The Barbara Morse Wackford Community and Aquatic Complex was a
beautiful facility when it opened in 2004. Located in Elk Grove,
Calif., it features a state-of-the-art 25-meter-by-25-yard
competition pool, a zero-depth entry recreation pool with water
slide and water-play features, and a spraypad for small children.
But the Cosumnes Community Services District Parks & Recreation
Department had to spend thousands on retrofits.
“We spent upwards of $25,000 on compliance [with the
Virginia Graeme Baker Pool & Spa Safety Act], which was
completely unexpected,” says Tom Hellmann, recreation
supervisor at the CCSD Parks & Recreation Department.
Hellmann wasn’t the only operator hit hard by federal
mandates such as VGB, of course. Many have found it difficult, if
not impossible, to come up with the money for retrofits.
Understanding the true cost of compliance is problematic because
facilities are so varied, and no organization closely tracks
aquatics. But based on an Aquatics International survey and the
most conservative estimates, it appears the industry has spent a
staggering $3 billion in required federal retrofits since 2008.
At a local level, those compliance costs have effectively shut
the doors of many facilities. No good data exists on how many
facilities were forced to close, but anecdotal evidence suggests
that without access to funding for upgrades, an untold number of
aquatic operations have been wiped from existence.
“In light of the recent recession and the compliance costs
placed on the public pool, it is very likely that hundreds or
thousands of pools have been closed,” says Tom Lachocki, CEO
of the National Swimming Pool Foundation in Colorado Springs,
Federal laws and requirements have been in place for some time,
governing broad matters such as energy efficiency and chemicals,
but direct aquatics facility regulation has always been handled at
the state or local level. VGB is essentially the first federal law
to directly impact day-to-day pool operation. It was followed by
ADA regulations. While the upcoming Model Aquatic Health Code
won’t have the force of law, it’s likely to have a big
impact on future regulations.
Out of nowhere
Many frustrated operators feel these federal mandates and
guidelines have come from seemingly nowhere. And they seem to be
written by people who neither understand the complexities of
aquatics facility operation, nor the variation of facility types.
What’s more, they appear heavily influenced by those with
vested business interests.
Based on extensive research and interviews, it appears some fear
and suspicion is warranted. In fact, experts and those involved in
the creation of these new laws say day-to-day operators were, for
the most part, minimally involved in the codes formation. People
with business interests often were. And even though something such
as MAHC offers operators a way to make their voices heard, many
have not done so, leaving business interests to fill the void.
Meanwhile, lawmakers are largely unfettered by any aquatics lobby
when it comes to writing far-reaching laws such as VGB.
An investigation reveals that the answer is a tangled web of
factors: a lack of “on-the-ground” experience on the
part of many of those most involved in crafting the legislation;
advocacy efforts that need more support; communication that created
confusion; and the need for greater involvement on the part of
If operators are a bit apathetic about federal mandates,
they’re clear about their role in those codes. Less than 1
percent of aquatics facility operators believe they had the biggest
voice in passing VGB and the pool accessibility requirements under
ADA, according to an online survey of approximately 250 Aquatics
International readers. That sentiment illustrates one of the
central issues, particularly in the case of VGB.
“I don’t think operators had much of a voice at the
table,” says Sam Fruia, natatorium coordinator for the Conroe
Independent School District, Conroe Texas.
The impetus for VGB was the death of Virginia Graeme Baker. She
died in June 2002 at age 7, after becoming entrapped in a
residential hot tub.
The law was an effort that came about “because of a few
influential players,” says Jennifer Hatfield, director of
government affairs for the Association of Pool & Spa
In fact, Baker was the granddaughter of former Secretary of
State James Baker III. Her mother, Nancy Baker, championed the
legislation, along with representatives from Safe Kids Worldwide, a
global advocacy network of organizations dedicated to preventing
unintentional childhood injury.
