                                 CODE OF VIRGINIA

PERMITS FOR THE USE OF STATE-OWNED BOTTOMLANDS (§ 28.2-1205)

A. When determining whether to grant or deny any permit for the use of
state-owned bottomlands, the Commission shall be guided in its deliberations by
the provisions of Article XI, Section I of the Constitution of Virginia. In
addition to other factors, the Commission shall also consider the public and
private benefits of the proposed project and shall exercise its authority under
this section consistent with the public trust doctrine as defined by the common
law of the Commonwealth adopted pursuant to § 1-200 in order to protect and
safeguard the public right to the use and enjoyment of the subaqueous lands of
the Commonwealth held in trust by it for the benefit of the people as conferred
by the public trust doctrine and the Constitution of Virginia. The Commission
shall also consider the project&#8217;s effect on the following:

   1. Other reasonable and permissible uses of state waters and state-owned
   bottomlands;

   2. Marine and fisheries resources of the Commonwealth;

   3. Tidal wetlands, except when this has or will be determined under the
   provisions 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 the
Virginia Institute of Marine Science, the State Water Control Board, the
Virginia Department of Transportation, and the State Corporation Commission,
whenever the Commission&#8217;s decision on a permit application relates to or
affects the particular concerns or activities of those agencies.

C. No permit for a marina or boatyard for commercial use shall be granted until
the owner or other applicant presents to the Commission a plan for sewage
treatment or disposal facilities that has been approved by the State Department
of Health.

D. A permit is required and shall be issued by the Commission for placement of
any private pier measuring 100 or more feet in length from the mean low-water
mark, which is used for noncommercial purposes by an owner of the riparian land
in the waters opposite the land, and that traverses commercially productive
leased oyster or clam grounds, as defined in &#xA7; 28.2-630, provided that the
pier does not extend beyond the navigation line established by the Commission or
the United States Army Corps of Engineers. The permit may reasonably prescribe
the design and location of the pier for the sole purpose of minimizing the
adverse impact on such oyster or clam grounds or the harvesting or propagation
of oysters or clams therefrom. The permit shall contain no other conditions or
requirements. Unless information or circumstances materially alter the
conditions under which the permit would be issued, the Commission shall act
within 90 days of receipt of a complete joint permit application to approve or
deny the application. If the Commission fails to act within that time, the
application shall be deemed approved and the applicant shall be notified of the
deemed approval.

E. All permits issued by the Commission for the use of state-owned bottomlands
pursuant to &#xA7; 28.2-1204, or to recover underwater historic property shall
be in writing and specify the conditions and terms that the Commission
determines are appropriate, and royalties unless prohibited under other
provisions of this chapter.

F. Any person aggrieved by a decision of the Commission under this section is
entitled to judicial review in accordance with the provisions of the
Administrative Process Act (&#xA7; 2.2-4000 et seq.). However, any decision made
by the Commission hereunder consistent with the public trust doctrine as defined
by the common law of the Commonwealth adopted pursuant to &#xA7; 1-200 shall not
be deemed to have been made pursuant to the police power. No person shall
reapply for the same or substantially similar use of the bottomlands within 12
months of the denial of a permit by the Commission. Nothing in this subsection
shall be construed to deprive a riparian landowner of such rights as he may have
under common law.

HISTORY: 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.