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Introduced Version Senate Bill 669 History

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Key: Green = existing Code. Red = new code to be enacted

FISCAL NOTEWEST virginia legislature

2020 regular session

Introduced

Senate Bill 669

By Senators Cline and Roberts

[Introduced January 31, 2020; referred
to the Committee on Natural Resources; and then to the Committee on Finance]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §20-18-1, §20-18-2, §20-18-3, §20-18-4, §20-18-5, §20-18-6, §20-18-7, §20-18-8, §20-18-9, §20-18-10, §20-18-11, §20-18-12, and §20-18-13, all relating to the West Virginia Greenways and Trails Act; providing limitation on liability of private landowners whose property is designated as part of the statewide system of greenways and trails; providing for the establishment of the West Virginia Greenways and Trails System, Greenways, and Trails Program and Greenways and Trails Council; allowing sponsorship of state greenways and trails and acquisition of land; establishing role of Division of Natural Resources; requiring coordination with Department of Transportation and the West Virginia Recreational Trails Advisory Board; authorizing rules; and encouraging recreational opportunities on mined lands.

Be it enacted by the Legislature of West Virginia:



§20-18-1. Short title.

This article may be cited as the “West Virginia Greenways and Trails Act”.


§20-18-2. Declaration of policy and legislative intent.

(a) In order to recognize the benefits of the outdoor areas of West Virginia, and in order to conserve, develop, and use the natural resources of this state for healthful and recreational purposes, it is declared to be the public policy of this state and the purpose of this article to provide the means and procedures for establishing and expanding a statewide system of greenways and trails for recreational and conservation purposes and which is designated as the “West Virginia Greenways and Trails System”. The standards by which the greenways and trails system are acquired, designated, administered, maintained, used, and expanded shall be consistent with the provisions of this article. It is the intent of the Legislature that these greenways and trails will serve to implement the concepts of ecosystems management while providing, where appropriate, recreational opportunities, including, but not limited to, equestrian activities, hiking, bicycling, canoeing, kayaking, jogging, and historical and archaeological interpretation, thereby improving the health and welfare of the people.

(b) It is the intent of the Legislature that a statewide system of greenways and trails be established to provide open space benefiting environmentally sensitive lands and wildlife and providing people with access to healthful outdoor activities. It is also the intent of the Legislature to acquire or designate lands and waterways to facilitate the establishment of a statewide system of greenways and trails; to encourage the multiple use of public rights-of-way and use to the fullest extent existing and future scenic roads, highways, park roads, parkways, greenways, trails, and national recreational trails; to encourage the development of greenways and trails by counties, cities, special districts, and nongovernmental organizations to assist in such development by any means available; to coordinate greenway and trail plans and development by local governments with one another and with the state government and federal government; to encourage, whenever possible, the development of greenways and trails on federal lands by the federal government; and to encourage the owners of private lands to protect the existing ecological, historical, and cultural values of their lands, including those values derived from working landscapes.

(c) It is the intent of the Legislature that designated greenways and trails be located on public lands and waterways and, subject to the written agreement of the private landowner, on private lands. Designated greenways and trails located on public lands or waterways or on private lands may or may not provide public access, as agreed by the division or the landowner, respectively.

(d) It is the intent of the Legislature that information produced for the purpose of the identification of lands and waterways, both public and private, that are suitable for greenways and trails be used only for the purposes of:

(1) Setting priorities for acquisition, planning, and management of public lands and waterways for use as greenways and trails; and

(2) Identification of private lands which are eligible for designation as part of the greenways and trails system and are thereby eligible for incentives.

(e) The planning, development, operation, and maintenance of the West Virginia Greenways and Trails System authorized by this article is declared to be a public purpose, and the Division of Natural Resources, together with other agencies of this state and all counties, municipalities, and special districts of this state, is authorized to spend public funds for such purposes and to accept gifts and grants of funds, property, or property rights from public or private sources to be used for such purposes.

