to develop appropriate policies and safety standards that address their specific concerns.  Canal company officials and community representatives should have an established position at development hearings so that development agreements and other important decisions will have taken their concerns into consideration.

 When asked if there was any resolution to their concerns, the respondents were unanimous optimistic about the possibilities. The key problems posed by recreational use are interference with ditch operation and maintenance, greatly increased exposure to law suits, increased crime, and water quality issues.  All respondents repeated assertions that as long as these problems were addressed they would favor recreational trails. 

  The research on adjacent landowner concerns shows their main concerns to be increased liability, increased crime rates, decreased property values and maintenance and management issues. 

This Chapter briefly summarizes the challenges brought out from the interviews and literature review and offers solutions to these issues and concerns.  A quote that represents the overall sentiment throughout the interviews follows:

“We want to be good neighbors with the cities and say yes the canal is running right through the middle of your town and lets make use of it, and yet the city has to look at our point of view… and say yes we can see where you would be concerned about the liability.  So, I think that as long as they are concerned about our concerns, then we as a company are willing to do whatever we can to be good neighbors with the city and hopefully work something out with them.  That may turn out to be a real asset.”

LIABILITY ISSUES  

Fear of Litigation

Liability issues connected to opening canal banks for recreational uses is one of the primary concerns for canal companies and adjacent landowners alike.  Even though none of the respondents was aware of ever having to pay liability or injury claims and the cases that did come up were dismissed and settled out of court, there is still a fear that once open to the public, the likelihood of litigation will increase tremendously.  Given their tight budgets, canal companies are worried about their ability to financially manage a suit against their company.  Also, a majority of the respondents felt that the risks associated with recreational use of canals is higher than the risks associated with other recreational facilities.  This is one of the foremost challenges facing planners.  In regards to the numerous dangers associated with canals, this fear on the part of canal officials, is not without justification.  As mentioned in the interviews, there can be a high degree of danger regarding serious injury and death along some sections of the respondents canals.  This is especially true along open, concrete lined canals where the water can be fairly swift and difficult to get out of, and low structures such as bridges, culverts and siphons exist. (see question #10)  Due to these potential dangers, it is understandable why not only the respondents, but adjacent landowners are concerned about serious injures and the resulting increase in liability arising from recreational use of  canals.

Risk Management Efforts

Concerns for the safety of individuals who use an open canal without awareness of the associated dangers, were very prevalent throughout the interviews.  During the interviews with the canal company officials, there were a number of inferences to design and management suggestions that would ease their concerns.  To positively impact the liability risks, agencies responsible for the design of the trail should ensure that they are properly and safely designed.  While opening canals as parkways would increase canal company liability risk and would increase the likelihood that injuries may occur, a risk management program could actually reduce canal liability risk below its present level.  Half of the respondents indicated that most if not all of their liability concerns can be addressed through proper design, construction, maintenance and education.  The following is a list of suggestions for inclusion in a risk management program derived from the interviews conducted.

·                    Enhancing Existing Efforts:  Existing risk management practices that most canal companies already have in place should be continued and enhanced.

·                    Intensive Education Program:.  Educating trail users of the inherent dangers associated with open canals is critical to minimizing risks.  

·                    Signing:  Installing signs wherever there is a high degree of danger. Especially in canals where the water is moving at fast rates.  These could read:  “Certain Death if Entered; Restrain children and animals from canal at all times”, “Watch Your Children” or “Danger During High Flow”.  Additional precautions could include signing at access roads and advising when water is high during peak operation season.

·                    Public Safety Devices:  Installing public safety devices such as covering or screening dangerous structures including drop structures, spillways, siphons or culverts, and installing adequate lighting will significantly reduce risk. 

·                    Financial Responsibility: Because cities have greater financial resources than canal companies, they could take on the responsibility of safety and maintenance of anything associated with the pathways themselves.

·                    Safety Feature Standards: Establishing safety feature standards will aid in keeping hazardous features such as drop structures, spillways, siphons or culverts from causing serious injuries or even death.  These standards could advise where these safety features would best be located.  They would ensure that racks (or body catchers) will have a low enough angle to lift people out of the water along with a safety platform for rescue.  (College of Architecture and Planning, University of Colorado, Denver, 1994)

·                    Piping: When asked for their attitudes regarding piping, all of the respondents showed interest in the idea. According to half of the respondents water quality, water conservation, ease of maintenance, and improved conveyance are just as much if not more of a reason for this interest in piping than liability is. As mentioned in the interviews this process can be very cost-prohibitive, which makes it an exclusive venture only taken on by larger companies with the resources to do so.

