Code of Virginia

Code of Virginia
Title 28.2. Fisheries and Habitat of the Tidal Waters
7/23/2017

Chapter 12. Submerged Lands.

Article 1. Ownership and Uses of Submerged Lands.

§ 28.2-1200. Ungranted beds of bays, rivers, creeks and shores of the sea to remain in common.

All the beds of the bays, rivers, creeks and the shores of the sea within the jurisdiction of the Commonwealth, not conveyed by special grant or compact according to law, shall remain the property of the Commonwealth and may be used as a common by all the people of the Commonwealth for the purpose of fishing, fowling, hunting, and taking and catching oysters and other shellfish. No grant shall be issued by the Librarian of Virginia to pass any estate or interest of the Commonwealth in any natural oyster bed, rock, or shoal, whether or not it ebbs bare.

Code 1950, § 62-1; 1960, c. 533; 1968, c. 659, § 62.1-1; 1992, c. 836; 1995, c. 850; 1998, c. 427.

§ 28.2-1200.1. Conveyance of state-owned bottomlands.

A. In order to fulfill the Commonwealth's responsibility under Article XI of the Constitution of Virginia to conserve and protect public lands for the benefit of the people, the Commonwealth shall not convey fee simple title to state-owned bottomlands covered by waters. However, the Commonwealth may grant a lease, easement, or other limited interest in state-owned bottomlands covered by waters pursuant to § 28.2-1208 or as long as the property is used by a governmental entity for the performance of a governmental activity, as defined in §§ 28.2-1300 and 28.2-1400.

B.1. The Commonwealth may convey fee simple title to specified parcels of state-owned bottomlands that have been lawfully filled. For the purpose of this section, "lawfully filled" means the deposit of fill was (i) authorized by statute, (ii) pursuant to valid court order, (iii) authorized or permitted by state officials pursuant to statutory authority subsequent to July 1, 1960, or (iv) under apparent color of authority prior to July 1, 1960. In the absence of information to the contrary, it may be presumed that state-owned bottomlands filled prior to July 1, 1960, were filled under apparent color of authority and, it may also be presumed, that all of the fill on the specified parcel was lawfully authorized if a substantial portion of the fill on such parcel was authorized. Properties not qualified under clauses (i) through (iv) of this subdivision shall not be eligible for conveyance under this section.

2. Titles to lands that (i) were once or may have been state-owned bottomlands covered by waters, (ii) were filled prior to July 1, 1960, and (iii) were acquired by private persons in good faith for value after such lands were filled, are hereby declared to be free and clear of any claimed ownership or interest by the Commonwealth and are released to such private persons and their successors and assigns by the Commonwealth to the extent that the areas of these lands were not state-owned bottomlands covered by waters on July 1, 1960.

3. This subsection shall not apply to any state-owned bottomlands filled by a publicly funded initiative and put to a continuing public use, which includes beach nourishment projects and public landings.

C. Except as provided in subsection D, the grantee in a conveyance under subdivision B 1 shall compensate the Commonwealth in an amount commensurate with the property interest being conveyed, which shall be considered equivalent to 25 percent of the assessed value of the specified parcel, exclusive of any buildings or other improvements. The assessed value shall be established as the average of the local real estate tax assessments for the most recent 10 years available for the specified parcel. If no such assessments are available for the specified parcel, then the assessed value shall be calculated as the percentage, by square footage or acreage, that the specified parcel represents of the larger parcel for which such assessments are available.

D. If the Commission determines that unique circumstances exist, the Commission may allow the grantee in a conveyance under subdivision B 1 to compensate the Commonwealth in an amount less than 25 percent of the assessed value of the specified parcel. Any such determination by the Commission shall be justified in writing and shall not be subject to judicial review.

2007, c. 879; 2011, c. 734.

§ 28.2-1201. Ungranted islands which rise from lands which are property of the Commonwealth.

A. Except as otherwise provided in subsections B and C hereof, all ungranted islands which rise by natural or artificial causes from the beds of bays, rivers and creeks that are ungranted under § 28.2-1200 shall remain the property of the Commonwealth and shall be managed by the Commission as provided in Article 2 (§ 28.2-1503 et seq.) of Chapter 15 of this title. In case of any conflict between the provisions of this subsection and the common law of accretion, reliction and avulsion, such common law shall control.

B. Any island or land that is owned by the Commonwealth, whether currently in existence or subsequently created, that now or hereafter abuts a barrier island of the Eastern Shore shall remain the property of the Commonwealth and shall be managed by the Commission as provided in Article 2 (§ 28.2-1503 et seq.) of Chapter 15 of this title.

C. This section shall not apply to accretions to privately owned lands or islands, whether or not they are used as commons.

1991, c. 378, § 41.1-4.1; 1992, c. 836; 1995, c. 850.

§ 28.2-1202. Rights of owners to extend to mean low-water mark.

A. Subject to the provisions of § 28.2-1200, the limits or bounds of the tracts of land lying on the bays, rivers, creeks, and shores within the jurisdiction of the Commonwealth, and the rights and privileges of the owners of such lands, shall extend to the mean low-water mark but no farther, except where a creek or river, or some part thereof, is comprised within the limits of a lawful survey.

B. For purposes of this section, "lawful survey" means the boundaries of any land, including submerged lands, held under a special grant or compact as required by § 28.2-1200, such boundaries having been determined by generally accepted surveying methods and evidenced by a plat or map thereof recorded in the circuit court clerk's office of the county or city in which the land lies.

C. Notwithstanding any provision of law to the contrary, where sand or other material is placed upon state-owned beds of the bays, rivers, creeks, or shores of the sea channelward of the mean low-water mark as part of the performance of a properly permitted beach nourishment, storm protection, or dredging project undertaken by a public body, and the public has an established right of use and maintenance upon the adjacent land above the mean low-water mark, whether such public right is established before or after the sand or other material is placed, such placement shall not be deemed a severance or taking of, or otherwise to have impaired, an adjacent landowner's riparian or littoral rights, and the newly created land channelward of the former mean low-water mark shall be deemed natural accretion for purposes of ownership, but such ownership shall be subject to the public's same right of use and maintenance upon the newly created land as previously existed on the adjacent land above the mean low-water mark. This subsection is retroactively effective beginning January 1, 2009.

Code 1950, § 62-2; 1968, c. 659, § 62.1-2; 1972, c. 865; 1992, c. 836; 2014, cc. 106, 234.

§ 28.2-1203. Unlawful use of subaqueous beds; penalty.

A. It shall be unlawful for any person to build, dump, trespass or encroach upon or over, or take or use any materials from the beds of the bays, ocean, rivers, streams, or creeks which are the property of the Commonwealth, unless such act is performed pursuant to a permit issued by the Commission or is necessary for the following:

1. Erection of dams, the construction of which has been authorized by proper authority;

2. Uses of subaqueous beds authorized elsewhere in this title;

3. Construction and maintenance of congressionally approved navigation and flood-control projects undertaken by the United States Army Corps of Engineers, the United States Coast Guard, or other federal agency authorized by Congress to regulate navigation, navigable waters, or flood control;

4. Construction of piers, docks, marine terminals, and port facilities owned or leased by or to the Commonwealth or any of its political subdivisions;

5. Except as provided in subsection D of § 28.2-1205, placement of private piers for noncommercial purposes by owners of the riparian lands in the waters opposite those lands, provided that (i) the piers do not extend beyond the navigation line or private pier lines established by the Commission or the United States Army Corps of Engineers, (ii) the piers do not exceed six feet in width and finger piers do not exceed five feet in width, (iii) any L or T head platforms and appurtenant floating docking platforms do not exceed, in the aggregate, 400 square feet, (iv) if prohibited by local ordinance open-sided shelter roofs or gazebo-type structures shall not be placed on platforms as described in clause (iii), but may be placed on such platforms if not prohibited by local ordinance, and (v) the piers are determined not to be a navigational hazard by the Commission. Subject to any applicable local ordinances, such piers may include an attached boat lift and an open-sided roof designed to shelter a single boat slip or boat lift. In cases in which open-sided roofs designed to shelter a single boat, boat slip or boat lift will exceed 700 square feet in coverage or the open-sided shelter roofs or gazebo structures exceed 400 square feet, and in cases in which an adjoining property owner objects to a proposed roof structure, permits shall be required as provided in § 28.2-1204;

6. Agricultural, horticultural or silvicultural irrigation on riparian lands or the watering of animals on riparian lands, provided that (i) no permanent structure is placed on or over the subaqueous bed, (ii) the person withdrawing water complies with requirements administered by the Department of Environmental Quality under Title 62.1, and (iii) the activity is conducted without adverse impacts to instream beneficial uses as defined in § 62.1-10; or

7. Recreational gold mining, provided that (i) a man-portable suction dredge no larger than four inches in diameter is used, (ii) rights of riparian property owners are not affected, (iii) the activity is conducted without adverse impacts to instream beneficial uses as defined in § 62.1-10, (iv) the activity is conducted without adverse impacts to underwater historic properties and related objects as defined in § 10.1-2214, and (v) the activity is not defined as mining in § 45.1-180.

