US Coast Guard Rule Could Result in Potomac River Closures

On July 10, 2017, the United States Coast Guard published an Interim Rule in the Federal Register [82 FR 31719] which — as of the publication date, July 10, 2017 — allows the Coast Guard to close an approximately two-mile long section of the Potomac River adjacent to Riley’s Lock, Violette’s Lock, and Trump National Golf Club. While this is not a final rule, this Interim Rule regarding Potomac River closures was made effective “without notice” according to Coast Guard. The Potomac River section which is included in the Interim Rule is the entirety of the Potomac River from Violette’s Lock (the beginning of the Seneca Breaks) to the southern edge of Sharpshin Island. The stated purpose of the Interim Rule is for protection of the President and other high ranking officials when playing golf at Trump National Golf Club.

Longman & Van Grack Attorney Adam Van Grack currently represents multiple recreation businesses and nonprofits that are impacted by the U.S. Coast Guard’s Interim Rule closing the Potomac River. Mr. Van Grack, who regularly represents companies and land owners on river rights and river access legal issues, has been asked by these Potomac-River-based companies to interpret the Interim Rule and provide the companies with advice regarding how best to proceed legally. The Interim Rule specifically “prohibits vessels and people from entering the security zone and requires vessels and persons in the security zone to depart the security zone.” The Coast Guard’s Interim Rule has been posted in the Federal Register, and while it is currently in effect on an interim basis, the Coast Guard is accepting public comments until August 9, 2017 on establishing a final rule which could allow the Coast Guard to prohibit all access to this section of the Potomac River by amending the Code of Federal Regulations at 33 CFR Part 165.

Recently, the Washington Post, New York Times, Washingtonian, NBC News, CBS News, and DCist contacted Mr. Van Grack for his legal opinion and analysis regarding the U.S. Coast Guard’s Interim Rule that allows to closure of the Potomac River.

Mr. Van Grack told the Washington Post that, through the Interim Rule, the Coast Guard is saying “‘We want carte blanche to shut down the river between these coordinates.’” Mr. Van Grack conveyed to the Washingtonian that the current rule is too overbroad, instead the Coast Guard should continue doing what they’ve been currently doing: “Establish a boundary around the Virginia side. However, if they are insistent on having a larger boundary it needs to be significantly reduced to allow paddling in the river and access to the bypass canal and Seneca Breaks from Riley’s Lock.” Mr. Van Grack explained to DCist that “The problem is the ability to shut down the river entirely is an overreach.” He further stated that, “[w]e’re not talking about a narrow stretch of river… if you just take part of the river, which is what they’ve been doing in the past, that should be enough protection.” As Mr. Van Grack told NBC News, the one of the most significant problems with the Interim Rule is that the rule is “not giving any limits to [the Coast Guard’s] rights to do it.”

Additionally, Mr. Van Grack explained to the New York Times that the security-based concern related to Trump National Golf Club is ironic, because “Before the Trump Company purchased this golf course there were hundreds and hundred of trees lining the bank. You couldn’t see the golf course from the bank.” If those hundreds of trees were still in place adjacent to the shore, the need for security from the river would be significantly less.

UPDATE 7/25/2017: Today, in testimony before Congress, Admiral Paul F. Zukunft, Commandant of the United States Coast Guard told a congressional committee that the Coast Guard is willing to make an “accommodation to the public” to allow boaters to have limited access to the Potomac River during river closures. However, as Adam Van Grack explained to the Washington Post and the New York Times regarding the testimony, “accommodation” does not necessarily equal an amendment or alteration to the Interim Rule: “There needs to be clarity . . . Unless and until we see something in writing, those problems still exist. [The Coast Guard] missed the boat on this one.”

Any entity or individual can make an official comment on this Interim Rule. However, the deadline for official comments is August 9, 2017. As noted in the Federal Register,

Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number USCG–2017–0448 for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov

Additionally, if you have questions regarding the Coast Guard’s Interim Rule regarding Potomac River closures, the Coast Guard has stated:

If you have questions about this rulemaking, call or email Mr. Ronald L. Houck, at Sector Maryland-National Capital Region Waterways Management Division, U.S. Coast Guard; telephone 410–576–2674, email Ronald.L.Houck@uscg.mil

The attorneys at Longman & Van Grack represent many parties on appeals, property disputes, river disputes, and recreation law matters in Maryland, Virginia and Washington DC. Specifically, Adam Van Grack has represented many clients regarding river rights, river access, and property rights. Call (301) 291-5027 if you would like a consultation with Adam or one of our other attorneys about Potomac River closures or any other issues at our Maryland (Bethesda and Rockville), Virginia, or Washington, DC offices.