SB1190: Aquaculture production activities; authority of local governments.


SENATE BILL NO. 1190
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee on Agriculture, Conservation and Natural Resources
on February 7, 2011)
(Patron Prior to Substitute--Senator Norment)
A BILL to amend and reenact §§ 3.2-300 and 3.2-301 of the Code of Virginia, relating to aquaculture; authority of local governments.

Be it enacted by the General Assembly of Virginia:

1.  That §§ 3.2-300 and 3.2-301 of the Code of Virginia are amended and reenacted as follows:

§ 3.2-300. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Agricultural operation" means any operation devoted to the bona fide production of crops, or animals, or fowl including the production of fruits and vegetables of all kinds; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; the production and harvest of products from the practice of aquaculture, as defined in § 3.2-2600; and the production and harvest of products from silviculture activity.

"Production agriculture and silviculture" means the bona fide production or harvesting of agricultural, aquacultural, or silvicultural products but shall not include the processing of agricultural, aquacultural, or silvicultural products or the aboveground application or storage of sewage sludge.

§ 3.2-301. Right to farm; restrictive ordinances.

In order to limit the circumstances under which agricultural operations may be deemed to be a nuisance, especially when nonagricultural land uses are initiated near existing agricultural operations, no county shall adopt any ordinance that requires that a special exception or special use permit be obtained for any production agriculture or silviculture activity in an area that is zoned as an agricultural district or classification. Counties may adopt setback requirements, minimum area requirements, and other requirements that apply to land on which agriculture and silviculture activity is occurring within the locality that is zoned as an agricultural district or classification. No locality shall enact zoning ordinances that would unreasonably restrict or regulate farm structures, piers or docks attached to upland property zoned to allow agricultural activity, or farming and forestry practices in an agricultural district or classification unless such restrictions bear a relationship to the health, safety, and general welfare of its citizens. This section shall become effective on April 1, 1995, and from and after that date all land zoned to an agricultural district or classification shall be in conformity with this section.

SENATE BILL NO. 1190
Offered January 12, 2011
Prefiled January 12, 2011
A BILL to amend and reenact §§ 3.2-300, 28.2-603, and 28.2-1203 of the Code of Virginia, relating to aquaculture; Marine Resources Commission; authority of local governments.
Patron-- Norment

Referred to Committee on Agriculture, Conservation and Natural Resources

Be it enacted by the General Assembly of Virginia:

1.  That §§ 3.2-300, 28.2-603, and 28.2-1203 of the Code of Virginia are amended and reenacted as follows:

§ 3.2-300. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Agricultural operation" means any operation devoted to the bona fide production of crops, or animals, or fowl including the production of fruits and vegetables of all kinds; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; the production and harvest of products from the practice of aquaculture, as defined in § 3.2-2600; and the production and harvest of products from silviculture activity.

"Production agriculture and silviculture" means the bona fide production or harvesting of agricultural, aquacultural, or silvicultural products but shall not include the processing of agricultural, aquacultural, or silvicultural products or the aboveground application or storage of sewage sludge.

§ 28.2-603. General oyster planting grounds; aquaculture opportunity zones.

A. Waterfront that is not already assigned or reserved for the riparian owners, and the beds of the bays, rivers, and creeks and shores of the sea lying outside the limits of navigation projects adopted and authorized by the Congress and not required for the disposal of materials dredged incident to the maintenance of such projects, and grounds other than public oyster beds, rocks, or shoals, as defined by law and included in the Baylor survey, may be occupied for the purpose of planting or propagating oysters, including the use of temporary protective enclosures in compliance with this chapter and Commission regulations, and may be leased by the Commissioner upon the receipt of a proper application.

B. The Commission shall establish commercial shellfish aquaculture opportunity zones for the placement of temporary protective enclosures as set forth in § 28.2-603.1, in the waters off the shores of the Northern Neck, the Middle Peninsula, and Tangier Island. Such zones shall be established by regulations. The regulations shall prescribe (i) the location of such zones; (ii) the proper procedures for the maintenance of such zones, including the (a) proper placement and handling of gear and other apparatus so as not to create a safety hazard and (b) seasonal and time-of-day use of such zones; and (iii) penalties for violations of the regulations. Once established, such zones shall be exempt from the provisions of §§ 28.2-606, 28.2-607, and 28.2-608, §§ 28.2-612 through 28.2-615, and 28.2-617. The Commission may establish a single fee for the application and use of the aquaculture opportunity zones.

