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Virginia Administrative Code
Title 4. Conservation and Natural Resources
Agency 20. Marine Resources Commission
Chapter 1030. Management Plan for the Ungranted State Lands in Accomack and Northampton Counties
3/29/2020

4VAC20-1030-40. the Management Plan.

A. Management policies. Most of the ungranted state lands addressed by this plan are wetlands. It has long been the public policy of the Commonwealth of Virginia to preserve wetlands and to prevent their despoliation and destruction and to accommodate necessary economic development in a manner consistent with wetlands preservation. In keeping with this policy, it is the goal of this management plan to conserve and protect the shores of the sea, marsh, meadowlands, commons, and other coastal lands subject to this plan, and the natural values and natural processes associated with these lands and the complex working ecosystem of which they comprise an important part. In a manner consistent with this goal, the management plan shall also consider the traditional uses of such properties and the promotion of tourism and commerce.

State owned lands defined in the management plan will, subject to state and federal laws, be kept open and accessible for the use of the citizens of the Commonwealth. Traditional compatible uses (e.g., hunting, fishing and fowling) will be accommodated as provided for by local, state or federal laws.

Resource protection will rely on a network of federal, state and local laws and regulations. Requirements for local, state and federal permits and licenses will be observed, and the usual application procedures will be followed. Surveillance and enforcement mechanisms will remain in effect. The ungranted state lands fall under a number of different and overlapping jurisdictions and coordination, and cooperation among all levels of government is essential as is centralized storage and management of ungranted state lands information.

B. Administrative framework—management responsibility. Under Chapter 15, Article 2 of Title 28.2 of the Virginia Code, specifically §§ 28.2-1503 and 28.2-1504, the Virginia Marine Resources Commission is designated as the lead agency to manage the ungranted state lands on the Eastern Shore. This management plan will be implemented primarily through a cooperative effort among the Virginia Marine Resources Commission, the Virginia Institute of Marine Science, the Department of Conservation and Recreation, the Department of Game and Inland Fisheries, other participating and affected state agencies, the local governments and residents of Northampton and Accomack Counties, and any other legislatively designated entity.

The following administrative framework identifies roles and responsibilities of Virginia state agencies and the Virginia Coastal Land Management Advisory Council involved in implementing this management plan.

1. Virginia Marine Resources Commission (VMRC). As specified in § 28.2-1501 B of the Code of Virginia, VMRC shall have the power to promulgate regulations and guidelines necessary to implement the policies in this plan and to protect and preserve the ungranted state lands on the Eastern Shore. Management regulations and guidelines shall be promulgated in accordance with § 28.2-103 of the Code of Virginia and the management issues section of this plan.

The VMRC, in consultation with other affected state agencies, shall have the power to regulate outdoor recreational activities that threaten the natural integrity of the ungranted state lands. Regulation of outdoor recreational activities shall be in accordance with the recreational activities section of this plan and the Administrative Process Act, §§ 9-6:14.11 and 9-6:14.12 of the Code of Virginia.

The VMRC shall have the power to amend this management plan as necessary to protect and preserve the ungranted state lands. Amendments to this plan will be in accordance with the provisions of the amendments section of this plan and the procedures established in Article 2 (§ 28.2-209 et seq.) of Chapter 2 of Title 28.2 of the Code of Virginia.

The VMRC shall periodically review the real property inventories of ungranted state lands on the Eastern Shore and may amend or supplement an inventory as may be appropriate. Any amendment or supplement to an inventory shall be filed with the clerks' offices in Northampton and Accomack counties. The VMRC shall publish a notice of the filing of an amendment or supplement to an inventory according to the statutory requirements for public notice contained in Article 1 (§ 28.2-1500 et seq.) of Chapter 15 of Title 28.2 of the Code of Virginia.

2. Virginia Coastal Land Management Advisory Council (VCLMAC). A Virginia Coastal Land Management Advisory Council shall be established to advise the VMRC on issues relating to the management of ungranted state lands on the Eastern Shore.

