Table of Contents
Forward
Section
I---------------Introduction
Section
II--------------Dredging Operations
Section
III-------------Filling and Dredging Material Placement
Section
IV-------------Structures
Section
V--------------Overhead
and Submarine Crossings
Section
VI-------------Private
Riparian and Non-riparian Moorings
Section
VII------------Activities in non-tidal areas
Section
VIII-----------VMRC Regulations
CONSTITUTION
OF VIRGINIA
ARTICLE XI
Conservation
Section
1. Natural resources and historical sites of the Commonwealth.
To
the end that the people have clean air, pure water, and the use and
enjoyment for recreation of adequate public lands, waters, and other
natural resources, it shall be the policy of the Commonwealth to
conserve, develop, and utilize its natural resources, its public lands,
and its historical sites and buildings. Further, it shall be the
Commonwealth's policy to protect its atmosphere, lands, and waters from
pollution, impairment, or destruction, for the benefit, enjoyment, and
general welfare of the people of the Commonwealth.
Forward
"Tidewater
Virginia" as defined in the Code of Virginia encompasses over 5,000
miles of shoreline. There are roughly 2,300 square miles, or
approximately 1,472,000 acres, of tidally influenced submerged
lands. This is an area larger than the entire State of
Delaware and represents an ever-increasing custodial responsibility for
State government. Additionally, it is not widely recognized
that this responsibility extends to non-tidal streams throughout the
Commonwealth.
In a May 3, 1982 opinion, the
Attorney General advised the Commission to assume jurisdiction on
non-tidal streams that were determined to be "navigable-in-fact" unless
the landowner could show clear title to the riparian land acquired by
grant prior to July 4, 1776. Where the stream was determined
to be "non-navigable-in-fact", the Commission was advised to assume
jurisdiction unless the landowner could show a grant prior to 1792 in
that part of the State draining to the Atlantic Ocean, or prior to 1802
in that part of the State draining toward the Gulf of Mexico.
The
question of navigability is a question of fact as to whether a stream
is being, or has been historically used as a highway for trade or
travel or whether it is capable of such use in its ordinary and natural
condition (i.e. disregarding artificial obstructions such as dams which
could be abated). The Commission assumes that all perennial
streams with a drainage basin of greater than 5 square miles, or a mean
annual flow greater than 5 cubic feet pre second, are navigable-in-fact
until evidence is presented proving non-navigability.
In
1962, the Marine Resources Commission began a permit program designed
to regulate encroachments in, on, under or over the State-owned
submerged lands. The authority for this permit program, established by
the General Assembly, now requires that when determining to grant or
deny any permit the Commission shall be guided in its deliberations by
the provisions of Article XI, Section 1 of the Constitution of Virginia
and the Commission shall exercise its authority consistent with the
Public Trust Doctrine. The Commission shall also consider
effects on other reasonable and permissible uses of state waters and
state-owned bottomlands, marine and fisheries resources of the
Commonwealth, tidal wetlands, adjacent and nearby properties, water
quality and submerged aquatic vegetation. Numbers of permit
applications have grown steadily from about 15 applications per year
for such encroachments initially to over 3,000 in 2003. This
steady rise is largely due to increasing developmental pressures along
our shoreline. Over this period, and particularly since 1972,
increasing numbers of Federal agencies have become involved in the
permitting process formerly administered almost exclusively by the U.
S. Army Corps of Engineers. This has necessitated much closer
State/Federal joint processes in order to help the applicant through
the permitting procedures.
All of the foregoing
factors have generated the need for a set of criteria by which to
evaluate projects. The criteria should be used to assure
consistency of decisions and inform applicants regarding the degree of
acceptability of project proposals. These guidelines have
been developed and are hereby promulgated in the hope that they will
serve the best interests of all citizens of this great Commonwealth.
Section I
Introduction
A.
