Virginia Law

Article 1. Powers and Duties.

As used in this subtitle, unless the context requires a different meaning:

"Cultured hard-shell clams" means hard-shell clams (Mercenaria mercenaria) that have been spawned in a hatchery or controlled setting for the purpose of producing seed clams (juveniles), and planted on leased grounds, floating structures, or other privately controlled growing areas, and covered with netting or otherwise protected from predators until harvested.

"Haul seine" means a net made of mesh webbing which may include a pocket and a wing net, set vertically in water and pulled by hand or power to capture and confine fish by encirclement.

"James River seed area" means that area in the James River and its tributaries above a line drawn from Cooper's Creek in Isle of Wight County on the south side of the James River to a line in a northeasterly direction across the James River to the Newport News municipal water tank located on Warwick Boulevard between 59th Street and 60th Street in the City of Newport News.

"Mouth of the Rappahannock River" means the area beginning at Stingray Point, Middlesex County, at the United States Army Corps of Engineers survey station "Bird," an aluminum disk set in the top of a concrete monument, being located at coordinates 453,785.17 North, 2,638,116.66 East, 1927 North American Datum -- Virginia South Zone; thence 12 degrees 52' 35" (grid azimuth) 20,846.73 feet to a point on the Eastern side of Windmill Point, Lancaster County, designated as Virginia Marine Resources Commission survey station "Windmill," a one and one-half inch iron pipe driven flush with the ground, being located at coordinates 474,107.68 North, 2,642,762.29 East, 1927 North American Datum -- Virginia South Zone.

"Pound net" means any net having a funnel mouth, round mouth or square mouth with the head exposed above the water.

"Resident" means any person who maintains his principal place of abode in Virginia with the intent to make Virginia his domicile.

"Shoals" means subaqueous elevations covered by water less than four feet deep at mean low water.

Code 1950, §§ 28-1, 28-46, 28-93, 28-93.1, 28-93.2, 28-112, 28-201.4; 1954, c. 38; 1958, cc. 182, 476; 1960, c. 517; 1962, c. 406, §§ 28.1-1, 28.1-51, 28.1-98, 28.1-148; 1966, c. 684; 1968, cc. 746, 747; 1972, c. 472; 1978, c. 208; 1980, c. 325; 1981, c. 52; 1986, c. 254; 1992, c. 836; 1994, c. 124; 2003, c. 604.

The Commission may:

1. Adopt regulations, including those for taking seafood, necessary to promote the general welfare of the seafood industry and to conserve and promote the seafood and marine resources of the Commonwealth. The Commission may also adopt regulations necessary for the conservation and reasonable use of surf clams.

2. Establish new licenses and fees commensurate with other licenses in an amount not to exceed $100 for any device used for taking or catching seafood in the tidal waters of the Commonwealth when the device (i) is not otherwise licensed in this title and (ii) is used for commercial purposes. The Commission may specify, when issuing such licenses, any restrictions or control over the devices or the persons operating the device.

3. Establish fees for permits required for delayed or limited entry fisheries, shellfish relaying, scientific collections, and for the administrative transfer of these permits among fisherman, where applicable.

4. Beginning July 1, 2004, and not more frequently than every three years thereafter, increase fees for tidal fisheries licenses and permits that are authorized under this title or by regulation adopted pursuant to Article 2 (§ 28.2-209 et seq.). Any fee increase for such licenses and permits shall be capped at $5 or a percentage equal to the increase in the Consumer Price Index calculated from the time the fee was last set or adjusted, whichever is greater. Beginning July 1, 2004, any amounts generated from the increases in commercial fishing licenses and permits shall be paid into the Marine Fishing Improvement Fund for the purposes authorized by § 28.2-208, and any amounts generated from the increases in recreational fishing licenses shall be paid into the Virginia Saltwater Recreational Fishing Development Fund for the purposes authorized by § 28.2-302.3. The Commission may charge nonresidents a higher fee than residents for purchase of any of the fishing licenses issued pursuant to §§ 28.2-302.2, 28.2-302.2:1, 28.2-302.6, 28.2-302.7, 28.2-302.8, 28.2-302.10, and 28.2-302.10:1. The fee charged to a nonresident shall be no greater than twice the Virginia resident fee. The Commission may prohibit the sale of the private boat license established by § 28.2-302.7 to a nonresident whose boat is not registered in Virginia.