The VCLMAC shall be comprised of six residents of Northampton and Accomack Counties. They shall represent tourism and commerce, traditional uses of shores of the sea, marsh and meadowlands, and conservation interests. Any private person or entity owning more than 50% of the land area of the barrier islands of the Eastern Shore shall be one of the six members. The residents serving on the VCLMAC will be appointed by the Governor. In making these appointments, the Governor shall consider recommendations submitted by the Boards of Supervisors of Northampton and Accomack Counties.

The VCLMAC shall also include the Director of the Virginia Department of Conservation and Recreation or his designee, the Director of the Virginia Department of Game and Inland Fisheries or his designee, and the Commissioner of the Virginia Marine Resources Commission or his designee.

The VCLMAC shall advise the VMRC on issues relating to the management of ungranted shores of the sea, marsh and meadowlands, and shall advise the VMRC on the development of the management plan prepared pursuant to § 28.2-1504 of the Code of Virginia.

The term of office of each appointed member of the VCLMAC shall be for three years. Appointments to fill vacancies shall be made to fill the unexpired term. Members of the VCLMAC shall receive no compensation for their services but shall receive reimbursement for actual expenses.

The VCLMAC shall meet at the call of the Commissioner of the VMRC or at least once per year. The VCLMAC may recommend proposed regulations or guidelines for the ungranted state lands to the VMRC. The VMRC shall have final decision-making authority on the promulgation of proposed regulations and guidelines.

The VCLMAC may recommend to the VMRC resolutions to conflicts between parties on the use of the ungranted state lands. The VMRC shall have the authority to decide cases of conflicting uses. The VCLMAC may recommend amendments to this management plan. The VMRC shall have final decision-making authority on proposed amendments to this plan.

3. Department of Conservation and Recreation (DCR). The Department of Conservation and Recreation's mission is to conserve Virginia's natural and recreational resources. DCR is responsible for the inventory of natural heritage resources, management of natural heritage information, protection of natural areas containing natural heritage resources, and the stewardship of those natural areas. DCR is the Commonwealth's lead agency in efforts to reduce nonpoint source pollution. The department also has experience managing 65,000 acres of parks and natural areas and their visitors and assists Virginia's counties and cities with the development of local parks. DCR operates many public education programs regarding the conservation of Virginia's natural, cultural, and recreational resources. Through these functions and services, DCR can provide information and technical advice to assist with the management of the ungranted state lands.

4. Department of Game and Inland Fisheries (DGIF). The Department of Game and Inland Fisheries (DGIF) exists to provide public, informational and educational services related to game, inland fisheries and boating, and to serve as the agency responsible for the administration and enforcement of all rules and regulations of the Board of Game and Inland Fisheries, the statutory provisions of Title 29.1 of the Code of Virginia, and related legislative acts. Through these functions and services, DGIF shall provide information and technical advice to assist with the management of the ungranted state lands.

5. Virginia Institute of Marine Science (VIMS). The Virginia Institute of Marine Science shall provide advice and assistance to the VMRC under its general legislative mandate by evaluating wetlands by type and maintaining and updating an inventory of wetlands on the ungranted state lands on the Eastern Shore.

6. Other affected governmental agencies. Other state and federal agencies will retain pre-existing responsibilities for resource management and surveillance and enforcement of statutes and regulations relevant to ungranted state lands and resources associated with them.

C. Management issues. The following section describes significant issues related to the management of the ungranted state lands on the Eastern Shore.

1. Adoption, amendment or repeal of regulations affecting the ungranted state lands. The VMRC shall have the power to promulgate regulations and guidelines necessary to implement the policy of this management plan.

The VMRC is empowered to make regulations or resolve conflicts affecting the ungranted state lands. The VCLMAC shall have the power to recommend proposed regulations to the VMRC. The adoption process shall be carried out in accordance with Article 2 (§ 28.2-2800 et seq.) of Chapter 2 of Title 28.2 of the Code of Virginia.

In addition, in accordance with the provisions of § 28.2-214 of the Code of Virginia, any person may petition the VMRC for the adoption, amendment or repeal of a regulation. When a private party petitions the VMRC for the adoption, amendment or repeal of a regulation, VMRC shall provide a written response to such petition within 180 days from the date the petition was received.