Purpose
B. Authority Required for Use
of Subaqueous Beds
Most activities over, under, or
on State-owned submerged lands require a VMRC permit. Section
28.2-1203 of the Virginia Code states that it shall be unlawful and
constitute a Class I misdemeanor for anyone to build, dump, or
otherwise trespass upon or over or encroach upon or take or use any
materials from the beds of the bays and ocean, rivers, streams, creeks,
which are the property of the Commonwealth, unless such act is pursuant
to statutory authority or a permit by the Marine Resources
Commission. The foundation of this concept, the Public Trust
Doctrine, dates to the Roman Empire. In short, the Public
Trust Doctrine is the principle that the state holds the land lying
beneath public waters as trustee for the benefit of all
citizens. As trustee, the state is responsible for proper
management of the resource to ensure the preservation and protection of
all appropriate current and potential future uses, including
potentially conflicting uses, by the public.
Statutory
Authority (approved by law) is, however, conferred on:
5. Placement of
private piers for noncommercial purposes by riparian landowners
provided that -
Subject to any applicable local
ordinances, private piers may also include an attached boatlift and an
open-sided roof designed to shelter a single boat slip or boatlift
provided the roof does not exceed 700 square feet in coverage, and the
adjoining property owners do not object to the proposed roof structure.
6. Agricultural, horticultural or silvicultural irrigation on
riparian lands or the watering of animals on riparian lands, provided
that -
C.
General Considerations Applying to All Permits
1.
The submerged lands and the overlying waters in the state are a
valuable public resource. Therefore, permitted encroachments will
strive to minimize interference with the rights of all citizens of the
Commonwealth to other appropriate uses.
2. In
granting or denying any permit for use of State-owned submerged lands
and the waters overlying those lands, the Commission will consider,
among other things, the effect of the proposed project upon:
other reasonable and permissible uses of State waters and State-owned
submerged lands; marine and fisheries resources, wetlands, adjacent or
nearby properties; anticipated public and private benefits, submerged
aquatic vegetation, and water quality. The Commission will
also consider the water-dependency of the project and alternatives for
reducing any anticipated adverse impacts.
As defined
by the Commission, water dependent means "those structures and
activities that must be located in, on, or over State-owned submerged
lands." When applying this definition, both of the following
questions must be answered affirmatively:
Use of the definition for water
dependency does not necessarily preclude issuance of a permit for
non-water dependent structures over State-owned submerged
lands. At public hearing, the Commission may determine that,
while a structure is not water dependent, it is a reasonable use of
State-owned submerged lands. These types of projects are
evaluated on a case-by-case basis.
3. Should a
permitted project result in a loss or impact to submerged aquatic
vegetation (SAV), compensatory mitigation may be required.
This may include transplantation of SAV from the area of impact or
planting of a new area. Compensation ratios and requirements
will depend on the density, location, and species of SAV.
4.
All permit applicants must complete a Joint Permit Application (JPA)
which is available from the local wetlands board, the Marine Resources
Commission, the Norfolk District, U. S. Army Corps of Engineers, or can
be downloaded from the Norfolk District Corps of Engineers web site at Corps JPA link.
5.
In most cases, the owner of the property from which a proposed project
will originate, or a person who has obtained legal right through an
easement or other legal instrument, shall serve as the
applicant. Applications by third parties cannot be
accepted. Exceptions may be made for aquaculture projects and
mooring buoys.
6. Where the total value of the
project exceeds $50,000, §28.2-1207 of the Code of Virginia
requires that any permit issued by the Marine Resources Commission must
be approved at one of the monthly Commission meetings. The
Commission normally meets on the fourth Tuesday of each
month. The applicant is normally informed ten days prior to
the meeting at which his application will be considered. The
Commissioner of the Marine Resources Commission or his/her designated
representative may approve projects costing less than $50,000 and
unprotested by any individual or agency.
7. Property
owners listed by the applicant as adjacent to the project location will
be notified of the permit application and provided a copy of the
application drawings. Comments received from adjacent
property owners are given consideration in the permit review process.
8.
In order to assure an adequate public interest review, an appropriate
public notice of the proposed project will generally be promulgated
pursuant to regulation 4 VAC 20-120-10. In instances where
both federal and state permits are required, the Commission may elect
to join with the Norfolk District Army Corps of Engineers to issue a
joint State/Federal public notice. In most instances,
however, a notice will be placed in a newspaper having general
circulation in the area of the proposed project. Commission
staff will prepare the notice and forward it to the
newspaper. The expense of publication will be borne by the
project applicant.
