H. B. 4049
(By Delegates J. Martin, Varner, Love, Nesbitt and Stalnaker)
(Introduced January 15, 1996; referred to the
Committee on Government Organization.)
A BILL to amend and reenact section twenty-three-a, article two,
chapter twenty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, continuing the
whitewater commission within the division of natural
resources until the first day of July, two thousand two.
Be it enacted by the Legislature of West Virginia:
That section twenty-three-a, article two, chapter twenty of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
§20-2-23a. Whitewater commission; powers and duties of
commission and division of natural resources;
allocations; civil and criminal penalties for
violations; continuation.
(a) There is hereby created a whitewater commission within
the division of natural resources. The commission shall consist
of the director of the division of natural resources or his or
her designee; the director of the division of parks and tourism or his or her designee; three representatives of private river
users who have no affiliation with any commercial river
enterprise to be appointed by the governor: Provided, That no
more than one representative of the private river users may be
from each whitewater zone; and four persons representing four
different licensed commercial whitewater outfitters currently
operating within the state to be appointed by the governor. The
superintendent of the New River Gorge national park or his or her
designee shall be a nonvoting member of the commission. All
appointed members of the commission shall be citizens and
residents of West Virginia. Of the four representatives of
commercial outfitters, two persons shall represent the small
commercial whitewater outfitters in West Virginia who have a
single license. The director of the division of natural
resources shall serve as chairperson of the commission. Of the
seven members of the commission first appointed by the governor,
two shall be appointed for a term of one year, two for a term of
two years and three for a term of three years. Thereafter, the
terms of all appointed members of the commission are for three
years. Members shall serve until their successors have been
appointed and any vacancy in the office of a member shall be
filled by appointment for the unexpired term. Members
representing commercial outfitters who have served at least two
years on the commission are not eligible for reappointment to a
successive term.
(b) The commission has the following powers and duties:
(1) To investigate and study commercial whitewater rafting,
outfitting and activities related thereto which take place along
the rivers or waters of the state;
(2) To designate any such rivers or waters or any portions
thereof as "whitewater zones" for which commercial whitewater
rafting, outfitting and activities are to be investigated and
studied, and to determine the order and the periods of time
within which the investigations and studies are to be conducted.
The commission shall first investigate and study those whitewater
zones which it finds to present serious problems requiring
immediate regulation, including, without limitation, safety
hazards and problems of overcrowding or environmental misuse;
(3) To restrict, deny or postpone the issuance of licenses
to additional commercial whitewater outfitters seeking to operate
in areas and portions of rivers and waters in this state
designated whitewater zones by action of the director of the
division of natural resources as authorized under prior enactment
of this section and so designated by the filing of a written
notice entered upon the records of the division containing the
designation and reasonable description of the whitewater zone;
(4) To commission a three-year study to determine the
physical carrying capacity for the New, Gauley, Cheat, Shenandoah
and Tygart rivers and how each relates to the overall economic
impact of the state and the safety of the general public:
Provided, That if, during the three-year study period, the
commission deems that overcrowding is not a problem on any whitewater zone, then it may issue a license;
(5) Based on the findings of the three-year study of
carrying capacity, to formulate rational criteria for an
allocation methodology including, but not limited to, a minimum
allocation for each river studied;
(6) To implement the allocation methodology, which shall be
implemented by the commission at the conclusion of the three-year
study period and not later than the first day of July, one
thousand nine hundred ninety-five, by rules promulgated pursuant
to chapter twenty-nine-a of this code;
(7) To determine administrative policies relating to
regulation of the whitewater industry and to administer such
policies, except that the commission shall delegate to the
director of the division of natural resources or his or her
designee the authority to administer the day-to-day
responsibilities of the commission pursuant to this section and
may vest in the director of the division of natural resources or
his or her designee the authority to make determinations with
respect to which it is not practicable to convene or to poll the
commission, within guidelines established by the commission;
(8) To review all contracts or agreements with governmental
agencies related to whitewater studies or regulation, and any
negotiations related thereto;
(9) To verify reports by outfitters of numbers of river
users and guides and to establish a system for reporting, prior
to the departure of any craft, the number of river users and guides on each whitewater expedition;
(10) To regulate the issuance, transfer, and renewal of
licenses. However, licenses issued to commercial whitewater
outfitters or use allocations or other privileges conferred by a
license may be transferred, sold, offered as security to
financial institutions or otherwise encumbered, upon notice in
writing to the commission and the director of the division of
natural resources, subject to the following limitations: (i) The
commission may refuse a transfer upon a finding that there is
reasonable cause to believe that the safety of members of the
public may be adversely affected by the transfer; and (ii) the
commission shall require that taxes, workers' compensation and