The VMRC shall establish and maintain a list or lists of persons expressing an interest in the adoption, amendment or repeal of regulations. Any person wishing to be placed on the list may do so by writing to the VMRC. The VMRC shall hold at least one public meeting when it considers the adoption, amendment or repeal of a regulation.

2. Recreational activities. Traditional recreational activities on the ungranted state lands shall be allowed to continue as long as they do not disrupt the natural integrity of the resources.

Traditional and current recreational uses of the ungranted state lands include hunting, fishing, fowling, clamming, oystering, crabbing, trapping, camping, picnicking, beachcombing, salvaging (or wrecking), birdwatching, and other nature study. These activities are subject to federal laws and the laws and regulations of the Commonwealth of Virginia. It is not the intent, objective or desire of this management plan to change existing law unless it is found that current uses threaten the natural integrity of these lands and resources.

The following uses and activities on the ungranted state lands are permitted, if otherwise permitted by federal and state law: conservation, repletion and research activities of the VMRC, VIMS, DGIF, DCR, and other related conservation agencies and educational institutions. Outdoor recreational activities provided that such activities do not (i) impair the natural function of these state lands, or (ii) alter the natural contour of these state lands.

If certain traditional recreational activities are found to threaten the natural integrity of the ungranted state lands, the VMRC shall be empowered through basic laws to regulate the recreational activities to the extent necessary to protect and preserve these lands and their resources. Recommendations for the regulation of recreational activities may come from other state agencies, the VCLMAC, and private parties.

Before initiating such regulations, the VMRC shall consult with other affected state agencies to ensure their knowledge of, and agreement with, the proposed regulation. The VMRC, in deciding to proceed with such regulation, shall follow the procedures for promulgation of regulations set forth in the adoption, amendment or repeal of regulations section of this management plan set out above.

3. Conflicting uses of the state lands. Conflicts may arise between parties on the uses of the ungranted state lands. The VMRC shall have the power to decide cases of conflicting uses.

This management plan is designed to protect the resources of the ungranted state lands and to provide for research, education and compatible traditional activities. When traditional uses conflict with research and education uses or threaten the integrity of the natural resources, every effort will be made to address the conflicts through a hearing process.

The VMRC is empowered to resolve cases of conflicting uses of the ungranted state lands. Parties in conflict shall appeal to the VMRC for resolution of the conflict and determination of appropriate use. The VMRC shall ascertain the fact basis for their decisions on conflicting uses through an informal conference or consultation proceeding as provided for in the Administrative Process Act (§ 9-6.14:11 of the Code of Virginia). In any case where the informal procedures have failed to resolve the case, the VMRC shall hold a formal hearing in accordance with the provisions of § 9-6.14:12 of the Code of Virginia.

Any party aggrieved by a decision or determination of the VMRC shall have the right to the direct review by an appropriate and timely court action in accordance with the provisions of the Administrative Process Act (§ 9-6.14:1 et seq. of the Code of Virginia).

4. Review and amendment of the management plan. As specific issues of management are identified, this management plan may be reviewed and amended.

This management plan was developed to protect the resources on the ungranted state lands while allowing for traditional compatible uses that comply with federal and state laws and regulations and are in keeping with the good ecological health of the entire surrounding ecosystem. Known management issues have been addressed in this section. As other issues arise or are identified which require specific management, it will be necessary to amend the management plan.

Amendments to this management plan may originate with either (i) the VMRC, (ii) the VCLMAC, or (iii) any person through a petition to the VMRC or the VCLMAC to request an amendment to the plan.

Before approving and adopting any amendment to this management plan, the VMRC shall hold at least one public hearing on the amendment after which the lead agency may make appropriate changes or amendments to the management plan.

5. Seasonal restricted areas around bird colonies. Seasonal restrictions will be imposed around active colonies of nesting birds by the appropriate state agency.

Because of the sensitivity of bird nesting colonies, active colonies of nesting birds and 100 meters around these active colonies shall be considered sensitive from April 15 to August 31 of each year. Entrance into these areas for any reason other than approved and permitted research and monitoring activities shall be prohibited during the specified period.