(f) The Legislature recognizes the significant economic benefit of nature-based recreation and the contributions to the state’s economy that arise from the creation and completion of the Great Eastern Trail which connects to the Appalachian Trail and other trails and greenways throughout the state. In order to further its commitment to the residents of this state and the United States Government to complete the establishment of the trail in a permanent location, it is further the intent of the Legislature to:

(1) Encourage all state, regional, and local agencies that acquire lands to include in their land-buying efforts the acquisition of enough legal interest in the lands over which the trail passes to ensure its continued existence in a permanent location;

(2) Consider the inclusion of private funds used to supplement the state’s contribution in its efforts to acquire fee or less-than-fee interests in lands that contain designated portions of the trail;

(3) Encourage private landowners to continue to allow the use of private property for trail purposes through existing and future incentives and liability protection; and

(4) Encourage state and local agencies with economic and ecotourism development responsibilities to recognize the importance of the trail in bringing nature-based tourism to local communities along the trail route and to support acquisition and development activities for completion of the trail in a permanent location.

§20-18-3. Limitation on liability of private landowners whose property is designated as part of the statewide system of greenways and trails.


(a)(1) A private landowner whose land is designated as part of the statewide system of greenways and trails, including a person holding a subservient interest, owes no duty of care to keep that land safe for entry or use by others or to give warning to persons entering that land of any hazardous conditions, structures, or activities thereon. The landowner:

(A) Is not presumed to extend any assurance that the land is safe for any purpose;

(B) Does not Incur any duty of care toward a person who goes on the land; or

(C) Is not liable or responsible for any injury to persons or property caused by the act or omission of a person who goes on the land.

(2) The provisions of subdivision (1) of this subsection apply whether the person going on the designated greenway or trail is an invitee, licensee, trespasser, or otherwise.

(b) The provisions of subsection (a) of this section do not apply if there is any charge made or usually made by the landowner for entering or using the land designated as a greenway or trail, or any part thereof, or if any commercial or other activity whereby profit is derived by the landowner from the patronage of the general public is conducted on the land so designated or any part thereof.

(c) The provisions of subsection (a) of this section apply to adjacent land owned by the private landowner who consents to designation of a greenway or trail where the adjacent land is accessed through the land so designated.

(d) (1) When a private landowner agrees to make his or her land available for public use as a designated greenway or trail, the division or its designee shall post notices along the boundary of the designated greenway or trail which inform the public that the land adjacent to the greenway or trail is private property upon which unauthorized entry for any purpose is prohibited and constitutes trespassing.

(2) The notices shall constitute a warning to unauthorized persons to remain off the private property and not to depart from the designated greenway or trail. Any person who commits such an unauthorized entry commits a trespass under §61-3B-3 of this code.

(e) If agreed to by the division and the landowner in the designation agreement, a landowner whose land is designated as part of the statewide system of greenways and trails shall be indemnified for:

(1) Any injury or damage incurred by a third party arising out of the use of the designated greenway or trail;

(2) Any injury or damage incurred by a third party on lands adjacent to and accessed through the designated greenway or trail; and

(3) Any damage to the landowner’s property, including land adjacent to and accessed through the designated greenway or trail, caused by the act or omission of a third person resulting from any use of the land so designated.

(f) This section does not relieve any person of liability that would otherwise exist for deliberate, willful, or malicious injury to persons or property. The provisions of this section do not create or increase the liability of any person.


§20-18-4. Definitions.

As used in this article:

“Designation” means the identification and inclusion of specific lands and waterways as part of the statewide system of greenways and trails pursuant to a formal public process, including the specific written consent of the landowner. When the division determines that public access is appropriate for greenways and trails, written authorization must be granted by the landowner to the division permitting public access to all or a specified part of the landowner’s property. The division’s determination shall be published in the State Register, and the division shall also notify the landowner by certified mail at least 7 days before any public meeting regarding the intent to designate.

“Division” means the Division of Natural Resources.

