VMRC Enhanced Compliance Analysis

Virginia License Revocation Guidelines

Original: 664 words

Condensed: 637 words

Reduction: 4.1%

GUIDELINES ON THE SCOPE OF LICENSE AND PRIVILEGE REVOCATION

ORDERS ISSUED UNDER VIRGINIA CODE § 28.2-232

Section § 28.2-232 of the Code of Virginia authorizes the Virginia Marine Resources Commission (the “Commission”) to revoke the licenses and fishing privileges of a person who has violated certain laws for a period of up to five years. People who have had their licenses and fishing privileges revoked have expressed confusion about the activities they are forbidden to engage in after the revocation order is issued. The Commission has promulgated this guidance document to help clear up that confusion by expressing its view of the law. Note, however, that this guidance document does not have the force of law and is not binding on the Commission, law enforcement officers, prosecutors, or other officials. Note also that this document does not constitute legal advice. The Commission encourages any person who has had their licenses and privileges revoked to consult with a private attorney to discuss the legality of any contemplated work in the fishing industry.

A revocation order that revokes a person’s licenses necessarily forbids the person from engaging in any activity for which a license is required under the Code of Virginia or the Commission’s regulations. Thus, for example, a person who has had his fishing licenses and privileges revoked will not be allowed to use any commercial gear to harvest fish or other marine organisms, fish recreationally, purchase another fisherman’s catch for commercial resale, or land seafood caught in other jurisdictions in Virginia for commercial purposes.

In addition, the revocation of a person’s fishing privileges forbids the person from engaging any activity that constitutes fishing, as that term is defined in Virginia Code § 28.2-100, in the Commonwealth’s tidal waters. In addition to the actual using, setting, or operating the gear used to harvest marine organisms, the statute defines the term “fishing” to include all operations involved in taking or catching marine organisms and transporting or preparing for market those marine organisms. In other words, a person whose fishing privileges have been revoked is forbidden from doing any work onboard a fishing vessel that in any way pertains to the harvesting of marine organisms, preparing them for market, or transporting them from the place of harvest to the land. Thus, for example, a person under a revocation order would be forbidden from driving a boat while the boat has gear in the water or while it has marine organisms on board, culling oysters, or assisting other crewmembers with the use of any gear.

While the scope of the order is expansive, it does not forbid all activities pertaining to fishing or boating. A person under a revocation order may still fish commercially in other jurisdictions so long as the person complies with all applicable licensing requirements in those jurisdictions. The person’s catch can even be landed in Virginia so long as the person whose licenses and privileges have been revoked is not driving the boat in Virginia waters and some other person onboard has a valid seafood landing license. In addition, the person whose licenses and privileges have been revoked is not forbidden from fishing recreationally in those inland waters subject to the jurisdiction of the Department of Game and Inland Fisheries. Nor is the person forbidden from engaging in boating or other recreational activities in the tidal waters that do not involve the harvest of marine organisms. The person may also participate in the fishing industry by preparing seafood for, and transporting it to, market so long as those activities occur on land. Thus, the person could drive a truck transporting seafood to a seafood buyer or from a buyer to retail stores and could work in a seafood processing facility.

Once the revocation period has elapsed, the person that was the subject of the order will be allowed to immediately purchase a commercial fisherman’s registration license and any other license that the person would otherwise qualify for were it not for the revocation order.

GUIDELINES ON THE SCOPE OF LICENSE AND PRIVILEGE REVOCATION

ORDERS ISSUED UNDER VIRGINIA CODE § 28.2-232

Section § 28.2-232 of the Code of Virginia authorizes the Virginia Marine Resources Commission (the “Commission”) to revoke the licenses and fishing privileges of a person who has violated certain laws for a period of up to five years. People who have had their licenses and fishing privileges revoked have expressed confusion about the activities they are forbidden to engage in after the revocation order is issued. The Commission has promulgated this guidance document to help clear up that confusion by expressing its view of the law. Note, however, that this guidance document does not have the force of law and is not binding on the Commission, law enforcement officers, prosecutors, or other officials. Note also that this document does not constitute legal advice. The Commission encourages any person who has had their licenses and privileges revoked to consult with a private attorney to discuss the legality of any contemplated work in the fishing industry.

A revocation order that revokes a person’s licenses necessarily forbids the person from engaging in any activity for which a license is required under the Code of Virginia or the Commission’s regulations. Thus, for example, a person who has had his fishing licenses and privileges revoked will not be allowed to use any commercial gear to harvest fish or other marine organisms, fish recreationally, purchase another fisherman’s catch for commercial resale, or land seafood caught in other jurisdictions in Virginia for commercial purposes.

In addition, the revocation of a person’s fishing privileges forbids the person from engaging any activity that constitutes fishing, as that term is defined in Virginia Code § 28.2-100, in the Commonwealth’s tidal waters. In addition to the actual using, setting, or operating the gear used to harvest marine organisms, the statute defines the term “fishing” to include all operations involved in taking or catching marine organisms and transporting or preparing for market those marine organisms. In other words, a person whose fishing privileges have been revoked is forbidden from doing any work onboard a fishing vessel that in any way pertains to the harvesting of marine organisms, preparing them for market, or transporting them from the place of harvest to the land. Thus, for example, a person under a revocation order would be forbidden from driving a boat while the boat has gear in the water or while it has marine organisms on board, culling oysters, or assisting other crewmembers with the use of any gear.

While the scope of the order is expansive, it does not forbid all activities pertaining to fishing or boating. A person under a revocation order may still fish commercially in other jurisdictions so long as the person complies with all applicable licensing requirements in those jurisdictions. The person’s catch can even be landed in Virginia so long as the person whose licenses and privileges have been revoked is not driving the boat in Virginia waters and some other person onboard has a valid seafood landing license. In addition, the person whose licenses and privileges have been revoked is not forbidden from fishing recreationally in those inland waters subject to the jurisdiction of the Department of Game and Inland Fisheries. Nor is the person forbidden from engaging in boating or other recreational activities in the tidal waters that do not involve the harvest of marine organisms. The person may also participate in the fishing industry by preparing seafood for, and transporting it to, market so long as those activities occur on land. Thus, the person could drive a truck transporting seafood to a seafood buyer or from a buyer to retail stores and could work in a seafood processing facility.

After the revocation period, the individual may immediately purchase a commercial fisherman’s registration and other qualifying licenses.

Civil Charge Assessment Guidelines VirginiaDoc ID: 6942

Original: 299 words

Condensed: 262 words

Reduction: 12.4%

Guidance for Civil Charge Assessments Pursuant to Section 28.2-1213 of the Code of Virginia

The matrix below and factors to determine the degree of impact and degree of deviation or non-compliance are to be used by Commission Staff and the Commission when determining the appropriate Civil Charge that can be assess for unauthorized encroachments that occur in, on or over State-owned bottoms without the required permit from the Virginia Marine Resources Commission pursuant to Chapter 12 of Title 28.2 of the Code of Virginia. Civil Charges may be considered for multiple violations.

Impact* Significant

$9,000

$10,000

$10,000 Moderate

$3,000

$ 6,000

$ 9,000 Minimal

$1,000

$ 2,000

$ 3,000

Minor

Moderate

Major

Degree of Deviation or Non-compliance

Deviation and Non-compliance Factors Minor Small deviation relative to other authorized structures or requirements.

Evidence of factors such that applicant/contractor would not have known project would result in violation.

All other required permits issued.

Moderate Some deviation or non-compliance.

Evidence that factors ignored by applicant/contractor that a permit should have been required or should have knowledge a permit was required.

Received some permits but not all.

Major Large amount of deviation or non-compliance relative to authorized structures or requirements.

Evidence that applicant/contractor knew or ignored that permits were required and should have known a permit was required.

No other permits issued.

Impacts Factors Minimal Small encroachment.

Small affect on bottom lands and resources.

No affect on other uses.

Moderated Limited encroachment considering the surrounding waterway.

Some affect or loss of bottom land and resources.

Some affect on other uses.

Significant Large encroachment.

Significant affect or loss of bottom land and resources.

Significant affect on other use.

Changed from “Environmental Impact” to “Impact” since all factors in Code Section 28.2-1205 can be considered.

Approved by the Commission at their March 27, 2012, meeting.

Rent, Royalties, and Permit Fees ScheduleDoc ID: 4582

Original: 345 words

Condensed: 316 words

Reduction: 8.4%

RENT AND ROYALTY SCHEDULE Adopted November 22, 2005 Effective December 1, 2005

Permit Fees, Rents and Royalties Some fees and royalties are defined by statute while others are within the discretion of the Commission. All rents and royalties are subject to change. Rents and royalties are due and payable only after the proposed project is approved.

Current permit fees, which have remained unchanged since 1970, are specified in §28.2-1206.B of the Code of Virginia as the following.

Projects $10,000 or less

$25.00 application fee Projects more than $10,000

$100.00 application fee

Current dredging fees, which were last adjusted in 1982, are specified in §28.2-1206.C of the Code of Virginia as the following.

Dredging (New)

$0.20 - $0.60 / yd³

RENT AND ROYALTY ASSESSMENTS

ADJUSTED

CATEGORY/ACTIVITY SUB-CATEGORY

RANGE

ASSESSMENT *

Placement of Fill

Private Beach Nourishment $0 – $1.00 /ft²

$0.05 /ft²

Riprap

$0 - $0.35 /ft²

0

Conversion of Subtidal

$0 - $0.50 /ft²

0

Habitat to Wetlands

Timber Jetty/Groin/Boat Ramp $0 - $0.75 /ft²

$0.50 /ft²

Upland Creation

$0.25 – $5.25 /ft²

Private

$1.00 /ft²

Commercial

$3.00 /ft²

Industrial

$5.00 /ft²

ADJUSTED

CATEGORY/ACTIVITY SUB-CATEGORY

RANGE

ASSESSMENT *

Crossings

Overhead, Suspended, Trenched $3.00 / linear ft

$3.00 / linear ft

or Directionally Drilled

Open-Pile Structures Heavy Industrial/Commercial $0.35 – $3.50 /ft²

$2.00 / ft²

Commercial Recreational

Private Use Marinas

$0.30 - $2.50 / ft²

$1.50 / ft²

(Dockominiums)

Public Use Marinas

$0.20 - $1.75 / ft²

$1.00 / ft² (Marinas/Fishing Piers)

Non-Commercial Mooring

$0.10 - $1.00 / ft²

$0.30 / ft²

(Community Piers w/o slips)

Isolated Structures

Non-Riparian Mooring

$200.00 – $1,000.00 ea

$500.00 ea

Buoys/Piles (Commercial)

Non-Riparian Mooring

$100.00 - $500.00 ea

$100.00 ea

Buoys/Piles (Private)

Aquaculture**

Floating structures/cages

(for outline of area occupied)

N/A

$0.05/ft² Facilities (piers, docks, wharf, etc)

N/A

$1.50/ft²

Annual rental equal to 1/10 single royalty assessment can be prescribed if the minimum single royalty assessment, not including that assessed for dredging, exceeds $5000.00 ** The royalty amounts for aquaculture structures and facilities were set in response to Commission case decisions (i.e. #07-1230).

Category updated August 27, 2010.

Virginia Marine Resources Commission Pier Determination GuidanceDoc ID: 4583

Original: 617 words

Condensed: 430 words

Reduction: 30.3%

RESOLUTION BY THE VIRGINIA MARINE RESOURCES COMMISSION CITIZEN BOARD INTERPRETING CODE § 28.2-1203.A.5(iv) and DELEGATING AUTHORITY TO MAKE THE DETERMINATION CALLED FOR BY CODE § 28.2-1203.A.5.(iv).

WHEREAS, by 2003 Act of Assembly Chapter 973 (“Chapter 973”), Code § 28.2-1203.A.5 was amended to add several qualifications concerning when the owners of riparian lands may, without the need for a permit from the Virginia Marine Resources Commission pursuant to Code §§ 28.2-1204 and 1207, place private piers for noncommercial purposes in the waters opposite those riparian lands; and

WHEREAS, among the qualifications added by Chapter 973 is that, pursuant to Code § 28.2- 1203.A.5(iv), said “piers are determined not to be a navigational hazard by the Commission”; and

WHEREAS, Title 28.2 of the Code of Virginia does not consistently use the word “Commission” to refer solely to the Citizen Board (“Citizen Board”) authorized and described in Code § 28.2-102(A), but frequently uses the word “Commission” to refer to the full time staff of the Commission (“staff”), appointed and supervised by the Commissioner as chief executive officer as provided by Code § 28.2-104; and

WHEREAS, the Commission is aware that literally hundreds of applications by riparian owners to place private piers for noncommercial purposes in the waters opposite their riparian lands are annually reviewed by the staff; and

WHEREAS, considering the existing responsibilities of the Citizen Board set out in Code of Virginia Title 28.2, it is unreasonable, both from the perspective of the time available to the Citizen Board and the impact of additional delay on citizens, to expect that the General Assembly intended, by the use of the word “Commission” in Code § 28.2-1203.A(iv), to require the Citizen Board to review the hundreds of applications for private piers in order to determine that each is not a navigational hazard; and

WHEREAS, Virginia law recognizes the authority of an agency of the Commonwealth to interpret the statutes under which it operates and that such interpretations, when reasonable, are accorded judicial deference;

NOW BE IT RESOLVED that the Virginia Marine Resources Commission Citizen Board hereby interprets the word “Commission” in Code § 28.2-1203.A.5.(iv) to authorize the Commissioner and staff appointed by him to determine whether piers, otherwise authorized to be placed without a Commission permit pursuant to Code § 28.2-1203.A.5, are navigational hazards, and

Notwithstanding, but in addition to, the foregoing, the Virginia Marine Resources Commission Citizen Board hereby delegates to the Commissioner, and authorizes him to further sub-delegate to staff appointed by him, the task of determining whether piers, otherwise authorized to be placed without permit pursuant to Code § 28.2-1203.A.5, are navigational hazards, and

In so interpreting and delegating the aforesaid authority, the Virginia Marine Resources Commission Citizen Board is mindful that Code § 62.1-164 sets out a private judicial remedy for citizens who nevertheless may believe that a private pier or landing obstructs the navigation of a watercourse, and that Code § 2.2-4025.A(v) exempts from judicial review under the Administrative Process Act (“APA”), Code § 2.2-4000, et seq., those “matters subject by law to a trial de novo in any Court.”

In so interpreting and delegating the aforesaid authority, the Virginia Marine Resources Commission Citizen Board recognizes that, through necessity and customary practice over time, the Commissioner and the staff appointed by him, perform, and have performed, some other tasks addressed to the “Commission” in Code Title 28. Nothing herein is intended to disapprove such actions, retroactively or prospectively, which has customarily developed over time as a matter of necessity or practicality. Rather, this Resolution is intended to clarify a current matter, arising from the enactment of Chapter 973, for the further guidance of the Commissioner and staff appointed by him and for the information of citizens.

RESOLUTION BY THE VIRGINIA MARINE RESOURCES COMMISSION CITIZEN BOARD INTERPRETING CODE § 28.2-1203.A.5(iv) and DELEGATING AUTHORITY TO MAKE THE DETERMINATION CALLED FOR BY CODE § 28.2-1203.A.5.(iv).

WHEREAS, by 2003 Act of Assembly Chapter 973 (“Chapter 973”), Code § 28.2-1203.A.5 was amended to add qualifications allowing riparian owners to place private noncommercial piers in waters opposite their lands without a permit from the Virginia Marine Resources Commission pursuant to Code §§ 28.2-1204 and 1207; and

WHEREAS, among the qualifications added by Chapter 973 is that, pursuant to Code § 28.2-1203.A.5(iv), piers are determined not to be navigational hazards by the Commission; and

WHEREAS, Title 28.2 of the Code of Virginia often uses “Commission” to refer to the staff appointed and supervised by the Commissioner, not just the Citizen Board (“Citizen Board”) authorized in Code § 28.2-102(A); and

WHEREAS, the Commission is aware that literally hundreds of applications by riparian owners to place private piers for noncommercial purposes in the waters opposite their riparian lands are annually reviewed by the staff; and

WHEREAS, considering the existing responsibilities of the Citizen Board set out in Code of Virginia Title 28.2, it is unreasonable, both from the perspective of the time available to the Citizen Board and the impact of additional delay on citizens, to expect that the General Assembly intended, by the use of the word “Commission” in Code § 28.2-1203.A(iv), to require the Citizen Board to review the hundreds of applications for private piers in order to determine that each is not a navigational hazard; and

WHEREAS, Virginia law recognizes the authority of an agency of the Commonwealth to interpret the statutes under which it operates and that such interpretations, when reasonable, are accorded judicial deference;

NOW BE IT RESOLVED that the Virginia Marine Resources Commission Citizen Board interprets “Commission” in Code § 28.2-1203.A.5.(iv) to authorize the Commissioner and staff to determine if piers authorized without a permit are navigational hazards, and

Notwithstanding, the Virginia Marine Resources Commission Citizen Board delegates to the Commissioner, who may further sub-delegate to staff, the task of determining if piers authorized without permit under Code § 28.2-1203.A.5 are navigational hazards, and

In interpreting and delegating authority, the Board recognizes that Code § 62.1-164 provides a private judicial remedy for citizens who believe a pier obstructs navigation, and Code § 2.2-4025.A(v) exempts from APA review matters subject to trial de novo in court;

The Board recognizes that the Commissioner and staff have historically performed other “Commission” tasks in Code Title 28. This resolution clarifies current authority and provides guidance following Chapter 973’s enactment, without disapproving past actions.