9. All permits shall contain an
expiration date by which the work is to be completed. All
general and special conditions contained in the permit remain in effect
for the life of the project. The Commission has established
procedures for notifying permit holders of work completion
dates. Permits cannot be modified, extended or transferred
without the written permission of the Commissioner or his/her
designated representative.
10. It is the permit
applicant's responsibility to determine if the project will be located
within another individual's water rights and/or on leased oyster
planting grounds. Written permission from the holder of such
rights to encroach thereon is helpful. Regardless, all permits issued
contain a clause that the permit is conditioned upon any existing
leases. Oyster planting ground maps may be examined at the VMRC
Engineering Department office.
11. Copies of the
completed application are sent to other state agencies for review and
comments. These agencies include, but are not necessarily
limited to, the Virginia Institute of Marine Science, the Divisions of
Wastewater Engineering and Shellfish Sanitation of the Department of
Health, Department of Environmental Quality, Department of Conservation
and Recreation, Department of Game and Inland Fisheries and, when
needed, the Department of Historic Resources. A Commission
environmental engineer normally conducts a field inspection of the
project site. After expiration of the time allotted for
public interest review by State agencies, adjacent property owners and
other interested parties, the application is acted upon by the
Commission at its regular monthly meeting or by the Commissioner or
his/her designated representative if the total project cost is under
$50,000 and unprotested by any agency or individual.
12.
The completion date for construction of permitted projects is normally
three years from the date of approval. Maintenance dredging
permits may be granted for up to five years. Time-of-year
restrictions may be placed on projects in proximity to sensitive living
resources. Completion dates may be administratively extended
at the request of the Permittee if such requests are timely (i.e.
received prior to the permit expiration date).
13.
The individual listed as Permittee must sign the permit. In
cases where the Permittee is a corporation, company or political
jurisdiction, the individual signing the permit for that body should be
a person who has been properly authorized to bind that corporate entity
to the financial and performance obligations that could result from the
activity authorized by the permit. In addition, a duly
authorized agent may sign a permit on behalf of an applicant.
14.
A permit may be revoked at any time by the Commission upon failure of
the permittee to comply with any of the terms and conditions or at the
will of the General Assembly of Virginia.
15. The
permit does not confer upon the permittee any interest or title to
submerged land. Fee simple interest in submerged lands always
remains in the Commonwealth.
16. Any person, firm,
or corporation constructing or erecting any structure upon or over
State-owned submerged lands shall be responsible for the maintenance or
removal of such structure upon its abandonment or its falling into a
state of disrepair.
17. If the nature of the
proposed work is such that it could create a safety hazard, endanger
adjoining property, create environmental problems or endanger living
resources, a performance bond or surety bond satisfactory to the
Commonwealth may be required to guarantee the faithful performance of
the proposed work.
D. Permit Compliance, Inspections
and Enforcement
Commission staff conducts
compliance inspections on every VMRC authorized project. Any
work found not to be in compliance with the conditions stipulated in a
permit will be subject to enforcement action.
Projects
completed without a permit or constructed in a manner other than that
authorized in an issued permit are illegal and may be subject to
prosecution. Where it appears that a project for which an
application is made has been completed or work thereon already begun at
the time the application is made, additional fees and royalties up to
triple the normal amount may be assessed in lieu of
prosecution. The Commission may also elect to consider civil
charges not to exceed $10,000 for each violation. In the
event that the Commission and the applicant cannot agree to a
resolution of the violation, the case will be forwarded to the State
Attorney General's Office for prosecution and enforcement.
Maximum penalties may reach up to $25,000 for each day of violation
upon such finding by the appropriate circuit court.
E.
Permit Fees and Royalties
Some fees and royalties
are defined by statute §28.2-1206 of the Code of Virginia;
others are within the discretion of the Commission. Permit
fees and royalties are due and payable only after the proposed project
is approved.
Permit fees are determined
by the total project costs. A $ 25.00 permit fee is assessed
for projects with total costs of $10,000 or less. The permit
fee for projects with total cost of more than $10,000 is $100.00.
Royalties
are fees paid to the Commonwealth for certain uses of submerged public
lands. They are assessed in addition to permit
fees. All royalties are subject to change in accordance with
the Commission's public participation procedures and regulatory
adoption process. Contact the Virginia Marine Resources
Commission Habitat Management Division for a current royalties
schedule.
