Bill Text: VA SB269 | 2024 | Regular Session | Prefiled
Bill Title: General oyster-planting ground leases; riparian assignments, Marine Resources Commission.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2024-01-16 - Stricken at request of Patron in Agriculture, Conservation and Natural Resources (14-Y 0-N) [SB269 Detail]
Download: Virginia-2024-SB269-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§28.2-528, 28.2-541, 28.2-600, 28.2-601, 28.2-602, 28.2-627.1, 28.2-628, 28.2-630, 28.2-631, 28.2-634, 28.2-640, 28.2-641, and 28.2-826 of the Code of Virginia are amended and reenacted as follows:
§28.2-528. Revocation of licenses for theft of oysters.
The Commission, without notice and hearing required by §
28.2-232, shall revoke all licenses and the fishing privileges within the
Commonwealth's tidal waters to take or catch fish, shellfish, or marine
organisms, issued to any person
convicted of unlawfully taking oysters or other mollusca from the public
grounds, or
any riparian oyster planting oyster-planting grounds
assigned pursuant to Article 1 (§28.2-600 et seq.) of Chapter 6 of this title, or any general oyster
planting ground leased pursuant to Article 2 (§28.2-603 et seq.) of Chapter 6
of this title. No new licenses shall be issued to such
person for a minimum of six months or a maximum of five years after such
conviction in the discretion of the Commission.
§28.2-541. Oyster resource user fees.
A. There are imposed upon all oysters taken from the public rocks, beds, or shoals the following oyster resource user fees, per year: (i) on any licensed commercial fisherman harvesting oysters by hand, a fee of $50; (ii) on the use of any type of gear to harvest oysters, a fee of $300; (iii) on any business shucking or packing (a) no more than 1,000 gallons of oysters, a fee of $500; (b) more than 1,000 but no more than 10,000 gallons of oysters, a fee of $1,000; (c) more than 10,000 but no more than 25,000 gallons of oysters, a fee of $2,000; and (d) more than 25,000 gallons of oysters, a fee of $4,000; and (iv) on any oyster buyer using (1) a single truck or location, a fee of $100 and (2) multiple trucks or locations, a fee of $300.
B. Any commercial aquaculture operation taking oysters pursuant to
§28.2-603 from a riparian assignment or general
oyster planting ground shall pay an oyster resource user
fee of $50.
C. Any harvester shall pay only one oyster resource user fee per year for oyster gear used under clause (ii) of subsection A.
D. The Commission may revoke the permit or license of any person who fails to comply with this section.
§28.2-600. Riparian planting ground assignments; eligibility; fee.
A. Any owner of land bordering on a body of water in the
oyster-growing area of the Commonwealth whose shore front measures at least 205
feet at the low-water mark, or who has not had as much as
one-half acre of ground already assigned him on the front, or whose
lease has terminated and is not to be renewed, may apply
for planting grounds to the Commissioner.
The Commissioner shall assign to him only a riparian planting
ground that the Commissioner, in his discretion, deems appropriate to encompass
as much as one-half acre of ground, subject to the Commissioner's discretion
with respect to the precise location, and provided that the ground
does not encroach into an existing oyster-planting ground lease assigned under
Article 2 (§28.2-603 et seq.). The Commissioner may
consider assigning an area that the owner designates within his riparian
waters. Such ground shall not exceed one-half acre, and shall not be less than
105 feet wide along the shore, beginning at low-water mark, extending out not
more than 210 feet, or to the nearest edge of the channel or the middle of the
body of water, whichever is the shorter distance.
B. Upon the transfer of a lease,
a A ground
shall be assigned only within an area deemed appropriate by the Commissioner to
encompass as much as one-half acre of ground within the landowner's riparian
waters.
C. The grounds shall be surveyed, plotted, marked, assigned,
and recorded as provided for assignments to persons in Article
2 (§28.2-603 et seq.) in
accordance with Commission regulations.