SAV Guidance for Restoration and DelineationDoc ID: 6943

Original: 770 words

Condensed: 414 words

Reduction: 46.2%

1

Virginia Marine Resources Commission

Submerged Aquatic Vegetation (SAV) Guidance

Criteria Defining SAV Beds and Delineating Areas Where There is Potential for SAV Restoration

For purposes of this guidance “Submerged Aquatic Vegetation” (SAV) means any of a diverse assemblage of underwater plants found in the shoal areas of Chesapeake Bay, Virginia’s coastal bays and river tributaries, primarily eelgrass (Zostera marina) and widgeon grass (Ruppia maritima), and including, but not limited to: Eurasian watermilfoil (Myriophyllum spicatum), redhead grass (Potamogeton perfoliatus), wild celery (Vallisneria americana), common elodea (Elodea canadensis), water stargrass (Heteranthera dubia), coontail (Ceratophyllum demersum), water-weed (Egeria densa), muskgrass (Najas minor), pondweeds (Potamogeton sp.), Hydrilla (Hydrilla verticillata) and naiads (Najas sp.).

The importance of Submerged Aquatic Vegetation (SAV) as a resource and habitat within the tidal waters of the Commonwealth is well documented. The protection and restoration of SAV has been a long standing commitment of the Commonwealth and is identified in numerous Bay Program agreements and strategies for SAV management. Furthermore, when considering proposals for use of State-owned submerged lands, including leasing of oyster planting grounds, the Commission must consider the effects of any project or activity on SAV.

SAV coverage has been mapped annually by the Virginia Institute of Marine Science (VIMS) since 1984 and potential restoration areas totaling 185,000 acres in the Chesapeake Bay (approximately 77,500 acres in Virginia) have also now been identified by the Chesapeake Bay Program partners based on historic coverage. Combined, this information has been utilized by the Commission as criteria to guide resource management decisions. Recent fluctuations in SAV coverage due to multiple factors including temperature, substrate and water depth, however, have hampered the ability to utilize the most recent year survey information as the primary criteria and basis for decisions regarding proposed projects and activities potentially affecting existing SAV beds, and the use of historic coverage for projects and activities potential impacting SAV restoration areas. This makes it necessary to consider recent multiple year coverage of SAV to define SAV beds and to identify areas for potential SAV restoration.

2

Criteria Defining SAV Beds: SAV Beds shall include all those areas of SAV identified and annually mapped by VIMS during at least 1 of the previous 5 years. Such beds shall be considered a “stand of SAV”.

Criteria Delineating Areas Where There is Potential for SAV Restoration:

Potential areas for SAV restoration shall include all those areas of SAV, identified and annually mapped by VIMS during at least 1 of the previous 10 years, and any area specifically set aside for SAV restoration or protection by the Commission.

Review and Coordination of projects and Leasing of Oyster Planting Grounds Involving Beds of SAV or Potential SAV Restoration Areas:

SAV beds as identified by the criteria for defining SAV beds and potential SAV restoration areas shall be mapped and included on the oyster planting ground maps prepared and maintained by the Commission. Such maps shall be updated annually following publication of the most recent year survey conducted by VIMS.

It shall be the Commission’s policy to avoid authorization of any new structure, including aquaculture structures on unleased bottoms, and any new activity, or leasing oyster planting grounds on any SAV bed annually mapped by VIMS during at least 1 of the previous 5 years.

Proposed encroachments or activities in SAV beds may be authorized by permit, if deemed acceptable, however, all mitigation measures to reduce impacts to SAV must be considered and compensation of SAV losses may be required. When projects and activities, or leasing, are deemed unacceptable to Commission staff considering the impacts on SAV beds or potential SAV restoration areas, the project and activity, or lease request, may be considered by the Commission at a public hearing.

Certain aquaculture structures are authorized by Commission regulation within oyster planting ground leases provided they are not placed upon SAV beds within such leases. However, such aquaculture structures may be permitted by the Commission provided all appropriate mitigation measures to reduce impacts to SAV are included and compensation of SAV losses may be required if necessary.

When determining whether to authorize a project and activity or lease oyster planting grounds in potential SAV restoration areas the Commission Staff shall consult with VIMS regarding the potential for the project and activity, or leasing to affect SAV restoration.

3

Restoration of SAV Beds Around Existing and Authorized Structures:

In cases where a SAV bed becomes established through natural restoration around existing or authorized structures, including aquaculture structures, such structures shall not be required to be removed. Such structures can continue to be used and replaced, but cannot be moved or relocate to cover the SAV bed.

1

Virginia Marine Resources Commission

Submerged Aquatic Vegetation (SAV) Guidance

Criteria for SAV beds and potential restoration areas

“Submerged Aquatic Vegetation” (SAV) includes underwater plants in Chesapeake Bay, Virginia’s coastal bays, and tributaries, mainly eelgrass (Zostera marina), widgeon grass (Ruppia maritima), and species like Eurasian watermilfoil, redhead grass, wild celery, common elodea, water stargrass, coontail, water-weed, muskgrass, pondweeds, Hydrilla, and naiads.

The importance of Submerged Aquatic Vegetation (SAV) as a resource and habitat within the tidal waters of the Commonwealth is well documented. The protection and restoration of SAV has been a long standing commitment of the Commonwealth and is identified in numerous Bay Program agreements and strategies for SAV management. Furthermore, when considering proposals for use of State-owned submerged lands, including leasing of oyster planting grounds, the Commission must consider the effects of any project or activity on SAV.

VIMS has mapped SAV annually since 1984; about 185,000 acres in Chesapeake Bay are identified for restoration. Recent fluctuations hinder using only recent data; multi-year coverage is needed for defining SAV beds and restoration areas.

2

SAV beds include areas mapped by VIMS at least once in the previous 5 years, considered a “stand of SAV”.

Criteria for areas with potential SAV restoration

Potential SAV restoration areas include those mapped by VIMS at least once in the past 10 years or designated for restoration or protection by the Commission.

Review and coordinate projects and oyster ground leases involving SAV beds or restoration areas.

SAV beds and restoration areas shall be mapped and included on oyster ground maps, updated annually after VIMS surveys.

The Commission will avoid authorizing new structures, activities, or leases on SAV beds mapped by VIMS in the past 5 years.

Encroachments or activities in SAV beds may be permitted with mitigation and compensation; if unacceptable to staff, they may be reviewed at a public hearing.

Certain aquaculture structures are authorized by Commission regulation within oyster planting ground leases provided they are not placed upon SAV beds within such leases. However, such aquaculture structures may be permitted by the Commission provided all appropriate mitigation measures to reduce impacts to SAV are included and compensation of SAV losses may be required if necessary.

Staff shall consult VIMS when authorizing projects or leases in potential SAV restoration areas regarding impacts.

3

Restoration of SAV Beds Around Existing and Authorized Structures:

Structures around naturally restored SAV beds need not be removed; they can be used and replaced but not moved or relocated onto SAV beds.

Virginia Tidal Wetland Mitigation Bank GuidelinesDoc ID: 4585

Original: 907 words

Condensed: 754 words

Reduction: 16.9%

Page 1 Guidelines for Establishment, Use and Operation of Tidal Wetland Mitigation Banks in Virginia

I.

INTRODUCTION These guidelines were originally promulgated in 1998. This update is necessary to comply with Chapter 334 of the 2023 Acts of the Virginia General Assembly, which requires the Virginia Marine Resources Commission (the “Commission”) to review and update these guidelines and to “consider provisions relating to the generation of vegetated and unvegetated wetland credits from wetland creation, restoration, conversion, and enhancement activities, invasive species control, and the establishment of open water channels.” The law also requires the Commission to make these guidelines consistent with its Tidal Wetlands Guidelines (May 2021 Update), including updating wetlands types and properties. This update is also necessary to bring these guidelines into alignment with current banking guidelines and practices in place with the Interagency Review Team (“IRT”). The IRT is composed federal, state, tribal, and/or local regulatory entities and serves to review documentation for the establishment and management of mitigation banks and in-lieu fee programs. The IRT operates in accordance with the Final Compensatory Mitigation for Losses of Aquatic Resources Rule, codified at 33 C.F.R. part 332 and 40 C.F.R. part 230, subpart J, and other applicable laws and guidelines.

II.

PURPOSE AND SCOPE This document provides guidance to the Commission, local wetlands boards, and the public for the development and operation of tidal wetland mitigation banks in the Commonwealth of Virginia.

These guidelines will supplement the existing Wetlands Mitigation-Compensation Policy currently codified at 4 Va. Admin. Code §§ 20-390-10 through 20-390-50. . The effective date of these guidelines will be August 1, 2024.

III.

DEFINITIONS For the purposes of these guidelines, the terms defined in the Wetlands Zoning Ordinance, codified at Va. Code § 28.2-1302, as amended, and in the Compensatory Mitigation for Losses of Aquatic Resources Rule, codified at 33 C.F.R. part 332, as amended, shall have the same meanings when used herein except for those terms set forth below: Page 2 Cataloging Unit: Specific geographic area as defined by the U.S. Geological Survey in the Hydrologic Unit Map of the United States.

Mitigation Bank: A site, or suite of sites, where tidal wetlands are restored, established, enhanced, or, in exceptional circumstances, preserved for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources. The operation and use of a mitigation bank are governed by a mitigation banking instrument.

Restoration: The manipulation of the physical, chemical, or biological characteristics of a wetland where it previously existed with the goal of returning natural/historic functions.

Watershed: The drainage area for each major river system within the Commonwealth.

IV.

TIDAL WETLAND MITIGATION BANKING GUIDANCE Any project which involves the use of credits from an approved mitigation bank to provide compensatory mitigation for the project’s adverse impacts to tidal wetlands must comply fully with existing State and Federal statutes and regulations, as well as be consistent with applicable agency policies, including, but not limited to:

Title 28.2 of the Code of Virginia
VMRC Wetlands Mitigation-Compensation Policy
Clean Water Act, Section 404 (33 U.S.C. § 1344)
Rivers and Harbors Act of 1899, Section 10 (33 U.S.C. § 403)
Section 404(b)(1) Guidelines for the Specification of Disposal Sites for Dredged or Fill Material (40 C.F.R. part 230)
Section 404 Permit Regulations (33 C.F.R. parts 320 through 330) Page 3
Compensatory Mitigation for Losses of Aquatic Resources (33 C.F.R. part 332; 40 C.F.R. part 230, subpart J).
National Environmental Policy Act (42 U.S.C. §§ 4321 et seq,) and the Council on Environmental Quality's implementing regulations (40 C,F,R, parts 1500 through1508).
Fish and Wildlife Coordination Act (16 USC §§ 661 et seq,). 10. U.S. Fish and Wildlife Service Mitigation Policy available at htps://www.fws.gov/policy/a1501fw2.pdf. 11. Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. §§ 1801 et seq.). 12. National Marine Fisheries Service Habitat Conservation Policy 13. Coastal Zone Management Act (16 U.S.C. §§ 1451 et. seq.) The policies set forth in this document are intended solely as guidance. This guidance does not establish or affect legal rights or obligations, establish a binding norm on any party, or constitute the final determination of the issues addressed.

V.

IMPLEMENTATION PROCEDURES The following criteria should be followed for bank planning, siting, construction and operation:

Any party or parties interested in creating a tidal wetland mitigation bank should first contact the Commission and the U. S. Army Corps of Engineers (“Corps”) regarding the proposal. The Corps and Commission will gather pertinent information about the proposal and will, as co-chairs, establish the IRT. The IRT will consider the proposal and review all submitted documentation, including the prospectus, proposed mitigation banking instrument, and other appropriate documents, in accordance with applicable Federal and State law.

Page 4

The sponsor will be required to provide a bond, letter of credit, or other financial assurance to ensure alternative compensatory mitigation is provided in the event the mitigation bank fails.
The mitigation bank’s service area must be specified in the mitigation banking instrument. Unless otherwise provided by law, a mitigation bank’s service area may only include the cataloging unit in which it is located or an adjacent cataloging unit in the same watershed.
The IRT will determine the number of credits available at the mitigation bank. Credits will be available for the establishment, restoration, enhancement, or, in certain circumstances, preservation of wetlands.
Upon receipt of a complete banking instrument, the Commission or Corps shall provide notification to the public, through standard procedures, and provide a reasonable comment period.

Page 1 Guidelines for Establishment, Use and Operation of Tidal Wetland Mitigation Banks in Virginia

I.

INTRODUCTION These guidelines were originally promulgated in 1998. This update is necessary to comply with Chapter 334 of the 2023 Acts of the Virginia General Assembly, which requires the Virginia Marine Resources Commission (the “Commission”) to review and update these guidelines and to “consider provisions relating to the generation of vegetated and unvegetated wetland credits from wetland creation, restoration, conversion, and enhancement activities, invasive species control, and the establishment of open water channels.” The law also requires the Commission to make these guidelines consistent with its Tidal Wetlands Guidelines (May 2021 Update), including updating wetlands types and properties. This update is also necessary to bring these guidelines into alignment with current banking guidelines and practices in place with the Interagency Review Team (“IRT”). The IRT is composed federal, state, tribal, and/or local regulatory entities and serves to review documentation for the establishment and management of mitigation banks and in-lieu fee programs. The IRT operates in accordance with the Final Compensatory Mitigation for Losses of Aquatic Resources Rule, codified at 33 C.F.R. part 332 and 40 C.F.R. part 230, subpart J, and other applicable laws and guidelines.

II.

PURPOSE AND SCOPE This guidance assists the Commission, wetlands boards, and the public in developing and operating tidal wetland mitigation banks in Virginia.

These guidelines supplement the existing Wetlands Mitigation-Compensation Policy at 4 Va. Admin. Code §§ 20-390-10 through 20-390-50, effective August 1, 2024.

III.

DEFINITIONS For the purposes of these guidelines, the terms defined in the Wetlands Zoning Ordinance, codified at Va. Code § 28.2-1302, as amended, and in the Compensatory Mitigation for Losses of Aquatic Resources Rule, codified at 33 C.F.R. part 332, as amended, shall have the same meanings when used herein except for those terms set forth below: Page 2 Cataloging Unit: Specific geographic area as defined by the U.S. Geological Survey in the Hydrologic Unit Map of the United States.

Mitigation Bank: A site or sites where tidal wetlands are restored, established, enhanced, or preserved (in exceptional cases) for compensatory mitigation before impacts. Its operation is governed by a mitigation banking instrument.

Restoration: Manipulating physical, chemical, or biological characteristics of a previously existing wetland to restore natural functions.

Watershed: The drainage area for each major river system within the Commonwealth.

IV.

TIDAL WETLAND MITIGATION BANKING GUIDANCE Projects using credits from an approved mitigation bank for tidal wetland impacts must fully comply with applicable State and Federal statutes, regulations, and agency policies, including but not limited to:

Title 28.2 of the Code of Virginia
VMRC Wetlands Mitigation-Compensation Policy
Clean Water Act, Section 404 (33 U.S.C. § 1344)
Rivers and Harbors Act of 1899, Section 10 (33 U.S.C. § 403)
Section 404(b)(1) Guidelines for Disposal Sites for Dredged or Fill Material (40 C.F.R. part 230)
Section 404 Permit Regulations (33 C.F.R. parts 320–330) Page 3
Compensatory Mitigation for Losses of Aquatic Resources (33 C.F.R. part 332; 40 C.F.R. part 230, subpart J).
National Environmental Policy Act (42 U.S.C. §§ 4321 et seq) and CEQ regulations (40 C.F.R. parts 1500–1508).
Fish and Wildlife Coordination Act (16 USC §§ 661 et seq,). 10. U.S. Fish and Wildlife Service Mitigation Policy available at htps://www.fws.gov/policy/a1501fw2.pdf. 11. Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. §§ 1801 et seq.). 12. National Marine Fisheries Service Habitat Conservation Policy 13. Coastal Zone Management Act (16 U.S.C. §§ 1451 et. seq.) The policies set forth in this document are intended solely as guidance. This guidance does not establish or affect legal rights or obligations, establish a binding norm on any party, or constitute the final determination of the issues addressed.