5. The Commission shall ensure that increases in licenses and fees are equitably distributed among resource user groups.

6. Prepare fishery management plans containing evaluations of regulatory management options, based upon scientific, economic, biological, and sociological information, and use them in the development of regulations. The Commissioner may appoint a fisheries advisory committee and its chairman, consisting of representatives of the various fishery user groups, to assist in the preparation and implementation of the fishery management plans. The Commission may expend funds to compensate the members of the committee pursuant to § 2.2-2825.

7. Provide for enforcement of any regulation governing surf clams by any law-enforcement officer of any agency of the Commonwealth or its political subdivisions or by any law-enforcement officer of any agency of the federal government. Enforcement agreements with other agencies or political subdivisions shall be stated in the regulation.

8. The Commonwealth hereby assents to the provisions of the Federal Aid in Sport Fish Restoration Act of August 9, 1950 (16 U.S.C. §§ 777-777k), as amended. The Commission is authorized to perform all such acts as may be necessary for the establishment and implementation of cooperative fish restoration and management projects as defined by these federal statutes and the implementing regulations adopted thereunder.

Notwithstanding any provision of Chapter 4 (§ 28.2-400 et seq.), the Commission shall have the exclusive authority to manage Atlantic menhaden and shall adopt regulations necessary for its management, including those necessary to comply with the Atlantic States Marine Fisheries Commission Interstate Fishery Management Plan for Atlantic Menhaden. The Commission shall only adopt regulations for the management of menhaden between October 1 and December 31 unless regulatory action is necessary to address an emergency situation pursuant to § 28.2-210 or to ensure compliance with the Atlantic States Marine Fisheries Commission Interstate Fishery Management Plan for Atlantic Menhaden. Any regulation for the management of Atlantic menhaden shall be subject to judicial review in accordance with the provisions of § 28.2-215.

Code 1950, § 28-43; 1960, c. 517; 1962, c. 406, §§ 28.1-23, 28.1-48; 1966, c. 684; 1968, cc. 748, 749; 1972, c. 833; 1973, cc. 21, 411, § 28.1-120.1; 1976, c. 392; 1979, c. 274; 1981, c. 61; 1983, cc. 307, 318; 1984, c. 463; 1990, c. 445; 1992, c. 836; 1995, c. 136; 2004, c. 860; 2006, c. 5; 2009, c. 371; 2020, cc. 201, 356.

For purposes of this section:

"Fund" means the Oyster Growing Activities Fund.

"Individual" means the same as that term is defined in § 58.1-302.

A. Beginning January 1, 2002, and ending 12:00 p.m. on December 31, 2011, any individual who (i) grows oysters during the calendar year pursuant to a valid Virginia Marine Resources Commission General Permit for Noncommercial Riparian Shellfish Growing Activities issued pursuant to regulations promulgated by the Commission according to the procedures established in Article 2 (§ 28.2-209 et seq.) of Chapter 2 of this title and (ii) is issued a written receipt from the Commission evidencing the transfer during such calendar year of at least five hundred oysters to a state-managed sanctuary reef, or to a designated organization or person authorized to take possession of such oysters for the purpose of depositing them on a state-managed sanctuary reef, shall be eligible for a grant from the Commonwealth.

B. The grant paid for such oysters transferred during the calendar year shall be equal to the lesser of $300 or the amount paid by the individual in such calendar year to grow such oysters, including but not limited to the amount paid for equipment, materials and training.

C. The Commission shall establish a process to issue a written receipt to any individual who grows and transfers oysters in accordance with the conditions of subsection A. Such receipt shall include the date and the number of such oysters transferred.

D. An individual eligible for a grant under this section shall file an application for such grant with the Commissioner in person or by mail no later than March 31 of the calendar year following the calendar year in which the oysters were transferred to a state-managed sanctuary reef or to a designated organization or person authorized to take possession of such oysters for the purpose of depositing them on a state-managed sanctuary reef (or such later date determined by the Commissioner in his sole discretion). Such application shall include sales receipts and such other evidence required by the Commissioner for purposes of determining the amount paid by the individual to grow such oysters in the previous calendar year. Failure to meet the filing deadline shall render the individual ineligible to receive a grant for such calendar year. For filings by mail, the postmark cancellation shall govern the date of the filing determination. The Commissioner shall award grants only to those individuals who have been issued the written receipt described in subsection C.