D. Any riparian assignment that was duly recorded in the clerk's office of the county or city where the grounds are located, or at the Commission office prior to July 1, 1986, shall continue in effect.
§28.2-601. Riparian assignments; entitlements; obligations.
The riparian leaseholder assignment holder shall have
the exclusive right to the use of such ground for planting or gathering oysters
and clams.
The assignment made pursuant to §28.2-600 shall pass with the transfer of the adjacent highland to the subsequent owner of highland and cannot be held separated from the highland. A transfer of highland ownership shall require a transfer of the riparian assignment within 18 months after the transfer of the highland ownership under the following conditions:
1. The application for transfer shall be in the form prescribed by the Commission and shall be filed with the Commissioner.
2. The Commissioner shall require a new survey if there is not a survey of the exact parcel or parcels of grounds to be transferred.
3. The cost of any new surveys required under this section
shall be borne by the person making the transfer, and the cost and fees shall
be the same as for surveys of general oyster-planting
ground prescribed by the
Commissioner.
4. The application shall be accompanied by a transfer fee of $5.
5. The Commissioner shall return the approved application for transfer and plat with any correction to the applicant. A copy of the transfer and plat shall be recorded at the Commissioner's office.
6. If no application for
transfer is received by the Commissioner within 18 months after the transfer of
the highland ownership, the riparian assignment shall become vacant and open to
assignment.
§28.2-602. Riparian assignments; special terms and conditions.
The provisions of this article apply to all Virginia counties and
cities bordering on bodies of water in oyster-growing areas, except they shall
not apply to riparian lands located above the James River bridge in the James
River or its tributaries. In any Virginia county or
city where more than one-half acre of ground per waterfront tract has been
assigned to a riparian owner, the ground in excess of one-half acre shall be
ground held under a regular lease and assignment, and not a riparian
assignment.
For Northampton County, however, §6 of Chapter 254 of the 1883-1884 Acts of Assembly, not this article, shall govern the quantity of land to be assigned to and held by riparian owners. Nothing in this article authorizes a rental of a lesser amount per acre than that provided by law for riparian owners in Northampton County of the land assigned them as such riparian owners. Nothing in the section which restores to riparian owners in Northampton County one-fourth of their waterfronts suitable for planting oysters, permits the owners of waterfronts to compel occupants of the fronts to remove their oysters from any fourth of the shores, if the residue of the shore is already in the landowner's possession or is unoccupied.
Riparian landowners may erect wharves, landings, or other structures as otherwise permitted by law.
§28.2-627.1. Oyster Leasing,
Conservation, and Repletion Programs Fund.
There is hereby created in the state treasury a special
nonreverting fund to be known as the Oyster Leasing,
Conservation, and Repletion Programs Fund, referred
to in this section as "the Fund." The Fund shall be established on
the books of the Comptroller. All oyster planting ground riparian assignment
application fees, oyster planting ground and transfer fees, oyster planting ground lease renewal fees, and
oyster ground rents collected pursuant to this chapter
shall be paid into the state treasury and credited to 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.
Moneys in the Fund shall be used solely for the purposes of administering the oyster ground leasing riparian assignment program
and the conservation and repletion program. Expenditures and disbursements from
the Fund shall be made by the State Treasurer on warrants issued by the
Comptroller upon written request signed by the Commissioner.
§28.2-628. Condemnation of oyster bottoms and grounds.
The Department of Transportation and any locality shall have
the right by eminent domain, to acquire any right or interest, partial or
complete, in and to any oyster bottoms, oyster-planting grounds, or interest
therein necessary for the purpose of such Department or locality. The procedure
in such cases shall conform to the provisions of Chapter 3 (§25.1-300 et seq.)
of Title 25.1. However, a locality shall not exercise the right by eminent
domain to acquire any right or interest, partial or complete, in and to any
oyster-planting grounds leased assigned pursuant to Article 1
(§28.2-600 et seq.) or 2 (§28.2-603 et seq.) of
Chapter 6, other than a water-dependent linear wastewater
project where there is no practical alternative and the project is subject to
permitting under the State Water Control Law (§62.1-44.2 et seq.).
