                                 CODE OF VIRGINIA

 RIGHT OF ENTRY, ACQUISITION, DISPOSITION, AND RECLAMATION OF LAND ADVERSELY
AFFECTED BY PAST COAL MINING PRACTICES (§ 45.2-1035)

A. The Director shall take all reasonable actions to obtain written consent from
the owner or owners of record of the land or property to be entered onto to
perform an inspection for purposes of reclamation or for conducting studies or
exploratory work pertaining to the need for and feasibility of reclamation,
prior to such entry.

B. The provisions of subsection C shall apply if the Director, pursuant to an
approved state program, makes findings of fact that:

   1. Land or water resources have been adversely affected by past coal mining
   practices;

   2. The adverse effects are significant enough that, in the public interest,
   action to restore, reclaim, abate, control, or prevent such effects should be
   taken; and

   3. The owners of the land or water resources where entry will be made to
   restore, reclaim, abate, control, or prevent the adverse effects of past coal
   mining practices (i) are not known or readily available or (ii) will not give
   permission for the Director or his agents, employees, or contractors to enter
   upon such property to restore, reclaim, abate, control, or prevent the adverse
   effects of past coal mining practices.

C. Upon making the findings of fact required by subsection B and giving notice
by certified mail to the owners if known or, if not known, by posting notice
upon the premises and advertising once in a newspaper of general circulation in
the county or city in which the land lies, the Director, his agents, employees,
or contractors shall have the right to enter upon the property adversely
affected by past coal mining practices and any other property to have access to
such property to do all things necessary or expedient to restore, reclaim,
abate, control, or prevent the adverse effects. Such entry shall be construed as
an exercise of the police power for the protection of public health, safety, and
general welfare and shall not be construed as an act of condemnation of property
or trespass thereon. The moneys expended for such work and the benefits accruing
to any such premises so entered upon shall be chargeable against such land to
the extent provided in &#xA7; 45.2-1036 and shall mitigate or offset any claim
in or any action brought by any owner of any interest in such premises for any
alleged damages by virtue of such entry. Such provision regarding the mitigation
or offsetting of a claim or action by an owner is not intended to create new
rights of action or eliminate the existing sovereign immunity of the
Commonwealth and its agents and employees.

D. The Director and his agents, employees, or contractors shall have the right
to enter upon any property for the purpose of conducting studies or exploratory
work to determine the existence of adverse effects of past coal mining practices
and to determine the feasibility of restoration, reclamation, abatement,
control, or prevention of such adverse effects. Such entry shall be construed as
an exercise of the police power for the protection of public health, safety, and
general welfare and shall not be construed as an act of condemnation of property
or trespass thereon.

E. The Director, pursuant to an approved state program, may acquire title in the
name of the Commonwealth to any land or interest therein by purchase, donation,
or condemnation, if such land or interest is adversely affected by past coal
mining practices, after approval of the Secretary and upon determinations that
acquisition of such land is necessary for successful reclamation and that:

   1. The acquired land, after restoration, reclamation, abatement, control, or
   prevention of the adverse effects of past coal mining practices, will serve
   recreational, historical, conservation, or reclamation purposes or provide
   open space benefits; and

   2. Either (a) permanent facilities, such as a treatment plant or a relocated
   stream channel, will be constructed on the land for the restoration,
   reclamation, abatement, control, or prevention of the adverse effects of past
   coal mining practices or (b) acquisition of coal refuse disposal sites and all
   coal refuse thereon will serve the purposes of this article or that public
   ownership is desirable to meet emergency situations and prevent recurrences of
   the adverse effects of past coal mining practices.

F. The price paid for land acquired under this section shall reflect the market
value of the land as adversely affected by past coal mining practices.

G. The Director, with the approval of the Secretary, and in accordance with the
State Reclamation Plan, may:

   1. Transfer the administrative responsibility for land acquired under this
   section to any state, regional, or local agency, department, or institution,
   with or without cost, upon terms that will ensure that the use of the land is
   consistent with the authorization under which the land was acquired;

   2. Sell land acquired under this section that is suitable for industrial,
   commercial, residential, or recreational development, by public sale under a
   system of competitive bidding, at not less than fair market value and under
   regulations adopted to ensure that such lands are put to proper use consistent
   with local, state, or federal land use plans, if any, for the area in which
   the land is located; and

   3. Transfer land acquired under this section to the United States to be
   reclaimed by the Secretary. After such reclamation is completed, any state,
   regional, or local agency, department, or institution may purchase such land
   from the Secretary for governmental, educational, recreational, historical,
   open-space, or other public purpose upon such terms as the Secretary requires.

H. Prior to the disposition of any land acquired under this section, the
Director, pursuant to the State Reclamation Plan, when requested and after
appropriate public notice, shall hold a public hearing in the county or city or
counties or cities where the land is located. The hearing shall be held at a
time that shall afford local citizens and governments the maximum opportunity to
participate in the decision concerning the use or disposition of the lands after
restoration, reclamation, abatement, control, or prevention of the adverse
effects of past coal mining practices.

I. The Director may authorize the use, pending disposition, of land acquired
under this section for any lawful purpose that is not inconsistent with the
reclamation and post-reclamation uses for which the land was acquired. The
Director shall charge any user of the land a reasonable use fee that shall go
toward the purpose of operating and maintaining improvement of the land, and any
excess thereof shall be deposited in the State Reclamation Fund. The Director
may waive the fee if the Director finds in writing that a waiver is in the
public interest.

J. Any state, regional, or local agency, department, or institution may purchase
or otherwise acquire and develop lands that the Secretary is authorized to
dispose of pursuant to &#xA7; 407(h) of the federal act.

HISTORY: 1979, c. 290, § 45.1-263; 2021, Sp. Sess. I, c. 387.