By:  Zaffirini, et al.                                            S.B. No. 155

A BILL TO BE ENTITLED
AN ACT
relating to the protection and use of public freshwater areas; providing a penalty. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. 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 things. (3) "Navigable river or stream" means a river or stream that retains an average width of 30 feet from the mouth up. (4) "Protected freshwater area" means the bottom, bed, or bank of any navigable river or stream within the gradient boundaries. The term does not include that portion of a bed, bottom, or bank that lies below tidewater limits. Sec. 90.002. STATEMENT OF POLICY. (a) The legislature recognizes that navigable rivers and their beds are precious and irreplaceable state resources that deserve protection. Public access to these areas is a right and an important economic and recreational interest of Texas and must be protected. (b) The protection of public access under Subsection (a) should not come at the cost of uncontrolled damage to these resources or the infringement on private property rights. Sec. 90.003. OPERATION OF MOTOR VEHICLE IN PROTECTED FRESHWATER AREA PROHIBITED. On or after January 1, 2004, no person may operate a motor vehicle in or on a protected freshwater area. Sec. 90.004. EXEMPTIONS. (a) Section 90.003 does not apply to: (1) a state, county, or municipal road right-of-way; (2) a private road crossing established before January 1, 2003; 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) an owner of the adjacent uplands and the owner's agents, employees, representatives, and lessees for reasonable purposes related to usual and customary agricultural purposes; (C) An owner of the adjacent uplands on both sides of a protected freshwater area and the owner's agents, employees, representatives, and lessees only for the purpose of accessing their property on the opposite side of the protected freshwater area when no reasonable alternative is available; (D) an owner of the adjacent uplands and the owner's lessees and sublessees, and their respective agents, employees, representatives, licensees, invitees, and guests for reasonable purposes related to usual and customary camp operations at camps regulated under Chapter 141, Health and Safety Code; (E) an owner of the adjacent uplands and the owner's lessees and sublessees, and their respective agents, employees, representatives, licensees, invitees, and guests for reasonable purposes related to usual and customary operation of retreat facilities owned by a Texas nonprofit corporation chartered under the laws of this state before January 1, 1970; (F) a person if operation of a motor vehicle is necessary to and is authorized by a mineral lease; (G) a person if operation of a motor vehicle is necessary to and is authorized by a crossing easement granted by the General Land Office under the Natural Resources Code; (H) a person if operation of a motor vehicle is necessary to an activity authorized by Chapter 86; (I) a person in response to an emergency; or (J) a person if the operation of a motor vehicle is necessary for the lawful transportation, construction, operation, or maintenance of equipment or facilities used for: (i) the production, transportation, transmission, or distribution of electric power; (ii) the provision of telecommunications services; (iii) the exploration, production, or transportation of oil, natural gas, coal, other minerals, and the products thereof; or (iv) dredge material disposal placement. (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. (c) This chapter does not apply to any river with headwaters in New Mexico or Colorado and a confluence in Oklahoma. Sec. 90.005. LOCAL RIVER ACCESS PLANS. (a) A county, municipality, or river authority may adopt a local plan that applies to protected freshwater areas within its jurisdiction. (b) A local plan adopted under this section may: (1) notwithstanding the prohibition in Section 90.003, allow for limited motor vehicle use; (2) provide for collection of a fee not to exceed the cost of allowing the limited use of motorized vehicles in protected freshwater areas within its jurisdiction; and (3) establish other measures consistent with the policy and purposes of this chapter. (c) A local plan adopted under this section is not effective until approved in writing by the department. (d) 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 opportunities; (6) provides for adequate public services; 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 authority is not a basis for rejecting a local plan. (f) The department shall revoke its approval of a local plan if the department finds, as the result of a periodic review, that the plan as implemented fails to meet any of the criteria for approval established under this section. Sec. 90.006. ASSISTANCE FROM THE DEPARTMENT. (a) The department shall assist counties, municipalities, and river authorities in developing local plans. (b) The department may conduct studies as necessary to implement its duties under this chapter. (c) The department shall prioritize the use of grant funds under Chapter 24 to achieve the objectives of this chapter. (d) A jurisdiction operating under a local plan shall remit to the department 20 percent of its gross receipts, if any, from the fees charged under Section 90.005(b) to offset the department's administrative costs associated with implementing this chapter. (e) The department shall seek and use available federal and other funds and shall work with governmental entities, landowners, nonprofit groups, and other interested parties to identify and facilitate development of sites for motor vehicle recreation other than protected freshwater areas. (f) The department shall provide a report to the legislature regarding its activities under Subsection (e) not later than September 1, 2004. Sec. 90.007. 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 or by scouting of obstructions, or crossing 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. 90.008. PUBLIC ACCESS. Except as otherwise allowed by law, no person may restrict, obstruct, interfere with, or limit public recreational use of a protected freshwater area. 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 90.003 or 90.008. (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 90.003 or 90.008, on conviction the defendant shall be punished for a Class B misdemeanor. (d) Each day of a violation under this section is a separate offense. SECTION 2. This Act takes effect September 1, 2003.