Report on the San Marcos River Task Force
IV. The First and Second Task Force Meetings
SMRTF held its initial meeting on March 7, 2016. The agenda for that meeting is found in Tab 18, March 7, 2016 Meeting Agenda and Summary. At that meeting, and continuing into the second meeting on May 2, 2016 (Tab 19, May 2, 2016 Meeting Agenda and Summary) Chairman Jones focused on identifying the issues that resulted from increased recreational use:
Trash
Large amounts of trash left behind by tubers have been reported and documented by landowners and river recreationists. The tubing companies, landowners, and special interest groups have been conducting river cleanups (Tab 20, Tubing Company Cleanup Reports), but stakeholders report that trash still continues to be a problem (Tab 21, Trash Video).
Overcrowding/Water Safety
Stakeholders representing landowners and law enforcement have reported that at peak times large crowds make it difficult to assist recreationists in need of help, or to reach a person or a group of persons who are breaking existing laws. It was reported that when large groups of tubers tie their tubes together, it creates a barrier for law enforcement to get through. A video of overcrowding during Float Fest was submitted by a SMRTF member, and is included in Tab 22, Video of Overcrowding.
Alcohol Abuse
Testimony and photographs of tubers behaving in an intoxicated manner were provided. Underage drinking was also reported (Tab 23, TPWD Lone Star Law Clip), and local law enforcement has reported that there has been an increase in alcohol related DWI’s on surrounding roadways resulting from intoxicated tubers (Tab 24, Recent DWI Crash).
Public Lewdness
SMRTF members reported recreationists participating in public lewdness, cursing at landowners, trespassing, defecating on landowner’s property, and conducting improper sexual acts along this stretch of the San Marcos River.
Noise
Landowners reported that many of the tubing groups floating down the river have large boom boxes playing loud music as they traverse down the river, and much of this music reportedly has foul language and inappropriate content. Volumes are reportedly so high that landowners can hear the tubers coming before they reach the actual property, and for long periods after the tubers have passed by.
Responsibility for Riverbed Management
The San Marcos River is a navigable river, meaning that use of its waters is reserved for public use. The Texas Supreme Court has recognized that lands underlying navigable waters are held in trust by the state for the use and benefit of all people: “[E]ven prior to the admission of Texas into the Union it was its policy to reserve unto the government its river beds to be held in trust for all the people. Since Texas became a state, it has rigidly adhered to the policy.” State v. Bradford, 121 Tex. 5151, 538, 50 S.W.2d 1065 (1932). The public right of river navigation is protected by the Texas Constitution, Art. XVI, sec. 59. Furthermore, lands under navigable waterways have not been dedicated to the management of any individual state agency. Instead, management of the lands under navigable waterways remains the responsibility of the Texas Legislature, generally speaking. (Tab 25, Riverbeds and Banks article) Accordingly, no single Texas state agency has the authority to regulate recreational activities in a navigable streambed. Additional information regarding Texas river law is provided in Tab 26, Overview of Laws Regarding the Navigation of Texas Streams, and Tab 27, If a River Runs Through It, What Law Applies?
The river segment runs through an unincorporated, rural area and flows through three counties, so there are multiple local enforcement agencies involved. Additionally, the San Marcos River is the boundary between Caldwell and Guadalupe Counties. Local law enforcement lacks kayaks and other equipment necessary for policing the river, as well as water safety training. In the case of suspected underage drinking or drug use, law enforcement officers reported that recreationists can sink the alcohol or drugs before an officer can reach them.
Lack of Enforcement Resources
The SMRTF received information stating that this segment of the San Marcos River does not have the tax base and associated revenue for law enforcement that incorporated areas may have; and the counties lack the budgets, manpower, and necessary water-related equipment and training to be able to properly monitor river users and enforce existing laws when large crowds are present. Although the tubing companies have contracted for security by off-duty law enforcement officers, the opinion was expressed in the SMRTF that these officers might choose not to enforce all applicable laws except in the most extreme situations due to the off-dutry officers' concern about losing the source of employment income. As an example of the relationship between tubers and off-duty law enforcement, one SMRTF member supplied a video of a tuber volunteering to be “tased” (Tab 28, Recreationist Volunteering to be Tased Video). Additionally, a task force member submitted a report entitled, “San Marcos River Private Policing Efforts Ineffective”, which is included in Tab 29.
