One example request of Virginia Legislature:
19. USE OF OYSTER LEASES FOR NAVIGATION PROJECTS
SPONSORED BY CITY COUNCIL MEMBERS, JAMES L. WOOD & JOHN E. UHRIN
The City has numerous rivers and tributaries that require maintenance dredging. This includes both the main channels of the Eastern and Western branches of the Lynnhaven River and multiple navigation channels serving the multitude of neighborhoods of the fully developed watershed. Not only do these waterways provide access for homeowners to utilize their waterfront property, but these navigation channels support recreational boating for residents and visitors to the City in addition to serving water-dependent local businesses and watermen. Virtually all of the coves of the Lynnhaven were developed with navigation channels.
With the support of General Assembly legislation, Special Service Districts (SSDs) are being created to formulate neighborhood navigation dredging projects to reclaim those navigation channels that have filled with silt, mud and sediment foreign to the Lynnhaven’s past. Restoring navigable channels for these waterfront neighborhoods is a critical goal for the City, and the Navigation SSD program provides a venue to accomplish this. The silt, mud and sediment that have inundated this body of water contribute to degradation of the water quality of the Lynnhaven, which is condemned or restricted to oyster production in many areas. As a result of contamination, most oyster leases are unproductive or have costly restrictions and compliance measures before a harvest can be brought to market.
Restoring navigation channels is a part of the City’s effort to cleaning up the Lynnhaven River, but the widely popular SSD neighborhood navigation dredging program has been placed at risk due to 2014 legislation barring localities from exercising eminent domain to acquire portions of oyster leases of state-owned bottomlands, even if the purpose is navigational dredging. Due to guarantees made by the Commonwealth to the holders of oyster leases, consent from the oyster lease holder is required for any dredging permit issued by the Virginia Marine Resources Commission. The legal result of this requirement is that a single oyster lease holder with a nonproductive, vacant oyster bed in a condemned creek retains veto power over a navigation dredging project affecting hundreds of waterfront property owners and recreational boaters. The oyster leases cost $1.50 per acre/per year for a 10-year lease, and although there is a requirement that leases be worked for oyster production, there are generous exceptions for rivers like the Lynnhaven, where such production would not likely yield oysters. The proposed legislation is to promote a balance that allows the municipality and its property owners to maintain the navigation channels while providing fair treatment to active producing oyster lease holders.
The General Assembly is requested to amend the code of Virginia §28.2-618
§ 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;
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;
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; and
5. In navigable waters that are located in the Lynnhaven River and its creeks and tributaries, the right of navigation, including dredging projects to improve, deepen or restore existing navigation channels in areas approved by the Virginia Marine Resources Commission, so long as the person dredging designs the project to minimize affecting active, producing beds and, to the extent any such beds cannot be avoided, the dredger pays the cost of relocating the oyster material that would be disturbed or pays the holder for any losses of oysters in production in an amount to be determined by the Commission.
This change would allow the City to compensate for loss of use while allowing much needed projects to go forward.