“We weren’t sophisticated on the issue,” says
Alan Korn, then a representative with Safe Kids USA. “We
didn’t know about pool and spa engineering, but we knew we
could help [Nancy Baker] in some way.” Korn was later named
executive director of the Abbey’s Hope Charitable Foundation,
a pool safety organization founded by the parents of Abigail
Taylor. She died at age 6, as the result of an entrapment, less
than nine months before VGB took effect.
Korn and Baker actively lobbied Congress to win support for VGB,
sponsored by U.S. Rep. Debbie Wasserman Schultz (D-Fla.). As a
politician, Wasserman Schultz has been actively involved in pool
safety — she was influential in ensuring passage of the
Florida Residential Pool Safety Act, when she served in the Florida
state legislature — but that’s where her pool
“With VGB, you can tell nobody who knows anything about
running a pool was involved,” says Alison Osinski, Ph.D.,
owner of Aquatic Consulting Services, an Avalon, Calif.-based
aquatics facility design/risk management company. “They just
didn’t think about the variety of pools. …”
According to Korn, one aquatics industry voice that was involved
in writing the original VGB text was the Pool Safety Consortium,
now known as the Pool Safety Council. No one from PSC responded to
inquiries about participation, but the Washington, D.C.-based
advocacy group was founded by Paul Pennington, an SVRS
manufacturer. Pennington is owner of Santa Rosa, Calif.-based
Vac-Alert Industries. SVRS devices are listed in VGB as secondary
options for single-drain pools or multi-drain pools that have
drains less than 3 feet apart.
The Pool Safety Council clearly was involved in decisions
regarding unblockable drains, according to Anne Northup, a member
of the U.S. Consumer Product Safety Commission.
In 2010, CPSC officials determined that an
“unblockable” drain cover could be installed over a
smaller sump to comply with the Virginia Graeme Baker Pool &
Spa Safety Act.
In issuing that ruling, “the commission acted in
accordance with the expert advice of its technical staff,”
said CPSC Commissioner Northup, testifying in August at a hearing
before the Subcommittee on Commerce, Manufacturing and Trade, which
is under the U.S. House of Representatives’ Committee on
Energy and Commerce.
Giving pool operators a say
“It did so only after also considering the contrary views
presented by the inventor of the vacuum release system, who wanted
the commission to mandate the use of his product; pool safety
advocates, many of whom were influenced and mobilized by the backup
system manufacturer; and a few members of Congress, who had been
lobbied by the backup system manufacturer,” Northup says.
So where was the representation for pool operators?
Several national organizations do lobby on behalf of operators.
These include the Association of Pool & Spa Professionals, the
World Waterpark Association, and the National Recreation and Park
According to Hatfield, APSP was involved, beginning with a 2006
entrapment bill put forth by then-Sen. George Allen (R- Va.).
That bill died, but was reintroduced as VGB the following year
and, Hatfield says, “APSP was actively involved again.”
The group hired lobbying firm DLA Piper and met with Safe Kids,
Congresswoman Debbie Wasserman Schultz, and staff members in
multiple senators’ offices.
When the law was passed, another group, the National Swimming
Pool Foundation, contacted CPSC and issued a press release calling
for an extension of the Dec 18, 2008, deadline. But NSPF is limited
in its ability to lobby because of its 501(c)(3) tax status. The
Association of Aquatic Professionals, another industry professional
association, was not yet established.
All told, it’s not clear that individual pool operators
had much of a say — or that industry groups had much impact
on the final laws.
Fruia has seen it firsthand. “I’ve worked on several
committees with APSP,” he says. “ … I don’t
see a lot of commercial operators involved.”
Where’s the lobby?
When swimming pool accessibility requirements were scheduled to
take effect earlier this year under the Americans with Disabilities
Act, it became clear that operators need a stronger voice.
The ADA was originally passed in 1990. Guidelines addressing
recreation venues were published in 2004 and formally codified in
2010. Officially, all operators had until March 15, 2012, to comply
with the rules. But in January, the Department of Justice released
a guidance document that essentially nullified compliance plans
that included portable lifts.