V.

IMPLEMENTATION PROCEDURES The following criteria apply to bank planning, siting, construction, and operation:

Interested parties must first contact the Commission and U.S. Army Corps of Engineers (“Corps”) about the proposal. The Corps and Commission will gather information, co-chair the IRT, which will review the proposal, prospectus, mitigation instrument, and relevant documents per applicable law.

Page 4

The sponsor must provide a bond, letter of credit, or other financial assurance to ensure alternative mitigation if the bank fails.
The mitigation bank’s service area, specified in the banking instrument, may only include its cataloging unit or an adjacent unit within the same watershed unless law states otherwise.
The IRT will determine available credits at the mitigation bank for establishment, restoration, enhancement, or preservation of wetlands.
Upon receiving a complete banking instrument, the Commission or Corps will notify the public and allow a comment period per standard procedures.

Oyster Planting Ground Lease GuidelinesDoc ID: 7101

Original: 2,229 words

Condensed: 806 words

Reduction: 63.8%

Guideline Document: Oyster Planting Grounds Lease Renewal Approval, Lease Renewal Denial, and Commission Hearing Procedure for Lease Renewal Denial.

Purpose:

The purpose of these guidelines is to make available to oyster planting ground leaseholders and the public-at-large the policies and procedures of the Marine Resources Commission related to the review, and subsequent renewal, or denial of oyster planting grounds pursuant to 28.2-613 of the Code of Virginia. This guidance document will be used by VMRC staff in its decision making process, provide a framework for the Commission upon appeal of oyster planting ground lease denials, and inform citizens of the factors used to determine whether to renew existing oyster planting ground leases.

The guidelines herein are provided in conjunction with VMRC Chapter 4VAC20-1350-10 et. seq.;

Code of Virginia requirements contained within 28.2-613 of the Code of Virginia; and the public trust doctrine.

When a lease renewal is denied at the staff level, the leaseholder may appeal that decision and request a hearing before the Commission as provided by the Code of Virginia 28.2-216, 28.2-217 and by Chapter 4VAC20-1350-10 et. seq.

Authority: Changes made at the 2019 General Assembly went into effect on February 27, 2019 to 28.2-613 of the Code of Virginia for the requirements that the Commission review each regular oyster planting ground lease upon expiration of each ten-year lease term. § 28.2-613, as amended in 2019 (new Code language in italics and underlined) states: Upon expiration of the initial or any subsequent term of the assignment, the Commission shall, on application of the holder, renew the assignment for an additional 10-year term. The Commission shall not renew or extend an assignment where there has been no significant production of oysters or clams, no reasonable plantings of oysters, clams or cultch or no significant oyster or clam aquaculture operation, during any portion of the 10-year period immediately prior to the application for renewal, unless the Commission finds that there was good cause for the failure to produce or plant oysters, clams or cultch or finds that the assignment is directly related to and beneficial to the production of oyster-planting grounds immediately adjacent to the assignment. In determining whether there was good cause for the failure to produce or plant oysters, clams, or cultch, in addition to other factors, the Commission shall decide whether the renewal is in the public interest considering the factors in subsection A of § 28.2-1205, the prevalence of the diseases MSX and Dermo, the public benefits and impacts of shellfish aquaculture, and whether the oyster-planting ground has traditionally produced commercial quantities of oysters or clams. The Commission shall set by regulation a fee structure for renewal fees to be paid by applicants. Such fees shall seek to reflect the cost to the Commission of processing the renewal application, but shall not exceed $300.

The Commission adopted Chapter 4VAC20-1350-10 et. seq. with an effective date of October 1, 2019, which establishes the procedures to request lease renewal, approved a renewal processing fee of $150.00 per lease, and provided a time-frame for appeal and subsequent Commission hearing to review any lease renewal denial.

Therefore, 28.2-613 of the Code of Virginia provides the conditions concerning the use of oyster planting ground leases and renewal of such leases when significant production of shellfish has occurred and/or when there has been reasonable plantings of oysters, clams or cultch, or aquaculture operation, or to deny such renewals when such production and/or reasonable plantings, or aquaculture operation have not occurred. § 28.2-613 further provides the Commission the authority to renew such leases if it is found there is good cause for failure to produce or plant oysters, clams or cultch. These guidelines shall provide leaseholders with the Code provided provisions, along with other additional rationale, that the Commission may consider for a lease renewal when production/planting thresholds have not been met.

Lease Renewal Propagation Criteria: These guidelines provide renewal criteria for leaseholders during the ten-year lease term and serve to assist VMRC staff when evaluating such leases. When a lease is denied by VMRC this guideline document can also assist the Commission at any subsequent hearing for review of such lease renewal denial.

This document provides guidance concerning both lease production and plantings, as well as providing a non-exclusive list of other factors staff and/or the Commission shall consider when determining whether to renew a lease, if production and planting requirements are not met. Failure to return the Application for Reassignment of Oyster Planting Ground or failure to pay the $150 fee for such renewal review by the end of the current ten-year lease term will result in denial of the lease renewal.

For renewal of an existing lease, § 28.2-613 requires significant production, reasonable plantings of shellfish or cultch, or significant aquaculture operation during any portion of the 10-year period of the lease term. To facilitate administration of these requirements following criteria are established:

Use of mandatory reporting * data shall be used to determine harvest amounts. Significant aquaculture operation or hand tong/hand harvest shall be harvest of one bushel per acre per year as the minimum requirement for lease renewal (For clams the harvest requirement shall be 400 clams per acre per year). If there are no mandatory reporting discrepancies and a minimum harvest equal to one bushel per acre per year (or 400 clams per acre per year) is documented, the lease will be renewed. (*Note: If the leaseholder believes that significant harvest has occurred during the current ten year renewal period and they do not have specific records going back up to ten years, they may state on the renewal form, “see mandatory reporting for this lease”. Provided such mandatory reporting confirms a minimum harvest as required above, the lease shall be renewed).

If shellfish harvest was obtained by use of a dredge or scrape permit and such harvest meets minimum requirements of one bushel per acre per year the lease shall be renewed, however, when harvest was obtained by the use of a dredge or scrape permit and the leaseholder has no records of reasonable planting of seed oysters or shell on the lease during the current lease renewal term, the lease shall not be renewed. Reasonable seed or shell plantings shall be considered to be 100 bushels of seed or shell per acre per year, or a minimum of one bushel of shell or seed planted for each bushel of oysters harvested, whichever is lower. If the leaseholder claims the lease is self-sustaining without the need to plant either seed or shell, VMRC staff shall field verify that the lease contains adequate shellstock and/or sufficient shell cultch material and if verified the lease shall be renewed. (*Note: This planting provision requirement shall start upon the effective date of adoption of these guidelines).

When harvest reported on the lease application renewal form does not reasonably match harvest reported data within the mandatory reporting program, such discrepancy will be referred to the Fisheries Management Division mandatory reporting program for reconciliation.

If total harvest data do not meet the required minimum effort, then shell, cultch, seed planting effort, and aquaculture use will be considered. For the lease to be renewed an effort of one bushel of combined harvest/production/planting per acre per year over the entire ten-year period will result in the lease being renewed. This effort can include harvest, seed production or planting, shell or cultch planting, use of the area for nursery growing, or aquaculture shellfish production. For shell, cultch, spat on shell, seed planting, or aquaculture production, information of amounts deployed shall be provided.

Significant production, reasonable plantings and per acre effort per year is considered in totality for the entire ten year lease term and such production and/or planting can occur during any portion of the ten year lease term.

Lease Renewal Effort Criteria: When the effort levels noted above are not achieved, 28.2-613 of the Code of Virginia allows for renewal of the lease provided the Commission finds that there was good cause for failure to produce shellfish, or to plant shellfish or cultch, in addition to other factors, whether the renewal is in the public interest considering the factors in subsection A of 28.2-1205 of the Code of Virginia:

Pursuant to the Code of Virginia, section 28.2-613:

If the lease is directly related to and beneficial to the production of oyster-planting grounds immediately adjacent to the lease being considered for renewal (documentation required of how lease is related to or beneficial to the production of grounds adjacent to the lease).

The prevalence of the diseases MSX and Dermo (documentation required of testing data to confirming the presence and impact of MSX and/or Dermo.

The public benefits and impacts of shellfish aquaculture (benefits may include, water quality improvement, erosion control, food production, etc.; impacts may include, navigation impacts, pier or other authorized structure encroachments, view shed issues, noise, smell, improper gear maintenance, presence of SAV, conflicts with other uses of the area, etc.).

Whether the ground has traditionally produced commercial quantities of oysters or clams (documentation required of historic production to include quantities and dates of production/harvest).

Pursuant to the Code of Virginia, subsection A of 28.2-1205:

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

Marine and fisheries resources of the Commonwealth.

Tidal wetlands, except when this has or will be determined under the provision of Chapter 13 of Subtitle III the Code of Virginia.

Adjacent or nearby properties (close proximity to upland property, navigation, existing leases, existence of piers or other authorized structures within lease area, etc.).

Water quality.

Submerged aquatic vegetation (SAV) (VMRC has a SAV guidance policy concerning impacts associated with oyster ground leases).

Additional factors that can be considered by the Commission when considering whether to renew a lease to the extent allowed by law:

Use of the lease for husbandry, nursery, seed growing, or broodstock (detailed explanation and rationale for such use).

Whether the leaseholder, or its related entities or persons, is able to meet the significant production criteria, on average, across the entirety of its leases.

Wet storage (documentation required for such use, provide Health Department permit info if applicable).

Restoration efforts (permits, receipts or other documentation required).

Water quality improvement (verified water quality credits or other relevant documentation required).

Erosion control (permits, receipts or other documentation required).

Rotation with other leased areas (list other lease(s) in rotation scheme, time frame of rotation).

Shellfish aquaculture production activity that requires a permit, over or upon the lease (provide permit documentation). *Buffer of productive area within lease or an adjacent lease (provide lease info on area being buffered, rationale for buffer claim) (*VMRC may, in consultation with the leaseholder, require lease boundary reduction for renewal if buffer area deemed too large, for areas unsuitable for shellfish propagation, or approve those portions of the lease area where aquaculture activities are located).

Education (documentation of educational component required).

Eco-tourism directly related to shellfish production (provide proof of eco-tourism activity related to lease) An operational plan which may include use of multiple leases for seed propagation, nursery, multiple leases rotation, best management practices, buffers, or aquaculture (enclosures) husbandry activities (copy of actual plan required).

Use of the lease for recreational harvest commensurate with the size of the leased area.

Severe adverse catastrophic events and/or other localized environmental conditions causing mortality, or significant loss of production or production marketability.

Having a lease within a Health Department restricted waters classification area shall not be considered a valid reason for not attempting to propagate shellfish during the ten-year lease term.

Lease Denial Hearing Procedures:

If lease renewal, or partial lease renewal is denied at the staff level the leaseholder may request a hearing before the Commission. Any request for a formal hearing to appeal a lease renewal denied pursuant to Chapter 4 VAC20-1350-10 et. seq. must be received or postmarked no later than 60-days from the date that notice of the denial decision is received. Such a hearing shall be considered a formal hearing under the rules of the Code of Virginia Title 28.2 Fisheries and Habitat of the Tidal Waters, Subtitle II, Tidal Fisheries, Chapter 2, General Provisions, Article 3, Proceedings and Actions (28.2-216-28.2-217).

The Commission shall use this guidance document when considering any additional information provided by the leaseholder, after any lease denial, but prior to or at the hearing. Upon receipt of a request for a hearing, staff will request any such information from the leaseholder before any hearing is scheduled, and if received, will, based on any such information, provide a staff evaluation and revised recommendation to the Commission at the hearing. No hearing will be scheduled until the required $150 fee is paid.

A copy of this document shall be provided to all leaseholders, and placed on the Commission web site, as soon as practicable upon Commission approval. For leases with renewal due dates that occur after the adoption of these guidelines through February 27, 2029, a measured approach to such renewals shall take into account that records may not have been kept prior to February 27, 2019 related to the renewal criteria contained in these guidelines (other than as described in C. 1, for mandatory harvest reported, and C. 2, for seed, shell, cultch planting). All leases with a renewal date after February 27, 2029, shall be reviewed under the full requirements of these guidelines.

Effective date: April 1, 2021.

Commission approval date: March 23, 2021.

Guideline Document: Oyster Planting Grounds Lease Renewal, Denial, and Hearing Procedures.

Purpose:

These guidelines inform leaseholders and the public about VMRC policies on review, renewal, or denial of oyster planting grounds under Virginia Code § 28.2-613, guiding staff and appeals.

These guidelines are provided with VMRC Chapter 4VAC20-1350-10 and related regulations.

Virginia requirements in 28.2-613 and the public trust doctrine.

Leaseholders may appeal staff denial and request a hearing before the Commission per Virginia Code §§ 28.2-216, 28.2-217, and Chapter 4VAC20-1350-10.

Changes effective February 27, 2019, in 28.2-613 require the Commission to review oyster lease renewals after 10 years, with criteria for renewal, good cause, public interest, and fees up to $300.

Effective October 1, 2019, Chapter 4VAC20-1350-10 established lease renewal procedures, a $150 fee, and appeal and hearing timelines.

Virginia Code 28.2-613 sets conditions for lease renewal based on shellfish production, plantings, or aquaculture, and allows renewal with good cause for failure to produce or plant.

These guidelines specify renewal criteria for leaseholders during ten years and assist VMRC staff and the Commission in lease renewal reviews and denials.

This guidance covers lease production, plantings, other factors for renewal, and states that failure to submit the application or pay the $150 fee by lease end results in denial.

Virginia § 28.2-613 requires significant production, plantings, or aquaculture during any part of the 10-year lease; criteria are established to administer this.

Mandatory reporting data will determine harvest. Minimum for renewal: one bushel/acre/year or 400 clams/acre/year, with documentation. If no discrepancies and minimum met, renew. Leaseholders may cite “see mandatory reporting” if records are incomplete, and lease will renew if minimum is confirmed.

Dredge/scrape harvest meeting minimum (one bushel/acre/year) warrants renewal, but no records of seed/shell planting (minimum 100 bushels/acre/year or 1:1 seed to harvest) prevent renewal unless VMRC verifies adequate shellstock or cultch. This planting rule starts upon guideline adoption.

Discrepancies between lease renewal harvest reports and mandatory reporting data will be referred for reconciliation.

If harvest data fall short, efforts in shell, cultch, seed planting, or aquaculture will be considered. A total of one bushel/acre/year over ten years, including harvest, planting, or nursery use, is required for renewal. Deployment amounts must be reported.

Production, plantings, and effort per acre are evaluated over the entire ten-year lease, and can occur at any time within it.

If effort levels are not met, Virginia § 28.2-613 allows renewal if good cause exists, considering public interest and other factors in 28.2-1205.

Pursuant to Virginia Code § 28.2-613:

Renewal is permitted if the lease benefits adjacent oyster-planting grounds; documentation of this relationship is required.

Prevalence of MSX and Dermo diseases requires testing data documentation.

Public benefits of shellfish aquaculture include water quality, erosion control, food; impacts include navigation, structures, views, noise, smell, gear, SAV, conflicts.

Traditional production of oysters or clams requires documentation of quantities and dates.

Pursuant to Virginia Code § 28.2-1205(A):

Other permissible uses of state waters and bottomlands;

Marine and fisheries resources of the Commonwealth.

Tidal wetlands, unless determined under Chapter 13 of Subtitle III Virginia.

Adjacent or nearby properties, including upland proximity, navigation, leases, structures.

Water quality.

Submerged aquatic vegetation (SAV); VMRC has a guidance policy on impacts.

Additional legally permissible factors for lease renewal consideration:

Lease use for husbandry, nursery, seed, or broodstock (explanation required).

Leaseholder's ability to meet production criteria across all leases.

Wet storage use requires documentation and permit info if applicable.

Restoration efforts (permits, receipts or other documentation required).

Water quality improvement requires verified credits or documentation.

Erosion control (permits, receipts or other documentation required).

Rotation with other leases; list leases and rotation timeframe.

