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.