Section
II
Dredging Operations
A. Where
dredging is proposed to increase the depth of navigable water, the
depths should be determined by the proposed use and controlling water
depths outside the area to be dredged.
B.
Overdredging to reduce the frequency of maintenance dredging should not
exceed an additional two feet and the need for overdredging should be
based on the expected rate of sedimentation at the dredge
site. Applicants should take care to request authorization
for maximum total depth (desired depth + overdredge).
Commission permits will be issued with a stipulated maximum allowable
depth. Any dredged areas found to exceed this maximum
allowable depth will be considered to be out of compliance with the
permit conditions and the permittee will be subject to enforcement
action by the Commission.
C. Generally, side slope
cuts of a dredging area should not be steeper than a two horizontal to
one vertical slope (1V: 2H) to prevent slumping of material into the
dredged area.
D. In order to lessen the
possibility of dredging having adverse effects on commercially or
recreationally important fisheries, certain seasonal dredging
limitations may be imposed on a site specific basis depending on
sediment type, proximity to shellfish areas or spawning grounds,
dredging method, the project's size, location and measures taken to
reduce turbidity. In important spawning and nursery areas in
fresh and near fresh waters, dredging may be restricted to the months
of November through mid-March. For brackish and saline waters
where significant quantities of oysters and clams are present the
better months for dredging are mid-March through June and in October
and November. Where commercial dredging for crabs in deeper
waters is an important consideration, the better months for dredging
are from April through November. These limitations will be
judiciously applied in order to prevent undue economic burdens on the
Permittee or his contractor. Where dredging in commercially
productive clamming grounds is necessary, the permittee will be limited
to the minimum dredge footprint necessary to accomplish the stated
objective of the project and may be required to mitigate for the loss
of the resource through the purchase and planting of clams at a
sanctuary. The number of clams required for mitigation of
impacts is determined by the density of clams impacted by the proposed
dredging project multiplied by a ratio determine by the
Commission. Typically, the required mitigation ratio is
1.33:1, although it can be greater.
E. Dredging for
proposed small craft channels should be no more than one foot deeper
than adjacent natural water bodies and only as wide as necessary to
safely navigate in order to avoid creating water circulation and
flushing problems. Dredging to depths deeper than the nearest
channel can create stagnant conditions that can lead to decreased
oxygen levels, unpleasant odors and degradation of local marine
resources.
F. Only under special or unusual
circumstances should dredged material be double handled. This
practice involves the placement of dredged material at another location
in the waterway from which it was dredged only to be redredged for
proper disposal.
G. Sidecast dredging with overboard
disposal will only be authorized under exceptional circumstances.
H.
Dredging in or near shellfish areas, both public and private, beds of
submerged aquatic vegetation and other highly productive areas is
discouraged. In cases where no other alternatives exist, a
plan for compensation for the lost or impacted resources will be
required.
I. The minimum and maximum royalty for new
dredging is prescribed by law. The maximum may be assessed if
the material is to be used for fill or other commercial use.
Please see §28.2-1206 of the Code of Virginia for more
information regarding minimum and maximum royalty
assessments. As of 2005, the Commission is assessing a
minimum royalty of $0.45 per cubic yard for all new dredging.
J.
In order to prevent the slumping of vegetated tidal wetlands into
dredge cuts, channels and basins should be designed with a
buffer. The buffer width normally recommended is four times
the depth of material (buffer = 4X depth) measured from the edge of the
base width of the design channel side slope.
K.
Maintenance dredging is strictly defined by the VMRC as dredging
activities for navigation purposes that have been previously authorized
by the Commission, to the depth previously authorized by the
Commission, and where a royalty has been previously paid to the
Commission for the initial removal State-owned submerged
lands. Dredging to reach additional depths in a previously
authorized area or in an area where no VMRC permit has ever been issued
will be treated as new dredging subject to royalty assessment
regardless of any authorization that may have been granted by any other
agencies.
L. Typically, a pre-dredging conference,
to be held on site prior to the commencement of the dredging, is
required. The permittee, the dredging contractor and a member
of the VMRC staff must attend the meeting. The meeting should
be held within seven (7) days prior to the commencement of dredging and
includes an inspection of the dredge material containment area, an
inspection of the previously staked dredge area, and a discussion of
the terms and conditions of the permit.