Permitted shellfish activities require documentation; buffers within or adjacent to leases may lead to boundary adjustments or approval based on suitability.

Education component requires documentation.

Eco-tourism related to shellfish production (provide proof) and an operational plan including multiple leases for seed propagation, nursery, rotation, BMPs, buffers, or aquaculture husbandry (copy required).

Use of the lease for recreational harvest proportional to lease size.

Severe catastrophic events or localized environmental conditions causing mortality or significant loss of production or marketability.

Lease within a Health Department restricted waters area is not a valid reason to avoid shellfish propagation during the ten-year lease.

Lease Denial Hearing Procedures:

If staff denies lease renewal or partial renewal, the leaseholder may request a hearing before the Commission within 60 days of notice, per Chapter 4VAC20-1350-10 and Virginia Code §§ 28.2-216 to 28.2-217.

The Commission will consider additional info from leaseholders after denial but before or at the hearing. Staff will request and evaluate such info, providing recommendations. No hearing until $150 fee paid.

This document will be provided to leaseholders and posted online after approval. Leases renewing after February 27, 2019, will be reviewed per these guidelines, with full review after February 27, 2029.

Effective date: April 1, 2021.

Commission approval date: March 23, 2021.

Coastal Sand Dunes and Beaches GuidelinesDoc ID: 4584

Original: 12,305 words

Condensed: 8,298 words

Reduction: 32.6%

Page 1 --- Coastal Primary Sand Dunes/ Beaches Guidelines Guidelines for the Permitting of Activities Which Encroach into Coastal Primary Sand Dunes/Beaches

_ VIRGINIA}

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RCE Issued by the Virginia Marine Resources Commission 2600 Washington Avenue Newport News, Virginia 23607 Developed Pursuant to Chapter 14 of Title 28.2, Code of Virginia.

These Guidelines were approved on August 26, 1980 and became effective September 26, 1980 Reprinted September 1993

Page 2 --- a —

rata This reprint was funded, in part, by the Virginia Council on the Environment's Coastal Resources Management Program through Grant #NA270Z0312-01 of the National Oceanic and Atmospheric Administration, Office of Ocean and Coastal Resources Management, under the Coastal Zone Management Act of 1972 as amended.

Printed on recycled paper &

Page 3 --- Coastal Primary Sand Dunes / Beaches Guidelines

Table of Contents Section I Introduction . 0... ee ee ee S Section II Description of Coastal Primary Sand Dunes and Their Values ............ 6 Section III Consequences of Altering Coastal Primary Sand Dunes ............... 8 Section IV Recommended Guidelines When Altering Coastal Primary Sand Dunes...... 11

Section V Considerations for Construction and Mitigation Activities

in the Areas of Coastal Primary Sand Dunes .................... 18 Section VI Beaches. ........ 2.000 pee ee ee ee ee ee ee 14 Section VII Barrier Island Policy and Supplemental Guidelines... .............. 15 Section VIII Coastal Dune Vegetation .. 2... 2. ee ee es 28 Sea Oats... ee ee ee ee BS American Beach Grass .. 2.0.00 ee ee ee ee ee OF Short Dune Grass, Running Beach Grass ..........-.-.-..52++.2.+. 29 Seaside Goldenrod ... 0.20... 00 2p eee ee ee ee ee eee Bl Dusty Miller. 2... ee 8B Dune Bean, Beach Bean ... 1... 2. ee ee ee 8H Seabeach Sandwort.. 1... ee ee ee ee ee BF Sea Rocket. 2 0. ee ee ee BY Beach Heather .........00 000 eee ee ee ee ee AL Saltmeadow Hay ........ 00 ee ee ee ee 48 Glossary 2.0 0 ee ee ee. 44 3

Page 4 --- Coastal Primary Sand Dunes / Beaches Guidelines a 4

Page 5 --- Coastal Primary Sand Dunes / Beaches Guidelines Section I Introduction During its 1980 session, the Virginia General Assembly took an important step in reducing the potential for the loss of lives and property as well as the expenditure of public assistance funds in coastal hazard areas by adopting the first State-supervised program in Virginia for control- ling development in coastal primary sand dunes. In adopting the legislation, the Common- wealth recognized the importance of coastal primary sand dunes as features which, in their natural state, serve as protective buffers to the effects of flooding and erosion caused by coastal storms; thereby, protecting life and property, and further recognized the value of these features to the replenishment of sand on beaches, their importance as habitat for coastal fauna and their role in the overall scenic and recreational attractiveness of Virginia's coastal environment.

At the same time, the General Assembly expressed its concern over the fact that activities which do not take into account the essentially dynamic nature of coastal dunes and which com- promise their special values may lead to increased shoreline erosion, coastal flooding damage to fixed structures and increased expenditure of public funds for disaster assistance and beach re- plenishment. Therefore, the General Assembly established the policy of preserving and protect- ing, whenever necessary and practical, coastal primary sand dunes in a manner which accommodates necessary economic development. Building upon the successful structure of the Virginia Wetlands Act, the General Assembly has chosen to offer selected localities having coastal primary sand dunes the opportunity to adopt a specified ordinance to control develop- ment in these dunes through local wetlands boards already in existence or created in order to carry out this Act. In order to simplify the task of these boards as well as the Marine Resources Commission, the legislators have wisely chosen to standardize procedures for the Wetlands and Dunes Statutes. Therefore, as with the Wetlands Statute, the Marine Resources Commission will review, on appeal, local permit decisions on dunes, and where the locality has not adopted the specified ordinance, administer the permit system itself.

In order to provide guidance to the public, and to local wetlands boards as well as to insure uni- formity of decision making criteria, the General Assembly directed the Marine Resources Com- mission, with the assistance of the Virginia Institute of Marine Science, to develop and publish guidelines. These guidelines were approved by the Commission August 26, 1980 following four public hearings which were held in conformance with the Administrative Processes Act. They are promulgated to supplement the policy and standards of the Coastal Primary Sand Dune Pro- tection Act with the hope that they will assist project proponents and decision-makers alike in shaping shorefront development in a manner that preserves and protects the values of coastal primary sand dunes articulated in the Act.

In 1989, the General Assembly modified the Coastal Primary Sand Dune Protection Act to bring “beaches” in certain counties, cities and towns fronting on Chesapeake Bay under the same regulatory process as that required of dunes. The intent is to regulate the use or develop- ment of sandy beaches and to prevent their alteration even if no coastal primary sand dune can be identified or where contiguity with a dune system or former dune system has been inter- rupted by a manmade structure such as a road, bulkhead or building. av 5

Page 6 --- Coastal Primary Sand Dunes / Beaches Guidelines Section II Description of Coastal Primary Sand Dunes and Their Values A. Dune Characterization. The Coastal Primary Sand Dune Protection Act defines a dune as a mound of unconsolidated sandy soil which is contiguous to mean high water, whose land- ward and lateral limits are marked by a change in grade from ten percent or greater to less than ten percent and upon any part of which is growing as of July one, nineteen hundred eighty, or grows thereon subsequent thereto, any one or more of ten plant species associated with dunes. Under this definition, chosen to recognize the dynamic nature of the system, coastal primary sand dunes include both the mound of sand comprising the dune zone as well as the foreshore comprising the beach zone. Together, these two zones form the coastal primary sand dune system which commences at mean high water and proceeds landward to the backside of the dunes where the slope drops below ten percent. (See Figure 1).

The primary dune system is a component of the active shore system as well as a transition zone between the intertidal area and secondary rows of dunes or fastland property. Coastal primary sand dunes represent an accumulation of sand, often supporting rooted vegetation, formed by the interaction of wind and wave action on the sandy material along the shore.

Sand moved on the beach during periods of relatively low wave energy is moved landward by the action of onshore winds. Vegetation along the dune line acts as a baffle, slowing wind speed and causing wind-borne sand to settle and be trapped in the vegetation resulting in the growth or accretion of the dune. The size and location of a primary dune are therefore de- termined by the amount of sand available and the ability of wind and waves to move the sand as well as the degree to which any existing vegetation can act to trap it. Thus, just as the intensity, direction and duration of winds and waves constantly change through the al + Coastal Primary Sand Dune —+ t~———— Dual Zone ———_o}e— ea ——>| ( one ¢ ep

[BENNY lateral 4 6 8 10 0 -2 -4 -2 limit slope limit ‘ \ for SN ; toy i poof mean high water i greater | |! | ros a less than 10% than 10% | i ( t Py ’ ‘ ‘ i ' trough dune dune dune dune backshore berm fore- bar backface crest face toe shore Figure 1. 6

Page 7 --- Coastal Primary Sand Dunes / Beaches Guidelines seasons, so, too, do coastal dunes remain in a state of flux. During high energy conditions, such as the northeast storms which frequent the Eastern Seaboard, primary dunes may be subject to attack by wind driven waves aided by storm surges, and the dune is eroded away, with the sand settling in an offshore bar. Thus, during normal weather conditions, dunes act as a reservoir of sand which can, through erosion, buffer inland areas from the effects of storm waves and in the process act as natural levees against the effects of coastal flooding.

B. Dune Values. In adopting legislation governing coastal primary sand dunes, the General

Assembly recognized that these features, “...in their natural state serve as protective barri-

ers from the effects of coastal flooding and erosion caused by coastal storms...provide an es-

sential source of natural sand replenishment for beaches and an important natural habitat for coastal fauna; and are important to the overall scenic and recreational attractiveness of

Virginia's coastal area.” Every primary sand dune provides some measure of each of these

four recognized benefits, depending upon the size, location and setting of the dune as well as

the quality and vigor of the vegetation.

Flood and Erosion Protection. Primary sand dunes provide a buffer against coastal flooding and erosion by virtue of both their location and composition. Primary dunes de- velop at an elevation above the normal reach of tidal waters. During storm surges, how- ever, the dune, as noted above, serves as a levee protecting the land behind from the force of waves and flood waters. The sand itself absorbs much of the wave energy as it is moved about by storm waves. Thus, the energy each wave expends eroding the dune is sub- sequently unavailable to act on fastland and structures behind the dune. The ability of the dune to provide this protection is obviously dependent on its height and breadth. The continuity of the dune line is also a major factor in the ability of the dune to provide pro- tection. Solitary dunes or dune lines which are subject to being breached or flanked can- not afford the protection provided by a continuous line of uniformly high dunes.

The composition of the dune, in terms of its sediments and vegetation, also affects its abil- ity to provide protection for coastal areas. As noted above, dune vegetation acts as a baffle to trap sand where the root system of the vegetation as well as dead vegetation bind the sediments together. Thus, the type and vigor of vegetation present on dunes help to deter- mine the degree to which the dune will absorb wave energy.

Sand Replenishment. Coastal primary sand dunes are basically onshore sand bars, or as noted above, reservoirs of sand. Sand is constantly being moved by wind and waves be- tween offshore sand bars, beaches, dunes and during storm events, even inland. Sand eroded from dunes during high energy conditions often finds its final resting place on beaches or offshore bars. These offshore bars then act as sources of sand for the beach dur- ing periods of lower energy when wave action tends to deposit material in the beach zone.

Thus after each storm, the sand originally eroded from the dune returns to the beach zone during the rebuilding process.

Habitat. Coastal primary sand dunes, in their natural state, serve as a habitat for a wide variety of plants. Dune vegetation is characterized by its ability to withstand extremes in the natural environment and by its inability to withstand man-made disturbances. The dune is a very rigorous environment for a plant. Each plant must be able to survive with

7

Page 8 --- Coastal Primary Sand Dunes / Beaches Guidelines very limited amounts of fresh water, tolerate constant salt spray and endure extreme vari- ations in temperature. That such vegetation hardy enough to survive all of these stresses should be so intolerant to any additional disturbance such as trampling by people and/or vehicles is explained by the fact that these plants are living close to their limit of toler- ance and even minor disturbances to root systems can cause such plants to die.

Vigorous vegetation both on the dune crest and the leeward side of the dune can provide attractive habitats for some shore-dwelling animals. The most visible inhabitants of dunes other than plants are various shore birds which utilize the area for roosts and nest- ing. Dunes also support a variety of insects and occasionally some small mammals and reptiles.

4, Aesthetics. Perhaps the most widely accepted but least quantifiable value of the coastal primary sand dune is the contribution it makes to the attractiveness of the coastal area.

Aesthetic evaluations are a personal prerogative and therefore difficult to utilize as the basis for management decisions. Nevertheless, the General Assembly has taken note of the contribution dunes make to the enhancement of the shore experience. It is therefore, appropriate for development adjacent to dune areas to be considerate of that contribution.

Section Il

Consequences of Altering Coastal Primary Sand Dunes

Simply stated, the consequences of altering coastal primary sand dunes are a loss of or diminu-

tion of the values discussed above. Unfortunately, there is very little information enabling quan-

titative assessments of the loss or degradation of these values from any proposed development in the dunes area. In the absence of such information decisions regarding such development must be based on experience and reasoned judgements with each decision being made on a case- by-case basis. It is, however, possible to rank the consequences of alteration in terms of the

scale of alteration:

A. Leveling dunes. The leveling of a dune is certainly the most extreme alteration of that fea- ture which can be undertaken. In such instances, the buffering capability provided by the natural levee of the dune and its source of sand are obliterated. This exposes adjacent and neighboring properties to substantially greater risk of flooding and causes a reduction in available sand for the adjacent beach zone as well as destabilization of the flanks of adjacent dunes.

B. Displacement of the dune. The natural position of a dune is the result of a balance of natural forces at any given time. Generally dunes are found in areas where they are at- tacked by waves only during storm events and then only after the backshore has been eroded by wave action. Displacement of a dune to a more seaward location exposes it to wave energy more often thereby accelerating erosion of the dune. Structures built on or be- hind the dune may then be exposed to wave action or inundated with sand as the dune mi- grates to a position in which it is again in equilibrium with wind and wave forces. Equally important, however, is the breach that such relocation causes in the dune line and the haz- ard such a breach poses for both the property located behind the relocated dune and adja-

8

Page 9 --- Coastal Primary Sand Dunes / Beaches Guidelines cent properties as well. Displacement of a dune to a more landward location for whatever reasons would create the same type of breaching problem as well as affording no buffering capability for any property located seaward of it. Such displacement also causes a loss of sand for natural beach replenishment.

C. Building on the beach backshore. Building on the beach backshore, seaward of the dune

can lead to adverse consequences in three ways:

During construction, the dune may be reduced in elevation for access to the building site.

Should a storm occur during this period, the dune may be breached with the impacts dis- cussed above.

After construction, the structure itself may interfere with wind patterns over the dune crest causing deflation or wind scouring.

Pedestrian traffic over the dune can cause the loss of vegetation anchoring the dune un- less a dune overwalk, following the natural contour of the dune, is provided.

D. Pedestrian and vehicular traffic across the dune. The principal consequence of cross dune traffic is that, after the vegetation has been killed, wind transport of sand can very quickly excavate a crossdune blowout resulting in a localized weakness.

E. Building on the crest or foreface of the dune. Building on the foreface of the dune is very likely to result in alteration of the dune contours during construction, sand removal from channelization of wind around the structure and an increase of pedestrian traffic over the dune. During construction, wind blown sand may become a nuisance to other nearby properties.

F. Building on the dune backface. Since the dune backface is the natural zone of deposition in the dune system, construction in this zone is less deleterious to the functions of the dunes so long as significant amounts of material are not excavated. The presence of the structure will modify the wind flow but to the extent the structure is in the lee of the dune this may be minimized.

The preceding comments are directed principally toward destructive alterations of coastal pri- mary sand dunes. It is possible to enhance dunes. Basically, these alterations are efforts to cre- ate more extensive, better stabilized dunes. Encouraging the natural development of a dune is not an exact science, but there is information available about the efficacy of a variety of meth- ods. Just as with the construction of any other structure, seeking advice from a professional is advisable. The benefits accrue in terms of lessening costs associated with coastal storms.

The consequences of altering existing natural] dunes are, in some respects, dependent on where

the dune is located. This is particularly true of the dune's role as a protection and beach replen-

ishment device. Within Virginia, coastal dunes are found in three broad geographic areas: the oceanside of the Eastern Shore, the Atlantic beaches south of the Bay entrance, and the shore- line of the Bay proper.

9

Page 10 --- Coastal Primary Sand Dunes / Beaches Guidelines Eastern Shore - Oceanside The oceanside of the Eastern Shore contains by far the largest complement of dunes in Virginia.

Accomack and Northampton Counties have a total of about 85.3 miles of coastal dunes associ- ated almost exclusively with the barrier islands. Barrier islands are among the most dynamic of coastal features.

