http://www.mrc.state.va.us/Notices/pn_shellfish_11-27-07.shtm

These cages are substantial structures that if struck by a motorized vessel will likely cause substantial damage to the prop or lower unit. In the regulation the cage size is limited to 70 cubic feet (i.e. 6 x 6 x 2 feet tall). The permit will allow them to be stacked and to be placed closer 100 feet of shore with the adjacent property owner’s permission, more than 100 feet without their permission. Furthermore, there are no depth restrictions in regulation on the water covering the enclosure. However, the Commissioner will be reviewing this as part of the application process. The cages may be placed as densely as 250 per acre which (if distributed uniformly and not stacked) would be one cage every 13 feet in all directions. However, the only water that is legally restricted is the volume of water occupied by the structure.

The State Code section which mandates these regulations states that the Commissioner MAY advertise the notifications in the newspaper that is local to the requested area. It also dictates that if he finds that there is significant and substantive opposition he is to call a public meeting regarding the matter. This meeting is not expected to be one of the regularly held Commission meetings. In the end the Commissioner makes the final determination as allowance of the placement of the structures and any restrictions that may be placed on the permit. Staff has indicated that his decisions may be appealed in front of the entire Marine Resources Commission.

CCA VA’s Fisheries Management Committee is concerned that VMRC continue to operate under the general principal of open government. Additionally, we were seeking stronger wording regarding the fact that the Commissioner take into account the public trust doctrine when considering these applications. To that end we requested that the Commission post information regarding all new applications, all modifications to existing applications and any 10-year renewals on the appropriate VMRC web page for 30 days so that it was available to all state residents. Additionally, we requested that the regulation include wording dictated in state code regarding the public trust doctrine as described in state code section 28.2-1205 which includes the following.

“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'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).”

Three members of the CCAVA FMC met with Commissioner Bowman, VMRC Staff and representatives of the Seafood Council. In that meeting it was agreed that every application would be posted on the internet for a minimum of 15 days. Additionally, references to state code section 28.2-1205 relating to the public trust doctrine would be included in the regulation that is presented to the Commission. While the internet public notice was not included in the initial regulation we were assured that it would be considered at a later date once staff and industry had some experience with the system.

Although we have our concerns regarding these permits, we understand that the Commission is obligated to develop these regulations. Furthermore, we understand that with disease and water quality issues aquaculture may be one of the few viable paths forward for the oyster industry within the Chesapeake Bay. We also understand that there are many areas where structures such as are described in this regulation are appropriate. However, we are concerned that there are also a number of areas where it would be incompatible with current uses by both commercial and recreational fishermen as well as the general public. To that end we hope that the Commissioner takes this policy of open government and the public trust doctrine fully into account when considering each application as it arises.

This alert is meant to primarily be educational in nature. If you choose to comment on the matter you can do so by: