Accessibility Guidebook for Outdoor Recreation and Trails

Using the Conditions for an Exception in FSORAG

FSORAG is based on the realities of the outdoor environment. It recognizes that accessibility isn't possible everywhere because of the limitations imposed by natural terrain, existing vegetation, or other constraints. To ensure that the unique characteristics of the outdoor environment and recreation opportunity at a site aren't compromised or fundamentally altered, FSORAG section 1.1 requires achieving compliance with the technical accessibility requirements only to the extent practicable where certain circumstances (conditions for an exception) apply. These conditions apply only where an exception is specifically allowed in the technical requirement sections for a particular recreation feature.

Conditions for an exception are not a blanket exemption from the technical requirements. Thoroughly explore all other design options that comply with the technical requirements and maintain the nature of the setting and experience before using deviations. When one or more of the following conditions for an exception exists in an outdoor recreation area, you may use a deviation from a specific technical requirement, but only where that condition exists. If that condition exists only on part of the feature or location, the technical requirement must be met for the rest of the feature or location. All the other technical requirements that are not affected by the condition for an exception still apply as well.

The following four conditions allow for deviations from specific technical requirements where exceptions are provided in the guidelines. Examples are provided to explain the intent of the conditions for each exception.

Condition for an Exception 1: Where compliance with the technical requirement is not practicable due to terrain

The phrase "is not practicable" in this condition for exception refers to something that isn't reasonable, rather than to something that is technically not possible. The intent of this condition is that the effort and resources required to comply shouldn't be disproportionately high relative to the level of access established.

Condition for an Exception 2: Where compliance with the technical requirement cannot be accomplished with the prevailing construction practices.

This condition for an exception may apply where construction methods that would be needed to comply with a technical requirement would require the use of equipment or methods other than those typically used in that setting. For instance, in an area where small equipment is normally used to minimize impact on a sensitive adjacent stream, blasting might be necessary to remove a rock outcrop to meet the technical requirement for width of an outdoor recreation access route. Because blasting typically would not be used in this situation, this condition for an exception would apply. If the work could be done using small equipment, the condition for an exception wouldn't apply.

This condition for an exception isn't intended to exempt an area from the technical requirements simply because of a preferred construction practice. A contractor may prefer to use a large mechanical roller for efficiency rather than a smaller vibrating plate or impact-type compactor. A contractor's or designer's preference for the larger equipment doesn't by itself trigger the condition for an exception. A deviation from a specific technical requirement only is allowed if the equipment is essential to complete construction and if the work cannot be completed using the prevailing construction practices from similar locations.

Condition for an Exception 3: Where compliance with the technical requirement would fundamentally alter the function or purpose of the facility or the setting.

Public lands provide a wide variety of recreational settings, from highly developed campgrounds with plenty of opportunities for relaxing with family and friends to wilderness areas that provide opportunities to experience primitive and challenging conditions (figure 34). FSORAG recognizes the value of a wide array of recreation opportunities by allowing deviations from the technical requirements when compliance would unacceptably change the nature of recreation opportunities or conflict with the land and resource management plan for the area.

Figure 34—People like these rafters who recreate in primitive areas may be looking for challenge.

Campers in a primitive setting experience the outdoor environment in a nearly natural state. These campers generally desire more challenge so they can rely on their outdoor survival skills. Manufactured building materials or engineered construction techniques that are used to comply with accessibility requirements could change the natural or undeveloped nature of the setting. You are not required to change the character of the setting and, therefore, change the nature of the recreation opportunity itself solely for the purpose of accessibility.

Condition for an Exception 4. Where compliance is precluded because the cultural, historic, or significant natural features are protected or are eligible for protection under Federal, State, or local law by:

• Endangered Species Act (16 U.S.C. 1531 et seq.)

• National Environmental Policy Act (42 U.S.C. 4321 et seq.)

• National Historic Preservation Act (16 U.S.C. 470 et seq.)

• Wilderness Act (16 U.S.C. 1131 et seq.)

• Other Federal, State, or local laws that preserve threatened or endangered species, the environment, or archaeological, cultural, historical, or other significant natural features

Cultural features include archeological sites such as burial grounds and cemeteries, traditional cultural properties, tribal protected sites, and other properties considered sacred by an organized religion. Historic features are properties listed or eligible for listing on the National Register of Historic Places or other places of recognized historic value. Significant natural features are objects such as a large boulder or rocky outcrop, body of water, or unique vegetation that are regarded as distinctive or important locally, regionally, or nationally and, therefore, have been placed under legal protection (figure 35). This includes wilderness areas designated by Congress and areas protected under Federal or State laws, such as habitat for threatened or endangered species or designated wetlands.

Figure 35—Properly developed recreation features don't harm unique vegetation; ancient trees are carefully protected.

Examples of situations in which this exception may apply include:

• In wilderness areas designated by Congress, if work necessary to comply with a technical requirement can't be accomplished using handtools (use of mechanized equipment is prohibited by law)

• Areas where imported materials, such as soil stabilizers, are prohibited to maintain the integrity of the natural ecosystem or historic resources

• Designated wetlands or coastal areas where construction methods and materials are strictly limited

• Tribal sacred sites where the undisturbed physical condition of the land is an important part of the sacred observance

• Areas where water crossings are restricted to safeguard aquatic features or species protected under Federal or State laws

Documenting Exceptions

Recording and retaining documentation of determinations of the basis for exceptions for any outdoor recreation feature is a good practice. These records will become very valuable accounts of decisions and rationale when future changes are required or the public inquires about conditions.

Documentation is especially important for exceptions taken due to Condition 4. Federal laws and applicable State or local laws specified in Condition 4 prescribe certain activities or require certain analyses or procedures to be followed when planning to construct or alter facilities that may affect the cultural, historic, or natural features or species protected by that law. When work necessary to meet the technical requirements would directly or indirectly substantially harm the protected aspect, document the reason for the determination and then apply the exception. The documentation also may need to be included in the analysis or procedure records if required by specific laws.

Documentation of the basis for exceptions is required only when a condition for an exception prohibits full compliance with technical requirements on a portion of a trail or beach access route. An explanation of the condition that resulted in the determination that full compliance could not be achieved, the date the decision was made, and the name of the individuals who made the decision must be recorded and the documentation must be retained with the records for the construction or alteration project.

For trails or beach access routes only, if the entire trail or route must be exempted from the technical requirements because extreme or numerous conditions for exemptions make it impractical to provide a trail or route that meets the requirements, documentation must be sent to the U.S. Access Board. More information about this requirement is available in "Notifying the U.S. Access Board About Exemptions" and in "Documenting Exceptions and Notifying the U.S. Access Board About Exemptions" of this guidebook. Contact information for the U.S. Access Board is available at http://www.access-board.gov.