“Greenway” means a linear open space established along either a natural corridor, such as a riverfront, stream valley, or ridgeline, or over land along a railroad right-of-way converted to recreational use, a canal, a scenic road, or other route; any natural or landscaped course for pedestrian or bicycle passage; an open space connector linking parks, nature reserves, cultural features, or historic sites with each other and populated areas; or a local strip or linear park designated as a parkway or greenbelt.

“Office” means the Office of Greenways and Trails within the Division of Natural Resources.

“Trails” means linear corridors and any adjacent support parcels on land or water providing public access for recreation or authorized alternative modes of transportation.


§20-18-5. West Virginia Greenways and Trails System.

The West Virginia Greenways and Trails System shall be a statewide system of greenways and trails which consist of individual greenways and trails and networks of greenways and trails which may be designated as a part of the statewide system by the division. Mapping or other forms of identification of lands and waterways as suitable for inclusion in the system of greenways and trails, mapping of ecological characteristics for any purpose, or development of information for planning purposes does not constitute designation. No lands or waterways may be designated as a part of the statewide system of greenways and trails without the specific written consent of the landowner.


§20-18-6. Greenways and Trails Program.

There is established within the division the “West Virginia Greenways and Trails Program,” the purpose of which is to facilitate the establishment of a statewide system of greenways and trails. Planning materials, maps, data, and other information developed or used in the program is not a designation of lands as part of the statewide system of greenways and trails. Identification of lands in that information:

(1) Does not require or empower any unit of local or regional government, or any state agency, to impose additional or more restrictive environmental, land-use, or zoning regulations;

(2) Is not authority to adopt, enforce, or amend any environmental rule or regulation; comprehensive plan goals, policies, or objectives; or zoning or land-use ordinance;

(3) May not be used as the basis for permit denial; imposition of any permit condition; or application of any rule, regulation, or ordinance by any subdivision of local, regional, or state government; or

(4) Is not authority for any governmental agency to reduce or restrict the rights of owners of lands so identified.


§20-18-7. West Virginia Greenways and Trails Council; composition; powers and duties.

(a)(1) There is created within the division the West Virginia Greenways and Trails Council which shall advise the division in the execution of the division’s powers and duties under this article. The council shall be composed of 18 members, consisting of:

(A) Five members appointed by the Governor, with two members representing the trail user community, two members representing the greenway user community, and one member representing private landowners;

(B) Three members appointed by the President of the Senate, with one member representing the trail user community and two members representing the greenway user community; and

(C) Three members appointed by the Speaker of the House of Delegates, with two members representing the trail user community and one member representing the greenway user community.

(2) Those eligible to represent the trail user community shall be chosen from, but not be limited to, paved trail users, hikers, off-road bicyclists, users of off-highway vehicles, paddlers, equestrians, disabled outdoor recreational users, and commercial recreational interests. Those eligible to represent the greenway user community shall be chosen from, but not be limited to, conservation organizations, nature study organizations, and scientists and university experts.

(3) The seven remaining members shall include:

(A) The Secretary of the Department of Environmental Protection or a designee;

(B) The Director of the Division of Natural Resources or a designee;

(C) The Secretary of the Department of Transportation or a designee;

(D) The Commissioner of Agriculture or a designee;

(E) The Deputy State Historic Preservation Officer or a designee;

(F) A representative of a federal land management agency. The Director of the Division of Natural Resources shall identify the appropriate federal agency and request designation of a representative from the agency to serve on the council; and

(G) A representative of local governments to be appointed by the Director of the Division of Natural Resources. Membership shall alternate between a county representative and a municipal representative.

(b) The division shall provide necessary staff assistance to the council.

(c) The term of all appointees is for 2 years unless otherwise specified. The appointees of the Governor, the President of the Senate, and the Speaker of the House of Delegates may be reappointed for no more than four consecutive terms. The representatives of the local governments may be reappointed for no more than two consecutive terms. All other appointees shall serve until replaced.