Currently there appears to be little conflict between existing public use patterns and birds nesting on ungranted state lands. As an alternative to posting each colony every summer and then enforcing those posted restricted areas, it is anticipated that an educational approach will be instituted. Through various media and targeting primary user groups, the public will be educated regarding the sensitivity of the nesting birds and encouraged to remain at least 100 meters away from active colonies. Active bird colonies which are close to high use areas may be posted and monitored if this becomes necessary to protect nesting birds.

6. Emergency incidents. Emergency regulations may be imposed as necessary to protect and preserve the ungranted state lands.

In an emergency situation, it may be necessary for the VMRC to issue emergency regulations. For purposes of this plan, "emergency situation" means (i) a situation involving an imminent threat to public peace, health, safety and welfare, or (ii) a situation involving an imminent threat to the natural resources of these lands.

The VMRC shall have the power to promulgate necessary emergency regulations. The emergency regulation shall be adopted in accordance with the provisions of the agency process for making emergency regulations. Emergency regulations shall remain in effect no longer than 30 days unless a public hearing is held as required in § 28.2-211 after being advertised as prescribed in § 28.2-209 of the Code of Virginia.

The VCLMAC shall have the power to make recommendations for emergency regulations to the VMRC. Private parties shall have the power to recommend emergency regulations to either the VCLMAC, who will forward the request to the VMRC for action, or directly to the VMRC.

7. Fire management. Wildfires should be monitored, and a formal fire management policy may be developed in the future.

Wildfire, whether ignited naturally or by arson, may occasionally affect the ungranted state lands. Prescribed fire, although not indicated for the ungranted state lands at this time, may become a necessary management tool in the future. Wildfires should be monitored and action should be taken to protect neighboring property when necessary. The VMRC may propose regulations regarding campfires if the need arises.

8. Education. An education program will be developed to raise awareness to the sensitive natural resources of the ungranted state lands.

Education initiatives focusing on watermen, anglers, recreational boaters, and tourists should be designed and instituted to raise awareness to the sensitive resources of the ungranted state lands and to encourage visitors to respect requests for protecting these resources. A major thrust of educational endeavors should be information about the sensitivity of nesting birds and persuasion of visitors to honor the recommended seasonal restricted areas.

The media or public education may include posters displayed at public boat landings and other community gathering places (libraries, schools, etc.), brochures or "fact sheets" distributed with salt water fishing licenses, brochures sent to tourists and tour guides, brochures distributed at the parks and refuges of the area, and public service announcements on local radio stations.

9. Visitation management policy. Effects of increased public use on the ungranted state lands will be monitored.

As public use of lands on the Eastern Shore of Virginia increases, the effects of tours and visits to or near the ungranted state lands and their sensitive biological resources should be determined. It may be possible to monitor and, if necessary, manage public use through mechanisms established by existing regulations.

10. Nonindigenous species policy. Intentional introductions of nonindigenous plants and animals on the ungranted state lands shall be opposed unless environmental and economic evaluations are conducted and reviewed in order to ensure that risks associated with the introduction are acceptably low. Unintentional introductions of nonindigenous plants and animals on the ungranted state lands shall be prevented. Prevention of unintentional introductions should rely on education and monitoring.

Previous intentional and unintentional introductions should be examined regarding impact to native wildlife and, if necessary, control or eradication measures should be pursued.

Introductions of nonindigenous species may present a threat to native wildlife and native habitats. Introductions into sensitive areas have been known to cause serious ecosystem dysfunction. On the ungranted state lands, nonindigenous wetland plants could significantly alter the wetland habitat and nonindigenous animals could directly or indirectly affect indigenous species.

Under this management plan, intentional introductions should be opposed, unless environmental and economic evaluations ensure that the risks associated with the introduction are low. In accordance with the policy of the Chesapeake Bay Program regarding the participation of other jurisdictions in the introduction of nonindigenous species, first-time introductions should also be evaluated by other jurisdictions within the bay region. Final decision, however, lies with the appropriate Virginia agency (VMRC or DGIF). As the threat of unintentional introductions is as great as intentional ones, efforts to prevent such introductions should be pursued through education and monitoring programs.