The risk of personal injury and the resulting claims/lawsuits from trail use can be reduced through good trail design, construction and maintenance, but not completely eliminated.  Each one of the respondents have risk management efforts in place which include signing and gating.  An ongoing effort to educate the public of the dangers associated with open canals, especially concrete lined canals, is critical in creating a safe canal trail and in reducing liability claims.  As Kennedy and Unhanand (1974) argue, problems of potential liability should not be a serious deterrent to development of canals as recreation parkways if these and other proper precautions are taken.

Utah’s Limitation of Landowner Liability

Given the fact that most of the respondents interviewed did not have an in-depth knowledge of Utah’s Recreational Use Statute (RUS) “Limitation of Landowner Liability” (Sections 57-14-1 thru 57-14-7), and since this is most likely also true for adjacent landowners, it is obviously an important task for the agencies responsible for trail development to inform both parties of all the existing state laws which will protect them.  In order to ease their concerns, it is necessary to provide the canal companies/landowners with the pertinent information regarding the extent to which statutes such as Utah’s RUS limits their liability and the circumstances under which liability is a real concern for them.  The same education efforts should be extended to adjacent landowners.    While these statutes cannot prevent canal companies and adjacent landowners from being sued, it does grant them certain protections.  The RUS does not grant immunity but it does offer limitations on landowner liability.

(See Appendix C for Utah’s RUS and Chapter III for a review of Utah’s RUS.)

Indemnification and Hold Harmless

While state law provides a measure of protection for property owners via the RUS, canal companies and adjacent landowners alike, are still going to be fearful of potential litigation.  While the RUS has been strengthened by court rulings in favor of the landowner, it is the fact that it will be a hassle to hire an attorney and go to court to begin with that will be more of a concern for canal companies and adjacent landowners than any other concern.  Given that it is difficult to predict how a court will interpret the RUS and despite the significant protection offered by Utah’s  RUS, it is important for the canal companies to be additionally shielded by both the respective agencies insurance coverage and indemnification and hold harmless clauses within the recreational use agreements. 

With the added protection of inclusion in the public entities insurance and “hold harmless” clauses in contractual agreements, this fear of litigation can be watered down.

The adjacent landowner may want the additional liability protection of a commercial liability insurance policy due to the circumstances of the public use arrangement.  This insurance can also be purchased by the public entity with the landowner as named as an “additional insured” or “additional named insured   (Carrier and Corbin, 1994).  These liability fallbacks will hold more weight than the RUS will in court.  Upon legal counsel, these releases of liability for canal companies should cover the entire canal corridor, not just the pathway, and if necessary, it should also disallow the “attractive nuisance” classification that may apply to irrigation canals once developed as recreation corridors. (See Appendix D for examples of Recreational Use Agreements)

MAINTENANCE AND MANAGEMENT ISSUES

“The number one thing that we need to keep in mind is that there are a lot of farmers/stockholders that rely tremendously on this water for their livelihood to water and irrigate their fields with.  So that is number one, that comes first.  The recreational part of it is secondary but still I just feel it would be a good thing in my opinion..”

                                                                                                            Interviewee

Generally, canals are filled in mid April and drained in mid October. The seasons are broken up into the irrigation or operation season and the off-season. Most of the heavy maintenance is done in the off-season (approximately October through April) when the canal is drained and its easy to get in the canal and conduct repairs.  Even though each canal company has different shifts and times of day the ditchriders are on the canal, there is no doubt that during the irrigation/operating season (approximately April through October), there will be ditchriders (a.k.a. water masters) along the maintenance road performing routine daily inspections.  Because there is a lot of maintenance activity throughout the year, the introduction of a public trail will require active cooperation between the city agency and the canal company in order to minimize operation and maintenance impacts.  

Operation and Maintenance Impacts

Generally speaking, canal companies operate on very tight budgets and are, in some cases, in dire financial straits, so it is understandable when they express a concern of increased operation and maintenance costs derived from opening their canal to recreational uses. While four out of the six respondents felt that a developed trail would have no effect on their ability to maintain the trail, there were still a number of concerns expressed by all the respondents.  Some of the concerns included:

·                    Conflicts with Trail Users: kids riding motorcycles, too many people walking/riding bikes and refusing to get out of the way of the ditch rider, people becoming “belligerent” and verbally abusing the ditch riders to. In some cases operation and maintenance becomes impossible.  In areas where there is not enough room for separation of uses along the maintenance road the officials are concerned with having to share the road with recreationists and the likelihood of conflicts.

