Code of Virginia

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Code of Virginia
Title 28.2. Fisheries and Habitat of the Tidal Waters
Chapter 5. Oysters and Clams

Article 4. Surveys and Resurveys.

§ 28.2-551. Surveys and reports as conclusive evidence.

The surveys of the natural oyster beds, rocks, and shoals of the Commonwealth, made pursuant to Chapter 511 of the 1892 Acts of Assembly, shall continue to be the surveys defining and determining the natural oyster beds, rocks, and shoals of the Commonwealth. The surveys and reports filed in accordance with this Act of Assembly are conclusive evidence of the boundaries and limits of all the natural oyster beds, rocks, and shoals and that there are no other public oyster beds, rocks, or shoals. The surveys of the public oyster beds, rocks, or shoals of the Commonwealth referred to in this section shall not extend inshore of the mean low-water mark of such body of water, notwithstanding any surveys, plats, markers, or lines to the contrary.

Code 1950, § 28-117; 1962, c. 406, § 28.1-100; 1964, c. 624; 1992, c. 836.

§ 28.2-551.1. Continuing or reestablishing historic Baylor Survey lines.

When private leaseholds granted by the Commission or its predecessors appear within the Baylor Survey continuing pursuant to § 28.2-551 or as reestablished pursuant to § 28.2-553, if it shall be established to the satisfaction of the Commission, by petition duly filed prior to January 1, 2015, that the present or former leaseholders or their predecessors in title were granted the leaseholds within the area shown on "Atlantic Coast Chart No. 25" of the "Public Oyster Grounds, State of Virginia, 1895" in good faith more than five years previously and have made substantial improvements in such leasehold bottoms since that time, the Commission shall reestablish the lines of the Baylor Survey along the survey lines between the private leaseholds previously approved. Any notice to vacate such leaseholds shall be of no effect.

In reestablishing Baylor Survey lines pursuant to this section, the Commission may adjust the boundaries to facilitate ease of protection for the public grounds, provided that such adjustment shall neither reduce nor enlarge the area of public grounds, nor materially reduce or increase the value of the private grounds whose boundaries are being adjusted.

2014, c. 138.

§ 28.2-552. Resurvey on motion of Commission or on application of citizens.

The Commission may select and appoint any surveyor to survey or resurvey any oyster-planting grounds either in his own or any other county, and to reestablish and permanently mark any line or lines of the Baylor survey of natural oyster rocks which the Commission finds necessary to define.

Code 1950, § 28-117; 1962, c. 406, § 28.1-100; 1964, c. 624; 1992, c. 836.

§ 28.2-553. Reestablishment of lines of Baylor survey; procedure; evidence of reestablished lines.

The Commission may reestablish, relocate, and remark all lines of the Baylor survey which cannot be otherwise relocated because of the loss or destruction of previous marks. In reestablishing any such lines, the line surveyed by Fred E. Ruediger shall be followed wherever such line exists or was surveyed. Where no former line can be reestablished the Commission may establish a new line.

When such grounds or lines have been reestablished and relocated, the reestablishment and relocation shall be conclusive evidence in all courts of the Commonwealth that such grounds are public oyster rocks, beds, or shoals and that all grounds lying outside of such boundaries are rental grounds. Plats shall be made under the direction of the Commission showing the reestablishment of such lines, and shall be recorded in the appropriate clerk's office.

Code 1950, § 28-118; 1962, c. 406, § 28.1-101; 1964, c. 393; 1992, c. 836.

§ 28.2-554. Sale of Baylor survey charts and plats.

The Commissioner shall have available to sell at five dollars per copy to the public copies of the Baylor survey charts and plats, in such manner as the Commissioner may determine.

Code 1950, § 28-118; 1962, c. 406, § 28.1-101; 1964, c. 393; 1992, c. 836.

§ 28.2-555. Crossings of Baylor survey.

The Department of Transportation may maintain, repair, reconstruct, or replace any existing crossings of the Baylor survey. Such authorization is granted for any Baylor survey crossing determined by the Commonwealth Transportation Board to be necessary across the Hampton Roads from Newport News to Portsmouth, across the Elizabeth River at Norfolk, and construction parallel to an existing crossing of the James River from Newport News to Isle of Wight County.