As the Barrier Islands absorb the storm induced wave energy, they are frequently breached or overtopped and the sand is spread over the lee-side marshes. With the onset of normal! weather, the dunes rebuild. As the Barrier Islands erode, the entire ensemble, beach-dune-washover, also retreats. Thus, the complete beach morphology is preserved. For the most part, the dunes are of low elevation and susceptible to even moderate storm activity. Given the many inlets in the system, the dunes do not have a primary function of flood control. They do, however, help control the washover processes. Given the low-lying elevations, any development on the Barrier Islands may result in inordinately high private or public costs. (See Section VID).

Virginia Beach The second general area includes the Atlantic coast beaches south of the entrance to Chesapeake Bay. These beaches lie almost entirely within the City of Virginia Beach. The city contains about 38.5 miles of dunes. In contrast to the Barrier Island dunes, the Virginia Beach sand dunes include some under the most intense developmental pressure anywhere in Virginia.

Because of the tremendous development along the coastline, it is in this area that primary sand dunes have their greatest potential for protecting life and property. In order for the dunes to of- fer the maximum flood and erosion protection, they must be maintained as a relatively uniform, uninterrupted dune line. Each time a dune elevation is lowered or a portion of the dune line is completely removed, the protective capabilities of the dune are compromised not only at that site, but for adjacent areas as well.

The challenge is to accommodate the property owner's desire for access to the beach while re- taining the integrity of the dune system. Repeated experience has established that construction on the dune is undesirable. Even open-pile structures lead to changes in wind and sand deposi- tion patterns in the area. Frequently, this results in a local deflation of the dune. In the Vir- ginia Beach area, loss of the primary dune line integrity could have its most significant consequences in terms of loss of life and property.

A second consequence of modifying dunes in the Virginia Beach area is the loss of the natural sand replenishment dunes provide to beaches. In an area whose principal resources include an attractive beach, the value of a viable dune system can easily be appreciated. The costly and continuous efforts of artificial beach nourishment are a partial result of sand dunes having been previously destroyed.

Chesapeake Bay Shores There are scattered dune areas throughout much of the Virginia Bay shoreline. They can be found in: Norfolk, Hampton, Virginia Beach, Mathews County, Lancaster County, Northumber- land County, and Northampton and Accomack Counties on the Eastern Shore. The Chesapeake Bay shoreline in Virginia Beach, Norfolk's Ocean View section and some of Hampton's shoreline possess the same development pressures as the Atlantic shoreline of Virginia Beach. The conse- a 10

Page 11 --- Coastal Primary Sand Dunes / Beaches Guidelines quences of dune alteration are therefore identical in those areas. The other localities differ in the type and location of dunes generally found there. Typically, the dunes are part of a less ex- tensive beach system and frequently occur in areas with much less developmental pressure than the more urban settings. In these areas, loss of a dune’s protective capabilities can have consequences for both life and property similar to that in Virginia Beach, and can impact other natural resources as in the Barrier Islands.

Section IV

Recommended Guidelines When Altering Coastal Primary Sand Dunes In adopting the Coastal Primary Sand Dune Act, the General Assembly established the follow-

ing standards for construction on sand dunes: “No permanent alteration or construction upon any coastal primary sand dune shall take place

which would:

A. impair the natural functions of the dune as described by the Act

B. physically alter the contour of the dune

C. destroy vegetation growing on the dune Activities contrary to these standards will be permitted only if the wetlands board or Commis- sion finds that there will be no significant adverse ecological impact from the proposal, or that granting a permit for the proposal is clearly necessary and consistent with the public interest.” It is apparent from a reading of the policy and standards of the Act that the General Assembly did not intend a prohibition on all activity in the dunes area. Instead, the legislators sought a careful balancing of the public and private benefits and detriments of each proposal. Some pro- posed development in the dunes area can be accommodated by utilizing proper location and de- sign methods. Each proposal will likely be unique with respect to the necessity for the project and its probable effects on the beneficial value of dunes; therefore, criteria must be applied on a case-by-case basis. The objective of these criteria is to provide guidance which will direct devel- opment into an accommodation with the ecology of the coastal primary sand dune.

Guidelines A. Provided the beneficial attributes of coastal primary sand dunes as discussed above are not

significantly disturbed, alteration of dunes may be justified in order to:

Construct water access dependent facilities which must pass over the coastal primary

sand dune for such access.

Such construction as might be allowed in item 1 above must be constructed in a manner which will minimize alteration of the dune slope during and after construction. Encroachment on the backside of a primary dune should be limited to the minimum necessary. In addition to other re- 11

Page 12 --- Coastal Primary Sand Dunes / Beaches Guidelines

quirements that may apply for construction, only structures with open pile foundations should

be constructed.

Rationale: The requirement that any construction on the dune backside must utilize an open pile foundation design is based upon consideration of the dynamics of dune move- ment, the compatibility of housing within the dune system, and the need to protect life and property within the fastland fringing the beach zone.

During times of severe storms, the entire primary dune system may yield to excavation by elevated water levels accompanied by high waves. Structures on slab foundations or de- signs other than open piling may be expected to exhibit structural failure. Such slab foun- dations also generally require the excavation of the dune backface for placement and do not allow for the natural migration of the dune. During periods of normal weather and sea state, and during poststorm periods of natural dune rebuilding, the backside of the dune is a zone of sand deposition. Structures elevated on open piling foundations will be less susceptible to burial by encroachment and deposition.

Bridging the dunes to gain access for certain water dependent activities may be permitted when

those activities are deemed necessary. In such cases, elevated open piling foundations will mini-

mize disturbance of natural dune building processes.

It should be noted that a requirement for open pile foundations is consistent with existing re-

quirements of the National Flood Insurance Act.

B. Alteration of coastal primary sand dunes is ordinarily not justified:

For purposes of activities which can be accommodated without encroachment into the dune area.

Rationale: It is clearly the intent of the legislature to protect the primary sand dunes from unnecessary despoliation. Therefore, activities which have no inherent need to be im- mediately adjacent to the shore or for which there is sufficient room landward of the coastal primary sand dune may not require modification of the dune.

Where the construction is proposed on the dune crest or seaward of the dune crest.

Rationale: The beach backshore is the primary sand supply for the primary dune and the foreface and crest of the deposit are the most active transport zones in the dune sys- tem. Construction on the backshore, frontal face and crest is thus likely to disrupt the transport system. In particular, construction on the crest and/or frontal face will cause lo- cal deflation of the sand elevations causing local weaknesses in the integrity of the dune system.

Where the dune location must be modified in order to accommodate the proposed construc- tion activity.

Rationale: The natural location of the primary dune is the result of all beach processes.

The natural dune position is just beyond the reach of normal beach modulations. Reloca- 12

Page 13 --- Coastal Primary Sand Dunes / Beaches Guidelines tion of the dune by artificial means to a more seaward or landward location is likely to re- sult in a loss of the sand stored in the dune. This will reduce the integrity of the dune line and compromise the ability of the dune to protect against storm flooding and erosion.

4, Where alteration of the dune would likely result in damage to neighboring property own- ers.

Rationale: Construction within a primary coastal dune may lead to weaknesses in the protective attributes of the system. Under severe storm attack, the weakness may lead to failure causing that site to become the focus of wave overwash activity. The breach in the system can reasonably be expected to widen to neighboring properties and cause other- wise avoidable damage.

In addition, during the periods of dune regrowth, the new sand deposits may encroach upon the developed zone of the neighboring lots.

Section V Considerations for Construction and Mitigation Activities in the Area of Coastal Primary Sand Dunes Due to the constantly changing nature of dunes and the possible wind, wave and scour action they may be subjected to, the design, location selection, and construction of structures in dune areas should be done by qualified professionals. As a recommended minimum, all elements of beach front structures, including the foundation and non-structural fastenings and components, should be designed to withstand the wind and wave forces of a 100 year storm. The first habit- able floor of a building should be elevated on a piling foundation to a height above the crest of the 100 year design wave. Any construction in the space below the first floor should incorporate breakaway walls intended to collapse under stress without jeopardizing the structural support of the building. The piling foundation should safely transmit to the ground the full vertical and horizontal loads imposed on the superstructure by 100 year design storms. It should present as slender a profile as possible while being durable enough to resist storm loads, which may in- clude the impact of floating debris. Pilings should be spaced such that no one row of piles is sub- ject to significant wave forces at any one time and the spacing should provide for unhindered movement of water and debris between piles. Pilings should be of a circumference which mini- mizes induced concentration of wave force and consequent erosion and scour at the base, yet they should penetrate deeply enough (5 to 20 feet below mean sea level) and have sufficient strength to safely support the superstructure when the surrounding material is eroded down to the lowest predictable level. The foundation should be of a material which will resist deteriora- tion in a corrosive marine environment. Structures with large areas in contact with the ground, such as swimming pools, decks, and slab foundations, should be discouraged. The ground below the first habitable floor should not be paved or altered, however, shell or mari are suitable when used to stabilize driveways. Telephone and electric lines should be located underground in water proof conduits laid in protected areas not subject to erosion. Water and sewage facili- ties should also be located in protected areas not subject to erosion. 13

Page 14 --- Coastal Primary Sand Dunes / Beaches Guidelines

Vegetation is the most effective protection for the land against the sea in establishing and main-

taining a coastal position, and for that reason, during permitted construction, al] precautions

should be taken to retain as much natural vegetation as possible on the dunes and upper beaches. When walkways and platforms are located over a dune system, they should be ele- vated sufficiently to provide for the continued healthy growth of the vegetation below (3 feet minimum). Restoration of destroyed dunes can be accomplished by creating filis using slat or brush fencing or by moving upper beach sand by machine. Both procedures should be followed by long-term plantings of vegetation to replace that which was destroyed and to stabilize the dune. For the restoration of a long foredune, the fence should be aligned parallel to primary dunes in the vicinity and somewhat parallel to the drift line berm of the upper beach. The fence should be far enough back to allow the wind to move an adequate supply of sand against it, and placed so as not to bury existing vegetation. To build fills and help reform dune topography in smaller areas, fences should be built across the direction of prevailing winds. The newly created fill material should then be stabilized with plantings.

Section VI

Beaches

A. Definition. In the 1989 change to the Coastal Sand Dune Protection Act, the term beach is defined and added in place of reach. All references to reaches were dropped. Beach is de-

fined as:

The shoreline zone comprised of unconsolidated sandy material upon which there is a mu- tual interaction of the forces of erosion, sediment transport and deposition that extends from the low water line landward to where there is a marked change in either material composition or physiographic form such as a dune, bluff or marsh, or

where no such change can be identified, to the line of woody vegetation (usually the effec- tive limit of storm waves), or the nearest impermeable man-made structure, such as a bulkhead, revetment or paved road.

Beaches have therefore been added to the legislative declaration of policy as an area to preserve

and protect in the same fashion as Coastal Primary Sand Dunes.

B. Applicability. Under the foregoing definition, all coastal and bay beaches in Virginia would be included since they all are composed of unconsolidated sandy soil and experience the “... mutual interaction of erosion, sediment transport and deposition...”

Identifying the landward limit of a beach should present minimal problems. In most cases a

dune, bulkhead or other solid man-made structure will mark the upper limit of the beach.

Where none of these are found, the landward limit will be marked by woody vegetation such as

wild black cherry (Prunus serotina) Ehrhart, live oak (Quercus virginiana) Miller, red cedar

(Juniperus virginiana) L., wax myrtle (Myrica cerifera) L., loblolly pine (Pinus taeda) L., bay-

berry (Myrica pensylvanicum) Loisel, poison ivy (Rhus radicans) L., and highbush blueberry

(Vaccinium corymbosum) L.

Ce 14

Page 15 --- Coastal Primary Sand Dunes / Beaches Guidelines

In evaluating an application to use or develop property which meets the “beach” definition, Sec-

tions IV and V of these Guidelines contain information which can be utilized in arriving at the

appropriate decision.

C. Decision Process. The wetlands and dunes protection programs have been successful largely because of the conscientious adherence of local boards and VMRC to established pol- icy standards and guidelines. Similar careful adherence to a rule of reasonableness in admin- istering “beaches” will assure the development of a decision record which can successfully sustain an appeal should one result.

Section VII

Virginia Marine Resources Commission Barrier Island Policy

(Rev. October 25, 1990)

A. Introduction

Definitions. For the purpose of this regulation, the definitions contained within Section

28.2-1400 of the code of Virginia apply. In addition, the following words and terms when used in these regulations, shall have the following meaning unless the context clearly indi-

cates otherwise:

Barrier Islands - means elongated narrow landforms consisting largely of unconsoli- dated and shifting sand, fronted on one side by the ocean and on the other by a bay or marshland which separates them from the mainland.

Dune Crest - means the highest elevation of the coastal primary sand dune on the lot as determined in consultation with the Virginia Institute of Marine Science.

Local 100-year long-term recession rate - means calculating the average shoreline recession over fixed one-mile intervals averaged over the period between surveys of 100 years or more.

Background. Barrier islands are transient landforms. Their dynamic and unstable na- ture poses significant risk to life and property located there. Scientific evidence placed be- fore the Marine Resources Commission supports a finding that some of Virginia's barrier islands, including Cedar Island, are more fragile, more unstable, and pose even greater risk to life and property than many other coastal barriers due to their sand-deficient char- acter. In addition, barrier islands are themselves significant natural resources that con- tain a number of specific features (coastal primary sand dunes, wetlands, and vast stretches of state-owned sandy beaches) including natural heritage resources and threat- ened or endangered species that are recognized by the General Assembly for their natural value and are protected by law. This policy applies to the barrier island systems on the seaside of the Virginia portion of the southern Delmarva peninsula, and is not intended to cover military activities essential to national security, or the construction, operation, maintenance or rehabilitation of Coast Guard facilities or access thereto. This exclusion

15

Page 16 --- Coastal Primary Sand Dunes / Beaches Guidelines does not obviate compliance with other applicable provisions of the Coastal Primary Sand Dune Protection Act.

Survival of these barrier islands often depends on the ability of sand to wash across the is- land naturally in concert with the local wind and wave climate. The sand is then pro- tected from loss offshore and provides a means of perpetuating the island, albeit in a more landward location. Activities which adversely affect this interaction can have an ex- tremely detrimental impact on the island as well as the structure, form and function of its dune system. The artificial accumulation of sand along the oceanside of an island can make it more susceptible to loss offshore during a storm. Once such a loss occurs, the sand then becomes unavailable for washover and for the continued landward migration of the island. Houses, sand fences and similar structures can also alter wind patterns; this alteration impedes the wind transport of sand across the island. Accumulations adjacent to these impediments can be lost offshore as the shoreline continues to recede, leading to an increased rate of recession and a narrowing of the island. In addition, many of the Commonwealth's rarest species depend on the continuation of natural processes that cur- rently exist on barrier islands. Consequently, they are threatened by any interference with those processes. The implementation of the policies and guidelines set forth in this document will support a fuller achievement of the purposes of the Virginia Natural Area Preserves Act (Section 101.1-209 et. seq. of the Code of Virginia), the Virginia Endan- gered Species Act (Section 29.1-563 et. seq. of the Code of Virginia) and the Virginia En- dangered Plant and Insect Species Act (Section 3.1-1020 et. seq. of the Code of Virginia). | Two of the main natural features of barrier islands are natural dunes and washover ar- eas, both of which are included in the statutory definition of a coastal primary sand dune as a “mound of unconsolidated sandy soil which is contiguous to mean high water, whose landward and lateral limits are marked by a change in grade from ten percent or greater to less than ten percent, and upon any part of which is growing” certain designated plants as listed in Section 28.2-1400 of the Code of Virginia. Given the particular combination of risks to both natural values and life and property posed by development on barrier is- lands, the Commission finds it necessary and appropriate to establish a policy and supple- mental guidelines to assist landowners and decision makers alike in shaping barrier island uses in a manner that preserves and protects the values of Coastal Primary Sand Dunes as set forth by the General Assembly.

B. Permits Required

Applications for New Development a. No construction or any other activity which has the potential for encroaching on or otherwise damaging coastal primary sand dunes or state-owned beaches shall occur without review and approval by the Marine Resources Commission (Commission) or a local wetland board, or both. Consequently, a permit application must be submit-

ted for any such construction or other activity. Each application shall include: (1) A certified survey of the site which is representative of current conditions show-

ing: 16

Page 17 --- Coastal Primary Sand Dunes / Beaches Guidelines

(i) One-foot contours relative to local mean high water, commencing at that line and proceeding through the site to the first wetlands vegetation,

(ii) Specific location for all proposed structures including septic system and drainfields,

(iii) Size, configuration and design of access points,

(iv) Location of any other activity which may affect coastal primary sand dunes or State-owned shore, and

(v) A dune crest, determined in consultation with the Virginia Institute of Marine Science, which identifies the highest elevation of the coastal pri- mary sand dune on the lot.

