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2003 SESSION
034789760Be it enacted by the General Assembly of Virginia:
1. That §§ 28.2-100, 28.2-102, 28.2-103, 28.2-106, 29.1-100, and 29.1-200 of the Code of Virginia are amended and reenacted, and that the Code of Virginia is amended by adding sections numbered 28.2-100.1, 28.2-103.1, 28.2-103.2, 28.2-103.3, 28.2-103.4, 28.2-103.5, 28.2-103.6, 28.2-103.7, 28.2-103.8, and 28.2-104.1 as follows:
§ 28.2-100. Definitions.
As used in this title and in Title 29.1, unless the context requires a different meaning:
"Commission" means the Virginia Game and Marine Resources Commission.
"Commissioner" means the Commissioner of Marine Resources.
"Director" means the Director of the Virginia Game and Marine Resources Commission.
"Fish" or "marine fish" means those finfish species which spend a major portion of their lives in marine or estuarine waters. Sunfish, crappies, and carp are not considered to be marine fish.
"Fishing", "fisheries" or "to fish" means all operations involved in (i) taking or catching, (ii) using, setting or operating apparatus employed in killing, taking or catching, or (iii) transporting or preparing for market marine fish, shellfish, and marine organisms.
"Habitat" means those state-owned bottomlands, tidal wetlands and coastal primary sand dunes which are subject to regulation under Subtitle III of this title.
"Marine organisms" means those species other than marine finfish or marine shellfish which inhabit marine or estuarine waters. Terrapin and marine mammals are considered to be marine organisms.
"Marine shellfish" or "shellfish" means such species of mollusca as oysters and clams, and such species of crustacea as crabs.
"Officer" means a member of the Virginia Game and Marine Police.
"Territorial sea" means the waters within the belt, three nautical miles wide, that is adjacent to Virginia's coast and seaward of the mean low-water mark.
"Tidewater Virginia" means the following counties: Accomack, Arlington, Caroline, Charles City, Chesterfield, Essex, Fairfax, Gloucester, Hanover, Henrico, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Mathews, Middlesex, New Kent, Northampton, Northumberland, Prince George, Prince William, Richmond, Spotsylvania, Stafford, Surry, Westmoreland, and York; and the Cities of Alexandria, Chesapeake, Colonial Heights, Fairfax, Falls Church, Fredericksburg, Hampton, Hopewell, Newport News, Norfolk, Petersburg, Poquoson, Portsmouth, Richmond, Suffolk, Virginia Beach, and Williamsburg.
§ 28.2-100.1. Virginia Game and Marine Resources Commission; purpose.
The Virginia Game and Marine Resources Commission (the "Commission") is established as a policy commission in the executive branch of state government. The purpose of the Commission is to provide public, informational and educational services related to Titles 28.2 and 29.1, and to serve as the agency responsible for the administration and enforcement of the statutory provisions of these titles, and all related rules, regulations, and legislative acts.
§ 28.2-102. Commission membership; chairman; qualifications; terms; meetings.
A. The Commission shall consist of a chairman and eight additional members 1
member from each congressional district who, to the extent possible,
shall be representative of all areas of interest in Virginia's game and marine
resources, including commercial, recreational and environmental interests. At least
one 1 member shall, at the time of his appointment, have earned his
livelihood for at least five 5 years by working on Virginia waters and shall
be licensed and registered as a commercial fisherman as defined in § 28.2-241,
and one 1 member shall be a representative of the sport fishing industry or a
recreational fisherman who is not employed by the commercial fishing industry.
The members, including the chairman, shall be appointed by the Governor and
shall serve at his pleasure, subject to confirmation by the General Assembly.