The Department of Conservation and Recreation shall have the same right of eminent domain against the same properties as previously described, where the purpose of the condemnation is to provide for a navigational improvement benefiting the Commonwealth and not limited to purposes of any particular locality.
§28.2-630. Rights of riparian owners to build bulkhead or wharf.
All assignments or leases
of oyster or clam grounds under this chapter shall be subject to the rights vested in riparian claimants under
Article 1 (§28.2-600 et seq.) of this chapter and also to the following condition: That any landowner who
desires to erect a bulkhead or wharf in front of his property or to open a
channel, and who is not a lessee or
riparian holder of suitable bottoms for that purpose, shall give the lessee or other holder of
oyster or clam grounds in front of his property
twelve 12
months' notice of such intention;, and upon the expiration of
that time, the rights of the lessee or
holder of so much of the oyster or clam grounds as are reasonably needed for
building the bulkhead, wharf, or channel shall cease. This
twelve-month 12-month
notice and waiting period shall not apply if, at the time the landowner
provides notice to the lessee or other
holder of the oyster or clam grounds in front of his property, the landowner
provides the Commissioner sufficient information describing the dimensions and
location of the bulkhead, wharf, or
channel and the Commissioner subsequently finds, in writing, that the proposed
bulkhead, wharf, or
channel will not adversely impact commercially productive oyster or clam
grounds. For purposes of this section,
"commercially productive oyster or clam grounds" are those areas which that
can be demonstrated to have (i) suitable substrate for oyster or clam
production and (ii) evidence of commercial oyster or clam production within the
past three years. If the bulkhead, wharf, or channel has not commenced as
specified in the notice within three months after the oyster or clam grounds
were vacated, the former lessee or
holder shall have the right to resume possession of the oyster or clam grounds
he has vacated in favor of such landowners, subject to the provisions of this
chapter. Any person constructing a channel under this section shall compensate
the lessee holder
of any oyster or clam grounds for all losses or damages,
including the value of the ground taken for the construction of the channel.
The lessee holder
shall have recourse under action of the law in the court of the proper
jurisdiction of the Commonwealth of Virginia to recover damages.
§28.2-631. Grounds for clams.
The provisions in this chapter referring or relating to the leasing assignment
of riparian oyster grounds
include the right of the Commissioner to lease assign grounds for planting,
growing, storing, and harvesting clams. The Commissioner may use the same
application and assignment forms and procedures for leasing assigning grounds for
producing clams as provided for leasing assigning grounds for
producing oysters.
§28.2-634. Nonresidents; taking, planting oysters prohibited; penalty.
If any person other than a resident, as defined in §28.2-200,
takes or catches oysters or clams in any of the waters of this the Commonwealth, or in any of
the waters under the Commonwealth's jurisdiction, for market or profit, he is
guilty of a Class 1 misdemeanor. If any person other than a resident, as
defined in §28.2-200, or a corporation authorized to occupy and hold
oyster-planting grounds, rents any
oyster-planting grounds or plants oysters or clams in
any of the waters of the Commonwealth, or waters under the Commonwealth's
jurisdiction, he is guilty of a Class 1 misdemeanor, and such rental, lease or assignment is
void. The burden of proof of residency under this section is the defendant's.
This section shall not apply to any oyster-planting ground against which
foreclosure proceedings have been instituted or title to which is acquired
because of the lessee's holder's
death. Any property interest so acquired shall not extend longer than twelve 12
months from the time the title vests.
§28.2-640. Declaring certain grounds in Mobjack Bay public oyster rocks.
The following grounds in Mobjack Bay, in the County of
Gloucester, to wit: First, a lot of oyster-planting ground containing 218.75
acres surveyed by Fred E. Reudiger, civil engineer, and assigned to F. W.