·                    Crime: People driving vehicles on the maintenance road.  Vandalism of structures such as headgates.   People throwing debris in the canal which could need to be cleaned out.  Dumping of garbage which consists of tree limbs, grass cuttings, trimmings and other miscellaneous objects along the canals which obstructs the ditchriders from getting through.

·                    Water Quality: A couple respondents indicated that water quality was a big concern in canals also used for domestic purposes.  According to half of the respondents water quality, water conservation, ease of maintenance, and improved conveyance are just as much if not more of a reason for this interest in piping than liability is.  Water quality is always a concern along riparian recreation corridors, whether it is a canal or a stream.  This is especially true in regards to dog and equine feces and storm water runoff.

·                    Landscape Design: The type of landscaping and materials (gravel, asphalt) used for the walkway/pathway and whether these would solve some of the conflicts such as dust clouds from the ditchriders trucks or compound the concerns, such as a tree that obstructs there vehicles because it was planted to close to the road. 

·                    Encroachments: Adjacent landowners encroaching or building on the established easement and thereby obstructing maintenance activities.  This was a problem faced by all of the respondents.

·                    Lack of Management Entity: Another obstacle that was mentioned in the interview was a lack of management entity.  A lot of times, when a trail passes through multiple municipalities, there will be differences in quality of maintenance and design throughout the length of the trail.  One respondent expressed a concern that some of the key issues will be sugar coated in the recreational use agreement and may not be carried out or will be forgotten as time goes on.  

Implementation Measures

The respondents had suggestions for dealing with these and other concerns. Some of these suggestions include:

·                    Coordination with Trail Agency: One respondent suggested coordinating with the city to work out times for specific operation and maintenance needs in order to minimize conflicts as much as possible.  Four of the respondents made it clear that given proper planning and coordination with the city, the possibilities for interference would be minimal if at all.

·                    Cost Sharing: Funding opportunities that ranged from utilizing state and federal monies to sharing the cost with utility companies (gas, power, telephone, etc.) who may be interested in utilizing the corridor to improve their system of delivery.

·                    Separate Uses: Keep the trail separate from the maintenance road where possible.

·                    Maintenance as a Priority: Preserving the right to “close down the trail as we need to accomplish our maintenance tasks” was suggested.  It was also suggested to close the trail one day a month for this activity. It was also suggested to restrict time of use to daylight hours in order to cut down on crime. 

·                    Minimizing Water Quality Impacts:  suggestions included putting in drainage fences to cut down on the sediment loads in the canal, not allowing dogs on the trail and piping or burying the canal.  As mentioned in the interviews this process can be very cost-prohibitive, which makes it an exclusive venture only taken on by larger companies with the resources to do so.

·                    Design Standards: Design standards for path distances from ditches to allow for maintenance access and for storing debris should be developed.

·                    Adequate Signing: Signing near water works such as headgates that states that “Unauthorized tampering with water works is against the law” followed by a quote of the law.  Signage, that describes the duties of the ditchriders so that trail users can familiarize themselves with the ditchriders operation and maintenance activities and why he/she is there. 

·                    Intensive Education Programs:  Enlightening trail users as to why the ditchriders are there, their purpose through signing.  It is important for trail users to know that they are sharing the trail with the  canal company and that their maintenance activities take precedence over recreational uses.  

·                    Informal Patrols: Open the canal to the public in order to increase the number of eyes and ears out there which will help manage it.

There is no arguing that recreational use will interfere to some extent with the canal companies operation and maintenance access.  However, potentials exists for:

·                    Annual Operating Plan: Cooperation in joint maintenance for both uses along with accompanying realization of the associated costs savings.  An annual operating plan to which both the canal operators and the city agree would minimize potential conflict. 

·                    Decreased Maintenance Expenses.  If the developed trail occupies part of the canal bank operation and maintenance road, an opportunity exists for trail maintenance expenses to take the place of, or even eliminate some canal maintenance expenses.  Potential savings might include surface grading, trash and other debris pick-up, weed and vegetation control, and sign repair and replacement. 

·                    Maintenance Reimbursement: Through an identification of additional operation and maintenance costs resulting from recreational use, the city could reimburse the affected water users association.

·                    Ease of Maintenance:  The right of the canal company to use the canal corridor for the movement of vehicles should take precedence in its development and use.  Especially in cases involving narrow irrigation corridors, where access for operation and maintenance is a larger issue, this type of agreement would benefit the canal companies ability to access the corridor.