The DOJ fundamentally mandated fixed lifts for Title III
facilities (including hotels, motels nonprofits, swim clubs and
other such facilities) and said sharing a portable lift between
multiple pools is not permitted unless it would result in undue
burdens to provide equipment at each Title II (municipal) facility.
Furthermore, DOJ said portable lifts must be available and operable
during all hours that the pool is open to the public.
All told, it appears that the hotel and lodging industry took
the lead in speaking out about the revised interpretation of ADA
requirements. Established more than a century ago, the Washington,
D.C.-based American Hotel & Lodging Association is “the
sole national association representing all sectors and stakeholders
in the lodging industry, including individual hotel property
members, hotel companies, student and faculty members, and industry
suppliers,” according to its Web site.
“The pool lift issue was of great concern to the lodging
industry and a top regulatory priority …,” says Eric
Reller, director of legislative communications at AH&LA.
AH&LA launched a comprehensive campaign earlier this year.
The organization educated and mobilized members to voice opinions
by contacting their congressional leaders and DOJ. AH&LA
leadership also met with DOJ and the White House to explain
concerns. AH&LA representatives met with almost every member of
Congress as well.
It was part of an annual visit to Capitol Hill, says Kevin Maher,
senior vice president for governmental affairs.
The list of supportive lawmakers included Congressman Mick
Mulvaney (R-S.C.), and Sen. Jim DeMint (R-S.C.), both of whom
introduced legislation to circumvent DOJ’s position on ADA
“Generally, regulators will be more likely to pay
attention to an issue that has widespread impact,” says Minh
Vu, an attorney with Seyfarth Shaw, LLP, who represents the hotel
and lodging industry and has served as AH&LA’s outside
counsel on Title III of ADA since 2006. “But there are
situations where regulations are crafted to accommodate very
specific groups as well.”
Mulvaney’s bipartisan “Pool Safety and Accessibility
for Everyone Act,” aka Pool SAFE Act, would require a
extension for compliance with the ADA pool-lift requirement, allow
portable lifts and prohibit lawsuits against facilities for
violations of “revised regulations for Title II and III
facilities between March 15, 2012, and one year from the enactment
Sen. DeMint proposed bill S. 2186 with co-sponsors Lindsey
Graham (R-S.C.) and Roy Blunt (R-Mo.) to prohibit federal
government officials from enforcing ADA with respect to public
pools and spas.
So what made the voice of AH&LA so powerful? Money is at
least one part of the answer.
According to experts, representing an $127 billion industry may
have made it a lot easier for the hoteliers to be heard. The
AH&LA lobbying budget is around $300,000 quarterly, according
to Reller. It’s also worth noting that the Federal Election
Commission records a donation of $1,500 from the American Hotel
& Lodging Association Political Action Committee to the
“It is very expensive to have talented, bright and
connected people engaged with legislators involved with federal
legislation,” Lachocki says. “Investment in such an
effort is more difficult since pool and spa legislation is
relatively rare. ...”
All the activities of AH&LA are fairly common advocacy
practices, and some operators say they feel somewhat powerless
because the aquatics industry is lacking that type of focused
The AI survey found that only 12 percent think industry
associations do a good job of lobbying for aquatics when it comes
to government regulations.
“Sometimes it doesn’t feel like there’s
somebody watching out for us as the operators,” says Jimmy
Gibbs, aquatics manager at the Lawrence, Kan., Parks and Recreation
It’s the diversity within the industry that makes advocacy
a challenge, according to Carvin DiGiovanni, APSP senior director,
standards and government relations. “We’re made up of a
much broader cross section [including manufacturers and
builders],” he says.
When DOJ announced its interpretation of ADA pool access
requirements, several industry groups banded together to draft a
unified written response and inform aquatics professionals. These
included APSP, WWA and NRPA. On behalf of the coalition,
representatives attended meetings with DOJ and White House
officials, and sent letters.