1974, c. 93, § 28.1-101.2; 1992, c. 836; 2013, cc. 585, 646.

§ 28.2-556. Erosion control devices within the Baylor survey.

The public oyster beds, rocks, and shoals shall not include any area needed for an erosion control structure if the Commission, after considering the comments of the Virginia Institute of Marine Science and the Department of Conservation and Recreation, and any other relevant evidence, finds that: (i) shoreline erosion has occurred at the site and is expected to continue; (ii) such erosion is increasing the sediment load to public waters, causing degradation of water quality; (iii) the proposed project is a technically and environmentally acceptable way to control erosion at the site unless such Baylor ground is productive under § 28.2-630 of the Code of Virginia in which case the environmentally preferable erosion control shall be utilized; and (iv) the Commonwealth's interest in protecting water quality by controlling erosion at the site outweighs the value of the portion of the natural oyster beds, rocks, and shoals affected by the erosion control structure. Whenever the area of the natural oyster beds, rocks, and shoals is so changed, the Commission shall make the changes on its Baylor survey charts.

1988, c. 308, § 28.1-101.4; 1989, c. 656; 1992, c. 836; 2001, c. 46.

§ 28.2-557. Unlawful to threaten or hinder surveyor; rights of surveyor; penalty.

It is unlawful for any person to threaten, resist, or in any manner interfere with a surveyor in the performance of duties relating to oyster grounds. The surveyor shall have the right to enter upon any person's lands in the performance of his duties.

A violation of this section is a Class 3 misdemeanor.

Code 1950, § 28-119; 1962, c. 406, § 28.1-102; 1992, c. 836.

§ 28.2-558. Placing permanent markers.

Whenever the Commission makes or directs any surveys of Virginia's public oyster rocks, prominent and permanent concrete markers shall be placed on the shores fixing the survey stations; and, whenever possible, prominent and permanent range markers shall be placed on the shores or lands. The Commission shall pay the cost of such markers.

Code 1950, § 28-120; 1962, c. 406, § 28.1-103; 1992, c. 836.

§ 28.2-559. Removal of oysters planted by mistake.

When, by any resurvey of oyster-planting ground or survey reestablishing the lines of the Baylor survey made under the direction of the Commission, it appears that any holder, by mistake of any employee of the Commission, has had assigned to him and included in the plat of his assignment any portion of the public oyster beds, rocks, or shoals, the holder shall file a petition with the Commission for permission to remove such oysters or shells from such ground. The Commission may allow the holder a reasonable time, not exceeding three years, within which to remove such oysters, their progeny and their shells.

Code 1950, § 28-113; 1962, c. 406, § 28.1-104; 1987, c. 43; 1992, c. 836.

§ 28.2-560. Larceny of oysters and shells; penalty.

Any person other than the holder of an oyster-planting ground or his agents or employees who goes upon such ground and takes oysters and shells is guilty of larceny.

Code 1950, § 28-114; 1962, c. 406, § 28.1-105; 1992, c. 836.

§ 28.2-561. Removal of markers of planting grounds; penalty.

It is unlawful for any person to intentionally or knowingly injure, remove, or displace any boundary oyster stake, range monument, signal beacon, post or buoy, or any part thereof, erected to designate, locate, survey, or map any shellfish grounds.

A violation of this section is a Class 3 misdemeanor.

Code 1950, § 28-121; 1962, c. 406, § 28.1-106; 1992, c. 836.

§ 28.2-562. Maps to be filed; evidential value.

All maps of the bays, rivers, and creeks of this Commonwealth made by the Commission showing the location of oyster-planting grounds shall be filed in the office of the Commission.

Any such map and the areas of the individual assignments of platted oyster-planting grounds shall be evidence in all the courts of this Commonwealth of all the oyster-planting grounds leased by the Commonwealth to private individuals at the time the survey and map were made.

Code 1950, § 28-122; 1962, c. 406, § 28.1-107; 1984, c. 4; 1992, c. 836.