(2) A copy of both a valid building permit and septic or other wastewater handling or disposal system permit.

b. All lot pins and proposed construction locations, drainfield sites and access points shall be staked and tied to suitable reference points.

c. In its review of the application, the Commission (or a local wetlands board) will de- termine the correctness of the dune crest and will establish a minimum setback nec- essary to prevent encroachment in or damage to the dune or interference with the natural processes of dune growth.

Loss of Structures and Applications for Redevelopment. When a structure is de- stroyed or damaged by natural events such that the structure is condemned by health offi- cials or local building officials, reconstruction in that location may not be authorized.

Submission of a new application and evaluation as if no structure were present will be re- quired. In the event a structure is damaged beyond repair and is no longer habitable, or damaged and not restored to a usable state within one year, the owner of record shall be responsible for the complete removal of all vestiges of the structure and materials result- ing therefrom, including the septic tank, distribution box and drainfields in their entirety, or as directed by the State or local Department of Health. The owner of the lot shall re- store the area to as natural a state as possible.

C. Supplemental Guidelines

Structures

a. No permanent structure, other than those already specifically allowed by law or pro- vided for in Section C.2.b below for purposes of permanent access, will be permitted seaward of the crest of the coastal primary sand dune. No permanent alteration of the coastal primary sand dune will be permitted, except in accordance with the standards set forth in the Coastal Primary Sand Dunes Act.

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Page 18 --- Coastal Primary Sand Dunes / Beaches Guidelines

b. Since it is well established that the coastal primary sand dunes and the islands themselves recede continually westward at a reasonably predictable rate, and that excessive vehicular and pedestrian use will increase the fragility of coastal primary sand dunes or impact upon significant natural resources, development must be lim- ited to no more than low density single family use on each platted parcel. Uses other than single family dwellings can clearly be characterized as “unnecessary and incon- sistent with the public interest considering all material factors.”

c. The density of structures and the percent of the shoreline frontage occupied by those structures are critical to minimizing the impact they have on sand migration across the island. Data concerning the development on barrier islands indicates that ad- verse impacts may be minimized when no more than 25% of the islands’ linear shore- line is occupied by structures. This factor shall be considered in evaluating the individual and cumulative impacts of each permit application. In considering permit

applications, the following guidelines shall be followed:

(1) There shall be adequate area within the lot that is neither sand dune (includ- ing beach and overwash areas) nor wetlands to accommodate the proposed dwelling and any appurtenant structures, including attendant sanitary facili- ties.

(2) Minimum frontage for a lot on the ocean capable of supporting a single-family vacation cottage shall be 100 feet.

(3) Minimum side yard requirements shall be 30 feet.

(4) The setback from the dune crest for all structures including septic systems shall be 20 times the local 100 year long-term annual shoreline recession rate.

The dune crest shall be defined as the location of the highest elevation of the coastal primary sand dune, beach or washover located on the lot.

(5) The maximum allowable square footage for the first floor of a single family dwelling on a 100 foot lot shall be 900 square feet and for a 200 foot lot, 1800 square feet, including porches, decks, and other appurtenances. Houses with first floors larger than these will not be considered necessary economic develop- ment. |

(6) The maximum height of a dwelling shall be 25 feet measured from the base of the first floor to the peak of the roof.

(7) All dwellings shall be constructed on elevated open pilings a minimum of ten feet above grade. No enclosures will be permitted below the first floor.

(8) An appropriate identification number shall be affixed to all septic tanks made of nonbiodegradable plastic materials to aid in their identification.

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Page 19 --- Coastal Primary Sand Dunes / Beaches Guidelines

(9) Exceptions to these requirements may be authorized in individual cases. No

such exception shall be authorized unless the Commission finds:

(i) That the strict application of the requirement would produce undue hard- ship, and

(ii) That the authorization of such exception will not result in significant det- riment to barrier islands, their natural resources, or adjacent property.

d. Evidence of cumulative environmental impacts of existing and proposed structures, as well as the secondary impacts resulting from their use, shall be considered in passing upon any application for a permit.

Access

a. No cuts through the dune will be permitted. Temporary vehicular access for pur- poses of construction will be permitted only by open-pile or “corduroy” ramps. Per- mits for temporary vehicular access will be limited as necessary to protect significant natural resources. At expiration of the authorized term all structures, ex- cept as noted in subdivision b below, must be removed and the dune restored to its pre-construction contours and revegetated. All plans for temporary construction ac- cess must be specified in the application for any construction permit.

b. Permanent vehicular access across the dune will be permitted only by “corduroy” or open-pile vehicular ramps which allow the natural process of dune growth and mi- gration to occur. An open-pile or “corduroy” ramp developed for purposes of construc- tion access may remain in place for permanent access if it meets the above criteria and is specifically approved. All plans for permanent access must be specified in the application for any construction permit.

c. Each dwelling will be limited to a maximum of one vehicle for access to and from the

island's landings. All vehicles shall be subject to the following conditions:

(1) Each vehicle shall have a no-cost annually renewable permit to travel on the beach. The owner shall attest at the time of renewal the vehicle's status and condition.

(2) The permit number for each vehicle shall be displayed in two foot high letters on the roof and sides of the vehicle.

(3) When a vehicle for a particular dwelling is no longer functional, it must be re- moved from the island. Evidence of its removal must be provided prior to the is- suance of a permit for a new vehicle.

(4) All driving will be limited to the intertidal zone and between there and ap- proved dune crossovers. Vehicular use of the beach at periods greater than four hours either side of low water shall be considered a violation of this section.

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Page 20 --- Coastal Primary Sand Dunes / Beaches Guidelines

(5) All bird nesting areas posted by the Virginia Department of Game and Inland Fisheries, U.S. Fish and Wildlife Service, or Department of Conservation and Recreation shall be off limits to all vehicles.

(6) No all terrain vehicles (ATVs) will be permitted on barrier islands.

(7) Evidence of vehicular use in areas other than those authorized shall be cause for revocation of the permit and a requirement that the vehicle be removed from the island.

Any person having his or her permit revoked shall be precluded from reapplica- tion for a one-year period.

Roads. No roads or trails will be permitted on or across any coastal primary sand dune or in any wetland.

Sand Movement. No artificial relocation of sand will be permitted.

Shore Hardening. Structures normally associated with or used for shoreline protection or erosion control, including but not limited to bulkheads, riprap, revetments, gabion bas- kets, sand bags, groins and jetties, or any other hardening of the shoreline will not be per- mitted under any circumstances.

Point Source Discharges. No point source discharge pipe, structures or other devices will be permitted.

| 7. Bond Requirement. A reasonable bond or letter of credit will be required prior to grant- ing any permit to assure restoration of any temporary alteration of the coastal primary sand dune including, but not limited to, regrading to the original elevation, resprigging with appropriate vegetation and removal of any and all construction debris.

Sand Fence. The use of sand fencing or other artificial barriers is discouraged because of its interference with the natural sand transport and migration on barrier islands.

Solid Waste. All solid waste generated on barrier islands must be removed and disposed of appropriately on the mainland.

10.Pets. In order to prevent unrestricted roaming which may result in the disturbance of, or depredation to wildlife, domestic pets must (a) be restrained or under the control of their owner at all times; (b) shall not be allowed off of the owner's property except under leash; and (c) shall not be abandoned on a barrier island.

11.Endangered Species. Encroachment upon the nesting sites of threatened and endan- gered species identified by the Virginia Department of Game and Inland Fisheries or De- partment of Conservation and Recreation is prohibited. Evidence of impact or potential impact on threatened and endangered species shall be considered in passing upon any ap- plication for a permit.

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Page 21 --- Coastal Primary Sand Dunes / Beaches Guidelines

12. Landscaping. The planting of exotic species or introduction of non-native fauna are im- permissible. Broadcast spraying of pesticides or herbicides are impermissible except when necessary to protect the public health or safety as decreed by the appropriate public health official.

D. Public Hearings

The public hearing required by § 6 of the model ordinance may be held in Newport News, Vir- ginia. Such hearing will not be scheduled until the Commission staff has determined that it is in receipt of a complete application.

E. Comments/Advisory Notes

Risks. While future events and their impacts on human activity cannot be forecast with any degree of precision, experience in other coastal areas suggest a proclivity to seek pub- lic assistance when catastrophic events occur or when services are needed beyond the abil- ity of private resources to provide. The Commission believes that any development on barrier islands should be undertaken only with the full acceptance by the owners of the risks involved.

a. No Public Protection of Private Property. Authorization of structures should in no way serve as justification for the future expenditure of public resources to protect such structures.

b. Services. Any services which may be provided by local government to promote pub- lic health, safety and general welfare must be installed, maintained and operated in a manner consistent with the policy, standards and guidelines of both the Wetlands and Dunes Protection Acts.

c. Relocation of Structures. Once local mean high water approaches a structure to within 10 times the average recession rate, a plan for its movement/relocation must be submitted for review. No movement or relocation will be permitted without the written permission of the Commission.

Interference With Natural Processes. The serious sand deficiency which currently ex- ists on Virginia's barrier islands is exacerbated by any artificial manipulation, including sand fences, which might render the supply more vulnerable to export offshore or inter- fere with the natural movement onshore in washover areas during storm events. Private property owners have even more at stake than the public-at-large in assuring that natu- ral processes are not interfered with to any discernible degree.

Value of Dune Preservation. Special emphasis is placed on the legislative declaration of public policy that coastal primary sand dunes “in their natural state serve as protective barriers from the effects of flooding and erosion caused by coastal storms, thereby protect- ing life and property.”

21

Page 22 --- Coastal Primary Sand Dunes / Beaches Guidelines

a. Accordingly, every reasonable precaution to avoid permanent alteration is expected to be exercised by all users in gaining temporary access to private property for con- struction or for continued access to authorized structures.

b. All construction, including septic systems, shall be set back from mean high water a distance at the site to assure reasonable survival duration. Setbacks from the dune crest were specified in Section C.1.c(4) of this policy.

Water Quality. While the Commission believes that properly functioning septic systems in the limited density anticipated will have no measurable effect, failing systems or greater numbers than now forecast could impact important public shellfish growing ar- eas. Therefore, staff will request at least biannually from the State Health Department an assessment of the cumulative impact and/or catastrophic failure of septic systems they have authorized.

F. Policy with Regard to Private Restrictive Agreements

In addition to the above guidelines and advisory comments and as an additional means to rea- sonably “preserve and protect coastal primary sand dunes and beaches and to prevent their de- spoliation and destruction,” and to help achieve the other purposes set forth by the General Assembly in the Coastal Primary Sand Dune Protection Act, the Commission endorses and looks favorably upon restrictive private covenants which “accommodate necessary economic de- velopment in a manner consistent with the protection of (coastal primary sand dunes).” For ex-

ample, the Commission encourages restrictive private covenants which:

Protect the “natural habitat for coastal fauna,” “wildlife habitat,” and “vegetation which stabilizes (Coastal Primary Sand Dunes).”

Prohibit special exemptions or attempts to obtain such exemptions from the application of controlling statutes.

Enhance the “scenic and recreational attractiveness of Virginia's coastal area,” protect the “important natural habitat for coastal fauna,” and protect the “vegetation which stabilizes such features.”

Require cooperation with the state and federal conservation agencies to protect the ecologically significant natural resources including granting permission to post critical bird nesting sites.

a 22

Page 23 --- Coastal Primary Sand Dunes / Beaches Guidelines Section VIIT Coastal Dune Vegetation The following dune plants commonly occupy coastal primary dunes and related habitats in Vir- ginia and adjacent states. These plants are important to the dune environment in that they re- duce the effects of the wind erosion and in some cases actually aid in dune development. They are an integral part of coastal dune habitat and play an important role in the ecological integ- rity of this system. Several dune species, such as American Beach Grass and Sea Oats are often planted for dune stabilization or dune creation projects. These two grasses have the capacity of not only surviving but stabilizing accreting sand. When buried by sand, these grasses produce fast growing vertical rhizomes (underground stems) that eventually produce a shock of leaves at the top of the dune. Therefore, if a sand supply is available, a dune can grow and become sta- bilized through the help of these grasses.

Most dune plants are necessarily very hardy. They must be able to withstand intense heat, re- flected light, saltspray, nearly sterile substrate, and strong winds. Many of these species have developed specialized morphological features that have helped them adapt to these adverse con- ditions. Despite these outstanding features, these plants are highly susceptible to trampling, off- road vehicles and the like.

The dune plants illustrated* and described* in this section are protected by the Coastal Pri- mary Sand Dune Protection Act, Virginia Code Chapter 14 of Title 28.2.

Reprinted with permission from the author and publisher of Plants of the Mid-Atlantic Coast: a field guide. G. M. Silberhorn. Illustrated by Mary Warinner. Johns Hopkins University Press, Baltimore, Md. 23

Page 24 --- Coastal Primary Sand Dunes / Beaches Guidelines Coastat Frimary oand Dunes! Deacnes TUL ES ‘. SF Bh ce fo 4 SRR, Se at ° ; SR Wl 2 / Yaa fi i ay ee: fs Bi a ee a 1 haf MO ee em ‘ a AY. ee Spe S & ni i “4 yj u i Si 4 24

Page 25 --- Coastal Primary Sand Dunes / Beaches Guidelines Sea Oats Uniola paniculata L.

This tall, stately grass is one of the most important primary dune plants on the Southeast Coast. Sea Oats ranges from Virginia to the Gulf Coast. It's robust seed head (a panicle of nu- merous wafer-like spikelets) is easily distinguished from Beach Grass which has a rather nar- row, dense spike of flowers.

In late summer or early fall the seed head turns a bronze-yellow color whereas the spike of Beach Grass matures to a dull gray. Both grasses are highly adaptive to accreting sand, salt spray, wind and dry conditions. They are very important natural resources in a dune field and should not be disturbed. a 25

Page 26 --- Coastal Primary Sand Dunes / Beaches Guidelines rr Lge & area ween i 4 BN % FH ep he k, Pe a ged # . 4 Boe FA i

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Page 27 --- Coastal Primary Sand Dunes / Beaches Guidelines American Beach Grass Ammophila breviligulata Fern.

This grass is the most common plant that grows on primary dunes from New England to North Carolina. It has a very dense narrow flowering spike which distinguishes it from other dune grasses. The spike is surrounded by a dense tuft of long, narrow and pointed leaves. Beach Grass has excellent sand binding capabilities and can tolerate, and even thrives to some degree, on being buried by shifting sand. Seedlings of Beach Grass are often planted in dune restora- tion projects. Only one other beach plant can withstand such conditions, and that is Sea Oats Uniola paniculata which has a more southern range.

27

Page 28 --- Coastal Primary Sand Dunes / Beaches Guidelines aoe ee ca ae E

cre :

Be 3 eye? Be Te Ee ‘ ae is % ey ae a ee ey Bo aos. = gt ge os eee pe es ee ay aed ae aa we ee mm Peta HER a vee Pee TE ee WER By ASL Pay va ae ae igge Be. ‘Z ‘ SRS - yo aS ng fo8 ee CS Me SPs FB. oF r ae a av TT EEE

Page 29 --- Short Dune Grass

Running Beach Grass

Panicum ararum EIl.

The grass is often found on dunes from the New England area to the Gulf Coast. Compared to

Ammophila and Uniola, the leaves of Short Dune Grass have blue green color that is quite dis-

tinguishing. The seed head is a rather sparse, narrow panicle of small ellipsoid seeds. Unlike

the other two species, this grass is not as highly adapted to accreting sand. Whereas the special-

ized growth system of Ammophila and Uniola can keep up with sand build up, Panicum will

eventually become buried by large amounts of shifting sands. Where there are optimal growing

conditions (reduced sand accretion and salt spray), this grass often forms relatively dense mats

of vegetation originating from underground rhizomes. a

29

Page 30 --- Coastal Primary Sand Dunes / Beaches Guidelines tr ee en

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Page 31 --- Coastal Primary Sand Dunes / Beaches Guidelines Seaside Goldenrod Solidago sempervirens L.