However, DiGiovanni notes that creating this type of
collaboration often has been difficult. On other occasions, when
APSP has reached out to work with other organizations, it has been
turned down, he says.
Once laws were passed, more problems became clear. Many operators
say they were left in the dark about how to proceed, and as
officials made efforts to correct issues, changes only added to the
confusion. Once again, industry groups did little to quell the
“We were aware that something was happening, but like so
many other operators, we weren’t sure exactly what was going
on,” Gibbs says.
VGB stipulated that an education program be funded to inform pool
operators and the public; however, Aquatics International survey
results indicate that less than 10 percent found out about VGB from
a government official. The same is true for the ADA pool access
“It seemed like there were a lot of people with a lot of
different opinions. There was a lot of ambiguity,” says
Charles Logan, director of Lee and Joe Jamail Texas Swimming Center
at the University of Texas at Austin. “Vendors would put out
guideline books ... in my opinion, to help them sell their
Fruia blames the system. He says the chain of communication
appears to have broken down, and information simply did not get
passed down properly from one level to the next. When it comes to
VGB, he’s aware of only one facility that was visited by a
federal agent, the one inspector assigned to the entire state of
“I don’t think that the feds had enough personnel to
get the job done,” he recalls. “I think there were gaps
even as enforcement was required.”
One agency that has added to the confusion is CPSC itself. In
September 2011, after operators spent more than a year complying
with CPSC’s 2010 ruling that defined an unblockable drain as
one with an unblockable cover, the commission reversed itself. In a
3-2 vote, the two Democratic commissioners and Democratic Chairman
Inez Tenenbaum passed a new ruling that requires sumps to also meet
certain “unblockable” criteria.
“[The Democratic members of the commission] even refused
my colleague Nancy Nord’s request to at least notify, prior
to the vote, the state agencies responsible for pool administration
and safety, and obtain their input,” Northup noted in her
testimony earlier this year. “And after the majority rushed
through this significant change, the chair took the virtually
unprecedented step of choosing not to issue a press release even
informing the public of the commission’s decision.”
Paying the price
Today, the combined repercussions from the numerous difficulties
have made compliance with VGB and ADA a serious financial
“I can tell you there are still operators who are struggling
with exactly what do [regarding VGB],” Fruia says.
“They have yet to be compliant.”
VGB took effect Dec. 18, 2008. Then, more than two years later,
just before Memorial Day weekend 2011, CPSC announced a federal
recall of approximately 1 million drain covers. The far-reaching
recall — the largest in industry history — included
products from 10 manufacturers and affected hundreds of thousands
of pools, according to CPSC.
And pool operators are left paying the price.
Earlier reports indicate that an analysis by the Congressional
Budget Office estimated the cost of VGB would be minimal. However,
according to the AI survey, 80 percent indicated that compliance
with regulations has cost their operation $10,000 or more. Multiply
that by 300,000 — currently the best estimate of the number
of total commercial pools in the United States — and the
total cost to the industry is approximately $3 billion.
The reinterpreted definition of an “unblockable
drain” has only made compliance more of a financial
challenge, Northup told the Subcommittee on Commerce, Manufacturing
“At the pool to which I belong, the price of compliance
went from an original price of several thousand dollars to almost
$50,000 for final installation,” she stated. “It is
therefore not surprising that we later learned … as a result
of the commission’s precipitous and inexplicable action, many
state, municipal and other public pool operators will be unable to
afford this new and expensive mandate coming shortly on the heels
of the expensive work required to come into compliance with the
commission’s original interpretation. As a result, many
public pools opened late or closed, with the brunt of the losses
suffered by economically disadvantaged regions. … Children
cannot learn to swim in closed pools, and economically
disadvantaged children are at the greatest risk of drowning. To
date, over 1,100 pools have closed throughout the country as a
result of the cost of maintaining their operation. This outcome is
inconsistent with even the most basic concepts of rational
cost-benefit based rule-making.”
