Code of Virginia

Code of Virginia
Title 28.2. Fisheries and Habitat of the Tidal Waters
1/18/2019

Article 2. General Oyster-Planting Grounds.

§ 28.2-603. General oyster planting grounds.

Waterfront that is not already assigned or reserved for the riparian owners, and the beds of the bays, rivers, and creeks and shores of the sea lying outside the limits of navigation projects adopted and authorized by the Congress and not required for the disposal of materials dredged incident to the maintenance of such projects, and grounds other than public oyster beds, rocks, or shoals, as defined by law and included in the Baylor survey, may be occupied for the purpose of planting or propagating oysters, including the use of temporary protective enclosures in compliance with this chapter and Commission regulations, and may be leased by the Commissioner upon the receipt of a proper application.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(1); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1986, c. 171; 1992, c. 836; 2007, cc. 28, 170; 2010, c. 27; 2011, c. 314.

§ 28.2-603.1. Temporary enclosures on leased ground.

The Commission shall, pursuant to its authority to regulate marine fisheries and commercial fishing, establish a general permit regulation authorizing the use of temporary protective enclosures to grow shellfish on grounds leased pursuant to § 28.2-603. In developing the general permit, the Commission shall consider those factors set forth in subsection A of § 28.2-1205. In addition to such other requirements as the Commission may prescribe for the protection of public safety, navigation, natural resources, and the environment, the general permit shall include the following provisions:

1. Leaseholders shall comply with any Commission requirements pertaining to aquaculture licensing;

2. Enclosures shall be constructed of nontoxic materials;

3. Leaseholders shall not place enclosures (i) in or upon submerged aquatic vegetation, (ii) in any marked navigation channel or in any other area that would create a hazard, or (iii) in any area that would impede customary access to navigable waters from any riparian property, public or commercial landing, or marina facility;

4. The location of enclosures shall be clearly marked to alert boaters and to allow the leaseholder or other authorized persons to retrieve the enclosures if necessary. The general permit regulation shall specify acceptable means and devices for complying with this requirement;

5. Leaseholders shall maintain a list identifying those leases on which enclosures are placed during the term of the lease and provide, upon request, a current copy of the list to authorized representatives of the Commission. Leaseholders shall also submit such list to be filed with any application for lease renewal made pursuant to § 28.2-613;

6. Leaseholders shall promptly remove any enclosure that is not actively in use for the planting and propagating of shellfish, and, upon expiration or termination of a lease or of the leaseholder's aquaculture license, the leaseholder shall promptly remove all enclosures placed on the leasehold; and

7. At his discretion, the Commissioner may order the removal or relocation of any enclosure that interferes with navigation, creates a hazard, or otherwise fails to comply with the conditions of the general permit.

2007, cc. 28, 170.

§ 28.2-603.2. Commissioner to provide notice.

A. At least 30 days before placing temporary protective enclosures on a leasehold pursuant to § 28.2-603.1, the leaseholder shall provide written notification to the Commissioner that identifies the leasehold, the approximate maximum number of enclosures to be placed on the leasehold at any given time, and the estimated date such placement will begin. No later than 30 days after receiving such notification, the Commissioner may publish notice of the proposed placement in a newspaper of general circulation serving the area in which the leasehold is located. In determining whether to publish such notice, the Commissioner shall consider the potential effect on existing uses of waters proximate to the leasehold and the potential for conflict between the proposed placement and such uses. The public notice shall invite written comment on the proposed placement and include information concerning the submission of written comments. The Commission may receive written comments for no more than 30 days following publication of notice.

B. If, on the basis of written comments, the Commissioner finds significant and substantive opposition from persons residing on or using the waters proximate to the leasehold, the Commissioner shall convene a public meeting on the proposal no more than 30 days after the close of the comment period. No later than 15 days after the public meeting, the Commissioner shall (i) approve the proposal, (ii) approve the proposal with conditions, or (iii) deny the proposal. If the Commissioner denies the proposal, the leaseholder may request approval of the proposal before a hearing of the Commission.

