Virginia Law

A. Physical features.

1. Introduction. The Eastern Shore of Virginia lies on the Atlantic Coastal Plain where the geology is characterized by layers of unconsolidated sediments (sand, silt, gravel) over deeply buried bedrock. Marshes and some other wetland types contain significant amounts of peat (partly decayed vegetation) at or near the surface. The soils and hydrology of the ungranted state lands on the seaside and bayside have not been completely identified. In 1976, the Nature Conservancy issued a study of the barrier islands which included detailed descriptions of the geology, soils, and hydrology of the Eastern Shore and in 1993, the Division of Mines, Minerals, and Energy produced a geologic map of Virginia. Until the sources of information are updated, they are the best sources of information on the physical resources of the Eastern Shore.

2. Seaside lands. Barrier islands extend along the eastern side of the Eastern Shore peninsula. Virginia's barrier islands parallel the peninsula from the Maryland state line to the southern tip at Fisherman Island, and lie within Accomack and Northampton Counties.

The barrier islands are characterized by broad beaches and sand dunes on the eastern shores and extensive marshes on their inner coasts. The islands are composed of sands deposited by the ocean. Between the barrier islands and the mainland lies a maze of tidal flats, salt marshes, tidal channels, and shallow bays. The tidal marshes, of which most of the ungranted state lands are comprised, are an important aquatic ecosystem. The Waterway Along the Coast of Virginia (WCV) winds through the marsh, providing boat passage and access to much of the area.

The barrier islands undergo constant change and are occasionally breached at high tide. Due to coastal dynamics, some of the areas that are now tidal marshes may become beach areas in the future.

3. Bayside lands. The western side of the Eastern Shore peninsula fronts on the Chesapeake Bay. This shore has a varied physiography including islands, high bluffs, dunes, flat sandy beaches, tidal flats, and marshes. The entire west coast of the peninsula is penetrated by a complex system of tidal creeks.

B. Habitats of the ungranted state lands.

1. Salt marshes. The majority of the ungranted state lands consist of salt marsh. The dominant vegetation on these marshes is salt marsh cordgrass. A short form of this species grows in the interior of the marshes; a taller form normally lines the channels and guts. The salt marshes provide spawning and nursery grounds for fish and food for waterfowl and wildlife, deter shoreline erosion, and control water quality by trapping sediment.

2. Other habitats. A small percentage of the ungranted state lands are habitats other than salt marsh. These include fastlands, tree-lined ridges, and shrub habitats dominated by such species as marsh elder, groundsel tree, and wax myrtle; shell piles associated with the margins of some of the marshes built up to an elevation slightly above high tide; sandy berms which may accrete along the edges of some of the marshes; tidal flats, salt ponds, and pannes (small shallow saltwater ponds) scattered throughout the marshes; and wrack, the debris washed up along the high tide line.

C. Shellfish and finfish of the Eastern Shore. The seafood industry in Virginia is one of the Eastern Shore's oldest and most successful industries. Commercial and recreational fishing and aquaculture contribute significantly to the economy of the Eastern Shore. Shellfish and finfish are found in the waters surrounding the Eastern Shore. Oysters, clams, and crabs are commercially important shellfish and crustaceans. Commercially and recreationally important finfish include menhaden, flounder, scup, striped bass, herring, mullet, weakfish, bluefish, Norfolk spot, croaker, and sea trout.

D. Game species of the Eastern Shore. The only large game on the Eastern Shore is the white-tailed deer. Small game is plentiful and the wide variety of small game found on the Eastern Shore includes the cottontail rabbit, bobwhite (quail), mourning dove, turkey, woodcock, opossum, weasel, skunk, muskrat, red and gray fox, raccoon, river otter, mink, and squirrel. The Eastern Shore is also an important area for migratory waterfowl including ducks, geese, rails, and other migratory game birds.

E. Birds of the Eastern Shore. The most outstanding biological resources of the ungranted state lands are the bird communities they support. During the spring and summer no less than 25 different sensitive (rare, threatened, endangered, or highly vulnerable) species of gulls, terns, herons, ibis, and shorebirds use the ungranted state lands for nesting or foraging or both. According to the Department of Game and Inland Fisheries comprehensive bird survey, a total of 34,536 colonial birds nested in Northampton and Accomack Counties in 1993.

Habitat quality and diversity as well as the undeveloped nature of the area contribute to the importance of ungranted state lands in protecting sensitive species. In addition to waterfowl, shorebird and songbird species, colonial ground nesters such as the common tern and colonial shrub nesters such as the black-crowned night-heron use the ungranted state lands during all or a portion of the year. The comprehensive bird survey also identified threatened species such as the gull-billed tern, rare species such as the black skimmer, and sensitive species such as the laughing gull.

Many migratory birds using the Atlantic Flyway pass through the Eastern Shore on their spring and fall migrations to Central and South America and the Caribbean. This area is thought to be one of the most important focal points or "staging areas" for raptor and passerine migration on the east coast of the United States. Large concentrations of waterfowl and other migratory birds utilize these areas for over-wintering as well.