E. Within ninety days after the filing deadline in subsection D, the Commissioner shall certify to (i) the Comptroller and (ii) each applicant the amount of the grant to which such applicant is entitled under the provisions of this section. Payment of such grant shall be made by check issued by the State Treasurer on warrant of the Comptroller within sixty days of such certification.

F. Grants shall be awarded in the order in which grant applications are filed with the Commissioner. The Commissioner may not award any grant unless there are sufficient funds in the Fund from which such grant shall be paid. Any individual growing and transferring oysters as required under this section, but not receiving a grant for such transfer because of insufficient funds in the Fund, shall have no priority or right to any future moneys that may be appropriated or deposited into the Fund based on such prior transfer of oysters.

G. There is hereby established the Oyster Growing Activities Fund to be administered by the Commission from which grants shall be paid to individuals for growing and transferring oysters to a state-managed sanctuary reef, or to a designated organization or person authorized to take possession of such oysters for the purpose of depositing them on a state-managed sanctuary reef, as provided in this section. The Fund shall consist of such funds as may be appropriated by the General Assembly from time to time. The Fund shall be established on the books of the Comptroller, and any funds, including interest, remaining in the Fund at the end of a fiscal year or a biennium shall not revert to the general fund but shall remain in the Fund. Interest earned on the Fund shall be credited to the Fund.

2001, c. 819.

The Commissioner may:

1. Investigate all matters affecting the seafood industry; and

2. Provide for the development of programs designed to enhance and improve commercial and sport fisheries in Virginia's tidal waters.

Code 1950, §§ 28-16, 28-23; 1962, c. 406, §§ 28.1-9, 28.1-16; 1973, c. 148; 1992, c. 836.

The Commission shall prepare and implement fishery management plans so as to preserve the Commonwealth's exclusive right to manage the fisheries within its territorial jurisdiction.

Any fishery management plan prepared, and any regulation promulgated to implement the plan, shall be consistent with the following standards for fishery conservation and management:

1. Conservation and management measures shall prevent overfishing while achieving the optimum yield from each fishery. The "optimum yield" of a fishery means the amount of fish or shellfish which will provide the greatest overall benefit to the Commonwealth, with particular reference to commercial fishing for food production and to recreational fishing;

2. Conservation and management measures shall be based upon the best scientific, economic, biological and sociological information available;

3. To the extent practicable, an individual stock of fish shall be managed as a unit throughout the territorial waters of the Commonwealth, and interrelated stocks of fish shall be managed as a unit or in close coordination;

4. Conservation and management measures shall not discriminate among user groups. If it becomes necessary to allocate or assign fishing privileges among various user groups, such allocation shall be (i) fair and equitable to all fishermen; (ii) reasonably calculated to promote conservation; and (iii) carried out in such manner that no person acquires an excessive share of such privileges;

5. Conservation and management shall, where practicable, promote efficiency in the utilization of fishery resources, except that no such measure shall have economic allocation as its sole purpose;

6. Conservation and management measures shall take into account variations among, and contingencies in, fisheries, fishery resources, and catches;

7. Conservation and management measures shall, where practicable, minimize regulatory burdens which inhibit innovation, expansion, and normal business operations.

1984, c. 463, § 28.1-23.1; 1992, c. 836.

A. The Commission shall prepare, in consultation with the Virginia Institute of Marine Science, other educational institutions and representatives of industry and interested parties, and then implement a blue crab fishery management plan. The plan shall build upon previously developed plans, including consideration of plans adopted by the multi-state Chesapeake Bay Program, and shall be consistent with the standards for fishery conservation and management set out in § 28.2-203. The plan shall be designed to reverse any fishing practices, environmental stress and habitat deterioration negatively impacting the short and long term viability and sustainability of the crab stock in Virginia waters. The Commission shall consider the economic impact to Virginia of proposed legislative and regulatory changes. The protection of spawning stock, nursery areas and habitat shall be of prime consideration in the plan. At a minimum the plan shall include, but not be limited to:

1. Measures to protect and enhance crab habitat and nursery areas.

2. Suggested measures to assure water quality conditions necessary for blue crab survival and reproduction, including identification of areas where water quality is such that onshore mechanisms for water quality protection are needed to protect and restore crab populations and habitat areas.

