H. B. 2110
(By Delegates Gallagher and Love)
[Introduced February 15, 1993; referred to the
Committee on Agriculture and Natural Resources
then Finance.]
A BILL to amend chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article three-c, relating
to establishing the West Virginia recreational water trails
program; setting forth powers and duties of the division of
natural resources; and limiting liability of adjacent
landowners.
Be it enacted by the Legislature of West Virginia:
That chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article three-c, to read
as follows:
ARTICLE 3C. WEST VIRGINIA WATER TRAILS PROGRAM.
§20-3C-1. Purpose.
The Legislature hereby declares that the purposes of this
article are to encourage responsible recreational use of thestate's waterways and to foster economic growth by providing
increased public access to open spaces and new recreational and
tourism activities.
§20-3C-2. Water trail program.
There is established within the division of natural
resources a "Water Trails Program." The division shall, in
cooperation with landowners, public and private agencies and
groups, develop and facilitate public access to the waterways
of this state by acquisition of easements, improvement of stream
flow and by undertaking other activities necessary to implement
the provisions of this article.
§20-3C-3. Definitions.
(a) "Director" means the director of the division of natural
resources or designee.
(b) "Division" means the division of natural resources.
(c) "Navigable waters" means waters which are of sufficient
size and depth to provide passage for watercraft.
(d) "Recreational use" includes, but is not limited to,
boating, fishing, swimming and other water contact activities.
Recreational use does not include any type of commercial
activity.
(e) "Watercraft" means any floating conveyance capable of
safely transporting one or more persons.
(f) "Waterways" means all rivers, streams, brooks, creeks,
sloughs or other bodies of flowing water located within the state
or forming its boundaries.
§20-3C-4. Powers and duties of the division.
The director, or his or her designee, is authorized to:
(a) Enter into agreements with any person on behalf of the
state to acquire an interest in lands suitable for access to
waterways of the state and to develop and maintain public access
to the state's waterways.
(b) Negotiate with other agencies of the state, including,
but not limited to, the division of tourism and parks and the
division of highways, for the provision of access to state
waterways. Providing public access to the state's waterways is
a valid use of any right-of-way maintained by the division of
highways.
(c) Improve and maintain access to navigable waterways, as
well as take steps to maintain such waterways in a condition
suitable for recreation through measures including, but not
limited to, the removal of in-stream debris or obstructions which
impede passage of watercraft and the reasonable modification of
the stream bed for the improvement of fish habitat.
(d) Compile and publish an inventory of waterways detailing
particular recreational sites, access sites, and other
characteristics relevant to the purposes set forth in this
article: Provided, That the failure to list a particular
waterway is not an indication that the waterway lacks
recreational value.
§20-3C-5. Waterway obstructions.
A person may not unreasonably limit, by construction ofartificial barriers or otherwise, the passage of watercraft on
otherwise navigable waterways of the state. Recreational users
may access land adjoining waterways as may be reasonably
necessary to effect passage around obstacles in an otherwise
navigable stream bed: Provided, That nothing in this section
shall limit the right of landowners to seek relief for damages to
property caused by any recreational user.
§20-3C-6. Landowner liability limitations.
(a) General rule. -- An owner of land adjacent to a
navigable waterway owes no duty of care to keep the premises safe
for entry or use by others for recreational purposes, or to give
any warning of a dangerous or hazardous condition, use, structure
or activity on the premises to persons entering the premises.
An owner of land, who either directly or indirectly invites
or permits without charge any person to use his or her property
for recreational purposes, does not thereby (1) extend any
assurance that the premises are safe for any purpose, or (2)
confer upon the invited persons the legal status of an invitee or
licensee to whom a duty of care is owed, or (3) assume
responsibility of, or incur liability for, any injury to the
person or property of anyone caused by an act or omission of the
person given access to the landowner's property.
(b) Exception. -- Nothing herein limits in any way liability
which otherwise exists (1) for willful or malicious failure to
guard or warn against a dangerous or hazardous condition, use
structure or activity, or (2) for injury suffered in any casewhere the owner of land charges the person or persons who enter
or go on the land other than the amount, if any, paid to the
owner of the land by the state or any agency thereof, or any
county or municipality or agency thereof to acquire an interest
in or the use of the land for public recreational purposes.
Nothing herein creates a duty of care or increases the
liability of any person for injury to another person or property.
Nothing herein limits in any way the obligation of a person
entering or using the land of another for recreational purposes
to exercise due care in his or her use and in his or her
activities on the land.
NOTE: The purpose of this bill is to establish a "Water
Trails Program" within the Division of Natural Resources. The
bill requires the Division to acquire and develop sites along the
state's waterways for public access and to make improvements to
streams for recreational purposes. The bill also limits
liability for adjoining landowners for acts of persons entering
the landowners' property during recreational activities involved
with the use of the state's waterways.
This article is new; therefore, strike-throughs and
underscoring have been omitted.