M.
For most projects, the permittee will be required to provide a
post-dredging bathymetric survey of the dredged area within 30 days
after the completion of the dredging. The survey must be
signed and dated as being accurate and true. The survey must
be referenced to mean low water and include a transect at the
channelward end of the dredge cut and at 50 foot intervals along the
dredged channel to the landward terminus of the dredged area.
Accurate bathymetric data from each transect shall be used to establish
the top width of the dredge cut (± 1') and must include a
depth measurement exterior to both sides of the dredge cut.
If applicable, the survey must also indicate the horizontal distance
between the top of the dredge cut and the vegetated wetlands depicted
on the project drawings.
Section
III
Filling And Dredged Material Placement
A.
Filling on State-owned subaqueous land for the purpose of reclaiming or
creating highland property is generally not permitted. If
special circumstances warrant such fill, an appropriate royalty will be
assessed on a square foot basis. Clean material from an
upland source is generally preferable to dredged material for use as
fill.
B. Filling on wetlands to create upland
property is generally not permitted unless unusual conditions
warrant. Decisions by a local wetlands board or the
Commission will be based on the Commission's Wetlands Guidelines that
categorize wetlands species according to type and relative importance.
C.
Dredged material must be placed in a disposal area which is acceptable
to the Commission. Factors considered include, but are not
limited to, the following:
1. Encroachment into natural drainage ways.
2.Chemical
nature of the dredged material and its potential for polluting adjacent
or nearby underground water supplies.
3. Encroachment over underground utilities, i.e., water lines and sewer
facilities.
4. Value
of the site to the natural environment.
5. Proximity to populated areas.
6. Anticipated use
of the material or disposal site after dredged material is placed and
consolidated.
D. The disposal area should be
property prepared to receive and permanently contain the fill before
the start of dredging or filling.
E. Overboard
disposal of dredged material into tidal waters is generally not
permitted unless the material is uncontaminated and granular (sand
size).
F. Quality dredged material is a
valuable State resource and may be used for beach replenishment at
public beaches in Virginia where natural sources of sand supply are
inadequate. In accordance with § 10.1-704 of the
Code of Virginia, the beaches of the Commonwealth shall be given
priority consideration as sites for the disposal of that portion of
dredged material determined to be suitable for beach nourishment. Sandy
dredged materials of suitable quality may be placed on private beaches
if a public beach placement site is not suitable or available.
G.
Fill material may only be placed on submerged land for shoreline
stabilization and/or wetland enhancement when the project can be shown
to have positive aquatic resource benefits.
Section IV
Structures
A.
Piers, Wharves and Boathouses.
1. The placement of
open-pile or floating private piers, uncovered lifts and boathouses for
non-commercial purposes by owners of riparian lands in the riparian
waters opposite such lands may require a permit from the Commission.
Submission of a Joint Permit Application is required in order for
Commission staff to evaluate whether a proposed pier is statutorily
authorized or requires authorization from the Marine Resources
Commission. Commission staff will consider the following when
reviewing applications for private piers, uncovered lifts, and
boathouses -
Commission authorization
for design and placement of piers, boathouses, lifts, and other similar
or related structures may be subject to local ordinances.
Please contact your local government to ensure compliance with any
local standards or requirements. Restrictions regarding the
placement of structures within the Resource Protection Area (RPA) as
defined under the Chesapeake Bay Protection Act are not a justification
for placement of non-water dependent structures on piers over submerged
lands.
2. Piers for commercial or community purposes
do require a permit from the Commission. A structure is
considered commercial if it is in support of operations that charge for
the production, distribution or sale of goods or services.
For example, dock facilities associated with condominium type dwellings
are considered commercial because they increase the value of units
offered for sale. Community and shared use piers are also
considered to be commercial.
3. Construction
material and designs being used should ensure stability and safety.
4.
Utilization of open-pile type structures to gain access to navigable
waters are preferred over construction of solid fill
structures. Floating piers are generally acceptable when
located in water deep enough that they float during all normal tide
conditions.