C. Except for those ordinances directed to the abatement of noise and notwithstanding any other law or ordinance to the contrary, no locality may restrict shellfish aquaculture operations on privately-owned riparian land, piers, and docks in a manner that would:

1. Prevent a single individual, whether a riparian landowner, his agent, or his employee, per acre from working on a shellfish aquaculture operation, including the washing, sorting, and grading of shellfish, located on the property of the riparian landowner and in waters opposite his property;

2. Restrict access to the land, pier, and dock of a riparian landowner by the landowner or his agents or employees for shellfish aquaculture operations on his property and in waters opposite his property;

3. Restrict a riparian landowner, and his agents or employees, from parking on the riparian landowner's property when accessing the shellfish aquaculture operation located on the riparian landowner's property and in waters opposite his property;

4. Prohibit a riparian landowner, and his agents or employees, from crossing land to remove aquaculture products for sale, provided there is no trespass;

5. Prohibit the storage of equipment and tools for shellfish aquaculture operations by a riparian landowner on his own property when such equipment and tools are not generally visible from neighboring properties; or

6. Prohibit the harvesting of aquaculture products from temporary enclosures on a dock or pier after 4:00 a.m. and before 10:00 p.m.

§ 28.2-1203. Unlawful use of subaqueous beds; penalty.

A. It shall be unlawful for any person to build, dump, trespass or encroach upon or over, or take or use any materials from the beds of the bays, ocean, rivers, streams, or creeks which are the property of the Commonwealth, unless such act is performed pursuant to a permit issued by the Commission or is necessary for the following:

1. Erection of dams, the construction of which has been authorized by proper authority;

2. Uses of subaqueous beds authorized elsewhere in this title;

3. Construction and maintenance of congressionally approved navigation and flood-control projects undertaken by the United States Army Corps of Engineers, the United States Coast Guard, or other federal agency authorized by Congress to regulate navigation, navigable waters, or flood control;

4. Construction of piers, docks, marine terminals, and port facilities owned or leased by or to the Commonwealth or any of its political subdivisions;

5. Except as provided in subsection D of § 28.2-1205, placement of private piers for noncommercial purposes by owners of the riparian lands in the waters opposite those lands, provided that (i) the piers do not extend beyond the navigation line or private pier lines established by the Commission or the United States Army Corps of Engineers, (ii) the piers do not exceed six feet in width and finger piers do not exceed five feet in width, (iii) any L or T head platforms and appurtenant floating docking platforms do not exceed, in the aggregate, 400 square feet, (iv) if prohibited by local ordinance open-sided shelter roofs or gazebo-type structures shall not be placed on platforms as described in clause (iii), but may be placed on such platforms if not prohibited by local ordinance, and (v) the piers are determined not to be a navigational hazard by the Commission. Subject to any applicable local ordinances, such piers may include an attached boat lift and an open-sided roof designed to shelter a single boat slip or boat lift. In cases in which open-sided roofs designed to shelter a single boat, boat slip or boat lift will exceed 700 square feet in coverage or the open-sided shelter roofs or gazebo structures exceed 400 square feet, and in cases in which an adjoining property owner objects to a proposed roof structure, permits shall be required as provided in § 28.2-1204.

A private pier may be used by its owner for aquaculture operations and the pier shall be deemed noncommercial provided that the pier has not been substantially modified from its form prior to the aquaculture operation and no unauthorized structure has been built on the pier. No regulation of the Commission shall prohibit up to 1,200 square feet of floating oyster containment devices tied to such pier so long as such devices do not block navigation or extend more than 20 feet beyond such pier. Nor shall any regulation of the Commission prohibit the harvesting of aquaculture products from temporary enclosures after 4:00 a.m. and before 10:00 p.m.;

6. Agricultural, horticultural or silvicultural irrigation on riparian lands or the watering of animals on riparian lands, provided that (i) no permanent structure is placed on or over the subaqueous bed, (ii) the person withdrawing water complies with requirements administered by the Department of Environmental Quality under Title 62.1, and (iii) the activity is conducted without adverse impacts to instream beneficial uses as defined in § 62.1-10; or

7. Recreational gold mining, provided that (i) a man-portable suction dredge no larger than four inches in diameter is used, (ii) rights of riparian property owners are not affected, (iii) the activity is conducted without adverse impacts to instream beneficial uses as defined in § 62.1-10, (iv) the activity is conducted without adverse impacts to underwater historic properties and related objects as defined in § 10.1-2214, and (v) the activity is not defined as mining in § 45.1-180.

B. A violation of this section is a Class 1 misdemeanor.