B. The chairman and two 2 members of the Commission shall hold office for terms
coincident with the term of the Governor making the appointments, or until
their successors have been appointed and qualified. The terms of the remaining
six members shall expire July 1, 1997, and these same six members shall be
reappointed effective July 1, 1997, as successors be for 1 to 4 years; however,
appointments shall be made in a manner whereby no more than 3 members shall have
terms that expire in the same year. Their terms shall be as follows: two
members shall be appointed for two-year terms, two members shall be appointed
for three-year terms, and two members shall be appointed for four-year terms or
until their successors are appointed and qualified. Thereafter, all
appointments shall be for terms of four years or until their successors are
appointed and qualified. No person, except the chairman, shall serve more than
two 2 consecutive four 4-year terms. Any vacancy shall be filled by the
Governor for the unexpired term.
C. The chairman shall be an experienced administrator with knowledge of seafood
game and marine affairs. He shall serve as Commissioner of Marine Resources.
D. Five The majority of members shall constitute a quorum of the Commission.
E. The Commission shall meet on the call of the chairman or three members at
such times as he or they may deem once every 3 months beginning July 1 of each
year for the transaction of business, and other meetings may be called by the
chairman if necessary, and at such places as he or they may designate.
§ 28.2-103. General powers and jurisdiction of Commission; promulgation of regulations.
A. The Commission shall exercise all of the powers herein conferred and may promulgate regulations and guidelines necessary to carry out the provisions of this title and of Title 29.1. Marine fisheries regulations shall be promulgated according to the procedures established in Article 2 (§ 28.2-209 et seq.) of Chapter 2 of this title. Habitat management regulations and guidelines shall be promulgated in accordance with the procedures established in Article 2 (§ 28.2-209 et seq.) of Chapter 2 of this title, unless specifically provided in subdivision C 15 or subsection F of § 2.2-4011.
B. The Commission shall exist to provide public, informational and educational services related to Titles 28.2 and 29.1, and to serve as the agency responsible for the administration and enforcement of the statutory provisions of these titles, and all related rules, regulations, and legislative acts. The Commission shall employ scientific principles and procedures, as developed, researched, recognized, and accepted within the bounds of comprehensive professional wildlife resource management, in the management of the Commonwealth's wildlife and natural resources.
C. The jurisdiction of the Commission shall include the Commonwealth's territorial sea and extend to all rivers and streams throughout the Commonwealth. The Commission shall have jurisdiction over all recreational boating, hunting and trapping, commercial and recreational fishing and all marine or freshwater fish, shellfish, or other organisms, game birds, game animals, and other wildlife and their habitats.
D. The Commission is further authorized to:
1. Acquire by purchase, lease, exchange, gift, or otherwise, lands and waters in the Commonwealth and to establish buildings, structures, dams, lakes, and ponds on such lands and waters.
2. Conduct operations for the preservation and propagation of game birds, game animals, fish, and other wildlife in order to increase, replenish, and restock the lands and inland waters of the Commonwealth.
3. Purchase, lease, or otherwise acquire lands and waters for game and fish refuges, preserves, or public shooting and fishing, and establish such lands and waters under appropriate regulations.
4. Acquire by purchase, lease, or otherwise, lands and structures for use as public landings, wharves, or docks; to improve such lands and structures; and to control the use of all such public landings, wharves, or docks by regulation.
5. Acquire and introduce any new species of game birds, game animals, or fish on the lands and within the waters of the Commonwealth.
6. Restock, replenish, and increase any depleted native species of game birds, game animals, or fish.
7. Published and distribute educational materials pertaining to wildlife .
8. Hold exhibits throughout the Commonwealth for the purpose of educating school children, agriculturists, and other persons in the preservation and propagation of wildlife in the Commonwealth.
9. Control land owned by and under control of the Commonwealth in Back Bay, its tributaries, and the North Landing River from the North Carolina line to North Landing Bridge. The Commission shall regulate or prohibit by regulation any drilling, dredging or other operation designed to recover or obtain shells, minerals, or other substances in order to prevent practices and operations that would harm the area for fish and wildlife.