5. Piers constructed over vegetated
wetlands should be high enough to prevent loss of existing vegetation
through shading and generally should be limited to no more than 5 feet
in width.
B. Marinas
1. The
appropriate siting of marinas is a complex process that requires
careful review of numerous factors. Specific siting guidelines have
been adopted by the Commission under regulation 4
VAC 20-360-10 ET SEQ.in the Virginia Administrative Code.
2.
Marinas provide a public service (benefit) through increased public
access but can result in a net public detriment (loss) in certain
locations through degradation of living resources.
3. The numbers of waterborne craft that may be drawn to the
waterway, and existing and anticipated congestion must be considered.
4.
Adequate riparian waters which can accommodate all aspects of the
project is essential, i.e., vessel movement in and out of the facility
should not infringe on the riparian waters of adjacent properties.
5.
The structure should encroach no more than one third the distance
across the waterway except in unusual channel configurations.
6.
Development along concave shorelines can create serious congestion
problems and infringement on the riparian rights of adjacent property
owners is more likely to occur.
7. Convex shoreline
areas are generally better suited to marina activity where a marginal
wharf with perpendicular finger piers can be utilized to reduce
encroachment into the waterway.
8. Locations near
the mouth of a waterway provide better flushing characteristics for
marine activity than is provided further upstream.
9.
In accordance with §28.2-1205(C) of the Code of Virginia,
approval of a plan for onshore sanitary and pump-out facilities by the
State Department of Health is required prior to issuance of a
Commission permit.
10. Dry storage type
facilities are encouraged because of their greatly reduced encroachment
into the waterway and greater pollution controls.
11.
The condemnation of shellfish areas as a result of marina location is a
serious consideration in the permitting process and should be avoided
if at all possible. The Department of Health, Division of
Shellfish Sanitation advises the Commission as to shellfish
condemnations which may occur.
12. In presently
condemned shellfish areas, measures to ensure no further degradation of
water quality may be required.
13. In order to
reduce the amount of dredging required for a marina, slips for deep
draft boats should be built in the naturally deeper waters of the
marina. This is commonly referred to a zonation mooring.
14.
Proper water circulation and tidal exchange should be maintained by
avoiding dead-end canals and restricted inlets.
15.
Applicants are encouraged to consider participation in the Virginia
Clean Marina Program. For more information, please contact
VMRC Habitat Management Division staff or
http://www.deq.state.va.us/vacleanmarina
C.
Bulkheads and Riprap
1. Where soil conditions are
suitable, sloped stone riprap with a filter cloth barrier between the
highland and the riprap is preferable to a vertical bulkhead.
2.
Where vertical bulkheads are necessary, either concrete or chemically
treated tongue and groove wood material with equally spaced deadmen,
filter cloth, and galvanized tiebacks is recommended. Vinyl
sheet bulkheads are also acceptable. Depending on
manufacturer recommendations, filter cloth may or may not be necessary.
3.
Railroad tie bulkheads are discouraged.
4. Bulkheads
should have return walls or be tied into adjacent bulkheads to prevent
flanking.
5. Bulkheads should be placed landward of
vegetated wetlands. Where no vegetated wetlands exist,
bulkheads should be placed as far landward as possible to minimize
impacts on non-vegetated wetlands and the marine environment.
6.
Areas of highly unstable shorelines and/or areas having high levels of
reflected wave energy will normally require construction materials
which absorb and dissipate wave energy. Structures such as
riprap revetments, gabions, breakwaters, marsh toe sills are examples
of shoreline stabilization structures that dissipate wave
energy. When utilizing vertical bulkheading, which tends to
deflect and reflect wave energy onto adjoining parcels, a protective
riprap toe is often desirable.
D. Jetties, Groins
and Breakwaters
1. Jetties, groins and breakwaters
should be designed in such a manner that their location will not create
adverse sediment transport patterns or unduly disturb marine resources.
2.
Jetties, groins and breakwaters should be designed in such a manner
that they will not be breached by tides and/or fail under wind, current
or tide conditions normally experienced at the site.
3.
Professional advice on the suitability of jetties, groins and
breakwaters is recommended since their effectiveness at a specific site
is difficult to predict.
4. The anticipated effect
of a proposed groin-field upon adjacent properties is an extremely
important consideration in evaluating a permit application.