B. A violation of this section is a Class 1 misdemeanor.

Code 1950, § 62-2.1; 1960, c. 600; 1962, c. 637; 1966, c. 641; 1968, c. 659, § 62.1-3; 1970, c. 621; 1972, c. 866; 1973, cc. 23, 361; 1974, cc. 92, 385; 1975, c. 431; 1976, c. 579; 1980, c. 253; 1982, c. 102; 1988, c. 868; 1992, c. 836; 1998, c. 605; 2000, c. 167; 2001, c. 234; 2003, c. 973; 2006, c. 507; 2007, c. 25.

§ 28.2-1204. Authority of Commission over submerged lands.

The Commission is authorized to:

1. Issue permits for all reasonable uses of state-owned bottomlands not authorized under subsection A of § 28.2-1203, including but not limited to, dredging, the taking and use of material, and the placement of wharves, bulkheads, and fill by owners of riparian land in the waters opposite their lands, provided such wharves, bulkheads, and fill do not extend beyond any lawfully established bulkhead lines;

2. Issue permits to recover underwater historic property pursuant to §§ 10.1-2214 and 28.2-1203; and

3. Establish bulkhead and private pier lines on or over the bays, rivers, creeks, streams, and shores of the ocean which are owned by or subject to the jurisdiction of the Commonwealth for this purpose, and to issue and publish maps and plats showing these lines; however, these lines shall not conflict with those established by the United States Army Corps of Engineers.

Code 1950, § 62-2.1; 1960, c. 600; 1962, c. 637; 1966, c. 641; 1968, c. 659, § 62.1-3; 1970, c. 621; 1972, c. 866; 1973, cc. 23, 361; 1974, cc. 92, 385; 1975, c. 431; 1976, c. 579; 1980, c. 253; 1982, c. 102; 1988, c. 868; 1992, c. 836.

§ 28.2-1204.1. Submerged aquatic vegetation.

The Commission shall, in consultation with the Virginia Institute of Marine Science, develop guidelines containing criteria for use in:

1. Defining existing beds of submerged aquatic vegetation; and

2. Delineating areas where there is potential for submerged aquatic vegetation restoration.

1999, c. 547.

§ 28.2-1204.2. Marine Habitat and Waterways Improvement Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Marine Habitat and Waterways Improvement Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. In addition to the receipt of moneys as may be specifically provided by law, the Commissioner is authorized to accept gifts and grants for the Fund, as well as proceeds that may be received from time to time on the sale of state-owned marine lands. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of improving marine habitat and waterways, including the removal of obstructions or hazardous property from state waters as authorized in §§ 15.2-909 and 28.2-1210. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Commissioner.

2000, c. 1056.

§ 28.2-1205. Permits for the use of state-owned bottomlands.

A. When determining whether to grant or deny any permit for the use of state-owned bottomlands, the Commission shall be guided in its deliberations by the provisions of Article XI, Section I of the Constitution of Virginia. In addition to other factors, the Commission shall also consider the public and private benefits of the proposed project and shall exercise its authority under this section consistent with the public trust doctrine as defined by the common law of the Commonwealth adopted pursuant to § 1-200 in order to protect and safeguard the public right to the use and enjoyment of the subaqueous lands of the Commonwealth held in trust by it for the benefit of the people as conferred by the public trust doctrine and the Constitution of Virginia. The Commission shall also consider the project's effect on the following:

1. Other reasonable and permissible uses of state waters and state-owned bottomlands;

2. Marine and fisheries resources of the Commonwealth;

3. Tidal wetlands, except when this has or will be determined under the provisions of Chapter 13 of this title;

4. Adjacent or nearby properties;

5. Water quality; and

6. Submerged aquatic vegetation (SAV).

B. The Commission shall consult with other state agencies, including the Virginia Institute of Marine Science, the State Water Control Board, the Virginia Department of Transportation, and the State Corporation Commission, whenever the Commission's decision on a permit application relates to or affects the particular concerns or activities of those agencies.