10. Exercise powers it may deem advisable for conserving, protecting, replenishing, propagating, and increasing the supply of game birds, game animals, fish, and other wildlife of the Commonwealth.
11. Adopt resolutions or regulations conferring upon the Director all such powers, authorities, and duties as the Commission possesses and deems necessary or proper to carry out the purposes of this title.
12. Administer and manage the Virginia Fish Passage Grant and Revolving Loan Fund pursuant to Article 1.1 (§ 29.1-101.2 et seq.) of Chapter 1 of Title 29.1.
13. Maintain an office at such place or places as the Commission may designate.
§ 28.2-103.1. Acceptance of gifts, etc.
In addition to the authority granted the Commission by § 28.2-103, the Commission may receive gifts, grants, bequests, and devises of property, real or personal, and of money which, if accepted, shall be taken and held for any uses prescribed by the donor, grantor, or testator and in accord with the purposes of this title. The Commission shall manage such properties or money in such a way as to maximize their value to the citizens of Virginia.
§ 28.2-103.2. Lease or contract respecting land or buildings.
The Commission is authorized, with the approval of the Governor, to enter into contracts respecting or to lease any land or buildings leased or owned by it to private persons, corporations, associations, other governmental agencies, public authorities duly created by law or political subdivisions of the Commonwealth. The contracts or leases shall be (i) upon terms and conditions as deemed advisable by the Commission, (ii) in a form to be approved by the Attorney General, and (iii) consistent with the powers, authority and responsibilities of the Commission. If any such lease or contract is to be effective for a term of more than 5 years, it shall be authorized only after a public hearing by the Commission. All amounts received pursuant to leases and contracts hereunder shall be deposited in the state treasury to the credit of the game protection fund.
§ 28.2-103.3. Forest and watershed areas.
The Commission is authorized to exercise full control of the hunting and fishing rights and privileges in and on all impounded water areas in this Commonwealth resulting from power development; and in all forest and watershed areas in this Commonwealth that are now owned, or that may hereafter be acquired, by the United States government, subject to the rights and power of the United States Department of Agriculture. The Commission shall have the power to establish refuges, sanctuaries, and public shooting and fishing preserves in these areas, under such regulations as it may deem proper.
§ 28.2-103.4. Rules and regulations.
All rules, resolutions, regulations and policies adopted by the Commission, as provided by the Administrative Process Act (§ 2.2-4000 et seq.), shall be reduced to writing for the Director, shall be public documents, and shall be available to the public on request.
§ 28.2-103.5. Audits and examinations.
The minute books and other records of the Commission shall be open to examination by the Governor and Auditor of Public Accounts, or their representatives, at all times. The accounts of the Commission shall be audited in the manner provided for the audit of other state agencies.
§ 28.2-103.6. Disbursements, accounts for Commission.
A. The disbursements of the Commission shall be limited to the amount appropriated by the General Assembly from the game protection fund to expenditures from the Lifetime Hunting and Fishing Endowment Fund. In no event shall the Commonwealth pay obligations that may be incurred by the Commission or be liable in any manner for such obligations except to the extent of the game protection fund and the Lifetime Hunting and Fishing Endowment Fund.
B. Accounts for salaries, allowances, wages, and expenses authorized by the Commission shall be certified to the Comptroller for payment as the Commission may direct by resolution.
§ 28.2-103.7. Sale of timber; portion of proceeds to be paid to locality.
A. The Director is authorized to manage and harvest timber on lands owned by the Commission in accordance with the best timber and game management practices, and to sell the timber. Proceeds from the sale of such timber shall be deposited in the state treasury to the credit of the Game Protection Fund.
B. When the Director authorizes the selling of timber, which is standing or which has been cut from timber standing on land owned by the Commission, the Commission shall pay to the locality in which the standing timber is located 25 percent of the proceeds of the sale of the timber, after deducting the cost of any road constructed by the Commission that is necessary for the sale of the timber.
