78R11600 KCR-D
By: Puente, Jones of Bexar H.B. No. 305
Substitute the following for H.B. No. 305:
By: Hilderbran C.S.H.B. No. 305
A BILL TO BE ENTITLED
AN ACT
relating to the protection of public freshwater areas; providing a
penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) The legislature recognizes that the beds,
bottoms, and banks of navigable rivers and navigable streams are
precious and irreplaceable state resources that deserve
protection.
(b) The legislature also recognizes that public access to
navigable rivers, navigable streams, and the beds, bottoms, and
banks of navigable rivers and streams is:
(1) a right granted to individuals under the Texas
Constitution; and
(2) an important economic and recreational resource
for the people of this state.
(c) The protection of public access to the beds, bottoms,
and banks of navigable rivers and navigable streams, therefore,
should not come at the cost of uncontrolled damage to the beds,
bottoms, and banks of navigable rivers and streams or at the cost of
infringing on private property rights.
SECTION 2. Title 5, Parks and Wildlife Code, is amended by
adding Subtitle I to read as follows:
SUBTITLE I. PROTECTED FRESHWATER AREAS
CHAPTER 90. ACCESS TO PROTECTED FRESHWATER AREAS
Sec. 90.001. DEFINITIONS. In this chapter:
(1) "Emergency" means a condition or circumstance in
which a person reasonably believes that an individual has sustained
serious bodily injury or is in imminent danger of serious bodily
injury or that property has sustained significant damage or
destruction or is in imminent danger of significant damage or
destruction.
(2) "Motor vehicle" means any wheeled or tracked
vehicle, machine, tractor, trailer, or semitrailer propelled or
drawn by mechanical power and used to transport a person or thing.
(3) "Protected freshwater area" means that portion of
the bed, bottom, or bank of any navigable river or navigable stream
that lies at or below the gradient boundary of the river or stream.
The term does not include that portion of a bed, bottom, or bank
that lies below tidewater limits.
Sec. 90.002. OPERATION OF MOTOR VEHICLE IN PROTECTED
FRESHWATER AREA PROHIBITED. Except as provided by Section 90.003
or 90.004, a person may not operate a motor vehicle in or on a
protected freshwater area.
Sec. 90.003. EXEMPTIONS. (a) Section 90.002 does not apply
to:
(1) a state, county, or municipal road right-of-way;
(2) a private road crossing; or
(3) operation of a motor vehicle by:
(A) a federal, state, or local government
employee if operation of a motor vehicle is necessary for
conducting official business;
(B) a person if operation of a motor vehicle is
necessary for reasonable purposes related to usual and customary
agricultural activities;
(C) a person if operation of a motor vehicle is
necessary to and is authorized by a mineral lease or crossing
easement granted by the General Land Office under the Natural
Resources Code;
(D) a person if operation of a motor vehicle is
necessary to an activity authorized by Chapter 86;
(E) a person in response to an emergency;
(F) a person if operation of a motor vehicle is
necessary for the lawful construction, operation, or maintenance of
a facility or structure used for:
(i) the production, transportation,
transmission, or distribution of electric power;
(ii) the provision of telecommunications
services or other services delivered through a cable system;
(iii) the transportation of aggregates,
oil, natural gas, coal, or any product of oil, natural gas, or coal;
(iv) the transportation of water or
wastewater; or
(v) dredge material disposal placement; or
(G) an owner of the uplands adjacent to a
protected freshwater area, the owner's agent, lessee, sublessee,
or the lessee or sublessee's agent, representative, licensee,
invitee, or guest for reasonable purposes related to usual and
customary operation of:
(i) a camp regulated under Chapter 141,
Health and Safety Code; or
(ii) a retreat facility owned and operated
by a nonprofit corporation chartered under the laws of this state
before January 1, 1970.
(b) A person exempt under this section who operates a motor
vehicle in or on a protected freshwater area shall do so in a manner
that avoids, to the extent reasonably possible, harming or
disturbing vegetation, wildlife, or wildlife habitat within the
protected freshwater area. A person exempt under this section who
is crossing a protected freshwater area shall cross by the most
direct feasible route.
Sec. 90.004. LOCAL RIVER ACCESS PLAN. (a) A county or
river authority may adopt a written local plan to provide access to
a protected freshwater area located within the county's
geographical boundaries or the river authority's jurisdiction.