C. No permit for a marina or boatyard for commercial use shall be granted until the owner or other applicant presents to the Commission a plan for sewage treatment or disposal facilities that has been approved by the State Department of Health.

D. A permit is required and shall be issued by the Commission for placement of any private pier measuring 100 or more feet in length from the mean low-water mark, which is used for noncommercial purposes by an owner of the riparian land in the waters opposite the land, and that traverses commercially productive leased oyster or clam grounds, as defined in § 28.2-630, provided that the pier does not extend beyond the navigation line established by the Commission or the United States Army Corps of Engineers. The permit may reasonably prescribe the design and location of the pier for the sole purpose of minimizing the adverse impact on such oyster or clam grounds or the harvesting or propagation of oysters or clams therefrom. The permit shall contain no other conditions or requirements. Unless information or circumstances materially alter the conditions under which the permit would be issued, the Commission shall act within 90 days of receipt of a complete joint permit application to approve or deny the application. If the Commission fails to act within that time, the application shall be deemed approved and the applicant shall be notified of the deemed approval.

E. All permits issued by the Commission for the use of state-owned bottomlands pursuant to § 28.2-1204, or to recover underwater historic property shall be in writing and specify the conditions and terms that the Commission determines are appropriate, and royalties unless prohibited under other provisions of this chapter.

F. Any person aggrieved by a decision of the Commission under this section is entitled to judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.). However, any decision made by the Commission hereunder consistent with the public trust doctrine as defined by the common law of the Commonwealth adopted pursuant to § 1-200 shall not be deemed to have been made pursuant to the police power. No person shall reapply for the same or substantially similar use of the bottomlands within 12 months of the denial of a permit by the Commission. Nothing in this subsection shall be construed to deprive a riparian landowner of such rights as he may have under common law.

Code 1950, § 62-2.1; 1960, c. 600; 1962, c. 637; 1966, c. 641; 1968, c. 659, § 62.1-3; 1970, c. 621; 1972, c. 866; 1973, cc. 23, 361; 1974, cc. 92, 385; 1975, c. 431; 1976, c. 579; 1980, c. 253; 1982, c. 102; 1988, c. 868; 1992, c. 836; 1996, c. 228; 1999, c. 741; 2000, c. 167; 2001, c. 72; 2004, cc. 405, 899, 1018; 2005, c. 839.

§ 28.2-1205.1. Coordinated review of water resources projects.

A. Applications for water resources projects that require a Virginia Marine Resources permit and an individual Virginia Water Protection Permit under § 62.1-44.15:20 shall be submitted and processed through a joint application and review process.

B. The Commissioner and the Director of the Department of Environmental Quality, in consultation with the Virginia Institute of Marine Science, the Department of Game and Inland Fisheries, the Department of Historic Resources, the Department of Health, the Department of Conservation and Recreation, the Virginia Department of Agriculture and Consumer Services, and any other appropriate or interested state agency, shall coordinate the joint review process to ensure the orderly evaluation of projects requiring both permits.

C. The joint review process shall include, but not be limited to, provisions to ensure that: (i) the initial application for the project shall be advertised simultaneously by the Commission and the Department of Environmental Quality; (ii) project reviews shall be completed by all state agencies that have been asked to review and provide comments, within 45 days of project notification by the Commission and the Department of Environmental Quality; (iii) the Commission and the State Water Control Board shall coordinate permit issuance and, to the extent practicable, shall take action on the permit application no later than one year after the agencies have received complete applications; (iv) to the extent practicable, the Commission and the State Water Control Board shall take action concurrently, but no more than six months apart; and (v) upon taking its final action on each permit, the Commission and the State Water Control Board shall provide each other with notification of its action and any and all supporting information, including any background materials or exhibits used in the application.

2005, c. 49.

§ 28.2-1205.2. Coordinated review of public beach replenishment projects using Chesapeake Bay sand; expedited process.

A. Applications for sand replenishment projects on public beaches abutting the waters of the Chesapeake Bay that involve the dredging of sand from the Chesapeake Bay and require a permit from the Marine Resources Commission or the Department of Environmental Quality, or both, shall be reviewed and a decision on the issuance of the permit shall be made within 90 days thereafter, or as soon as practicable. These agencies shall establish a working group consisting of representative stakeholders in an effort to develop an effective and efficient process for review and approval of sand replenishment projects.

