28.2-1205 - Permits for the use of state-owned bottomlands.
§ 28.2-1205. Permits for the use of state-owned bottomlands.
A. When determining whether to grant or deny any permit for the use ofstate-owned bottomlands, the Commission shall be guided in its deliberationsby the provisions of Article XI, Section I of the Constitution of Virginia.In addition to other factors, the Commission shall also consider the publicand private benefits of the proposed project and shall exercise its authorityunder this section consistent with the public trust doctrine as defined bythe common law of the Commonwealth adopted pursuant to § 1-200 in order toprotect and safeguard the public right to the use and enjoyment of thesubaqueous lands of the Commonwealth held in trust by it for the benefit ofthe people as conferred by the public trust doctrine and the Constitution ofVirginia. The Commission shall also consider the project's effect on thefollowing:
1. Other reasonable and permissible uses of state waters and state-ownedbottomlands;
2. Marine and fisheries resources of the Commonwealth;
3. Tidal wetlands, except when this has or will be determined under theprovisions of Chapter 13 of this title;
4. Adjacent or nearby properties;
5. Water quality; and
6. Submerged aquatic vegetation (SAV).
B. The Commission shall consult with other state agencies, including theVirginia Institute of Marine Science, the State Water Control Board, theVirginia Department of Transportation, and the State Corporation Commission,whenever the Commission's decision on a permit application relates to oraffects the particular concerns or activities of those agencies.
C. No permit for a marina or boatyard for commercial use shall be granteduntil the owner or other applicant presents to the Commission a plan forsewage treatment or disposal facilities that has been approved by the StateDepartment of Health.
D. A permit is required and shall be issued by the Commission for placementof any private pier measuring 100 or more feet in length from the meanlow-water mark, which is used for noncommercial purposes by an owner of theriparian land in the waters opposite the land, and that traversescommercially productive leased oyster or clam grounds, as defined in §28.2-630, provided that the pier does not extend beyond the navigation lineestablished by the Commission or the United States Army Corps of Engineers.The permit may reasonably prescribe the design and location of the pier forthe sole purpose of minimizing the adverse impact on such oyster or clamgrounds or the harvesting or propagation of oysters or clams therefrom. Thepermit shall contain no other conditions or requirements. Unless informationor circumstances materially alter the conditions under which the permit wouldbe issued, the Commission shall act within 90 days of receipt of a completejoint permit application to approve or deny the application. If theCommission fails to act within that time, the application shall be deemedapproved and the applicant shall be notified of the deemed approval.
E. All permits issued by the Commission for the use of state-ownedbottomlands pursuant to § 28.2-1204, or to recover underwater historicproperty shall be in writing and specify the conditions and terms that theCommission determines are appropriate, and royalties unless prohibited underother provisions of this chapter.
F. Any person aggrieved by a decision of the Commission under this section isentitled to judicial review in accordance with the provisions of theAdministrative Process Act (§ 2.2-4000 et seq.). However, any decision madeby the Commission hereunder consistent with the public trust doctrine asdefined by the common law of the Commonwealth adopted pursuant to § 1-200shall not be deemed to have been made pursuant to the police power. No personshall reapply for the same or substantially similar use of the bottomlandswithin 12 months of the denial of a permit by the Commission. Nothing in thissubsection shall be construed to deprive a riparian landowner of such rightsas he may have under common law.
(Code 1950, § 62-2.1; 1960, c. 600; 1962, c. 637; 1966, c. 641; 1968, c. 659,§ 62.1-3; 1970, c. 621; 1972, c. 866; 1973, cc. 23, 361; 1974, cc. 92, 385;1975, c. 431; 1976, c. 579; 1980, c. 253; 1982, c. 102; 1988, c. 868; 1992,c. 836; 1996, c. 228; 1999, c. 741; 2000, c. 167; 2001, c. 72; 2004, cc. 405,899, 1018; 2005, c. 839.)