(b) A local plan adopted under Subsection (a) may:
(1) allow limited motor vehicle use in a protected
freshwater area;
(2) provide for the county or river authority to
collect a fee from a person accessing a protected freshwater area;
or
(3) establish other measures consistent with the
policy and purposes of this chapter.
(c) Before a local plan adopted under Subsection (a) may
take effect, a county or river authority must file the plan with the
department. A local plan does not take effect until the plan is
approved in writing by the department.
(d) The department may approve, disapprove, or modify a
local plan filed under Subsection (c). In determining whether to
approve, disapprove, or modify a local plan, the department shall
consider whether the plan:
(1) protects fish, wildlife, water quality, and other
natural resources;
(2) protects public safety;
(3) provides for adequate enforcement;
(4) coordinates with adjacent and overlapping
jurisdictions;
(5) provides for and publicizes adequate public access
to a protected freshwater area;
(6) provides for adequate public services relating to
access to a protected freshwater area; and
(7) protects private property rights.
(e) The department by rule may adopt additional criteria or
procedures to govern approval of local plans. Lack of rules adopted
under this section alone is not a sufficient basis for rejecting a
local plan.
(f) The department may conduct periodic reviews of a local
plan filed under Subsection (c) to monitor the effectiveness of the
plan.
(g) A person who has reason to believe that a local plan
filed under Subsection (c) does not comply with this section may
file a petition for revocation of the plan with the department.
(h) The department shall revoke approval of a local plan if
the department finds, as a result of a periodic review conducted
under Subsection (f) or a petition for revocation filed under
Subsection (g), that the plan as implemented fails to meet any of
the criteria for approval established by Subsection (d).
Sec. 90.005. ASSISTANCE FROM DEPARTMENT. (a) The
department shall assist a requesting county or river authority in
developing a local plan.
(b) A county or river authority implementing a local plan
shall remit to the department 20 percent of the county's or river
authority's gross receipts from fees charged under Section
90.004(b)(2) to offset the department's administrative costs
associated with implementing this chapter.
Sec. 90.006. LANDOWNER RIGHTS. (a) A prescriptive
easement over private property cannot be created by recreational
use of a protected freshwater area, including by portage over or
around barriers, scouting of obstructions, or crossing of private
property to or from a protected freshwater area.
(b) Nothing in this section shall limit the right of a
person to navigate in, on, or around a protected freshwater area.
Sec. 90.007. PUBLIC ACCESS. (a) Except as otherwise
allowed by law, a person may not restrict, obstruct, interfere
with, or limit public recreational use of a protected freshwater
area.
(b) This section does not allow the public to use private
property to gain access to a protected freshwater area without
permission of the landowner.
Sec. 90.008. MOTOR VEHICLE RECREATION SITES. (a) The
department shall establish a program to identify and to facilitate
the development of motor vehicle recreation sites that are not
located in or on a protected freshwater area. The department shall
seek the cooperation of political subdivisions, landowners,
nonprofit groups, and other interested persons in identifying and
facilitating the development of motor vehicle recreation sites
under this subsection.
(b) The department shall seek and use funding from the
federal government and other sources outside the general revenue
fund to identify and facilitate the development of motor vehicle
recreation sites under Subsection (a).
Sec. 90.009. ENFORCEMENT. All peace officers of this state
shall enforce the provisions of this chapter.
Sec. 90.010. PENALTY. (a) A person commits an offense if
the person violates Section 90.002 or 90.007.
(b) Except as provided by Subsection (c), an offense under
Subsection (a) is a Class C misdemeanor.
(c) If it is shown on the trial of an offense under this
section that the defendant was previously convicted two or more
times under Section 90.002 or 90.007, on conviction the defendant
shall be punished for a Class B misdemeanor.
(d) Each violation under this section is a separate offense.
(e) Notwithstanding Section 12.403 of this code, Subchapter
B, Chapter 12, Penal Code, applies to punishments under this
section.
SECTION 3. The Parks and Wildlife Department shall submit
to the legislature a report regarding the department's
identification and development of motor vehicle recreation sites
under Section 90.008, Parks and Wildlife Code, as added by this Act,
not later than September 1, 2004.
SECTION 4. This Act takes effect January 1, 2004.