§ 28.2-103.8. Payment of license and permit fees.
The Director may authorize the acceptance of any method of payment authorized by § 2.2-614.1 in lieu of money for payment of any fees collected by the Commission or agents acting on behalf of the Commission for any licenses or permits issued under this title or for any merchandise sold by the Commission.
§ 28.2-104.1. Director's general powers and duties.
In accordance with § 2.2-106, the Governor shall appoint a Director, subject to General Assembly approval, to act as chief administrative officer of the Commission. In addition to the powers designated elsewhere in this title, the Director shall have the power to:
1. Enforce or cause to be enforced the marine fishery and habitat laws and regulations, and all laws for the protection, propagation, and preservation of game birds and game animals of the Commonwealth and all fish in the inland waters thereof. Inland waters shall include all waters above tidewater and the brackish and freshwater streams, creeks, bays, including Back Bay, inlets, and ponds in the tidewater counties and cities.
2. Initiate prosecution of all persons who violate such laws, and seize and confiscate wild birds, wild animals, and fish that have been illegally killed, caught, transported, or shipped.
3. Employ persons necessary for the administrative requirements of the Commission and to designate the official position and duties of each. The salaries of all such employees shall be as provided in accordance with law.
4. Perform such acts as may be necessary to the conduct and establishment of cooperative fish and wildlife projects with the federal government as prescribed by acts of Congress and in compliance with rules and regulations promulgated by the Secretary of the Interior.
5. Make and enter into all contracts and agreements necessary or incidental to the performance of his duties and the execution of his powers, including, but not limited to, contracts with the United States, other state agencies and governmental subdivisions of the Commonwealth.
6. When practicable, consult with, and keep informed, wildlife and boating constituent organizations so as to benefit Virginia's wildlife and natural resources and accomplish the Commission's mission.
§ 28.2-106. Virginia Game and Marine Police; law-enforcement responsibilities; qualifications; oath.
A. The law-enforcement division of the Commission shall be designated as the Virginia Game and Marine Police. It shall exercise such powers and duties as the General Assembly may confer upon it by law and as provided in regulations adopted pursuant to law, including but not limited to the powers and duties set forth in Chapter 2 of Title 29.1 (§ 29.1-200 et seq.) relating to game and inland fisheries, and the following:
1. Patrolling the tidal waters and shoreline of the Chesapeake Bay, its tidal tributaries, and territorial sea;
2. Enforcing marine fishery and habitat conservation laws and regulations;
3. Enforcing health laws pertaining to the harvesting of seafood from condemned areas;
4. Enforcing or assisting other agencies in enforcing laws pertaining to the removal of obstructions and abandoned vessels from the water, to boating operation and navigation, and to larceny on the water;
5. Providing for water-borne safety;
6. Conducting search and rescue activities; and
7. Protecting from terrorist attack federal and state water-related installations and other water-related locations within the tidal waters of the Commonwealth as may be designated by federal or state officials as important to national security.
B. Officers of the Virginia Marine Police shall have the same powers as (i) sheriffs and other law-enforcement officers to enforce all of the criminal laws of the Commonwealth, and (ii) regular game wardens appointed pursuant to Chapter 2 (§ 29.1-200 et seq.) of Title 29.1.
C. A person shall be (i) at least twenty-one years old and (ii) a high school graduate or equivalent to qualify for appointment as an officer.
D. Each officer shall qualify before the clerk of the circuit court of the county or city in which he resides, or in which his district may be, by taking the oaths prescribed by law.
§ 29.1-100. (Effective January 1, 2003) Definitions.
As used in and for the purposes of this title and of Title 28.2 only, or in any
of the regulations of the Board Commission, unless the context clearly requires
a different meaning:
"Bag or creel limit" means the quantity of game, fish or fur-bearing animals
that may be taken, caught, or possessed during a period fixed by the Board
Commission.