(d) The council shall:

(1) Facilitate a statewide system of interconnected landscape linkages, conservation corridors, greenbelts, recreational corridors and trails, scenic corridors, utilitarian corridors, reserves, regional parks and preserves, ecological sites, and cultural/historic/recreational sites using land-based trails that connect urban, suburban, and rural areas of the state and facilitate expansion of the statewide system of freshwater paddling trails;

(2) Recommend priorities for critical links in the West Virginia Greenways and Trails System;

(3) Review recommendations of the office for acquisition funding under the West Virginia Greenways and Trails Program and recommend to the Director of the Division of Natural Resources which projects should be acquired;

(4) Review designation proposals for inclusion in the West Virginia Greenways and Trails System;

(5) Encourage public-private partnerships to develop and manage greenways and trails;

(6) Review progress toward meeting established benchmarks and recommend appropriate action;

(7) Make recommendations for updating and revising the implementation plan for the West Virginia Greenways and Trails System;

(8) Promote greenways and trails support organizations; and

(9) Support the West Virginia Greenways and Trails System through intergovernmental coordination, budget recommendations, advocacy, education, and any other appropriate way.

(e) The council shall establish procedures for conducting its affairs in execution of the duties and responsibilities stated in this section, which operating procedures shall include determination of a council chair and other appropriate operational guidelines. The council shall meet at the call of the chair, or at such times as may be prescribed by its operating procedures. The council may establish committees to conduct the work of the council and the committees may include nonmembers as appropriate.

(f) A vacancy on the council shall be filled for the remainder of the unexpired term in the same manner as the original appointment. Members whose terms have expired may continue to serve until replaced or reappointed.

(g) Members of the council may not receive compensation for their services but are entitled to receive reimbursement for reasonable and necessary expenses incurred in the performance of their duties, as provided in the Department of Administration, State of West Virginia Travel Rules.


§20-18-8. Sponsorship of state greenways and trails.

(a) The division may enter into a concession agreement with a not-for-profit entity or private sector business or entity for commercial sponsorship to be displayed on state greenway and trail facilities or property specified in this section. The division may establish the cost for entering into a concession agreement.

(b) A concession agreement shall be administered by the division and must include the requirements found in this section.

(1) Space for a commercial sponsorship display may be provided through a concession agreement on certain state-owned greenway or trail facilities or property.

(2) Signage or displays erected under this section shall be limited as follows:

(A) One large sign or display, not to exceed 16 square feet in area, may be located at each trailhead or parking area.

(B) One small sign or display, not to exceed four square feet in area, may be located at each designated trail public access point.

(3) Before installation, each name or sponsorship display must be approved by the division.

(4) The division shall ensure that the size, color, materials, construction, and location of all signs are consistent with the management plan for the property and the standards of the division, do not intrude on natural and historic settings, and contain only a logo selected by the sponsor and the following sponsorship wording:

(Name of the sponsor) proudly sponsors the costs of maintaining the (Name of the greenway or trail).

(5) The division may enter into commercial sponsorship agreements for state greenways or trails as authorized in this section. A qualified entity that desires to enter into a commercial sponsorship agreement shall apply to the division on forms adopted by division rule.

(6) All costs of a display, including development, construction, installation, operation, maintenance, and removal costs, shall be paid by the concessionaire.

(c) A concession agreement shall be for a minimum of 1 year, but may be for a longer period under a multiyear agreement, and may be terminated for just cause by the division upon 60 days’ advance notice. Just cause for termination of a concession agreement includes, but is not limited to, violation of the terms of the concession agreement or any provision of this section.

(d) Commercial sponsorship pursuant to a concession agreement is for public relations or advertising purposes of the not-for-profit entity or private sector business or entity, and may not be construed by that not-for-profit entity or private sector business or entity as having a relationship to any other actions of the division.

(e) This section does not create a proprietary or compensable interest in any sign, display site, or location.

(f) Proceeds from concession agreements shall be distributed into the appropriate division trust fund that is the source of funding for management and operation of state greenway and trail facilities and properties.


§20-18-9. Acquisition of land.

(a) The division is authorized to acquire by gift or purchase the fee simple absolute title or any lesser interest in land, including easements, for the purposes of this article, except that:

(1) The division’s power of eminent domain is limited to curing defects in title;

(2) Lists of proposed acquisitions for the West Virginia Greenways and Trails Program shall be prepared according to procedures adopted by the division; and

(3) Projects acquired under this article may use the appraisal procedure used by the Department of Transportation to acquire transportation rights-of-way.