Darling by George B. Taliaferro, oyster inspector, by an assignment recorded in
oyster plat book number 4, page 31, in the clerk's office of Gloucester County,
Virginia; second, those portions of a lot of oyster ground surveyed by Fred E.
Reudiger, civil engineer, and assigned to J. Weymouth by George B. Taliaferro,
oyster inspector, by his assignment recorded in oyster plat book number 4, page
35, in the clerk's office of Gloucester County, Virginia, and a lot of oyster
ground surveyed by Fred E. Reudiger, civil engineer, and assigned to S. J.
Watson by George B. Taliaferro, oyster inspector, by an assignment recorded in
oyster plat book number 4, page 31, in the clerk's office of Gloucester County,
Virginia, which 2 portions of the 2 plats adjoin the 218.75-acre lot of oyster
ground above described, which was assigned to F. W. Darling and which portions
are cut off from the residue of the Weymouth and Watson lots of oyster ground
above described, by a line beginning where the boundary of J. Weymouth's
ground, which runs north 47°, 32' east, 78.61 chains, intersects the boundary
of F. W. Darling's ground, which runs south 42° east, 30 chains, and from this
point of intersection running south 42° east, until it intersects with the line
of S. J. Watson's ground, which runs south 51°, 26' west, 113.79 chains (these
portions of the Weymouth and Watson lots of oyster ground are cut off by the boundary
line previously described without regard to acreage; the acreage is estimated
not to exceed 50 acres), are declared public oyster rocks, beds, and shoals as
if the same had originally been included within the limits and boundaries of
the Baylor survey of the public rocks, beds, and shoals in the waters of the
Commonwealth, and subject in all respects to the laws of the Commonwealth in
relation to public oyster rocks, beds, and shoals, and the taking of oysters. Such grounds shall be subject, also, to the
existing rights of any lessees.
§28.2-641. Declaring certain areas in Hill's Bay, Mathews County, public oyster rocks, beds, and shoals.
The following ground in Hill's Bay on the west side of Gwynn's
Island, Mathews County, contained within the following boundaries is declared
to be public oyster rocks, beds, and shoals and unassignable to any person for
private use: Beginning at corner No. 8, Public Ground No. 5 of Mathews County;
thence along Public Ground line to corners Nos. 9, 10, 11, 12, 13, and 14 in a
northeasterly direction; thence a due east course to the low-water mark on the
west side of Gwynn's Island; thence following the meanders of the low-tide line
in a southwesterly direction to corner No. 5 of J. R. Forrest's oyster lease of
2.01 acres as it existed as of July 1, 2024;
thence following said oyster lease in a westerly direction to corner No. 4 of
said lease; thence in a westerly direction to the point of beginning. The oyster lease of O. V. Sparrow's 10.51 acres,
near Cherry Point, is excluded from the previously described area.
§28.2-826. Crassostrea ariakensis.
A. The Commissioner, after consultation with the Director of
the Virginia Institute of Marine Science and the Fisheries Management Division
of the Commission, and subject to the provisions of this section, may
authorize, in writing, the placement of oysters of the species Crassostrea
ariakensis on state-owned bottomlands as described in §28.2-600 or 28.2-603.
B. The Commissioner's authorization for placement of C. ariakensis on state-owned bottomlands pursuant to this section shall be conditioned upon, and subject to, compliance with the following requirements:
1. All nonnative oysters placed on state-owned bottomlands
pursuant to this section shall be placed within the bounds of sites established
by survey and specifically designated and approved by the Commissioner for the
placement of C. ariakensis. Before approving any site for the placement of C.
ariakensis, the Commissioner shall determine that such use of the site shall
not conflict with Virginia's native oyster restoration program. The
Commissioner shall not approve any submerged aquatic vegetation site designated
pursuant to §28.2-1204.1 for the placement of C. ariakensis. Sites designated
and approved for the placement of C. ariakensis shall be marked as provided in
§28.2-517 or as otherwise specified by the Commissioner in
granting the authorization.