B. In developing such an expedited review process, the agencies and working group shall consider a requirement that the application include the submission of a dredging plan by the locality for the areas within the Chesapeake Bay from which the dredged material will be taken and the location of the beach replenishment project. Such a dredging plan, if approved, shall not require a new review procedure if any subsequent removal of bottomland involves material obtained from the area documented in the dredging plan. Any new site proposed for the dredging of sand from the Chesapeake Bay shall require a new or amended dredging plan. A permit issued shall be valid for 10 years.

C. Any dredging plan required to be submitted with an application shall include the following information:

1. Geotechnical analysis of the proposed area to be dredged;

2. Analysis of the benthic, marine, and fishery resources, including a specific analysis of the impact on the crab population;

3. Current recreational and commercial fishing activity in the proposed dredge area;

4. Impact on any historical artifacts in the proposed dredge area;

5. Impact on other uses of the state waters and bottomlands at the dredge site;

6. Location of the beach areas to be replenished; and

7. Environmental impact of the dredge material being placed on the beach area.

D. The Commissioner, in consultation with the Department of Environmental Quality, the State Health Department, the Department of Historic Resources, the Virginia Institute of Marine Science, and any other appropriate or interested state agency, shall coordinate a joint review process to ensure the orderly evaluation of sand replenishment projects requiring a permit for dredging sand from the Chesapeake Bay. All project reviews shall be completed by state agencies within 45 days of receiving the project review request from the Commission or the Department of Environmental Quality.

2013, cc. 45, 196.

§ 28.2-1206. Permit fees; exemptions.

A. The fee paid to the Commission for issuing each permit to recover underwater historic property shall be $25.

B. The fee paid to the Commission for issuing each permit to use state-owned bottomlands shall be $25, but if the cost of the project is to exceed $10,000, the fee paid shall be $100. Riparian owners of (i) commercial facilities engaged in the business of ship construction or repair, (ii) commercial facilities providing services relating to the shipping of domestic or foreign cargo, and (iii) commercial facilities engaged in the business of selling or servicing watercraft shall be exempt from the payment of rents and royalties, except as provided in subsection C.

C. When the activity or project for which a permit is requested will involve the removal of bottom material, the application shall indicate this fact. If granted, the permit shall specify a royalty of not less than $.20, nor more than $.60, per cubic yard of bottom material removed. In fixing the amount of the royalty, the Commission shall consider, among other factors, the following:

1. The primary and secondary purposes for removing the bottom material;

2. Whether the material has any commercial value and whether it will be used for any commercial purpose;

3. The use to be made of the removed material and any public benefit or adverse effect upon the public that will result from the removal or disposal of the material;

4. The physical characteristics of the material to be removed; and

5. The expense of removing and disposing of the material.

D. Where it appears that the project or facility for which a permit application is made has been completed or work thereon commenced at the time application is made, the Commission may impose additional assessments not to exceed an amount of three times the normal permit fee and royalties, unless such royalties are prohibited by this chapter.

E. Bottom material removed attendant to maintenance dredging or directional drilling shall be exempt from any royalty. The Virginia Department of Transportation shall be exempt from all fees, rents and royalties otherwise assessable under this section. All counties, cities, and towns of the Commonwealth shall pay the required permit fee but shall be exempt from all other fees, rents and royalties assessable under this section if the permit is issued prior to the commencement of any work to be accomplished under the permit.

F. All fees, rents and royalties collected pursuant to this chapter on and after July 1, 2000, shall be paid into the state treasury to the credit of the Marine Habitat and Waterways Improvement Fund.

Code 1950, § 62-2.1; 1960, c. 600; 1962, c. 637; 1966, c. 641; 1968, c. 659, § 62.1-3; 1970, c. 621; 1972, c. 866; 1973, cc. 23, 361; 1974, cc. 92, 385; 1975, c. 431; 1976, c. 579; 1980, c. 253; 1982, c. 102; 1988, c. 868; 1992, c. 836; 2000, c. 1056; 2004, cc. 899, 1018.

§ 28.2-1207. Authority to approve permits for encroachment on subaqueous beds; notice.