(b) For purposes of the West Virginia Greenways and Trails Program, the division may:

(1) Accept fee simple title or any lesser interest in lands through methods, including, but not limited to, purchase, donation, grant, dedication, lease, easement, license, or other agreement, to facilitate the establishment of a statewide system of greenways and trails;

(2) Accept title to abandoned railroad rights-of-way which is conveyed by quitclaim deed through purchase, dedication, gift, grant, or settlement; and

(3) Enter into an agreement with a nonprofit corporation, to assume responsibility for acquisition of lands pursuant to this section.

(c) Easements, licenses, and use agreements upon, over, under, across, or along any land, the fee title of which has been acquired for the purposes of this article, may be granted by the division so long as the use of the easement, license, or use agreement does not interfere with the purposes of this article.


§20-18-10. General powers of the division.

(a) The division may:

(1) Publish and distribute appropriate maps of designated greenways and trails;

(2) Adopt appropriate rules to implement or interpret this article relating to greenways and trails, which may include, but are not limited to, rules for:

(A) Establishing a designation process;

(B) Negotiating and executing agreements with private landowners;

(C) Establishing prohibited activities or restrictions on activities to protect the health, safety, and welfare of the public;

(D) Charging fees for use;

(E) Providing public access to the greatest extent possible while avoiding unnecessary impact upon sensitive environments such as wetlands or animal habitats, wherever encountered;

(F) Providing for maintenance; and

(G) Any matter necessary to the evaluation, selection, operation, and maintenance of greenways and trails;

(3) Coordinate the activities of all governmental units and bodies and special districts that desire to participate in the development and implementation of the West Virginia Greenways and Trails System;

(4) Establish, develop, and publicize greenways and trails in a manner that will permit public recreation when appropriate without damaging natural resources and avoiding unnecessary impact upon sensitive environments such as wetlands or animal habitats, wherever encountered;

(5) Enter into agreements with any federal, state, or local governmental agency, or any other entity for the management of greenways and trails for recreation and conservation purposes consistent with the intent of this article. Such entities must demonstrate their capabilities of management for the purposes defined in this article;

(6) Charge reasonable fees or rentals for the use or operation of facilities and concessions. All such fees, rentals, or other charges collected shall be deposited in the account or trust fund of the managing entity; and

(7) Receive or accept from any legal source, grants for the purpose of providing or improving public greenways and trails, and the division is authorized to disburse funds as pass-through grants to federal, state, or local government agencies, recognized tribal units, or to nonprofit entities created for this purpose. The division has authority to adopt rules to implement the provisions of this subsection. Such rules shall provide, but are not limited to, the following: procedures for grant administration and accountability; eligibility, selection criteria; maximum grant amounts and number of pending grants; dedication requirements; and conversion procedures and requirements.

(b) The division shall:

(1) Evaluate lands for the acquisition of greenways and trails and compile a list of suitable corridors, greenways, and trails, ranking them in order of priority for proposed acquisition. The division shall devise a method of evaluation which includes, but is not limited to, the consideration of the importance and function of such corridors within the statewide system as reflected on the opportunity maps and landowners’ willingness to negotiate;

(2) Maintain an updated list of abandoned and to-be-abandoned railroad rights-of-way;

(3) Provide information to public and private agencies and organizations on abandoned rail corridors which are or will be available for acquisition from the railroads or for lease for interim recreational use from the Department of Transportation;

(4) Develop and implement a process for designation of lands and waterways as a part of the statewide system of greenways and trails, which shall include:

(A) Development and dissemination of criteria for designation;

(B) Development and dissemination of criteria for changes in the terms or conditions of designation, including withdrawal or termination of designation. A landowner may have his or her lands removed from designation by providing the division with a written request that contains an adequate description of such lands to be removed. Provisions shall be made in the designation agreement for disposition of any future improvements made to the land by the division;

(C) Public notice though posting information on the division’s webpage in all phases of the process;

(D) Written authorization from the landowner in the form of a lease or other instrument for the designation and granting of public access, if appropriate, to a landowner’s property; and

(E) A greenway or trail use plan as a part of the designation agreement which shall, at a minimum, describe the types and intensities of uses of the property.

