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2017 SESSION
17101559DBe 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, in the Lynnhaven River and its tributaries, channels necessary for navigable access;
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; 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 may be transferred or assigned whenever the current licensee complies with all existing laws.
§ 28.2-630. Rights of riparian owners to build bulkhead or wharf or open channel.
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, or to open and mark a channel or channels
necessary for navigable access in the Lynnhaven River and its tributaries,
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, or channels 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,
or channels and the Commissioner subsequently finds, in
writing, that the proposed bulkhead, wharf or, channel,
or channels 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,
or channels have 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 or channels 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 or
channels. 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.