F. State and federally listed endangered and threatened species. Section 1538 of the federal Endangered Species Act, 16 USC §§ 1531-1544, makes it illegal for any person subject to the jurisdiction of the United States to "take" any federally endangered or threatened species of fish or wildlife without a special exemption. Under this Act, "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct. Harm has been further defined to consist of acts that may include significant habitat modification or degradation that results in the killing or injury of individuals by significantly impairing the essential behavioral patterns, including breeding, feeding or sheltering.

The federal Endangered Species Act also provides protection measures for species listed under the law as threatened or endangered. These protection measures include recovery planning, mechanisms for cooperative management among federal and state agencies, habitat protection, and funding for state agencies for research and management of listed species.

The state Endangered Species Act, § 29.1-563 et seq. of the Code of Virginia, is administered by the Department of Game and Inland Fisheries. This act prohibits the taking, transportation, processing, sale or offer for sale within the Commonwealth of any fish or wildlife listed as a threatened or endangered species on the Federal Endangered Species List except as permitted. It further authorizes the listing of additional endangered or threatened species, not appearing on the federal list, that are likewise protected.

The Plant Protection Bureau of the Department of Agriculture and Consumer Services of the Commonwealth of Virginia administers the Endangered Plant and Insect Species Act, § 3.1-1020 et seq. of the Code of Virginia. This act makes it illegal for any person to dig, take, cut, possess, or otherwise collect, remove, transport, process, sell, offer for sale or give away any species native to or occurring in the wild in Virginia that are listed as threatened or endangered species except as specifically permitted, or when the plants or insects occur on the "taker's" own land.

Several mammals, birds, insects, and plants listed as threatened or endangered on federal and state lists have been identified on or in the waters surrounding Virginia's Eastern Shore.

These are:

1. Mammals:

Delmarva Peninsula Fox Squirrel (Sciurus niger cinereus)—listed as endangered on both the federal and state endangered species lists.

Bottlenose Dolphin (Tursiops truncatus), Manatee (Trichechus manatus), Harbor Seal (Phoca vitulina), Harbor Porpoise (Phocoena phocoena), Humpback Whale (Megaptera novaeangliae) and Fin Whale (Balaenoptera physalus)—listed as endangered or protected by the federal Marine Mammal Protection Act.

2. Birds:

Bald Eagle (Haliaeetus Leucocephalus)—listed as threatened on both the federal and state lists.

Peregrine Falcon (Falco peregrinus)—listed as endangered on both the federal and state endangered species lists.

Wilson's Plover (Charadrius wilsonia)—listed as endangered on the state endangered species list.

Piping Plover (Charadrius melodus)—listed as threatened on both the federal and state lists.

Gull-billed Tern (Sterna nilotica)—listed as threatened on the state list.

Henslow's Sparrow (Ammodramus henslowii)—listed as threatened on the state list.

3. Insects:

Northeastern Beach Tiger Beetle (Cicindela dorsalis)—listed as threatened on the federal list.

4. Plants:

Sea-Beach Pigweed (Amaranthus pumilus)—listed as threatened on the federal list.

5. Reptiles:

Loggerhead (Caretta caretta), Leatherback (Dermochelys coriacea), Kemp's Ridley (Lepidochelys kempii), and Green Sea (Chelonia mydas) Turtles—listed as threatened or endangered on both the federal and state lists.

The Division of Natural Heritage of the Virginia Department of Conservation and Recreation has compiled a list of the Natural Heritage Resources of Virginia's Eastern Shore. This list, and an explanation of the global, federal and state rarity rankings, are available from the department upon request.

G. Resource protection laws. Resource protection relies on a number of existing federal and state laws and regulations. Listed below are some of the state laws directly affecting the ungranted state lands:

1. § 28.2-1200 et seq. of the Code of Virginia, which provides that all beds of the bays, rivers, creeks and the shores of the sea within the jurisdiction of the Commonwealth 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, and taking and catching oysters and other shellfish.

2. § 28.2-1201 of the Code of Virginia provides that all islands which rise from lands which are ungranted shall remain in public ownership and shall be managed pursuant to the provisions of Article 2 (§ 28.2-1503 et seq.) of Chapter 15 of Title 28.2 of the Code of Virginia.

3. § 28.2-1300 et seq. of the Code of Virginia defines the powers and duties of the Commissioner of the Virginia Marine Resources Commission (VMRC) to preserve and protect the despoliation and destruction of wetlands, and declares that the commissioner shall manage all unappropriated marsh or meadowlands lying on the Eastern Shore of Virginia which remain ungranted pursuant to the provisions of Article 2 (§ 28.2-1503 et seq.) of Chapter 15 of Title 28.2 of the Code of Virginia.

4. § 28.2-1400 et seq. of the Code of Virginia, which provides that the Commissioner of the VMRC shall preserve and protect coastal primary sand dunes and beaches and prevent their despoliation and destruction and maximize their ecological value.

5. § 28.2-1500 et seq. of the Code of Virginia, which provides for the protection and management of ungranted shores of the sea, marsh, and meadowlands under the authority of the Virginia Marine Resources Commission.