3. A review of current and proposed regulations and restrictions relating to: (i) winter dredging; (ii) commercial licensing; (iii) spawning stock; (iv) nursing sanctuaries; (v) submerged aquatic vegetation; (vi) peeler and soft shell crabs; (vii) size limits; (viii) the use of cull rings and the use of crab pots; and (ix) time of day restrictions and closed seasons.

4. Recommended legislative changes if necessary to implement the plan.

B. The Commission shall, on or before December 1 of each year, report to the Governor and the General Assembly on the progress and implementation of the blue crab fisheries management plan.

1995, c. 356.

A. The Commission may collect from any source any fisheries data and information necessary to develop fishery management plans and to evaluate management options. This information shall include, but not be limited to:

1. Statistics for catch and fishing efforts by species from commercial and recreational fishermen;

2. Statistics from fish processors and dealers;

3. Types of gear and equipment used;

4. Areas in which fishing has been conducted;

5. Landing places; and

6. The estimated capacity of fish processing facilities and the actual amount of fish processed at these facilities.

B. The Commission may enter into cooperative agreements with any other entity for the collection of statistics.

C. The information collected or reported shall not be disclosed in any manner which would permit identification of any person, firm, corporation or vessel, except when required by court order. The Commission may prescribe the form and manner in which this information is reported.

1986, c. 273, § 28.1-23.2; 1992, c. 836.

A. The Commission may limit the number of gear licenses or permits to fish, except those licenses issued pursuant to subdivisions 1 and 2 of § 28.2-402, issued for use in a specific fishery. The Commission may, despite any such limits, issue such gear licenses or permits to fish to any person who has resided for at least five years on an island in the Commonwealth that is at least three miles from the mainland.

B. The Commission is authorized to promulgate regulations to carry out the provisions of this section. In determining whether to limit the sale of gear licenses or permits to fish, and determining who receives licenses, the Commission shall consider all factors relevant to the Commonwealth's fishery management policy, including but not limited to:

1. Economic and social consequences;

2. Food production;

3. Dependence on the fishery by licensees;

4. Efficiency of gear used in the fishery;

5. Impact on species and fisheries; and

6. Abundance of the resource.

1992, cc. 492, 504; 1998, c. 114; 2013, cc. 59, 760.

A. Except as provided for in § 28.2-1101, it is unlawful for any person to remove from the waters of the Commonwealth under the jurisdiction of the Commission any marine fish, marine shellfish, or marine organisms for technical research, scientific, educational or museum purposes without having first obtained from the Commissioner a collection permit.

A violation of this subsection is a Class 3 misdemeanor.

B. Application for a permit shall be made in writing to the Commissioner. There shall be no charge for a permit, and the permit shall not be transferable. The issuance of the permit shall be governed by applicable Commission regulations and shall be subject to any reasonable terms and conditions imposed by the Commissioner. The Commissioner may, with the approval of the Commission, require an applicant for such permit to submit to the Commissioner any data or results acquired through the use of the permit.

C. Any person who has been issued a scientific collection permit shall be exempt from any licensing provision of this subtitle relating to the taking or catching of fish, shellfish, or marine organisms.

1977, c. 33, § 28.1-3.1; 1992, c. 836.

The Commission shall promote and develop the Commonwealth's saltwater angling resources for their recreational and economic benefits. These efforts shall include, but not be limited to, a subprogram, the Virginia Saltwater Sport Fishing Tournament, which shall:

1. Publicize and document the quantity, quality, and variety of the Commonwealth's saltwater angling resources; and

2. Establish a system for securing and maintaining records of the largest of each marine game fish commonly taken in the Commonwealth's marine waters by anglers. When possible, fish caught or taken in the tournament shall be released alive.

1990, c. 364, § 28.1-22.1; 1992, c. 836.

A. The Virginia Saltwater Sport Fishing Tournament Advisory Committee is continued and shall hereinafter be known as the Committee. The Committee shall assist the Director of the Virginia Saltwater Sport Fishing Tournament, hereinafter referred to as the Director, with the development and operation of tournament programs.