A. Any application for a permit to trespass upon or over or encroach upon subaqueous beds which are the Commonwealth's property may be approved by the Commissioner or his authorized representative if the application meets the requirements of §§ 28.2-1205 and 28.2-1206 and the following criteria are satisfied:

1. The total value of the project does not exceed $500,000;

2. The application is not protested by any citizen or objected to by any state agency; and

3. The project for which the permit is sought will not require any other permit from the Commission.

B. If the permit application is for a shore erosion control project recommended by the soil and water conservation district in which the project is to be located and the criteria listed in subsection A of this section are satisfied, the Commission may, after giving notice of the application to the Virginia Institute of Marine Science, approve the application without giving notice to or awaiting the approval of any other state agency.

C. The Commission shall, in conjunction with affected state and federal agencies, develop an expedited process for issuing general permits for activities that are intended to improve water quality such as bioengineered streambank projects and livestock stream crossings, and for activities required during emergencies in which a determination has been made that there is a threat to public or private property, or to the health and safety of the public. The development of the general permit shall be exempt from Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act.

D. The Commission shall, in conjunction with affected state and federal agencies, develop an expedited process for issuing a permit for emergency activities intended to restore sand to any publicly owned beach damaged by sand erosion. Such erosion shall have been caused by a discrete, identifiable weather event or sequence of events that threatened public or private property or public health and safety and was the subject of a declaration of emergency by the Governor or the governing body of the locality in which the project is located. The development of the permit shall be exempt from Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act.

1972, c. 398, § 62.1-3.01; 1973, c. 350, § 62.1-3.02; 1980, c. 312; 1984, c. 246; 1992, c. 836; 1997, c. 845; 2011, c. 451; 2016, cc. 9, 124.

§ 28.2-1208. Granting easements in or leasing the beds of certain waters.

A. The Marine Resources Commission may, with the approval of the Attorney General and the Governor, grant easements over or under or lease the beds of the waters of the Commonwealth outside of the Baylor Survey. Every easement or lease executed pursuant to this section shall be for a period not to exceed five years, except in the case of offshore renewable energy leases described in clause (ii), in which case the period shall not exceed 30 years, and shall specify the rent and such other terms deemed expedient and proper. Such easements and leases may include the right to renew the same for an additional period not to exceed five years. Any lease that authorizes grantees or lessees to (i) prospect for and take from the bottoms covered thereby, oil, gas, and other specified minerals and mineral substances; or (ii) generate electrical energy from wave or tidal action, currents, offshore winds, or thermal or salinity gradients, and transmit energy from such sources to shore shall require a royalty. Except for offshore renewable energy leases, purchase payment for any easement granted to a public service corporation, certificated telephone company, interstate natural gas company or provider of cable television or other multichannel video programming service shall be $100 and shall be for a period of 40 years. However, no easement or lease shall in any way affect or interfere with the rights vouchsafed to the people of the Commonwealth concerning fishing, fowling, and the catching and taking of oysters and other shellfish in and from the leased bottoms or the waters above.

B. All easements granted and leases made pursuant to this section shall be executed for, and in the name and on behalf of, the Commonwealth by the Attorney General and shall be countersigned by the Governor.

C. All oil, gas and other minerals royalties collected from such easements or leases on and after July 1, 2000, shall be paid into the state treasury to the credit of the Marine Habitat and Waterways Improvement Fund. All royalties collected as a result of the generation or transmission of electrical or compressed air energy from offshore renewable sources including wave or tidal action, currents, offshore winds, and thermal or salinity gradients shall be paid into the state treasury and appropriated to the Virginia Coastal Energy Research Consortium established pursuant to § 67-600.

D. Prior to December 1 of each year, the Commissioner and the Attorney General shall make reports to the General Assembly on all easements and leases executed pursuant to this section during the preceding 12 months.