2. C. ariakensis oysters placed on state-owned bottomlands pursuant to this section shall not be relayed or transferred to other state-owned bottomlands except in compliance with this section.
3. C. ariakensis oysters placed on state-owned bottomlands pursuant to this section shall originate at a hatchery located in the Chesapeake Bay region and be certified by the Virginia Institute of Marine Science to be currently in compliance with applicable protocols established by the International Council for the Exploration of the Sea. Documentation of compliance with this requirement shall be submitted to the Commissioner prior to the placement of such oysters on state-owned bottomlands pursuant to this section.
4. C. ariakensis oysters placed in state-owned bottomlands pursuant to this section prior to July 1, 2007, or the completion of the Environmental Impact Statement under preparation by the U.S. Army Corps of Engineers and sponsored by Maryland and Virginia concerning the introduction of nonnative oysters, whichever is sooner, shall be rendered incapable of reproduction by a method that has been determined by the Virginia Institute of Marine Science as reliably producing not more than one diploid oyster per 1,000 of triploid oysters produced, and shall be deployed in a manner determined by the Virginia Institute of Marine Science to protect against inadvertent fertilization. On and after July 1, 2007, or the completion of the Environmental Impact Statement under preparation by the U.S. Army Corps of Engineers and sponsored by Maryland and Virginia concerning the introduction of nonnative oysters, whichever is sooner, the Commissioner, with the concurrence of the Director of the Virginia Institute of Marine Science, may authorize the placement of diploid or fertile C. ariakensis oysters on state-owned bottomlands.
C. At the request of any person authorized by the Commissioner to place C. ariakensis oysters on state-owned bottomlands, the Commissioner may direct that placement of the oysters be undertaken by or under the direction of the Commission provided that the requestor agrees to reimburse the Commission for all direct costs of such placement and provides a bond, escrow, or other financial assurance for payment of such costs in a form and amount satisfactory to the Commissioner.
D. Requests for approval and accompanying certifications required by this section shall be submitted in such form as prescribed by the Commissioner. The Commissioner may, by regulation, establish a reasonable fee sufficient to defray the costs of processing requests for approval. Approvals granted pursuant to this section shall not be transferred without the written authorization of the Commissioner.
E. C. ariakensis oysters that are placed on state-owned bottomlands in violation of this section shall, upon written order of the Commissioner, be removed immediately by the person responsible for their placement. Should such person be unwilling or unable to remove them, the Commissioner shall have the oysters removed and may recover the costs thereof from the person responsible for their placement.
F. The provisions of Title 28.2 shall apply to C. ariakensis oysters grown on state-owned bottomlands except as otherwise provided in this section.
G. Not more than 60 and not less than 30 days before the Commissioner commences the exercise of his authority to allow placement of C. ariakensis on state-owned bottomland, the Commission shall hold at least one public hearing for the purpose of receiving data, views and argument concerning the placement of C. ariakensis in state waters. Not more than 60 and not less than 30 days before the Commissioner commences the exercise of his authority to allow placement of diploid or fertile C. ariakensis on state-owned bottomland, the Commission shall hold at least one public hearing for the purpose of receiving data, views and argument concerning the placement of diploid or fertile C. ariakensis in state waters.
2. That §28.2-517, Article 2 (§§28.2-603 through 28.2-622) of Chapter 6 of Title 28.2, and §§28.2-623, 28.2-625, and 28.2-627 of the Code of Virginia are repealed.
3. That the Marine Resources Commission shall not issue or renew any private leases for general oyster-planting grounds in the Commonwealth on or after July 1, 2024.
4. That any general oyster-planting grounds that are unassigned or currently leased by the Marine Resources Commission shall be public oyster rocks, beds, and shoals and unassignable to any person for private use. The provisions of this act shall not curtail the length of time remaining on existing leases held for general oyster-planting grounds.
5. That the Marine Resources Commission shall promulgate regulations to conform to the provisions of this act.