The jury is still out on the final cost of ADA compliance.
Ultimately, on March 15, 2012, the deadline for compliance, DOJ
announced its decision to extend the deadline 60 days, until May
2012. At the same time, the agency opened a 15-day public comment
period, seeking input on whether to extend the deadline further.
Two months later, just before Memorial Day, DOJ officials
essentially reversed their interpretation and extended the deadline
for compliance until Jan. 31, 2012.
DOJ now says that for Title III facilities, portable lifts
purchased before March 15, 2012, are allowed. But they must be kept
in position for use at the pool, and operational during all times
that the pool is open to guests.
The next shoe
What’s more, there’s concern that the same challenges
that dogged VGB and ADA are impacting the Model Aquatic Health
Like the federal legislation, the MAHC project got under way
with the best of intentions. This CDC-led project is an effort to
create a uniform, science-based road map “for local and state
agencies needing guidance to update or implement standards
governing the design, construction, operation and maintenance of
swimming pools …, ” according to the MAHC Web site.
But once again, some are questioning who is involved.
“I think there’s a general mood that the vendors
have more input than the operators,” Logan adds. “The
feeling of not being able to have any input that’s meaningful
Approximately 160 individuals serve on 12 technical committees
drafting code for various aspects of operation. The intent was to
include operators on every single committee, says Doug Sackett,
assistant director of the New York State Department of Health,
Bureau of Community Environmental Health & Food Protection He
is overseeing the MAHC project for CDC.
A review of the committee members indicates that alongside
health officials, manufacturers and designers, operators are on
each committee. However, many of the operators involved are with
large organizations, notes Shawn DeRosa, manager of aquatics
facilities at Penn State University in University Park, Pa., and
owner of Aquatics Consulting. Committees include representatives
from Walt Disney World Co., YMCA of the USA and Great Wolf
“I don’t think there is enough operator
representation on the MAHC committees from the standpoint that
there are all kinds of operators,” says Judith Sperling,
principal of Sperling Aquatic Consulting in Los Angeles. “I
have no idea whether there was consideration of public vs.
nonprofit operators, but each one has their own niche, with
different needs and concerns. I don’t think we have a real
solid variety there.”
DeRosa adds that the public comment opportunities provide an
important chance for all operators to contribute. Drafts of each
piece of the code, one from each committee, are posted online for a
“Committee members depend upon comments from the
‘average, everyday pool operator’ to help bring a sense
of balance to the guidelines,” DeRosa says. “The public
comment period also allows for operators to weigh in on local codes
and regulations that committee members may not even be aware
As of press time, all but two of the 12 MAHC committees had
posted draft modules for public comment, but a review of responses
indicates that the majority of the feedback is from health
department officials and manufacturers.
Sackett acknowledges that disseminating information and
obtaining operator feedback has been challenging. “It still
comes up that there’s more room for awareness,” he
To increase awareness, Sackett and his team have created a 13th
committee, but encouraging operators to act will take more than
just information. If there was one lesson learned from VGB and ADA,
it’s that operators also need to be more proactive, Sperling
“Communication is a two-way street. You can’t just
sit back in your office and not connect with the outside world and
expect to stay up to date in aquatics,” she notes.
Active participation might mean anything from becoming part of a
social network, such as AI Connect, to getting involved in industry
organizations and joining operators such as Fruia on committees
that need more representation.
Though joining an association can be more of a challenge than
ever, with many facing tight budgets and heavy workloads as a
result of staff cuts, Hellmann is one operator who believes
it’s worth it.
It was his experience with VGB that pushed Hellmann to get
involved in legislative issues, and today he is the California Park
& Recreation Society Aquatic Section president.
“… If you can start out small and begin to connect
with fellow professionals about the topic, then it can be
manageable,” he says. “A word can change everything.
You’ve got to look at [legislation] to make sure you
don’t get blindsided.”