other obligations due the state be paid prior to any transfer;
(11) To collect, for the study period established in
subdivision (4) of this subsection, an annual license fee of five
hundred dollars for each river on which a commercial whitewater
outfitter operates. The annual per river license fee is limited
to the Cheat, Gauley, New, Shenandoah and Tygart rivers. The
annual license fee for a commercial whitewater outfitter
operating on a river not so designated is five hundred dollars
regardless of the number of rivers operated on. A commercial
whitewater outfitter who is operating on a river designated in
this subdivision and who has paid the annual per river license
fee may not be required to pay an additional annual license fee
to operate on a nondesignated river. The commercial whitewater
outfitter license shall be issued by the commission and is for a period of ten years: Provided, That an outfitter pays the
required annual license fee. If an outfitter fails to pay the
license fee, then the license shall be suspended until the
license fee is paid. Licenses are subject to the bonding
provisions set forth in section twenty-three-d of this article
and the revocation provisions set forth in the rules promulgated
by the director of the division of natural resources. License
fees shall be used by the division of natural resources for the
purpose of enforcing and administering the provisions of this
section;
(12) To establish a special study and improvement fee to be
paid by outfitters and to establish procedures for the collection
and enforcement of the special study and improvement fee;
(13) To establish a procedure for hearings on violations of
this section and rules promulgated thereunder and to establish
civil penalties for violations of this section and rules
promulgated thereunder; and
(14) To approve rules promulgated by the director of the
division of natural resources pursuant to chapter twenty-nine-a
of this code, with respect to commercial whitewater outfitters
operating upon the waters of the state, whether or not such
waters have been designated whitewater zones, which relate to:
(i) Minimum safety requirements for equipment; (ii) standards for
the size of rafts and number of persons which may be transported
in any one raft; (iii) qualifications of commercial whitewater
guides; and, with respect to waters designated whitewater zones, (iv) standards for the number of rafts and number of persons
transported in rafts.
(c) The commission shall meet upon the call of the
chairperson or a majority of the members of the commission.
However, the commission shall meet at least quarterly and shall
conduct business when a majority of the members are present. At
the meetings, the commission shall review all data, materials and
relevant findings compiled relating to any investigation and
study then under consideration and, as soon as practicable
thereafter, the commission shall recommend rules to govern and
apply to the designated whitewater zone(s). At least annually,
the commission shall meet for the purpose of considering and
adjusting allocations. At least annually, the commission shall
review fees and proposed expenditures. The commission may not
limit the number of commercial whitewater outfitters operating on
rivers not designated as whitewater zones, nor may the commission
limit the number of rafts or total number of persons transported
in rafts by commercial whitewater outfitters on rivers not
designated as whitewater zones. Commission members shall be
reimbursed all reasonable and necessary expenses incurred in the
exercise of their duties.
(d) For the portions of the Gauley and New rivers designated
as whitewater zones, the minimum use allocation conferred by a
license, for the study period established pursuant to subdivision
(4), subsection (b) of this section, is one hundred twenty for
the Gauley and one hundred fifty for the New, or an increased minimum allocation established by the board. The commission may
permit additional allocations or licenses for whitewater
outfitters which are nonprofit entities operating upon the waters
of the state upon the effective date of this section. For other
waters designated whitewater zones, the commission may increase
but not decrease allocations from those in effect on the
effective date of this section.
(e) Violation of this section or any rule promulgated
pursuant to this section constitutes a misdemeanor punishable by
the penalties set forth in section twenty-three-d of this
article.
(f) The director of the division of natural resources shall
promulgate, pursuant to the provisions of chapter twenty-nine-a
of this code, all rules necessary to effectuate the purposes of
this section and these rules must be approved by the commission.
The division of natural resources shall enforce the provisions of
this section and rules promulgated pursuant to this section, and
shall provide necessary staff and support services to the
commission to effectuate the purposes of this section.
(g) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted or allowed
to become effective pursuant to any prior enactments of this
section by the governor, the secretary of the department of
commerce, labor and environmental resources, the director of the
division of natural resources, the whitewater advisory board or by a court of competent jurisdiction, and which are in effect on
the effective date of this section, shall continue in effect
according to their terms until modified, terminated, superseded,
set aside or revoked by the governor, secretary, director or
commission pursuant to this section, by a court of competent
jurisdiction, or by operation of law.
(h) Pursuant to the provisions of article ten, chapter four
of this code, the whitewater commission within the division of
natural resources shall continue to exist until the first day of
July, two thousand two.
NOTE: The purpose of this bill is to continue the
Whitewater Commission within the DNR until July 1, 2002, pursuant
to the West Virginia Sunset Law.
Strike-throughs indicate language that would be
stricken from present law, and underscoring indicates new
language that would be added.
This bill is recommended by the Joint Committee on
Government Operations for passage during the 1996 Regular Session
of the Legislature.