WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1
RESOLUTION AND ORDER ADOPTING RULES AND REGULATIONS PROHIBITING THE USE OF WATERCRAFT WITHIN THREE HUNDRED FEET OF A DAM OWNED AND OPERATED BY BMA; REQUIRING PUBLICATION; ADOPTING CIVIL PENALTIES FOR THE VIOLATION; AND CONTAINING OTHER PROVISIONS RELATING TO THE SUBJECT MATTER.
WHEREAS, the Board of Directors finds, determines, and concludes:
1. The Bexar-Medina-Atascosa Counties Water Control and Improvement District No. 1 (the “BMA”) is a conservation and reclamation district created under the Texas Constitution, article 16, section 59 and currently exercises the functions, powers, and duties of a water control and improvement district as set forth in Texas Water Code chapter 51, as supplemented by Texas Water Code, chapter 49.
2. The BMA owns and operates dams on the Medina River, known as the Medina Dam and the Diversion Lake Dam, located in Medina County, pursuant to permits issued by the predecessor agency of the Texas Commission on Environmental Quality (the “TCEQ”) and under the TCEQ rules, the BMA is “responsible for addressing all maintenance and safety concerns at the dam and appurtenant structures”.
3. Dams such as Medina Dam and Diversion Lake Dam are considered by the Department of Homeland Security as “critical infrastructure and key resources (CIKR)” and “[C]ritical infrastructures are those assets, systems, networks, and functions that are so vital to the United States that their incapacity or destruction would have a debilitating impact on security, national economic security, or public health or safety.”
4. The BMA has installed intruder-resistant fencing and used natural barriers to restrict access to the dam by only authorized persons.
5. With increasing frequency, the BMA employees have observed persons of unknown identity and intent use watercraft on public water to access the dam and appurtenances, including the front of the dam, the spillway, the back of the dam, and gates and valves and have viewed pictures of the dams posted on the internet.
6. The BMA’s board of directors have the power to adopt and enforce reasonable rules and regulations to “regulate privileges on any land or any easement owned or controlled by the district” and to “regulate residence, hunting, fishing, boating, and camping, and all recreational and business privileges on any body or stream of water, or any body of land, or any easement owned or controlled by the district” pursuant to Texas Water Code, §§ 51.122 and 51.127. 2 4328/30 #245505v4
7. The BMA’s rules are “recognized by the courts as if they were penal ordinances of a city” and the BMA board of directors may “set reasonable civil penalties for the breach of any rule of the district” pursuant to Texas Water Code, §§ 51.128 and 49.216.
8. The BMA’s board of directors may, with respect to public water impounded within lakes and reservoirs owned or operated by the BMA, designate certain areas as bathing, fishing, swimming, or otherwise restricted areas and may make rules and regulations relating to the operation of boats which it deems necessary for the public safety pursuant to Tex. Parks & Wildlife Code, section 31.092 (c).
9. The BMA owns the land where the Medina Dam and Diversion Lake dam are located, other than the channel of the Medina River, but the BMA controls the public water impounded within at least three hundred feet of the dam and controls the public water within the Medina River channel below the dam by the operation of the valves on the Medina Dam and the diversion gate at the Diversion Lake Dam; and
10. In order for the BMA to effectively satisfy its obligations to protect critical infrastructure and key resources for which it is responsible and in the interest of public safety, the BMA’s board of directors finds it necessary to restrict unauthorized persons within a reasonable distance, which the board of directors finds is three hundred feet, of the Medina Dam and spillway and Diversion Lake Dam.
Now, therefore be it resolved and ordered by the board of directors:
SECTION ONE. DEFINITIONS. For the purposes of this resolution and order, the following definitions shall apply:
a) The term “watercraft” means any boat, vessel, personal watercraft, barge or a floating devise or craft of any type used or capable of being used for transportation on water.
b) The term “drone” means any unmanned aircraft or any other device that is used or intended to be used to navigate or fly in the air.
c) The term “image” means any capturing of sound waves, thermal, infrared, ultraviolet, visible light, or other electromagnetic waves, odor, or other conditions existing on or about the property or an individual located on that property.
(d) The term “dam” means the concrete structure constructed and maintained pursuant to permits and includes both the upstream and downstream face of the dam, and all related appurtenances, including, but not limited to spillways, valves, gates, valve and gate operating devices, and outlet works. 3 4328/30 #245505v4
a) In the interest of public safety and health and to provide for the security, safeguarding, and preservation of critical infrastructure and key resources owned and operated by the BMA, the BMA board of directors, designates the area three hundred (300) feet upstream and three hundred (300) feet downstream of the BMA’s Medina Dam and related appurtenances, including the spillway, gates, valves, and outlet works, and the BMA’s Diversion Lake Dam and appurtenances, including the canal diversion structure, gates, and valves, is deemed to be a restricted area and closed to entry for any and all purposes,
b) No person, other than the authorized individuals identified in this resolution and order, may enter into the restricted area described in this resolution and order.
c) No person, other than the authorized individuals identified in this resolution and order, may swim, wade, bath, fish, use any type of watercraft or floating device, take images by any means, or conduct overflights by drones at a height less than 400 feet unless such overflight creates a safety risk to the authorized individuals.
d) Authorized individuals shall include directors, employees, agents, contractors, and other invitees of the BMA; state and county law enforcement; emergency service personnel; individuals employed by federal, state, and local governmental authorities that have a right to enter within the restricted area under federal, state, or local law applicable to the agency employing or contracting with the individual, and individuals and invitees of persons who have the right of access granted by the BMA pursuant to contract or lease.
e) The three hundred feet shall be measured from the front and back of each dam and related appurtenance.
f) The boundaries of the restricted area may be marked by buoys, cables, signs, markers, or a combination. No person, other than an authorized individual, may move, alter, damage, disable, or deface such buoys, cables, signs or other markers.
g) Any person, other than authorized individuals, who desire to photograph or film, by any means, areas within the restricted area described by this resolution and order shall file an application with the BMA’s manager requesting permission to conduct such activity. The manager is authorized to approve the application, approve the application in whole or in part, approve the application with conditions, or deny the application.
SECTION THREE. Each violation of a rule or regulation adopted by this resolution and order shall be a Class C misdemeanor and is punishable by a fine of no less than $25 and not to exceed $500. 4 4328/30 #245505v4
SECTION FOUR. The manager is authorized and directed to:
a) Publish or cause to be published, notice of these regulations and penalty in accordance with the publication requirements in Texas Water Code, section 51.129.
b) Keep a copy of this resolution and order on file in the BMA’s office where this resolution and order may be read by any interested person during normal business days and hours.
c) File a copy of this resolution and order with the Texas Parks and Wildlife Department.
d) File a copy of this resolution and order with law enforcement agencies in Medina County, Texas.
SECTION FIVE. This resolution and order shall be effective upon passage, but the penalty for violation of this resolution and order is not effective and enforceable until five days after the second consecutive weekly publication of the notice.
Passed and adopted this 14th day of November, 2016.