·                    Management Agency:  it makes sense for either one management entity to hold responsibility for the whole length of the trail or for the formation of a coalition which oversees the whole length of the trail. A respondent expressed the need for a “comprehensive watershed planning unit” in which all parties involved in the whole watershed unite their efforts to improve the systems and take the blinders off that cut off their vision at the political lines where their responsibilities end and another’s begin.

·                    Informal Trail Patrol: During the irrigation season (April thru October), water masters/ditchriders usually have taken on the role of an informal trail patrol which educates the public by talking with users about being careful, not being on the spillway, not pulling diversion boards, etc.  While this effort should be taken on by trail patrols, ditchriders could create a unique opportunity to give the canal company a face and as they become known along the trail, they could educate the public about the dangers of the canal.

Adjacent Landowner Concerns

Adjacent landowners are stakeholders in the overall quality and management of the proposed trail and will be concerned about careless maintenance and the visual quality of the open space.  Inclusion of this group as an integral part of a regular maintenance and management plan for the proposed trail creates an ongoing relationship between them and the managers of the trail.  This also helps to create a sense of ownership and a dedicated group of individuals who will have a more intimate feel for the trail and its management needs than anyone would.

CRIME ISSUES

While crimes such as vandalism of structures and littering were a concern for the canal company officials, crimes such as trespass, burglary, privacy, safety are some of the major concerns for adjacent landowners and the community as a whole.

Fears of increased crime are very prevalent and should be addressed.  Given preventative maintenance practices such as regular bike patrols, fears of crime will diminish.  Other preventative maintenance practices mentioned by the interviewees, included:

·                    Restricting time of use to daylight hours by closing the trail at dusk throughout the year.

·                    Incorporate an intensive education program of things to look out for along a trail.

·                    Develop community patrol sponsors along the trail that spend time checking on things.  This would also cut down on vandalism.

·                    Opening the canal to the public, which would increase the number of eyes and ears out there watching for problems

Preventative Measures

As shown in Chapter V, there are numerous studies that illustrate that the experiences of serious problems with crime associated with developed trails are negligible to none.  Factual information and testimonials from police who patrol trail areas will go a long way to easing landowner concerns over increased crime.  Other preventative measures which could be part of a management plan include:

1.      Barriers such as Bollard’s or fences to prevent unauthorized motorized access which can be opened by maintenance personnel only.  A commonly held belief is that crime is closely associated with motor vehicles access to the trail.

2.      Emergency access points all along the trail via arrangements with adjacent property owners.

3.      Some form of screening to shield the properties from the trail and from the sight of trail users and to prevent trespassing.

4.      Where possible, elimination of overgrown vegetation and tall shrubs which not only maintains long sight lines for the users but also minimizes hiding places along the trail.  Crime generally does not occur in places where there are few hiding places.

5.      Placing security lighting and posting warnings or trail rules at trail heads, along the trail where possible and in parking lots.

6.      Voluntary or professional trail patrols and established neighborhood watch groups.  The presence of voluntary or professional trail patrols equipped to alert emergency services and neighborhood watch groups improves enjoyment of the trail.  The main function of these patrols should be to educate users and provide assistance when necessary.

7.      Locate public parking lots, emergency phones, call boxes, emergency vehicle access points, restrooms, and drinking fountains at regular intervals along the length of the trail.  This will cut down on the cases where a user needs to use an adjacent property for these amenities.

8.      Maintaining and keeping the trail clean reduces the incidence of minor crimes such as litter, graffiti and vandalism.

9.      Implement a carry-in, carry-out program by supplying plastic bags at trailheads.  This will encourage users to pick up after their dogs and avoid littering on the trail.

10.  Restricting hours of use to daylight use.

11.  Educate trail users about safety precautions.

12.  Boost trail use for an increase in self-policing by dedicated and observant trail users who report suspicious activities.  Crime generally does not occur where there are lots of people.

Mostly taken from:  (Doherty, 1998; Ryan, et. al., 1993; Illinois Department of Conservation, et. al., 1990; Rails-to-Trails Conservancy and National Park Service, 1995)

THE PUBLIC PROCESS  

Building a Broad Based Coalition

The successful development of a canal trail would be due primarily to the successful coordination and partnerships between a variety of parties with an interest in realizing their common goal.  These supporters could include a diverse makeup of organizations which can offer advocacy, educational materials, technical support and fiscal assistance.  These include, but are not limited to:

·        National Organizations: American Discovery Trails; American Greenways; American Trails; Bicycle Federation of America (BFA); Blue Ribbon Coalition; Land Trust Alliance; Leave No Trace; National Wildlife Federation; Rail-to-Trails Conservancy; Rivers, Trails and Conservation Assistance (NPS); Tread Lightly, Inc.; and the Trust for Public Land (TPL).