B. The Committee shall consist of 12 members appointed by the Commissioner with the approval of the Secretary of Natural and Historic Resources. Committee members shall be selected from a list of nominees supplied by the Director.

C. The term of office of each member shall be for four years. Initially, four members shall be appointed for two years, four members appointed for three years, and four members appointed for four years. Appointments to fill vacancies shall be made to fill the unexpired term.

D. Members shall receive no compensation for their services but shall receive reimbursement for actual expenses. The Committee shall meet at the call of the Director.

1990, c. 364, § 28.1-22.2; 1992, c. 836; 2021, Sp. Sess. I, c. 401.

There is hereby continued a special, nonreverting fund in the state treasury to be known as the Marine Fishing Improvement Fund, hereinafter referred to as the Fund. The Fund shall consist of (i) that portion of the nonresident harvester's license fees which have not been allocated to the Virginia Marine Products Fund as provided for in § 28.2-227, (ii) fees collected from the registration of commercial fishermen under § 28.2-241, and (iii) fees collected from the sale of seafood landing licenses under § 28.2-228.1. The Fund shall be administered by the Commission and used solely for (i) managing and improving marine fisheries, (ii) seafood product promotion and development services, (iii) mandatory reporting and stock assessment, (iv) education of commercial fishermen, (v) conservation and management strategies identified by the General Assembly and the Commission, (vi) public information pamphlets and summaries of rules issued with gear licenses, and (vii) retaining commercial fishermen to engage in replenishment, research, and stock assessment activities.

1991, c. 411, § 28.1-47.2; 1992, c. 836; 1993, c. 10; 1994, c. 541; 1996, c. 214.

A. There is hereby established the Commercial Fishing Advisory Board (the Board). The Board shall advise the Commission on the expenditure of the Marine Fishing Improvement Fund established in § 28.2-208 and the Fisheries Innovation for Sustainable Harvest Fund established in § 28.2-208.3.

B. The Board shall consist of nine members appointed by the Commissioner from a list of nominees submitted by organizations representing commercial fishing interests. The membership shall be representative of the geographic area covered by the commercial fishing license.

C. The term of each member shall be for three years. Appointments to fill vacancies shall be made to fill the unexpired terms.

D. Members shall receive no compensation for their services but shall receive reimbursement for actual expenses. The Board shall meet at the call of the Commissioner or at least four times yearly and shall formally review all funding applications prior to Commission review.

1993, c. 10; 2024, cc. 198, 246.

The Commissioner shall establish a Menhaden Management Advisory Committee (the Committee) to provide guidance to the Commission on the sustainable management of the menhaden resource and harvest of the bait and reduction fisheries in the waters of the Commonwealth, including the Chesapeake Bay. The Committee shall consist of not more than 12 nonlegislative citizen members who shall be residents of the Commonwealth with knowledge of the menhaden resource, to be appointed by the Commissioner, including one representative of the menhaden reduction fishery, one representative of the menhaden bait fishery, one representative of a labor organization involved in the menhaden fishery, one recreational angler, one member of a Virginia-based conservation organization, one representative of the sportfishing industry, and the Virginia appointee to the Atlantic Menhaden Technical Committee of the Atlantic States Marine Fisheries Commission.

2020, cc. 201, 356.

A. There is hereby created in the state treasury a special nonreverting fund to be known as the Fisheries Innovation for Sustainable Harvest Fund, referred to in this section as "the Fund." The Fund shall be established on the books of the Comptroller. The Fund shall consist of sums appropriated to it by the General Assembly, fees, rents, and royalties collected pursuant to § 28.2-1208, and such other moneys as may be made available from any other source, public or private, including any federal grants solicited or received for the specific purposes of the Fund, and all interest and income from investment of the Fund. 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.

B. The Fund shall be administered by the Commission for the sole purpose of supporting and promoting the economic growth and development of Virginia's seafood economy while enhancing the sustainability of Virginia's marine fisheries resources through the awarding of grants, revolving loans, or other financial tools in the following areas:

1. Infrastructure development;

2. Technological advancements;

3. Market and value chain development;

4. Training and capacity building; and

5. Entrepreneurship and business support.

2024, cc. 198, 246.