"Board" means the Board of Game and Inland Fisheries.
"Closed season" means that period of time fixed by the Board Commission during
which wild animals, birds or fish may not be taken, captured, killed, pursued, hunted, trapped or possessed.
"Department" means the Department of Game and Inland Fisheries.
"Commission" means the Virginia Game and Marine Resources Commission.
"Director" means the Director of the Department of Virginia Game and Inland
Fisheries Marine Resources Commission.
"Firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material.
"Fishing" means taking, capturing, killing, or attempting to take, capture or
kill any fish in and upon the inland waters of this the Commonwealth.
"Fur-bearing animals" includes beaver, bobcat, fox, mink, muskrat, opossum, otter, raccoon, skunk, and weasel.
"Game" means wild animals and wild birds that are commonly hunted for sport or food.
"Game animals" means deer, bear, rabbit, fox, squirrel, bobcat and raccoon.
"Game fish" means trout (including all Salmonidae), all of the sunfish family
(including largemouth bass, smallmouth bass and spotted bass, rock bass, bream,
bluegill and crappie), walleye or pike perch, white bass, chain pickerel or
jackfish, muskellunge, and northern pike, wherever such fish are found in the
waters of this the Commonwealth and rockfish or striped bass where found above
tidewaters or in streams which are blocked from access from tidewaters by dams.
"Game warden" means supervising wardens, and regular and special game warden.
"Hunting and trapping" includes the act of or the attempted act of taking,
hunting, trapping, pursuing, chasing, shooting, snaring or netting birds or
animals, and assisting any person who is hunting, trapping or attempting to do
so regardless of whether birds or animals are actually taken; however, when
hunting and trapping are allowed, reference is made to such acts as being
conducted by lawful means and in a lawful manner. The Board of Game and Inland
Fisheries Commission may authorize by regulation the pursuing or chasing of
wild birds or wild animals during any closed hunting season where persons have no intent to take
such birds or animals.
"Lawful," "by law," or "law" means the statutes of this the Commonwealth or
regulations adopted by the Board Commission which the Director is empowered to
enforce.
"Migratory game birds" means doves, ducks, brant, geese, swan, coot, gallinules, sora and other rails, snipe, woodcock and other species of birds on which open hunting seasons are set by federal regulations.
"Muzzleloading pistol" means a firearm originally designed, made or intended to fire a projectile (bullet) from one or more barrels when held in one hand and that is loaded from the muzzle or forward end of the cylinder.
"Muzzleloading rifle" means a firearm firing a single projectile that is loaded along with the propellant from the muzzle of the gun.
"Muzzleloading shotgun" means a firearm with a smooth bore firing multiple projectiles that are loaded along with the propellant from the muzzle of the gun.
"Nonmigratory game birds" means grouse, bobwhite quail, turkey and all species
of birds introduced into the Commonwealth by the Board Commission.
"Nuisance species" means blackbirds, crows, cowbirds, grackles, English
sparrows, starlings, or those species designated as such by regulations of the
Board Commission, and those species found committing or about to commit
depredation upon ornamental or shade trees, agricultural crops, wildlife,
livestock or other property or when concentrated in numbers and manners as to
constitute a health hazard or other nuisance. However, the term nuisance does
not include (i) animals designated as endangered or threatened pursuant to §§
29.1-563, 29.1-564, and 29.1-566, (ii) animals classified as game or
fur-bearing animals, and (iii) those species protected by state or federal law.
"Officer" means a member of the Virginia Game and Marine Police.
"Open season" means that period of time fixed by the Board Commission during
which wild animals, wild birds and fish may be taken, captured, killed, pursued, trapped or possessed.
"Pistol" means a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having one or more chambers as an integral part of or permanently aligned with the bore and a short stock at an angle to and extending below the line of the bore that is designed to be gripped by one hand.
"Possession" means the exercise of control of any wild animal, wild bird, fish or fur-bearing animal, or any part of the carcass thereof.
