Title of Regulation: 4VAC20-290. Marking of Leased Oyster Planting Ground (amending 4VAC20-290-20, 4VAC20-290-30, 4VAC20-290-40, 4VAC20-290-50; adding 4VAC20-290-15, 4VAC20-290-45).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: January 1, 2016.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248 or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments (i) add applicable definitions for marking oyster grounds; (ii) stipulate that proper marking shall be done to actively plant or harvest on grounds; (iii) update requirements for the markers and the manner in which markers shall be set, addressing active work areas as well as corner markers and boundary lines; and (iv) include maintenance and removal requirements and a provision for exceptions.

4VAC20-290-15. Definitions.

"Active work areas" means those areas inside a lease where active planting or active harvesting is being conducted, or in areas where aquaculture structures are placed within a lease.

"Aquaculture structures" means devices, such as cages, trays, and nets, used to contain or protect shellfish.

"Lease boundary lines" means the projected lines between lease corners.

"Lease corners" means boundary lease corners as depicted on the plat of record for the lease.

4VAC20-290-20. General.

Leased oyster planting ground shall can be marked by the lessee if the oyster planting ground is being worked at any time and shall be marked if the oyster planting ground is being actively planted or harvested or when aquaculture structures are present on the lease. No harvesting or planting of leased oyster planting ground shall occur unless the lessee first has properly designated and marked the lease in accordance with the provisions of this chapter. No active planting upon or harvesting from the lease shall be authorized unless the lease has first been properly marked and the lease corners identified in accordance with the marking provisions of this chapter. If aquaculture structures are deployed on leased oyster planting ground, the lessee must properly mark and identify the lease boundary or the active work areas where aquaculture structures are placed in accordance with the marking provisions of this chapter.

4VAC20-290-30. Method and manner of marking.

A. Marking requirements. When leased oyster planting ground is marked, it shall be marked with stakes or buoys so as to delineate accurately the boundary lines of the lease and prevent the corners and boundary lines or the active works areas within the lease shall be marked with markers or buoys and shall be marked in a manner that does not create any unnecessary restriction to navigation.

1. Corner markers. The corner of leased oyster planting ground shall be marked and multiple markers may be used in these corners Corners that are marked shall have a maximum of three markers per corner.

2. Boundary line markers. Under normal circumstances Individual line markers shall be set at intervals no more than 600 feet apart and may be placed at intervals no smaller less than 150 feet apart.

3. Active work area markers. Areas where aquaculture structures are being used shall be marked in conformance with subsection B of this section and as required in 4VAC20-335.

4. Marking of the corners, boundary lines, or active work areas within the lease shall constitute valid marking for enforcement purposes.

B. Description of markers.

1. Stakes shall be no longer than two inches in diameter at the mean low water line and shall extend at least four feet above the mean high water line. The stake shall be of such materials not so rigid as to harm a boat if accidentally struck. Bamboo, white oak, cedar, or gum saplings are commonly used, but not required. If polyvinyl chloride (PVC) pipe is used, and driven into the bottom, the diameter of the PVC pipe shall be two inches or less. When stakes are used for lease corner markers, lease boundary line markers, or active work area markers within a lease they shall have a diameter of no greater than two inches if solid and an inside diameter no greater than two inches if hollow, at and above the mean low water line, and shall extend at least four feet above the mean high water line, but no more than six feet above mean high water. The marker shall be made of such materials not so rigid as to harm a boat if accidently struck, such as PVC pipe, bamboo, white oak, cedar, or gum saplings. Metal pipe markers are prohibited.

2. Buoys shall be constructed of wood, PVC, or other suitable material, shall be no larger than six inches in diameter, and shall be anchored with sufficient weight to prevent their moving during adverse weather conditions. Buoys shall be constructed and anchored so as to extend at least four feet above the water line at all times. When can buoys are used they shall be constructed of suitable material, shall be no larger than six inches in diameter, and shall be anchored to the bottom with sufficient weight to prevent their moving during adverse weather conditions. Can buoys shall be constructed and anchored so as to extend at least four feet above, but not more than six feet above the water line at all times. When ball buoys are used they shall be constructed of suitable material, shall be no smaller than 45 inches in circumference, and shall be anchored to the bottom with sufficient weight to prevent their moving in adverse weather conditions.

3. Leased oyster grounds on which active shellfish propagation is occurring shall have a minimum of two placards constructed of durable material along at least two sides of the lease or active work area, and each placard shall be at least four feet above the mean high water line, depicting the initials of the leaseholder and shall conform to the dimensions established by the commissioner. No person shall dredge or scrape his oyster planting ground unless he is in conformance with § 28.2-517 of the Code of Virginia to include the marking requirements contained in that section. Oyster ground lease corner markers, boundary line markers, and active work area markers may be marked with two-inch white reflective tape, white reflective paint, or white fluorescent paint. If the lease is bisected or borders along a Virginia Department of Health, Division of Shellfish Sanitation shellfish area condemnation line, such line markers shall be marked with two-inch yellow reflective tape, yellow reflective paint, or yellow fluorescent paint.

4VAC20-290-40. Maintenance.

When oyster planting ground is marked, suitable stakes or markers shall be kept by the lessee in their proper places at all times so as to conform accurately to the original boundary survey any condemnation line within the lease, or to accurately mark the active work areas within the lease. Should such stakes or makers be removed, knocked down, or be carried away, the lessee shall replace them promptly have them replaced in their proper location and in conformance with the method and manner of marking contained within this chapter.

4VAC20-290-45. Removal of markers.

It shall be unlawful for any person to intentionally or knowingly injure, remove, or displace any boundary oyster stake, range monument, signal beacon, post, or buoy, or any part thereof, erected to designate, locate, survey, or map shellfish grounds other than the leaseholder, his agent, his employee, or commission staff.

4VAC20-290-50. Exception.

The Marine Resources Commission may require its chief engineer to describe a plan for the proper marking The chief engineer may approve an alternative plan for the proper marking of any designated oyster planting ground boundary or active work area upon request by the lessee when it he finds exceptional circumstances exist. In such a case the chief engineer shall direct the leaseholder where to place the appropriate markers.