16104836D
SENATE BILL NO. 397
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee on Agriculture, Conservation and
Natural Resources
on January 28, 2016)
(Patron Prior to Substitute--Senator DeSteph)
A BILL to amend and reenact §§28.2-618 and 28.2-630 of the
Code of Virginia, relating to the navigation projects in certain oyster
grounds.
Be it enacted by the General Assembly of Virginia:
1. That §§28.2-618 and 28.2-630 of the Code of Virginia are
amended and reenacted as follows:
§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 and the rights of navigation as
identified in §28.2-630;
3. The right of fishing in waters above the bottoms, provided
that (i) that no person exercising the right of fishing shall use
any device which that is fixed to the bottom, or which
that, 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 that are not staked to the bottom
shall not be considered devices which that 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; and
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 that
may be transferred or assigned whenever the current licensee complies with all
existing laws.
§28.2-630. Rights of riparian owners, etc., to build bulkhead,
wharf, or channel; access to navigation.
A. 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 that any landowner who desires to erect a
bulkhead or wharf in front of his property or to open a channel, or the
Commonwealth or any locality that desires to open a channel necessary for
waterfront property owners to have the right of navigation in navigable waters
of the Commonwealth, and who that is not a lessee or riparian
holder of suitable bottoms for that purpose, shall give the lessee or other
holder of the oyster or clam grounds in front of his property twelve
that are reasonably needed for building the bulkhead, wharf, or channel 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, Commonwealth, or locality provides
notice to the lessee or other holder of the oyster or clam grounds in front of
his property, the landowner, Commonwealth, or locality also 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 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.
B. If the bulkhead, wharf, or channel has not commenced
as specified in the notice within three 12 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 landowner, the Commonwealth, or such
locality, subject to the provisions of this chapter. Any person constructing
a channel under this section shall compensate the lessee of any oyster or clam
grounds for all losses or damages including the value of the ground taken
for the construction of the channel of commercially productive oyster or
clam grounds within the affected area. The lessee shall have recourse under
action of the law in the court of the proper jurisdiction of the Commonwealth
of Virginia to recover damages.
C. For purposes of this section "commercially
productive oyster or clam grounds" are those areas 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.
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