Section V
Overhead
And Submarine Crossings
Overhead and/or submarine
crossings are normally permitted if reasonable measures are taken to
protect aquatic resources and other uses of the waterway.
A.
Overhead Crossings
1. Overhead structures must be
designed in such a manner that they will not impede normal waterborne
traffic.
2. Where practical, overhead
structures should be designed in such a manner that supports will not
be constructed in the natural channel.
3.
Overhead crossings should be located at or near existing crossings.
B.
Submarine Crossings
1. Submarine crossings should be
designed such that a minimum of three feet of cover will be provided
over the upper extremity of the submerged structure when placed in an
area where fishing devices are normally employed.
2.
Alteration of submerged aquatic vegetation, shellfish beds and wetlands
should be minimized wherever possible in the planning and location of
submerged structures.
3. Backfill material for
submarine crossings should clean and serve to restore, as closely as
possible, the depth and natural condition of the original bottom.
4.
In general, directional drill methodologies are preferred over
trenching.
Section
VI
Private Riparian and Non-riparian Moorings
A.
General Conditions
1. Mooring buoys should not
normally be located:
2.
Moorings should be marked and maintained in accordance with the
"Uniform State Waterway Marking System" (USWMS) as approved by the U.
S. Coast Guard which require buoys to be white with a blue band around
the middle and must be further marked with the VMRC permit number for
identification purposes.
3. All permits granted by
the Commission will contain a stipulation that "The Permittee agrees to
remove said structure from State-owned subaqueous bottom within ninety
(90) days after receiving written notification by the Commissioner."
4.
The Permittee is required to notify the Commission within thirty (30)
days of any changes to the information contained in the permit
application as submitted. This includes, but is not limited
to changes in Permittee domicile, vessel type, vessel registration, or
intent to vacate the buoy.
5. The Permittee is
required to notify the Commission of their desire to continue to occupy
the
mooring on an annual basis.
6. Upon
revocation of the permit, or a notice of intent to vacate, the
permittee will be required to completely remove all anchors, weights,
and mooring tackle.
B. Riparian Moorings
The
Commission will normally honor a permit request by a riparian owner for
a single mooring to be placed in accordance with the general conditions
above and which is located within his riparian waters.
C.
Non-Riparian Moorings
1. The Commission may grant a
permit requested by an individual who does not own waterfront property
for a single mooring buoy if:
a. The mooring is placed in accordance with the general conditions in
paragraph 1 above.
b. It can be demonstrated that there is
access to the mooring without trespassing on private riparian
property.
c. Approval, in writing, is obtained
from the riparian owner if the mooring buoy will be placed in their
riparian area.
2. The Commission may consider a
permit request for a group (multiple) mooring under unusual
circumstances.
D. Designation of Mooring Areas,
Mooring Restrictions
Any local government or state
or federal agency may recommend to the Commission that the placement of
moorings in the waters that fall within their political jurisdiction be
restricted in certain areas or that certain areas be designated as
mooring areas in order to protect public safety, welfare, and
recreational and commercial interests.
Section VII
Activities
in non-tidal areas
The Virginia Marine Resources
Commission, as the custodian of Virginia's submerged lands, has the
proprietary authority and responsibility to issue permits for
activities that take place over, under, through and on all submerged
lands throughout the Commonwealth. This authority is based on
the Commonwealth's ownership of submerged lands and was clarified
through an opinion by Gerald L. Baliles, Attorney General, on May 3,
1982. This opinion stated, in part, that "(t)he Commission
should assume that all streams above some administratively determined
minimum size...." are subject to its jurisdiction.
The
Commission has defined the minimum size of non-tidal waterways as those
perennial streams with a drainage area of 5 square miles or with a mean
annual instream flow of 5 cubic feet per second. Activities
within waterways with characteristics below these threshold attributes
do not require authorization from this agency.
The
Commission has determined the extent of jurisdiction within non-tidal
waterways to extend no further landward than the ordinary high water
mark. While the State of Virginia has not adopted a legal definition of
ordinary high water, the Federal definition represents an informative
explanation of the term. The Army Corps of Engineers defines
ordinary high water in 33 CFR Part 329 "Definition of Navigable Waters
of the US" Section 329.11a.1. This regulation states that the "ordinary
high water mark" on non-tidal rivers is the line on the shore
established by the fluctuations of water and indicated by the physical
characteristics such as a clear, natural line impressed on the bank,
shelving; changes in the character of soil; destruction of terrestrial
vegetation; the presence of litter and debris; or other appropriate
means that consider the characteristics of the surrounding area."