(c) The division or its designee is authorized to negotiate with potentially affected private landowners as to the terms under which the landowners consent to the public use of their lands as part of the greenways and trails system. The division may agree to incentives for a private landowner who consents to this public use of his or her lands for conservation or recreational purposes, including, but not limited to:

(1) Retention by the landowner of certain specific rights in his or her lands, including, but not limited to, the right to farm, hunt, graze, harvest timber, or use the lands for other purposes which are consistent with use as greenways or trails;

(2) Contracting with the landowner to provide management or other services on the lands;

(3) At the option of the landowner, acceleration of the acquisition process or higher consideration in the ranking process when any lands owned by the landowner are under consideration for acquisition by the state or other unit of government;

(4) At the option of the landowner, removal of any lands owned by the landowner from consideration for acquisition by the state or other unit of government;

(5) Execution of patrol and protection agreements; and

(6) Where applicable and appropriate, providing lease fees, not to exceed fair market value of the leasehold interest.

(d) Any person who violates or otherwise fails to comply with the rules adopted pursuant to paragraph (C), subdivision (2), subsection (a) of this section commits a noncriminal infraction for which a civil penalty of up to $500 may be imposed.


§20-18-11. Coordination with Department of Transportation and the West Virginia Recreational Trails Advisory Board.

(a) Upon request of the division, the Department of Transportation Grant Administration Unit and the West Virginia Recreational Trails Advisory Board shall coordinate with the division relating to state and federal grants that support or could support the development of greenways and trails, including, but not limited to, Transportation Alternatives Program, Recreational Trails Program, West Virginia State Trails Program, and Bicycle/pedestrian Accommodation, and Engineering Guidance for Grant Administration Programs.

(b) Upon the request of the division, the Department of Transportation shall provide information to the division on abandoned and to-be-abandoned railroad rights-of-way.

(c) The Department of Transportation and the division shall coordinate their evaluations of potential acquisitions and their acquisition priorities with respect to abandoned railroad rights-of-way in order to avoid competing for the same corridors.

(d) After the Department of Transportation acquires abandoned railroad rights-of-way for future transportation purposes, the Department of Transportation shall lease such rights-of-way to a public agency or private organization for interim public greenway or trail use if:

(1) The public agency or private organization has requested use of the right-of-way for interim public recreational trail use;

(2) The public agency or private organization agrees in writing to assume all liability and management responsibilities as defined by the Department of Transportation; and

(3) The use of the right-of-way as a recreational trail does not interfere with the ultimate transportation purposes of the property as determined by the Secretary of the Department of Transportation.

(e) If the Department of Transportation determines that an abandoned railroad right-of-way which has been leased for interim recreational trail use is needed for transportation purposes, the Department of Transportation shall work with the leasing agency to accommodate, when feasible, the existing trail use in conjunction with the use of the right-of-way for transportation.


§20-18-12. Restrictions; rules.

The division may establish restrictions on the use of motorized watercraft within any defined canoe trail necessary to ensure the safe use of a water body for canoes or kayaks. Restrictions established pursuant to this section must be adopted as a rule pursuant to this article, after proper notice and hearing, and may be enforced by any state or local law-enforcement agency having jurisdiction over the area within which the trail is designated.


§20-18-13. Recreational opportunities on mined lands.

The division is encouraged to work with industry, government, and private landowners to create plans and assist in the development of recreational opportunities on mined lands in the state. These opportunities should include walking, hiking, use of off-highway vehicles, canoeing, bicycling, equestrian activities, wildlife viewing, and other trail areas along with developing fishing and hunting lands.

 

NOTE: The purpose of this bill is to enact the West Virginia Greenways and Trails Act.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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