C. If the Commissioner determines not to publish public notice, the Commissioner shall, no later than 30 days after receiving written notification of the proposal, advise the leaseholder to proceed in accordance with the requirements of the general permit. If the Commissioner publishes public notice but does not find significant and substantive opposition by persons residing on or using the waters to the leasehold, the Commissioner shall, no later than 15 days after the close of the comment period, advise the leaseholder to proceed in accordance with the requirements of the general permit.

2007, cc. 28, 170.

§ 28.2-604. Eligible applicants.

Application for assignment of general oyster-planting ground may be made by (i) any resident of the Commonwealth, (ii) any county, municipality, or political subdivision of the Commonwealth, or (iii) any firm, or corporation chartered under the laws of this Commonwealth for the purpose of oyster culture and the oyster business provided that at least sixty percent of the stock of any such corporation is wholly owned by residents of the Commonwealth.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(2); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1986, c. 171; 1992, c. 836.

§ 28.2-605. Application for assignment.

All applications for assignment of general oyster-planting grounds shall be made in writing, in duplicate, to the Commission. Applications shall be considered in the same order in which they are received, except that no application for any ground then under lease shall be valid for that portion under lease. The application shall state, as nearly as possible, the number of acres applied for and definite location, with the name of one or more prominent points or objects adjacent to such ground. It shall be the duty of any resident, firm, or corporation desiring to obtain a location for planting or propagating oysters to apply to have the location determined, designated, surveyed, and assigned.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(3); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1986, c. 171; 1992, c. 836.

§ 28.2-606. Notice of application.

A. Notice of the application shall be posted by the Commission for not less than 30 days on its website. The Commission shall provide by registered or certified mail written notice of its receipt of the application to (i) the mailing address of the holder of a current lease for any oyster planting ground that is contiguous to the ground applied for, and (ii) the last known address, as shown on the current real estate tax assessment book or records, of the owner of any riparian property located within 200 feet of the ground applied for. The provision of notice to the governing board of an association for a common interest community as defined in § 55-528 shall be deemed adequate to notify all associated unit owners or lot owners.

B. The Commission shall publish notice of the application at least once a week for two consecutive weeks in a newspaper of general circulation in the area in which the ground applied for lies.

C. Notice provided pursuant to this section shall invite and provide information about the submission of written comments on the application. The cost of the notice required by this section shall be borne by the applicant.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(4); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836; 2017, cc. 250, 798.

§ 28.2-607. Survey and marking of ground.

If a protest is not filed in the Commission office within sixty days after posting of the notice of application, the Commissioner shall select a surveyor to survey the grounds and make a plat in duplicate. The surveyor shall forward the plat of survey to the Commissioner. If no protest to the application or surveying of ground is made within thirty days after the plat of survey is recorded in the Commissioner's office, the ground applied for shall be assigned provided that:

1. The application and assignment complies with all applicable provisions of law and, in the judgment of the Commissioner, the assignment is in the public interest.

2. All fees, costs, and the annual rent have been paid for the lease of the ground. The ground shall be marked at the expense of the applicant.

The grounds shall be marked in accordance with Commission regulations for marking oyster grounds.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(6); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-608. Application, surveying, and recording fees.

Any applicant for general oyster-planting ground or for riparian oyster ground shall pay (i) an application fee of twenty-five dollars; (ii) the Commission's surveying costs including the cost of the survey and of preparing the original and one copy of the plat; and (iii) the cost of recording each assignment or transfer and plat in the Commission office. The fee for recording each assignment shall be $1.50. No ground shall be assigned until all the prescribed fees have been paid.

Code 1950, §§ 28-39, 28-124; 1952, c. 649; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, §§ 28.1-44, 28.1-109(7); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-609. Restrictions on assigned acreage and applications.

No assignment, except in the Chesapeake Bay, shall exceed 250 acres. An applicant, after having 250 acres of general oyster-planting ground assigned to him, shall not apply for another assignment of oyster grounds within six months from the day his assignment was recorded and completed. If an assignment is not made within six months after the expiration of the notice, the application shall, upon the expiration of six months, lapse and become void, unless the Commissioner allows an extension. When a protest has been filed with the Commission against the granting of an application, the application shall not lapse until the Commission has finally acted upon the application.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(8); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-610. Restriction on acreage owned or operated.

