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, 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 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 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 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. If the bulkhead, wharf, or channel has 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 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. 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.
Code 1950, § 28-134; 1962, c. 406, § 28.1-118; 1992, c. 836; 2000, c. 167.
Structure Code of Virginia
Title 28.2 - Fisheries and Habitat of the Tidal Waters
§ 28.2-600. Riparian planting ground assignments; eligibility; fee
§ 28.2-601. Riparian assignments; entitlements; obligations
§ 28.2-602. Riparian assignments; special terms and conditions
§ 28.2-603. General oyster planting grounds
§ 28.2-603.1. Temporary enclosures on leased ground
§ 28.2-603.2. Commissioner to provide notice
§ 28.2-604. Eligible applicants
§ 28.2-605. Application for assignment
§ 28.2-606. Notice of application
§ 28.2-607. Survey and marking of ground
§ 28.2-608. Application, surveying, and recording fees
§ 28.2-609. Restrictions on assigned acreage and applications
§ 28.2-610. Restriction on acreage owned or operated
§ 28.2-612. Payment of annual rental; penalty for default
§ 28.2-615. Payment of costs for service, etc.
§ 28.2-616. Possession gives no preference as to assignment
§ 28.2-617. Recordation of plat
§ 28.2-619. When leases become vacant
§ 28.2-621. Effect of proposal for navigation project
§ 28.2-622. Consolidation of lease
§ 28.2-623. Excusing rent payment on condemned oyster grounds in the Lynnhaven River and tributaries
§ 28.2-624. Public rocks, etc., not to be used or staked off; penalty
§ 28.2-625. Transfer or assignment
§ 28.2-626. Refund of rent paid under mistake
§ 28.2-627.1. Oyster Leasing, Conservation, and Repletion Programs Fund
§ 28.2-628. Condemnation of oyster bottoms and grounds
§ 28.2-629. Rights of owner to waters within lawful survey
§ 28.2-630. Rights of riparian owners to build bulkhead or wharf
§ 28.2-632. Public clamming grounds
§ 28.2-633. Bathing grounds; assignment; rental
§ 28.2-634. Nonresidents; taking, planting oysters prohibited; penalty
§ 28.2-635. Residents not to be associated with nonresident
§ 28.2-636. Leasing of certain bottoms in Rappahannock River prohibited
§ 28.2-638. Authority of Governor to authorize dredging of channel in navigable waters
§ 28.2-639. Certain public oyster rocks in Rappahannock River
§ 28.2-640. Declaring certain grounds in Mobjack Bay public oyster rocks
§ 28.2-649. Acts which remain in force
§ 28.2-650. Dredging clams in polluted areas for replanting in public clamming grounds