hb2110 sub 3/10
COMMITTEE SUBSTITUTE
FOR
H. B. 2110
(By Delegates Gallagher and Love)
(Originating in the House Committee on Agriculture and Natural Resources)

[March 10, 1993]

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 Water Trails Program; purpose; definitions; powers and duties of the director of the division of natural resources; prohibiting unreasonable obstruction of navigable waterways; 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 the state's waterways; and foster economic growth by providing increased public access to open spaces, and new recreational andtourism activities.

§20-3C-2. Water trail program.

There is established within the division of natural resources a "Water Trails Program." The division may, at its discretion and 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 and by undertaking other activities necessary to implement the provisions of this article.
Providing public access to the state's waterways is a valid use of any right-of-way maintained by the division of highways.

§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 and fishing. 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, at his or her discretion, 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.
(c) Improve and maintain access to navigable waterways, as well as take steps to maintain such access in a condition suitable for recreation.
(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.

§20-3C-5. Waterway obstructions.

A person may not unreasonably limit, by construction of artificial barriers intended to obstruct the passage of watercraft, the passage of watercraft on otherwise navigable waterways of the state. Recreational users may exercise limited access to land adjoining waterways as may be reasonably necessary to effect safe 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. Adjoining landowner liability limitations.

(a) General rule. -- Except as specifically recognized or provided in subsection (d) of this section, an owner or lesseewho provides the public with land for use as a waterway access under this article or who owns land adjoining any navigable waterway under this article owes no duty of care to keep the land safe for entry or use by others for recreational purposes, or to give any warning to persons entering or going on the waterway or adjoining land of a dangerous condition, use, structure or activity thereon.
(b) Owner. -- Any person, public agency or corporation owning an interest in land utilized for recreational purposes pursuant to this article shall be treated as an "owner" for purposes of this article.
(c) Specific limitations on liability. -- Except as specifically recognized by or provided in subsection (d) of this section, an owner or lessee who provides the public with land for access or who owns adjoining land to the waterways under this article is not, by providing that land for access or owning land adjoining the waterway:
(1) Presumed to extend any assurance that the land is safe for any purpose;
(2) Incur any duty of care toward a person who goes on that land; or
(3) Become liable for any injury to persons or property caused by an act or an act of omission of a person who goes on that land.
(d) Exception. --
(1) This section does not apply to the owner or lessee of the land used as waterway access if there is any charge made for entering or using the land.
(2) This section does not apply to the owner of land adjoining a waterway, if there is any charge made by the owner of such adjoining land for using the land, or if any commercial or other activity relating to the use of the waterway whereby profit is derived from the patronage of the general public is conducted on such adjoining land.
(e) This article does not relieve any person of liability which would otherwise exist for deliberate, willful or malicious injury to persons or property. The provisions of this article do not create or increase the liability of any person.
(f) The foregoing applies whether the person going on the land provided or adjoining is an invitee, licensee, trespasser or otherwise.
(g) Nothing herein limits 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.