Seaside Goldenrod is one of the most striking plants in the coastal zone during late summer or early fall. This tall, leafy perennial produces a spray of bright yellow blooms that is typical of in- terior goldenrods. The leaves are dark green and fleshy and are produced in profusion along the entire length of the stem which may be as much as 6 feet long. It is typically found on the more stable part of the dune, on low secondary dunes or along the edges of salt marshes. ee 31

Page 32 --- Coastal Primary Sand Dunes / Beaches Guidelines TAY (Ne aac \ . a ee of aN " : ; § . \ eh Vay _ SS ager rr. i 2 32

Page 33 --- Coastal Primary Sand Dunes / Beaches Guidelines Dusty Miller Artemisia stelleriana Besser.

Dusty Miller is an introduced plant that over the years has invaded and adapted well to coastal dunes from Quebec to Virginia. It is commonly used as a border plant because of its unusual and attractive foliage. The lobed leaves have dense whitish hairs on both sides that gives the fo- liage a velvety appearance. As are many dune species, this plant is a perennial and spreads by creeping underground stems called rhizomes. Although the foliage is mostly low or creeping in posture, the plant produces a flowering stem at the peak of the growing season that may be over two feet tall. This reproductive stem may have a large number of flower heads. Each head bears many tiny, nearly inconspicuous flowers. This characteristic is typical of the composite or Aster family to which this plant belongs.

33

Page 34 --- Coastal Primary Sand Dunes / Beaches Guidelines aa rn ee Bt Cr Oke Zane thes or a SRR? Wap oy 2 SE eee RR aa BG Rs ee eR eee or OE Rae ea a Sa ae ABR os ag RR gel i eae Ge eee , Re a ROMP ree aan, gee, one eet, PO ae ree pork 3 ae RE paaere™ id eo dene a pp age * ee ao y aS Bik ee. fs ee pga ieee ts fe A ERE oe ae 1% ee ee ebagettleem ini EK PS ae see ee at ae _ , eh Se © te foe ES 4, ae ar cee: Bae ie Pa, ae Seb ot sileabecne a Pc teas oe oie Fe? hee i. {eee ro tee: ane es Fs a4 ee cs ee ae ae Stake 5 Bees ‘g we oe ie, fee Pes <r es oe eee to eee ag RRE OT aes et ae Bn 0 Lo ugee we rf goo Mee SS ew _ i, | @eAvoeae ey F ‘ ‘ on 2 hows ‘ A, 53 an ae ee & PE Po ag Megs Nig a vs pe Be ce i

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Page 35 --- Coastal Primary Sand Dunes / Beaches Guidelines Dune Bean Beach Bean Strophyostyles helvola (L.) Ell.

Dune Bean is an annual, trailing and twining vine which occupies various habitats in the dune/beach system. It has a characteristic bean or legume flower which is usually rose or pur- plish when mature. It also produces a typical “bean pod.” The leaves are divided into three sepa- rate leaflets. The combination of these three features (flower, pod and leaf) will distinguish this vine from many other plants that live in the beach/dune habitat. This plant is not strictly a dune species but can also be found in maritime forests, and other interior, open woodland habi- tats.

35

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. oo. re oe Nuege ee 2 NL Wf yee \ . £ Seg Ww ge ea? KG! q : Wy Oo ett ey Be e Ff Ah REE. a 9 Y cr nn ae Be FP oo % 2 ae BES é ee ee ae ee Oy Fo OY a a € x BE oe e ¢ 4 Pd ise ae wf an ae i 5 ¥.

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Page 37 --- Coastal Primary Sand Dunes / Beaches Guidelines Seabeach Sandwort Arenaria lanuginosa (Michaux) Rohrback This small plant is usually found on the margin of swales between or behind the primary dunes. Sandwort appears to be too delicate for the rigorous coastal environment and in fact, the plants appear to be more vigorous where they are somewhat protected from salt spray, exces- sive sand accretion and wind. The leaves are small and narrow and the flowers not very con- spicuous. It is found only sparingly in Virginia as this area is the northern extent of its range which continues as far south as South America. | a 37

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Page 39 --- staal Primary Sand Dunes / Beaches Guidelines Sea Rocket Cakile edentulata (Bigelow) Hooker Sea Rocket usually occupies the zone between the toe of the primary dune and wrack line on the beach. Cakile is a succulent plant with fleshy stems and leaves. The small flowers are usu- ally lavender or light blue or occasionally white. Thick, fleshy fruits develop late in the growing season. Although Sea Rocket does not have the sand binding qualities of the beach grasses, it is indicative of this dynamic zone between dune and mean high water.

39

Page 40 --- Coastal Primary Sand Dunes / Beaches Guidelines eee aT i ee oe é- eo ae 7 ae eo oe. oe a = 2) Eg cot ae a rn ee ee Ce a ee ae a gl egg an oe % pe se 7 ee nn a a Pe ye BS oe “ye d. ae FRE cae co OB Ae ee Me Dg Bee Be Bl.
y we TRS Boos * Paar eS Pate Bee edo Ad, Fad e & + Pad os “oe aan Poors £ es woh BS te < cage - oe . nes # LF on ee ee ee 2 oF ee ear ge So og pe 8 nus - SR ge ve a % S ee ee e Be OB gp yO Pan ee i oo > we “ Boe ee Le bod a ee “eS © ge ees be 4

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Page 41 --- Coastal Primary Sand Dunes / Beaches Guidelines Beach Heather Hudsonia tometosa Nuttall Beach Heather is a low, spreading shrubby plant that rarely grows over a foot tall. The leaves are scale-like, somewhat resembling those of a cedar tree and are covered with very short, dense hairs. The whitish hairs give these little shrubs a “mildewy” appearance. At the peak of the growing season, tiny yellow flowers are evident. Beach Heather generally grows on some- what moist, compacted sand which is typical around the edge of swales between dunes. Hud- sonia tometosa is more common in the New England area but ranges as far south as North Carolina where it is found infrequently. | eS 41

Page 42 --- Coastal Primary Sand Dunes / Beaches Guidelines eee ne ra e ¥ woke iB £ f oa fey, if F AY Fi 4 — e 4 \ £ ee P “

: $ £ :

a ay : 4 s a % 3 £ % & # % 8 2 eR # of re ee oe ae % F IN ne EPEC regis fh sere _ dale Oo el ee Ed op ERE La, AMR ce s ¢ * geaeet hs OEE OS ales aay 2 ‘4 +4 aa ee Te

Page 43 --- Coastal Primary Sand Dunes / Beaches Guidelines Saltmeadow Hay Spartina patens (Aiton) Muhl.

Saltmeadow Hay is short (seldom over knee high) wirey grass that grows in dense clumps on the backside (landward) of primary dunes. It is also found, sometimes profusely, on lower secon- dary dunes, swales and higher portions of a saltmarsh where it often forms dense meadows.

Compared to Beach Grass and Sea Oats, it has a relatively sparse, branching seed head. Its leaves are long, very narrow and are often rolled inward (somewhat trough-like) so that they ap- pear to be round. This mechanism helps reduce water loss (excessive transpiration) in the plant. Most dune plants have adaptive characteristics that help them withstand the rigorous en- vironment of the coastal ecosystem.

43

Page 44 --- Glossary

ACCRETION - growth by accumulation of new material.

BARRIER ISLAND - a low island which, usually in conjunction with other islands, shelters an open area of water or marsh between itself and the mainland.

BACKSHORE - an area in the beach zone between mean high water and the toe of the dune sys- tem.

BERM - that part of the beach at the upper limit of the wave wash formed by the deposit of ma- terial by wave action.

COASTAL PRIMARY SAND DUNE - mound of unconsolidated sandy soil which is contiguous to mean high water, whose landward and lateral limits are marked by a change in grade from ten per centum or greater to less than ten per centum, and upon any part of which is growing as of July one, nineteen hundred eighty, or grows thereon subsequent thereto, any one or more of the following: American beach grass (Ammophilla breviligulata), beach heather (Hudsonia tometosa); dune bean (Strophostylis umbellata var, paludigena); dusty miller (Artemisia stelleriana); saltmeadow hay (Spartina patens); seabeach sandwort (Arenaria peploides), sea oats (Uniola paniculata); sea rocket (Cakile edentula); seaside goldenrod (Solidago sempervirens); and short dune grass (Panicum ararum). For purposes of this chapter, “Coastal Primary Sand Dune” shall! not include any mound of sand, sandy soil or dredge spoil which has been deposited by man for the purpose of the temporary stor-

: age of such material for later use.

CONTIGUOUS - bordering or adjoining, next to.

DEFLATION - the removal of loose material from a beach or dune by wind action.

DUNE BACKFACE - the zone from the crest of the dune to the point at which the dune grade drops below ten percent.

DUNE CREST - a line connecting the highest points of a dune along its long axis.

DUNE LINE - the line established by several dunes positioned next to one another.

DUNE TOE - a zone on the seaward face of the dune marked by a significant change in grade.

FASTLAND - the comparatively stable upland area adjacent to the shoreline.

FORESHORE - that part of the shore lying between the upper limit of wave wash at high tide and the ordinary low water mark.

GRADE - as used in the Sand Dune Act, the term refers to the rate of change in elevation pro- gressing across a dune; grade is determined by dividing the absolute increase or decrease in the vertical distance occurring over any measured horizontal distance as long as both measures are in the same units.

LANDWARD LIMIT - in the Act, the onshore boundary of the dune.

a 44

Page 45 --- Coastal Primary Sand Dunes / Beaches Guidelines LATERAL LIMIT - in the Act, the ends of the dune usually found lying perpendicular to the shoreline or the dune boundaries normal to the long axis of the dune.

MEAN HIGH WATER - the average height of high waters over the previous nineteen year pe- riod.

MORPHOLOGY - the form and structure of a dune or dune vegetation.

OFFSHORE BAR - one (or more) sand bar(s) running roughly parallel to the shoreline.

ONE HUNDRED YEAR STORM - that storm event which, on the average, may be expected to occur once in one hundred years.

OPEN PILE FOUNDATION - a foundation composed entirely of large poles driven into the ground which support a structure above ground level.

STORM SURGE - the additional depth of water above mean high water which accompanies coastal storms.

TRANSITION ZONE - that area in which physical and/or biological features characteristic of two adjacent areas (e.g., beach and uplands) can both be found.

UNCONSOLIDATED - in the Sand Dune Act, sediments which do not bind together.

WASHOVER DEPOSIT - the material deposited by the passing of water over the beach onto the fastland. 45

Page 1 --- Coastal Primary Sand Dunes/Beaches Guidelines for Permitting Activities Encroaching into Coastal Primary Sand Dunes/Beaches

_ VIRGINIA}

1 = ai » W BS

CEI S ‘Or, oy

RCE issued by Virginia Marine Resources Commission 2600 Washington Ave., Newport News, VA 23607, under Chapter 14 of Title 28.2, Code of Virginia.

Guidelines approved August 26, 1980, effective September 26, 1980; reprinted September 1993.

Page 2 --- a —

rata This reprint was funded, in part, by the Virginia Council on the Environment's Coastal Resources Management Program through Grant #NA270Z0312-01 of the National Oceanic and Atmospheric Administration, Office of Ocean and Coastal Resources Management, under the Coastal Zone Management Act of 1972 as amended.

Printed on recycled paper &

Page 3 --- Coastal Primary Sand Dunes/Beaches Guidelines

Table of Contents Section I Introduction . 0... ee ee ee S Section II Description of Coastal Primary Sand Dunes and Their Values ............ 6 Section III Consequences of Altering Coastal Primary Sand Dunes ............... 8 Section IV Recommended Guidelines When Altering Coastal Primary Sand Dunes...... 11

Section V: Construction and Mitigation Considerations

in the Areas of Coastal Primary Sand Dunes .................... 18 Section VI Beaches. ........ 2.000 pee ee ee ee ee ee ee 14 Section VII Barrier Island Policy and Supplemental Guidelines... .............. 15 Section VIII Coastal Dune Vegetation .. 2... 2. ee ee es 28 Sea Oats... ee ee ee ee BS American Beach Grass .. 2.0.00 ee ee ee ee ee OF Short Dune Grass, Running Beach Grass ..........-.-.-..52++.2.+. 29 Seaside Goldenrod ... 0.20... 00 2p eee ee ee ee ee eee Bl Dusty Miller. 2... ee 8B Dune Bean, Beach Bean ... 1... 2. ee ee ee 8H Seabeach Sandwort.. 1... ee ee ee ee ee BF Sea Rocket. 2 0. ee ee ee BY Beach Heather .........00 000 eee ee ee ee ee AL Saltmeadow Hay ........ 00 ee ee ee ee 48 Glossary 2.0 0 ee ee ee. 44 3

Page 4 --- Coastal Primary Sand Dunes/Beaches Guidelines

Page 5 --- Coastal Primary Sand Dunes / Beaches Guidelines Section I Introduction During its 1980 session, the Virginia General Assembly took an important step in reducing the potential for the loss of lives and property as well as the expenditure of public assistance funds in coastal hazard areas by adopting the first State-supervised program in Virginia for control- ling development in coastal primary sand dunes. In adopting the legislation, the Common- wealth recognized the importance of coastal primary sand dunes as features which, in their natural state, serve as protective buffers to the effects of flooding and erosion caused by coastal storms; thereby, protecting life and property, and further recognized the value of these features to the replenishment of sand on beaches, their importance as habitat for coastal fauna and their role in the overall scenic and recreational attractiveness of Virginia's coastal environment.

The General Assembly expressed concern that activities ignoring the dynamic nature of coastal dunes may cause erosion, flooding, damage, and increased public costs. It established policies to preserve and protect dunes, allowing localities to adopt ordinances via wetlands boards. The Marine Resources Commission will review permit appeals and administer permits where no ordinance exists, standardizing procedures under the Wetlands and Dunes Statutes.

The General Assembly directed the Marine Resources Commission, with Virginia Institute of Marine Science, to develop guidelines to ensure consistent decision-making. Approved August 26, 1980, after four public hearings, these guidelines supplement the Coastal Primary Sand Dune Protection Act to aid project proponents and decision-makers in preserving dune values.

In 1989, the Act was amended to regulate beaches in certain Chesapeake Bay counties, cities, and towns, preventing alteration even without dunes or where structures interrupt dune continuity.

Page 6 --- Section II: Dunes are defined as unconsolidated sandy mounds contiguous to mean high water, marked by a grade change from ≥10% to <10%, with at least one of ten dune-associated plant species, including both the dune and beach zones from mean high water landward to where slope drops below 10%.

The primary dune system is part of the active shore, acting as a transition between intertidal zones and secondary dunes or fastland, formed by wind and wave action supporting vegetation.

Sand moved on the beach during periods of relatively low wave energy is moved landward by the action of onshore winds. Vegetation along the dune line acts as a baffle, slowing wind speed and causing wind-borne sand to settle and be trapped in the vegetation resulting in the growth or accretion of the dune. The size and location of a primary dune are therefore de- termined by the amount of sand available and the ability of wind and waves to move the sand as well as the degree to which any existing vegetation can act to trap it. Thus, just as the intensity, direction and duration of winds and waves constantly change through the al + Coastal Primary Sand Dune —+ t~———— Dual Zone ———_o}e— ea ——>| ( one ¢ ep

[BENNY lateral 4 6 8 10 0 -2 -4 -2 limit slope limit ‘ \ for SN ; toy i poof mean high water i greater | |! | ros a less than 10% than 10% | i ( t Py ’ ‘ ‘ i ' trough dune dune dune dune backshore berm fore- bar backface crest face toe shore Figure 1. 6

Page 7 --- Dunes are dynamic; during storms, they erode with sand settling offshore, but normally serve as sand reservoirs and natural levees buffering inland areas from storm waves and flooding.

B. Dune Values. In adopting legislation governing coastal primary sand dunes, the General

Assembly recognized that these features, “...in their natural state serve as protective barri-

serve as barriers against coastal flooding and erosion from storms...

provide natural sand replenishment, habitat for coastal fauna, and enhance scenic and recreational value of

Virginia's coastal area.” Every primary sand dune provides some measure of each of these

benefits vary with dune size, location, setting, and vegetation quality.

the quality and vigor of the vegetation.

Flood and Erosion Protection. Primary sand dunes provide a buffer against coastal flooding and erosion by virtue of both their location and composition. Primary dunes de- velop at an elevation above the normal reach of tidal waters. During storm surges, how- ever, the dune, as noted above, serves as a levee protecting the land behind from the force of waves and flood waters. The sand itself absorbs much of the wave energy as it is moved about by storm waves. Thus, the energy each wave expends eroding the dune is sub- sequently unavailable to act on fastland and structures behind the dune. The ability of the dune to provide this protection is obviously dependent on its height and breadth. The continuity of the dune line is also a major factor in the ability of the dune to provide pro- tection. Solitary dunes or dune lines which are subject to being breached or flanked can- not afford the protection provided by a continuous line of uniformly high dunes.

