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.