"Properly licensed person" means a person who, while engaged in hunting,
fishing or trapping, or in any other activity permitted under this title, in
and upon the lands and inland waters of this the Commonwealth, has upon his
person all the licenses, permits and stamps required by law.
"Regulation" means a regulation duly adopted by the Board Commission pursuant
to the authority vested by the provisions of this title.
"Revolver" means a projectile weapon of the pistol type, having a breechloading chambered cylinder arranged so that the cocking of the hammer or movement of the trigger rotates it and brings the next cartridge in line with the barrel for firing.
"Rifle" means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder, and designed or redesigned and made or remade to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger.
"Shotgun" means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder, and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore or rifled shotgun barrel either a number of ball shot or a single projectile for each single pull of the trigger.
"Transportation" means the transportation, either upon the person or by any other means, of any wild animal or wild bird or fish.
"Wildlife" means all species of wild animals, wild birds and freshwater fish in
the public waters of this the Commonwealth.
§ 29.1-200. Appointment of Game and Marine Police Officers.
A. In addition to the Game and Marine Police officers appointed pursuant to
Article 2 (§ 28.2-106 et seq.) of Chapter 1 of Title 28.2 relating
to marine resources, The the Director shall appoint regular and special game
wardens Game and Marine Police officers as he may deem necessary to enforce
the game and inland fish laws and shall issue a certificate of appointment to
each game warden officer.
B. All appointments to sworn law-enforcement positions above the rank of game
warden Game and Marine Police officer within the Department shall be made by
the Director of the Department from among the sworn game wardens officers,
except for those positions designated in subdivision 20 of § 2.2-2905, or
whenever the Director determines, in writing, that a position requires knowledge,
skills, or abilities such that a sufficient pool of qualified candidates does not
exist within the Department.
2. That §§ 28.2-101 and 28.2-104, and Article 2 (§§ 29.1-102 through 29.1-108) and Article 3 (§§ 29.1-109 through 29.1-112) of Chapter 1 of Title 29.1 of the Code of Virginia are repealed.
3. That all regulations adopted by the Marine Resources Commission, or the Board of Game and Inland Fisheries, which are in effect as of the effective date of this act and which pertain to the subject matter of this act, shall remain in full force and effect until altered, amended or rescinded by the Virginia Game and Marine Resources Commission as created pursuant to this act.
4. That as of July 1, 2003, the Virginia Game and Marine Resources Commission shall be deemed the successor in interest to the Virginia Marine Resources Commission and to the Department of Game and Inland Fisheries to the extent that this act transfers powers and duties. All right, title and interest in and to any real or tangible personal property vested in the Marine Resources Commission or the Department of Game and Inland Fisheries to the extent that this act transfers powers and duties as of the effective date of this act shall be transferred and taken as standing in the name of the Game and Marine Resources Commission.
5. That wherever any reference is made in law or regulation to the former Marine Resources Commission, or to the former Department of Game and Inland Fisheries, such reference shall be construed to mean the Virginia Game and Marine Resources Commission, and wherever any reference is made in law or regulation to the Commissioner of the former Marine Resources Commission, or to the Director of the former Department of Game and Inland Fisheries, such reference shall be construed to mean the Director of the Virginia Game and Marine Resources Commission.
6. That wherever any reference is made in law or regulation to the former Virginia Marine Police, or to the former game warden or wardens, such reference shall be construed to mean the Virginia Game and Marine Police or officers thereof.
7. That the Governor may transfer an appropriation or any portion thereof within a state agency or commission established, abolished or otherwise affected by the provisions of this act, or from one such agency or commission to another, to support the changes in organization or responsibility resulting from or required by the provisions of this act.
8. That the Governor may transfer employees within any state agency or commission established or otherwise affected by the provisions of this act, or from such agency or commission to another, to support changes in organization or responsibility resulting from or required by the provisions of this act.