The control or eradication of a nonindigenous species may become an important issue. If a species which has been accidentally or intentionally introduced is determined to be a threat to native wildlife or habitat, methods of control or eradication should be evaluated in regard to best protecting the natural environment. Such operations (e.g., trapping, spraying, and/or burning) should be carefully carried out by the VMRC, or other designated agency, in accordance with state and federal laws and regulations.

11. Dredging. Dredging through or next to the ungranted state lands shall be coordinated with the U.S. Army Corps of Engineers and other dredging authorities.

Dredging through or next to ungranted state lands poses a threat to wetlands habitats, birds and other wildlife. The VMRC shall coordinate with the U.S. Army Corps of Engineers and other dredging authorities regarding the planning and implementation of dredging projects.

The VMRC shall review all proposals and permit applications for dredging and/or placing of dredged material in the immediate vicinity or adjacent to the ungranted state lands. Surveys for dredging and other projects should be conducted in a manner designed to avoid or minimize the disruption of bird nesting colonies.

12. Research and monitoring. A detailed research and monitoring plan for the ungranted state lands should be developed.

A research and monitoring plan which addresses national, state, ecosystem-wide and site-specific research and monitoring needs must be developed. This will require a determination of which national, state, ecosystem-wide, and site-specific priorities are appropriate for consideration on the ungranted state lands. To accomplish this, the VMRC, in coordination with various state agencies, shall solicit input from national and state resource management agencies, affected local governments, and individual citizens.

Under this management plan, the VMRC will work with state and local agencies, interest groups, and local citizens of the Eastern Shore to identify problem areas or concerns associated with the ungranted state lands, and to list and prioritize research and monitoring needs. Some research and monitoring needs have already been identified and should be pursued through appropriate federal and/or state funding. These are:

a. Water quality, geology, habitats and wildlife. In order to improve the management of ungranted state lands, site-specific information on water quality, geology, habitats and wildlife of the ungranted state lands should be researched to more accurately characterize the state lands on both the seaside and bayside of the Eastern Shore. A complete species list for the ungranted state lands should be prepared that includes rare, endangered, threatened or nearly extinct species encountered on these lands.

b. Periodic surveys of the ungranted state lands. The barrier islands and the extensive lagoon system between the barrier islands and the mainland undergo nearly constant change and modification through natural forces such as wave dynamics, storms and sea level rise. The movement and drift of the barrier islands and the changes in the lagoonal system behind the barrier islands should be closely monitored. The VMRC intends to periodically re-survey and re-map the ungranted state lands on the Eastern Shore. Updated maps will be filed with the county clerks of Accomack and Northampton Counties.

c. Colonial nesting bird monitoring. A large interagency effort was recently completed in which all the bird nesting colonies of eastern Northampton and Accomack Counties were surveyed in a single nesting season. Although this study has provided valuable comprehensive information on bird nesting patterns of the area, this one-year study represents only a "snapshot" of bird nesting patterns. Additional comprehensive surveys are needed to identify changes in bird nesting patterns from year to year. Continued comprehensive colonial nesting bird surveys of the seaside marsh islands, including monitoring in the ungranted state lands, is recommended.

d. Archaeological and cultural surveys. It has not been determined that the area of the ungranted state lands contains any material of archaeological importance. The Eastern Shore was inhabited by small Indian tribes when the English arrived in the 17th Century. The early inhabitants were primarily farmers and fishermen. Without further study, it is not known whether early inhabitants left remains or artifacts in the area of the ungranted state lands. Before conducting any ground disturbing activities, the possibility of the existence of archeological remains or artifacts should be considered. A survey of the ungranted state lands should be conducted in an effort to identify any sites of potential archeological significance.

e. Impacts of public use on the ungranted state lands. The impacts of man's influence and the effects of visitation should be monitored to determine the need for limitations and restrictions to protect and conserve the natural resources of the ungranted state lands.

Statutory Authority

§§ 28.2-103 and 28.2-1504 of the Code of Virginia.

Historical Notes

Derived from Volume 15, Issue 15, eff. March 15, 1999.

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