No person shall own or operate more than 3,000 acres of general oyster-planting grounds in the waters of this Commonwealth other than in the Chesapeake Bay. If ground in excess of 3,000 acres is acquired, the person has a right to lawfully hold the ground for one year and shall have a legal right to assign it. If no assignment is made within one year, the ground in excess of 3,000 acres shall revert to the Commonwealth and may be applied for by any person having a legal right to do so.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(9); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-611. Application for general planting ground in Chesapeake Bay; acreage allowed; annual rental.

Application for general planting ground in the Chesapeake Bay in waters from fifteen feet deep or more shall be made to the Commissioner. The Commissioner shall have the right to accept or reject any application. No more than 5,000 acres may be assigned to any applicant. The assignment shall not interfere with the established fishing rights. Any such application, surveying, and marking shall conform to the law pertaining to oyster-planting grounds. The annual rent per acre in the Chesapeake Bay shall be determined by the Commission, but in no case shall be less than seventy-five cents annually per acre.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(10); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-612. Payment of annual rental; penalty for default.

The applicant shall pay to the Commission annual rent of $1.50 per acre or any fraction thereof, except as provided for the Chesapeake Bay and for bathing ground. Such payment shall be due on September 1 of each year after the date of assignment, plus a ten percent penalty if not paid on or before December 5.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(11); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-613. Duration of lease.

Each assignment of general oyster-planting ground shall continue in force for ten years from the date of assignment, unless the assignment is terminated; however, assignments issued between July 1, 1976, and July 1, 1980, shall continue in force for twenty years from the date of assignment. The interest in such ground is chattel real.

Upon the death of the renter, testate as to the lease, it shall vest in the named beneficiary subject to the rights of creditors, if he is a resident of this Commonwealth, provided that he files an application for transfer with the Commission within eighteen months after the date of death. If the named beneficiary is not a resident he shall have eighteen months after the date of death to transfer the lease to a qualified holder.

Upon the death of the renter, intestate as to the lease, the lease shall vest in the personal representative, who shall transfer the lease to a qualified holder within eighteen months.

If there is no qualification on the renter's estate within one year of his death, the Commission may within six months thereafter transfer the lease to a qualified holder upon receipt of a transfer duly executed by all of the lawful heirs of the renter.

If there is no transfer under any of the above, the ground shall become vacant and open to assignment.

Upon expiration of the initial or any subsequent term of the assignment, the Commission shall, on application of the holder, renew the assignment for an additional ten-year term. The Commission shall not renew or extend an assignment where there has been no significant production of oysters or clams, no reasonable plantings of oysters, clams or cultch or no significant oyster or clam aquaculture operation, during any portion of the ten-year period immediately prior to the application for renewal, unless the Commission finds that there was good cause for the failure to produce or plant oysters, clams or cultch or finds that the assignment is directly related to and beneficial to the production of oyster-planting grounds immediately adjacent to the assignment. In determining whether there was good cause for the failure to produce or plant oysters, clams, or cultch, in addition to other factors, the Commission shall consider the prevalence of the diseases MSX and Dermo, and whether the oyster-planting ground has traditionally produced commercial quantities of oysters or clams.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(12); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836; 1996, c. 985; 1997, c. 259.

§ 28.2-614. Requiring lessee or transferor to have ground surveyed and plat recorded; canceling lease for failure of lessee to have survey.

If the Commissioner determines that in any past assignment of or in any attempt to transfer oyster ground, a survey, or a recorded plat, does not accurately describe the metes and bounds of the leased ground, the Commissioner shall require the lessee, the transferor, or both to have the ground surveyed and the plat recorded.

If the lessee fails to order the survey or resurvey within six months after date of notification to the lessee or transferor, by certified mail, the Commissioner shall cancel the lease and may accept applications for this ground from the general public.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(12b); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-615. Payment of costs for service, etc.