Accessibility of the River to Law Enforcement
In addition to the lack of officers, equipment, and budgets, concern was expressed about accessibility to locations where law enforcement officers can stage themselves along this study segment. There are only a few locations in this river segment that are conducive to officers being able to stand to interact with recreationists, as the river banks are often quite steep. Portions of this segment may lack a law enforcement presence unless the officers patrol by kayaks or another type of vessel.
Trespassing and Marking of the Public/Private Boundary
The boundary between the public portion of the streambed and the beginning of private ownership is called the “gradient boundary”. Discussion of how the gradient boundary is determined is contained in the river law articles at Tabs 26 and 27. Demarcation of the gradient boundary requires a qualified gradient boundary survey, which may be costly, and the boundary can change with any rise in the river. Even in a case where a landowner may have had the gradient boundary surveyed, signs and other methods to denote private property for trespassing purposes can be washed downstream in floods. While purple paint is a statutorily recognized means to post private property in Texas, landowners often post their property along rivers with purple paint on trees or fence posts further away from the actual boundary to keep the markings from getting washed downstream. It was stated that the dynamic nature of the gradient boundary and the difficulty in posting private property along a navigable river makes trespassing difficult for law enforcement to enforce. Groups of recreationists often stop at point bars along the study segment to drink, rest, or congregate. Landowners report difficulties with some recreationists leaving the point bars and trespassing onto their property to urinate, drink alcohol, or at times participate in other illegal or lewd acts.
Private Enterprise Operating on a Public Resource Adjacent to Private Land
Task force members expressed concern that the tubing liveries are utilizing a public resource to conduct a private business enterprise, and that this is then causing the public and adjacent private landowners to deal with the reported problems that ensue. There are two primary tubing liveries operating on this 3.6 mile stretch. The liveries utilize their own respective properties as the put in and take out points, and can establish requirements and restrictions for patrons utilizing their properties if they choose. However, task force members report that the problems begin once the livery patrons exit the put in locations and utilize the public river as their primary means of floating from one location to the next, as the liveries have no control over the patrons once they are on the public river. No restrooms, sanctioned stopping points for rest, first aid, or other needs are provided along the way. While the length of this segment is short enough for tubers to potentially float without needing to exit the river, it is reported that tubers often stop along the way at point bars along the river’s edge to congregate. These stopover spots are sometimes called “shotgun” beaches because some recreationists apparently use them to “shotgun” alcohol and continue to party. When used as party spots, landowners report that fights can occur among tubers as well as alcohol use, littering, and undesirable behavior by the recreationists participating in these parties. However, it was also reported that the edge of these point bars are still being used by recreationists to rest, stretch, fish, picnic, and other lawful uses, to which the landowners report they do not object. Police dispatch records (Tab 30, Police Dispatch Records) were submitted that describe law enforcement activity on and near the river.
Increased Vehicle Traffic on Nearby Roads
In addition to the issues occurring in the river, it was reported that the roads near the river are being used heavily by the tube livery shuttle busses, adding to the normal wear and tear and increasing maintenance needs. County and local budgets are being strained by the increased maintenance. DWI-related accidents, some deadly, have been caused by recreationists under the influence (Tab 24, Recent DWI Crash)
Impacts on Wildlife and Water Quality
Some task force members expressed concern about the effects of the increased recreational tubing use on water quality and aquatic life. Due to the absence of bathroom facilities, a belief was expressed that tubers are polluting the water with untreated sewage. A task force member reported not seeing fish spawning activity, as he had seen prior to the increase in tubing.