E. The Commission shall, in cooperation with the Division of Geology and Mineral Resources of the Department of Mines, Minerals and Energy and with the assistance of affected state agencies, departments and institutions, including the Virginia Coastal Energy Research Consortium, maintain a State Subaqueous Minerals and Coastal Energy Management Plan that shall supplement the State Minerals Management Plan set forth in § 2.2-1157 and the Virginia Energy Plan (§ 67-200 et seq.). The State Subaqueous Minerals and Coastal Energy Management Plan shall include provisions for (i) the holding of public hearings, (ii) public advertising for competitive bids or proposals for mineral and renewable energy leasing and extraction activities, (iii) preparation of environmental impact reports to be reviewed by the appropriate agency of the Commonwealth, and (iv) review and approval of leases by the Attorney General and the Governor as required by subsection A. The environmental impact reports shall address, but not be limited to:

1. The environmental impact of the proposed activity;

2. Any adverse environmental effects that cannot be avoided if the proposed activity is undertaken;

3. Measures proposed to minimize the impact of the proposed activity;

4. Any alternative to the proposed activity; and

5. Any irreversible environmental changes which would be involved in the proposed activity.

For the purposes of subdivision 4 of this subsection, the report shall contain all alternatives considered and the reasons why the alternatives were rejected. If a report does not set forth alternatives, it shall state why alternatives were not considered.

Code 1950, § 62-3; 1958, c. 290; 1962, c. 637; 1968, c. 659, § 62.1-4; 1986, c. 488; 1992, c. 836; 1993, c. 644; 2000, c. 1056; 2004, cc. 899, 1018; 2008, c. 369; 2009, c. 766.

§ 28.2-1209. Maintenance or removal of structures erected upon or over state-owned subaqueous bottoms.

Any person constructing or erecting any structure upon or over state-owned subaqueous bottoms, or their grantees or assignees for value, shall be responsible for the maintenance or removal of the structure upon its abandonment or its falling into a state of disrepair. However, public service corporations may abandon cables, conduit and pipes upon prior approval of the Commission.

1974, c. 274, § 62.1-3.03; 1992, c. 836.

Article 2. Enforcement and Penalties.

§ 28.2-1210. Removal of obstructions or hazardous property from state waters; penalty.

A. Whenever any wharf, pier, piling, bulkhead, structure, or vessel is found in or upon the bays, oceans, rivers, streams or creeks of the Commonwealth in a state of abandonment, in danger of sinking, or in such disrepair as to constitute a hazard or obstruction to the use of such waterway, the Commission may ascertain the owner of the property and require him to repair or remove the property from the waters of the Commonwealth. If the identity or location of the owner remains unknown and unascertainable after a diligent search and the posting of proper notice at the last known address of the owner, if known, the Commission may have the property removed from the waterways of the Commonwealth after giving notice by publication once in a newspaper of general circulation in the area where such property is located.

B. It is unlawful for any person who owns a vessel to allow such vessel, for more than one week after delivery of notification by the Commission or a law-enforcement official in person or by United States Postal Service certified mail, return receipt requested, to be in a state of abandonment and in danger of sinking, or in such disrepair as to constitute a hazard or obstruction to the use of a waterway. Upon the occurrence of a natural disaster or other act of God, the Commission or law-enforcement official shall not issue a notification until sixty days following such occurrence. Any person who violates this subsection is guilty of a Class 3 misdemeanor.

1974, c. 602, § 62.1-194.1:1; 1992, c. 836; 1997, c. 258; 1999, c. 544.

§ 28.2-1211. Injunction against violation of § 28.2-1203.

The circuit court of the city or county in which any act is done or facility or project is found, which is unlawful under the provisions of § 28.2-1203, shall have the authority, upon application by the Commission, reasonable notice, and after a hearing, to enjoin any further unlawful act and to direct the guilty party or the Commission, at the cost of the guilty party, to remove, tear down or take such other steps as are necessary to protect and preserve the subject property of the Commonwealth.

1970, c. 621, § 62.1-3.1; 1992, c. 836.

§ 28.2-1212. Monitoring, inspections, compliance and restoration.

A. The Commissioner may require permittees to implement monitoring and reporting procedures he believes are reasonably necessary to safeguard the property and interests of the Commonwealth protected by this chapter.

B. The Commissioner may require such on-site inspections as he believes are reasonably necessary to determine whether the measures required by the permit are being properly performed, or whether the provisions of this chapter are being violated. Prior to conducting such inspections, the Commissioner shall provide notice to the resident owner, occupier or operator, who shall be given an opportunity to accompany the site inspector. If it is determined that there is a failure to comply with the permit, the Commissioner shall serve notice upon the permittee at the address specified in his permit application or by delivery at the site of the permitted activities to the person supervising those activities and designated in the permit to receive the notice. The notice shall describe the measures needed for compliance and the time within which these measures shall be completed. Failure of the person to comply within the specified period is a violation of this section.

