Code of Virginia

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Code of Virginia
Title 28.2. Fisheries and Habitat of the Tidal Waters
Chapter 12. Submerged Lands

§ 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.

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