When
evaluating project proposals that fall within the jurisdiction of this
agency, Commission staff will normally consult with the Department of
Game and Island Fisheries, the Department of Conservation and
Recreation, the Department of Environmental Quality, and local
government officials before granting permits for any encroachments into
State-owned submerged lands.
This coordination may
result in specific permit conditions such as limits on the time of year
when instream construction activities can take place (e.g. construction
should be performed only during low-flow conditions.)
Specific construction methodologies may be required, such as the use of
cofferdams constructed of non-erodible materials and placement of
cofferdams in such a manner that no more than half the width of the
waterway shall be obstructed at any point in time. In all cases, the
cofferdams and any excess material will be required to be removed to an
approved upland area upon completion of construction, and the streambed
will be required to be restored to its pre-existing contours and
conditions.
It should be noted that the Virginia
Erosion and Sediment Control Handbook (3rd Edition, 1992 or subsequent
edition) should be followed throughout construction. If
blasting to create a trench is necessary, the Department of Game and
Inland Fisheries shall be notified a week prior to the blasting to
permit representatives of that agency to observe the operation.
Section VIII
VMRC
Regulations
In order to facilitate the effective,
appropriate and balanced management of Virginia's submerged lands,
various regulations have been adopted to assist in this
endeavor. The regulations can be found on the agency's web
page at www.mrc.state.va.us. Since regulations may be adopted
or repealed after publication of this booklet, be sure to verify this
information through the Commission's web page or by calling the Habitat
Management Division.
Regulation Citation | Title | Effective date |
4 VAC 20-120-10 ET SEQ. | Pertaining to the Promulgation of a Public Notice on Applications to Encroach In, On, or Over Subaqueous Lands of the Commonwealth | 03/01/83 |
4 VAC 20-333-10 ET SEQ. | Virginia General Permit for
Projects undertaken by the Virginia
Department of Transportation In, On or Over State-Owned Subaqueous
Lands Anywhere Within the Commonwealth. | 07/06/99 |
4 VAC 20-335-10 ET SEQ. | Pertaining to On-Bottom Shellfish Aquaculture Activities | 01/01/98 |
4 VAC 20-336-10 ET SEQ. | General Permit for Noncommercial Riparian Shellfish Growing (i.e. "Gardening") Activities. | 01/01/98 |
4 VAC 20-337-10 ET SEQ. | Submerged Aquatic Vegetation (SAV) Transplantation Guidelines | 11/01/00 |
4 VAC 20-340-10 ET SEQ. | Public Participation Guidelines | 06/30/93 |
4 VAC 20-345-10 ET SEQ. | General Wetlands Permit for Emergency Situations | 03/01/98 |
4 VAC 20-360-10 ET SEQ. | Criteria for the Siting of Marinas or Community Facilities for Boat Mooring | 06/07/88 |
4 VAC 20-390-10 ET SEQ. | Wetlands Mitigation-Compensation Policy | 06/06/89 Updated: 07/05 |
4 VAC 20-395-10 ET SEQ. | General Permit for Emergency Situations and Water Quality Improvement Projects | 07/01/98 |
4 VAC 20-398-10 ET SEQ. | Ballast Water Discharge Reporting | 11/01/01 |
4 VAC 20-400-10 ET SEQ. | Criteria for the Placement of Sandy Dredged Material along Beaches in the Commonwealth | 11/01/88 |
4 VAC 20-440-10 ET SEQ. | Coastal Primary Sand Dune / Reaches Guidelines: Barrier Island Policy | 10/24/90 |
4 VAC 20-1030-10 ET SEQ. | Management Plan for the Ungranted State Lands in Accomack and Northampton Counties | 03/15/99 |
Guidelines for the Establishment, Use and Operation of Tidal Wetland Mitigation Banks in Virginia | 01/01/98 | |
Subaqueous Guidelines | 3/86 Updated 11/05 |