C. Upon receipt of a sworn complaint of a substantial violation of this chapter from the designated enforcement officer, the Commissioner may, in conjunction with or subsequent to a notice to comply as specified in subsection B of this section, issue an order requiring all or part of the activities on the site to be stopped until the specified corrective measures have been taken. In the case of an activity not authorized under this chapter or where the alleged permit noncompliance is causing, or is in imminent danger of causing, significant harm to the subaqueous bottoms protected by this chapter, the order may be issued without regard to whether the person has been issued a notice to comply as specified in subsection B of this section. Otherwise, the order may be issued only after the permittee has failed to comply with the notice to comply. The order shall be served in the same manner as a notice to comply, and shall remain in effect for a period of seven days from the date of service pending application by the Commissioner, permittee, resident owner, occupier, or operator for appropriate relief to the circuit court of the jurisdiction where the violation was alleged to have occurred. Upon completion of corrective action, the order shall immediately be lifted.

D. Upon receipt of a sworn complaint of a substantial violation of this chapter from a designated enforcement officer, the Commission may order that the affected site be restored to its previous condition if the Commission finds that restoration is necessary to recover lost resources or to prevent further damage to resources. The order shall specify the restoration necessary and establish a reasonable time for its completion. The order shall be issued only after a hearing with at least thirty days' notice to the affected person of the hearing's time, place and purpose and shall become effective immediately upon issuance by the Commission. The Commission shall require any scientific monitoring plan it believes is necessary to ensure the successful restoration of subaqueous bottoms protected by this chapter and may require that a prepaid contract acceptable to the Commission be in effect for the purpose of carrying out the scientific monitoring plan. The Commission may also require a reasonable bond or letter of credit in an amount and with surety and conditions satisfactory to it securing to the Commonwealth compliance with the conditions set forth in the restoration order. The appropriate court, upon petition by the Commission, may enforce any such restoration order by injunction, mandamus, or other appropriate remedy. Failure to complete the required restoration is a violation of this chapter.

E. The duties of the Commissioner under this section may be delegated to his respective designee; however, the designee shall not be a designated enforcement officer.

1992, c. 836.

§ 28.2-1213. Penalties.

A. Without limiting the remedies which may be obtained under this chapter, any person who violates any provision of this chapter or who violates or fails, neglects, or refuses to obey any Commission notice, order, rule, regulation, or permit condition authorized by this chapter shall, upon such finding by an appropriate circuit court, be assessed a civil penalty not to exceed $25,000 for each day of violation. Such civil penalties shall be paid into the state treasury to the credit of the Marine Habitat and Waterways Improvement Fund.

B. Without limiting the remedies which may be obtained under this chapter, and with the consent of any person who has violated any provision of this chapter or who has violated or failed, neglected, or refused to obey any Commission order, rule, regulation, or permit condition authorized by this chapter, the Commission may provide, in an order issued by the Commission against such person, for the one-time payment of civil charges for each violation in specific sums, not to exceed $10,000 for each violation. Civil charges shall be in lieu of any appropriate civil penalty which could be imposed under subsection A of this section. Civil charges may be in addition to the cost of any restoration ordered by the Commission and shall be paid into the state treasury to the credit of the Marine Habitat and Waterways Improvement Fund.

Code 1950, § 62-2.1; 1960, c. 600; 1962, c. 637; 1966, c. 641; 1968, c. 659, § 62.1-3; 1970, c. 621; 1972, c. 866; 1973, cc. 23, 361; 1974, cc. 92, 385; 1975, c. 431; 1976, c. 579; 1980, c. 253; 1982, c. 102; 1988, c. 868; 1992, c. 836; 2000, c. 1056.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

The Virginia General Assembly is offering access to the Code of Virginia on the Internet as a service to the public. We are unable to assist users of this service with legal questions nor respond to requests for legal advice or the application of the law to specific facts. Therefore, to understand and protect your legal rights, you should consult an attorney.

The Code of Virginia online database excludes material copyrighted by the publisher, Michie, a division of Matthew Bender. Copyrighted material includes annotations and revisors' notes, which may be found in the print version of the Code of Virginia. Annotated print copies of the Code of Virginia are available in most Virginia public library systems, from LexisNexis (1-800-446-3410), and from West, a Thomson-Reuters business (1-800-344-5008).