·        Local Organizations:  environmental groups, trail user groups; neighborhood associations; historic societies such as the Canalway Trail Conservation Association; tourism councils; chamber of commerce; businesses that would benefit from a canal trail; canal societies; Mtn. Trails Foundation; lands trust such as the Virgin River Land Trust or Grand Canyon Trust; The North View Trails Committee; Ogden Trails Network; Salt Lake Regional Trails Council; Utah County Trails Committee; Weber Co. Trails Coordination Council and Weber Co. Trails Trust; Great Western Trail Association; Utah Open Lands Conservation Association; Conservation Districts:  Utah Water Users Association and managers and directors of existing trails.

·        Historic Organizations:  Heritage Trails Fund; Mormon Trails Association; and Utah Historic Trails Consortium.

·        Fiscal Assistance Groups:  Non-Motorized Trails Fiscal Assistance Program (as mentioned in this report, this program is interested in funding canal related projects); International Mountain Bicycling Association (IMBA); Recreation Equipment, Inc.; National Park Service Challenge Cost-Share Program (CCSP); Off-highway Vehicle Fiscal Assistance Program; Local History Grants; and Utah Department of Transportation Enhancement Program.

Organizations listed above are taken from:  (Utah Trail Assessment, Utah Division of Parks and Recreation and National Park Service, Rivers, Trails and Conservation Assistance Program (RTCA), 1997)  This resource is a valuable tool for anyone planning trail development within the state of Utah.  It is available by contacting Utah Division of Parks and Recreation at (801) 538-7344.

Of course, there are also the affected parties which include the perspective canal company/water authority; adjacent landowners, regional, county and local communities and future trail users.  Planning a canal trail therefore is very much contingent on the public process because it requires inclusion of the abundance of parties affected.  This sentiment is mirrored in a response to a question about whether are any resolvable solutions to their concerns.  The respondent mentioned the need, as a first step, to have all the players sit down, collaborate and “admit partial responsibility with everyone else” and to continue this round table discussion on a regular basis.

Every canal trail project has some level of citizen participation.  Support is usually greatest at the grassroots level which encompasses local cities and outlying counties.  Because of the linear nature of canal trails and because they can span over large geographic areas crossing through numerous cities, public involvement is more effectively attained at local city-by-city or county-by-county scales.  (Erickson, 1997)

Due to the broad reaching social, environmental and economic effects of these recreational trails, these individual communities with their groups, associations, councils, societies and organizations are intensely engaged in all stages of development.  Because of this, these groups play a vital role in the trails master planning stages.  Successful canal trails are the result of a cooperative effort between the shared visions of a responsive public agency, an involved canal company, an active citizen group and a supportive community.  Building a coalition between these groups will lead to a safe, well-designed and valuable community asset.  Once these groups come together in a shared vision, the development of an action plan will help define each group’s role in the trail development process.  (Doherty, 1998)

The Opposition Challenge

As illustrated in the interviews, three of six canals are easements. In these cases, trail development is dependent on agreement from a majority of the adjacent landowners.    Because adjacent landowners have a direct interest in what happens in their backyards, they represent a group with the highest probability of producing opposition to trail development.  There will also be opposition coming from grass root citizen groups and the community as a whole, due to the perceived negative impacts trails have on communities. 

Studies show that even though the degree of serious opposition to trail development in general is very small, disregarding this group can lead to bureaucratic dormancy and financial difficulties.  Even if agreement is achieved from one hundred percent of the landowners and the community, this accomplishment must be  accompanied by effective facilitation/communication from the beginning stages of planning.  With the support of this group, they can be powerful allies along the road to completing and maintaining a trail project.

Opposition usually stems from fear and anxiety about the effects of a trail on the existing quality of life.  Through active communication and education these fears can be deflated.  The longer it is put off, the harder it will be to establish good communication and effective working relationships with grass root citizen groups and adjacent landowners.  Never-the-less, no matter how far along the project is, it is never to late to reach out to opponents and build support throughout the community.  It must not be forgotten that this process is purely democratic (especially in master planning stages) and these groups are just as an important part of the team as anyone can be.  The following strategies will aid in directing a project in a positive directions.  (Doherty, 1998)

·                    Be the first to contact adjacent landowners:  When any type of development is going to affect someone’s property, home and quality of life, they are more likely to become opponents to a trail project if they hear about it late in the game.

·                    Know your facts and prepare a management plan:  The affected landowners are going to have serious questions about crime, property values, liability, design costs, management, etc.  Listen carefully to these concerns and be prepared to answer these questions.

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