The cost of the surveys and recording fees required by § 28.2-614 shall be borne by the lessee or transferor and the cost and fees shall be the same as for surveys made by the Commission.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(12c); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-616. Possession gives no preference as to assignment.

Any person in possession of any general oyster-planting ground which has not been assigned according to law shall have no preference as to having it assigned to him. The ground shall be open to the first applicant.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(13); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-617. Recordation of plat.

The plat and assignment, as soon as practicable after completion, and after the ground has been assigned to the applicant, shall be filed for record in the office of the Commission.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(14); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-618. Commonwealth guarantees rights of renter subject to right of fishing.

The Commonwealth shall guarantee to any person who has complied with ground assignment requirements the absolute right to continue to use and occupy the ground for the term of the lease, subject to:

1. Section 28.2-613;

2. Riparian rights;

3. The right of fishing in waters above the bottoms, provided (i) that no person exercising the right of fishing shall use any device which is fixed to the bottom, or which, in any way, interferes with the renter's rights or damages the bottoms, or the oysters planted thereon, and (ii) that crab pots and gill nets which are not staked to the bottom shall not be considered devices which are fixed to the bottom unless the crab pots and gill nets are used over planted oyster beds in waters of less than four feet at mean low water on the seaside of Northampton and Accomack Counties;

4. Established fishing stands, but only if the fishing stand license fee is timely received from the existing licensee of the fishing stand and no new applicant shall have priority over the oyster lease. However, a fishing stand location assigned prior to the lease of the oyster ground is a vested interest, a chattel real, and an inheritable right which may be transferred or assigned whenever the current licensee complies with all existing laws; and

5. (Expires July 1, 2019) Municipal dredging projects located in the Lynnhaven River or its creeks and tributaries, including dredging projects to restore existing navigation channels in areas approved by the Commission. Such projects shall be limited to grounds that are condemned, restricted, or otherwise nonproductive. The locality shall compensate the lessee for the use of the ground, and if the parties cannot agree on a compensation amount, a court of competent jurisdiction shall determine the value of the ground as of the date it is first disturbed.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(15); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836; 2017, cc. 365, 529.

§ 28.2-619. When leases become vacant.

When the Commission finds that a lessee is dead or unknown, and no one claims such property as an heir or assignee, the ground shall become vacant and open to assignment.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(16); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-620. Delinquent ground.

Any ground or area which becomes delinquent shall be open and available to be leased, after the following conditions have been met:

1. The Commissioner has notified the person in writing on or about September 1 of that year of the amount of rent due;

2. If the rent becomes delinquent, the Commissioner has mailed a second notice by certified mail on or about June 1 of the following year; and

3. The person holding the lease does not pay all rents and penalties due on or before June 30 of the following year.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(17); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-621. Effect of proposal for navigation project.

When the Commissioner receives information that the Secretary of the Army has been authorized by congressional action to conduct a survey on a specified navigation improvement project, the Commissioner shall obtain the consent and approval of the Governor before leasing any public oyster-planting grounds which may be required for dredging operations or spoil disposal areas in connection with the project. If after the completion of the survey and submission of the district engineers' report to the Chief of Engineers, United States Army, the proposed navigation improvement project is not authorized, the affected ground will again become available for lease and assignment.

Nothing in this section shall prohibit the renewal of any lease already in existence at the time the Commissioner receives information as to the authorization of a survey.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(18); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

§ 28.2-622. Consolidation of lease.

Upon written request by a leaseholder, the Commission may consolidate into one lease contiguous leases held by the same leaseholder. The consolidation, upon approval by the Commission, shall be considered a new lease.

Code 1950, § 28-124; 1954, c. 352; 1958, c. 183; 1960, c. 517; 1962, c. 406, § 28.1-109(19); 1964, c. 393; 1966, c. 684; 1970, c. 726; 1972, c. 644; 1973, c. 14; 1978, cc. 546, 548; 1980, cc. 34, 609; 1984, c. 259; 1992, c. 836.

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