The composition of the dune, in terms of its sediments and vegetation, also affects its abil- ity to provide protection for coastal areas. As noted above, dune vegetation acts as a baffle to trap sand where the root system of the vegetation as well as dead vegetation bind the sediments together. Thus, the type and vigor of vegetation present on dunes help to deter- mine the degree to which the dune will absorb wave energy.

Sand Replenishment. Coastal primary sand dunes are basically onshore sand bars, or as noted above, reservoirs of sand. Sand is constantly being moved by wind and waves be- tween offshore sand bars, beaches, dunes and during storm events, even inland. Sand eroded from dunes during high energy conditions often finds its final resting place on beaches or offshore bars. These offshore bars then act as sources of sand for the beach dur- ing periods of lower energy when wave action tends to deposit material in the beach zone.

After storms, eroded sand returns to the beach during dune rebuilding.

Habitat. Coastal primary sand dunes, in their natural state, serve as a habitat for a wide variety of plants. Dune vegetation is characterized by its ability to withstand extremes in the natural environment and by its inability to withstand man-made disturbances. The dune is a very rigorous environment for a plant. Each plant must be able to survive with

7

Page 8 --- Coastal Primary Sand Dunes / Beaches Guidelines very limited amounts of fresh water, tolerate constant salt spray and endure extreme vari- ations in temperature. That such vegetation hardy enough to survive all of these stresses should be so intolerant to any additional disturbance such as trampling by people and/or vehicles is explained by the fact that these plants are living close to their limit of toler- ance and even minor disturbances to root systems can cause such plants to die.

Vigorous vegetation on dunes provides habitats for shore animals, including birds, insects, and small mammals and reptiles.

4. Aesthetics. Dunes significantly enhance the attractiveness of coastal areas, though this value is subjective.

Aesthetic value is subjective, but the General Assembly recognizes dunes' contribution to the shore experience, advising development consideration nearby.

Section Il

Consequences of Altering Coastal Primary Sand Dunes

Simply stated, the consequences of altering coastal primary sand dunes are a loss of or diminu-

Lack of data limits quantitative assessment of dune value loss from development.

Without data, decisions on dune development rely on experience and case-by-case judgment; consequences of alteration can be ranked.

scale of alteration:

A. Leveling dunes is the most extreme alteration, destroying natural buffers, increasing flood risk, reducing sand supply, and destabilizing nearby dunes.

B. Displacing a dune seaward exposes it to more wave energy, accelerates erosion, and risks breaches that threaten property behind and adjacent to the dune.

8

Page 9 --- Coastal Primary Sand Dunes / Beaches Guidelines cent properties as well. Displacement of a dune to a more landward location for whatever reasons would create the same type of breaching problem as well as affording no buffering capability for any property located seaward of it. Such displacement also causes a loss of sand for natural beach replenishment.

C. Building on the backshore seaward of the dune

can lead to adverse consequences in three ways:

Construction may lower dune elevation for site access.

Storms may breach the dune, causing impacts discussed earlier.

Post-construction, structures may disrupt wind over dunes, causing deflation or wind scouring.

Pedestrian traffic can erode vegetation unless a dune overwalk following natural contours is provided.

D. Cross-dune traffic kills vegetation, enabling wind to create blowouts and weaken the dune locally.

E. Building on the dune crest likely alters contours, removes sand, increases pedestrian traffic, and causes wind-blown sand nuisances.

F. Building on the dune backface is less harmful if minimal excavation occurs; wind flow effects can be minimized if structures are lee of the dune.

The preceding comments are directed principally toward destructive alterations of coastal pri- mary sand dunes. It is possible to enhance dunes. Basically, these alterations are efforts to cre- ate more extensive, better stabilized dunes. Encouraging the natural development of a dune is not an exact science, but there is information available about the efficacy of a variety of meth- ods. Just as with the construction of any other structure, seeking advice from a professional is advisable. The benefits accrue in terms of lessening costs associated with coastal storms.

Alteration consequences depend on dune location.

the dune is located. This is particularly true of the dune's role as a protection and beach replen-

Virginia's coastal dunes are in three areas: Eastern Shore oceanside, Atlantic beaches south of Bay, and Bay shoreline.

9

Page 10 --- Eastern Shore Oceanside has Virginia's largest dune system.

Accomack and Northampton Counties have a total of about 85.3 miles of coastal dunes associ- ated almost exclusively with the barrier islands. Barrier islands are among the most dynamic of coastal features.

Barrier islands absorb storms, breach, and rebuild; erosion causes retreat; dunes are low, not primary flood control, but influence washover; development costs are high.

Virginia Beach's Atlantic coast beaches south of Chesapeake Bay have ~38.5 miles of dunes under intense development pressure.

Development heightens dunes' protective role; maintaining a continuous dune line is vital; lowering or removing dunes weakens protection locally and nearby.

The challenge is to accommodate the property owner's desire for access to the beach while re- taining the integrity of the dune system. Repeated experience has established that construction on the dune is undesirable. Even open-pile structures lead to changes in wind and sand deposi- tion patterns in the area. Frequently, this results in a local deflation of the dune. In the Vir- ginia Beach area, loss of the primary dune line integrity could have its most significant consequences in terms of loss of life and property.

Modifying dunes reduces natural sand replenishment, increasing reliance on costly artificial nourishment; dunes are vital for beach health.

Chesapeake Bay Shores There are scattered dune areas throughout much of the Virginia Bay shoreline. They can be found in: Norfolk, Hampton, Virginia Beach, Mathews County, Lancaster County, Northumber- land County, and Northampton and Accomack Counties on the Eastern Shore. The Chesapeake Bay shoreline in Virginia Beach, Norfolk's Ocean View section and some of Hampton's shoreline possess the same development pressures as the Atlantic shoreline of Virginia Beach. The conse- a 10

Page 11 --- Dune alteration impacts are similar across areas; less urban dunes also protect life, property, and natural resources like Barrier Islands, despite differing types and locations.

Section IV

Guidelines for altering coastal primary sand dunes are established by the Coastal Primary Sand Dune Act.

Standards prohibit permanent alteration or construction on coastal primary sand dunes:

which would:

A. impair the dune's natural functions as defined by the Act

B. physically change the dune's contour

C. Destroying dune vegetation is restricted; permits require no significant ecological impact or public interest; activity is balanced case-by-case to protect dune ecology.

Guidelines aim to preserve dune benefits while allowing some activity.

significantly disturbed, dune alteration may be justified to:

Construct water-dependent facilities crossing coastal primary dunes.

sand dune for such access.

Construction must minimize dune slope alteration; encroachment on the primary dune's backside should be minimal. In addition to other re- 11

Page 12 --- Coastal Primary Sand Dunes/Beaches Guidelines

only structures with open pile foundations should

be constructed.

Construction on the dune backside must use open pile foundations, considering dune dynamics, housing compatibility, and protecting life and property in the beach zone.

Severe storms can cause the dune system to erode; structures on slab foundations may fail and hinder dune migration. Open piling foundations reduce burial risk during normal and post-storm rebuilding.

Bridging dunes for water-dependent activities may be permitted when

those activities are deemed necessary. In such cases, elevated open piling foundations will mini-

mize disturbance of natural dune building processes.

Requirement for open pile foundations aligns with existing re-

quirements of the National Flood Insurance Act.

B. Alteration of coastal primary sand dunes is ordinarily not justified:

Activities that do not encroach into dune areas.

Legislature aims to protect primary sand dunes from unnecessary damage; activities not needing immediate shore proximity or landward space may not modify dunes.

Proposed construction on or seaward of the dune crest.

The backshore supplies sand to the dune; construction on the backshore, crest, or frontal face disrupts sand transport and weakens dune integrity.

Dune location must be modified to accommodate construction.

Primary dune location results from all beach processes.

The natural dune is just beyond normal beach modulations. Reloca- 12

Artificial relocation of dunes seaward or landward likely causes sand loss, reducing dune integrity and its storm protection function.

4, Where alteration of the dune could damage neighboring properties.

Building in primary dunes can weaken protection; storm failure may cause breaches, wave overwash, and damage to neighboring properties.

During dune regrowth, new sand may encroach on neighboring lots.

Section V Considerations for Construction and Mitigation Activities in the Area of Coastal Primary Sand Dunes Due to the constantly changing nature of dunes and the possible wind, wave and scour action they may be subjected to, the design, location selection, and construction of structures in dune areas should be done by qualified professionals. As a recommended minimum, all elements of beach front structures, including the foundation and non-structural fastenings and components, should be designed to withstand the wind and wave forces of a 100 year storm. The first habit- able floor of a building should be elevated on a piling foundation to a height above the crest of the 100 year design wave. Any construction in the space below the first floor should incorporate breakaway walls intended to collapse under stress without jeopardizing the structural support of the building. The piling foundation should safely transmit to the ground the full vertical and horizontal loads imposed on the superstructure by 100 year design storms. It should present as slender a profile as possible while being durable enough to resist storm loads, which may in- clude the impact of floating debris. Pilings should be spaced such that no one row of piles is sub- ject to significant wave forces at any one time and the spacing should provide for unhindered movement of water and debris between piles. Pilings should be of a circumference which mini- mizes induced concentration of wave force and consequent erosion and scour at the base, yet they should penetrate deeply enough (5 to 20 feet below mean sea level) and have sufficient strength to safely support the superstructure when the surrounding material is eroded down to the lowest predictable level. The foundation should be of a material which will resist deteriora- tion in a corrosive marine environment. Structures with large areas in contact with the ground, such as swimming pools, decks, and slab foundations, should be discouraged. The ground below the first habitable floor should not be paved or altered, however, shell or mari are suitable when used to stabilize driveways. Telephone and electric lines should be located underground in water proof conduits laid in protected areas not subject to erosion. Water and sewage facili- ties should also be located in protected areas not subject to erosion. 13

Page 14 --- Coastal Primary Sand Dunes / Beaches Guidelines

Vegetation is the most effective protection for the land against the sea in establishing and main-

taining a coastal position, and for that reason, during permitted construction, al] precautions

should be taken to retain as much natural vegetation as possible on the dunes and upper beaches. When walkways and platforms are located over a dune system, they should be ele- vated sufficiently to provide for the continued healthy growth of the vegetation below (3 feet minimum). Restoration of destroyed dunes can be accomplished by creating filis using slat or brush fencing or by moving upper beach sand by machine. Both procedures should be followed by long-term plantings of vegetation to replace that which was destroyed and to stabilize the dune. For the restoration of a long foredune, the fence should be aligned parallel to primary dunes in the vicinity and somewhat parallel to the drift line berm of the upper beach. The fence should be far enough back to allow the wind to move an adequate supply of sand against it, and placed so as not to bury existing vegetation. To build fills and help reform dune topography in smaller areas, fences should be built across the direction of prevailing winds. The newly created fill material should then be stabilized with plantings.

Section VI

Beaches

A. Definition. The 1989 Coastal Sand Dune Protection Act replaced 'reach' with 'beach' in definitions; all references to reaches were removed. Beach is de-

fined as:

The shoreline zone of unconsolidated sand extends from low water line to a change in material or physiographic form like a dune, bluff, or marsh.

If no change, to woody vegetation line (storm wave limit) or nearest man-made structure like a bulkhead or road.

Beaches have therefore been added to the legislative declaration of policy as an area to preserve

and protect in the same fashion as Coastal Primary Sand Dunes.

B. Applicability. All Virginia coastal and bay beaches, composed of unconsolidated sand, are included due to erosion, sediment transport, and deposition interactions.

Identifying the landward beach limit should be straightforward. In most cases a

dune, bulkhead, or other solid structure marks the upper beach limit.

If none are present, woody vegetation marks the landward limit.

wild black cherry (Prunus serotina) Ehrhart, live oak (Quercus virginiana) Miller, red cedar

(Juniperus virginiana) L., wax myrtle (Myrica cerifera) L., loblolly pine (Pinus taeda) L., bay-

berry (Myrica pensylvanicum) Loisel, poison ivy (Rhus radicans) L., and highbush blueberry

(Vaccinium corymbosum) L.

Ce 14

Page 15 --- Coastal Primary Sand Dunes / Beaches Guidelines

In evaluating an application to use or develop property which meets the “beach” definition, Sec-

Sections IV and V of these Guidelines contain information for decision-making.

appropriate decision.

C. Decision Process. Success of wetlands and dunes protection programs relies on local boards and VMRC adhering to established pol- icy standards and guidelines. Reasonable administration of “beaches” ensures a decision record that can sustain appeals.

Section VII

Virginia Marine Resources Commission Barrier Island Policy

(Rev. October 25, 1990)

A. Introduction

Definitions for this regulation are in Section

28.2-1400 of Virginia Code applies. The following words and terms in these regulations have these meanings unless context indicates otherwise.

cates otherwise:

Barrier Islands - elongated narrow landforms of unconsolidated, shifting sand, bordered by ocean on one side and bay or marsh on the other, separating from the mainland.

Dune Crest - highest elevation of the coastal primary sand dune on the lot, as determined with Virginia Institute of Marine Science.

Local 100-year long-term recession rate - average shoreline recession over one-mile intervals, based on surveys of 100+ years.

Barrier islands are transient, unstable landforms posing risks; Virginia's islands like Cedar Island are especially fragile, containing protected natural features. This policy excludes military and Coast Guard activities.

15

Compliance with other provisions of the Coastal Primary Sand Dune Protection Act remains required.

Survival of these barrier islands often depends on the ability of sand to wash across the is- land naturally in concert with the local wind and wave climate. The sand is then pro- tected from loss offshore and provides a means of perpetuating the island, albeit in a more landward location. Activities which adversely affect this interaction can have an ex- tremely detrimental impact on the island as well as the structure, form and function of its dune system. The artificial accumulation of sand along the oceanside of an island can make it more susceptible to loss offshore during a storm. Once such a loss occurs, the sand then becomes unavailable for washover and for the continued landward migration of the island. Houses, sand fences and similar structures can also alter wind patterns; this alteration impedes the wind transport of sand across the island. Accumulations adjacent to these impediments can be lost offshore as the shoreline continues to recede, leading to an increased rate of recession and a narrowing of the island. In addition, many of the Commonwealth's rarest species depend on the continuation of natural processes that cur- rently exist on barrier islands. Consequently, they are threatened by any interference with those processes. The implementation of the policies and guidelines set forth in this document will support a fuller achievement of the purposes of the Virginia Natural Area Preserves Act (Section 101.1-209 et. seq. of the Code of Virginia), the Virginia Endan- gered Species Act (Section 29.1-563 et. seq. of the Code of Virginia) and the Virginia En- dangered Plant and Insect Species Act (Section 3.1-1020 et. seq. of the Code of Virginia). | Two of the main natural features of barrier islands are natural dunes and washover ar- eas, both of which are included in the statutory definition of a coastal primary sand dune as a “mound of unconsolidated sandy soil which is contiguous to mean high water, whose landward and lateral limits are marked by a change in grade from ten percent or greater to less than ten percent, and upon any part of which is growing” certain designated plants as listed in Section 28.2-1400 of the Code of Virginia. Given the particular combination of risks to both natural values and life and property posed by development on barrier is- lands, the Commission finds it necessary and appropriate to establish a policy and supple- mental guidelines to assist landowners and decision makers alike in shaping barrier island uses in a manner that preserves and protects the values of Coastal Primary Sand Dunes as set forth by the General Assembly.

B. Permits Required

New development activities damaging dunes or beaches require review and approval by the Marine Resources Commission or local wetland board, with permit application submission.

Required for any construction or activity. Applications must include: (1) A certified survey of current site conditions showing-

ing: 16

Page 17 --- Coastal Primary Sand Dunes / Beaches Guidelines

(i) One-foot contours relative to local mean high water, from that line through the site to the first wetlands vegetation,

(ii) Specific location for all proposed structures including septic system and drainfields,

(iii) Size, configuration and design of access points,

(iv) Location of any activity affecting coastal primary sand dunes or State shore, and

(v) A dune crest, determined in consultation with the Virginia Institute of Marine Science, which identifies the highest elevation of the coastal pri- mary sand dune on the lot.

(2) Copies of valid building and wastewater disposal permits.

b. All lot pins, construction sites, drainfields, and access points shall be staked and tied to reference points.

c. The Commission or local wetlands board will verify the dune crest and establish a minimum setback to prevent encroachment, damage, or interference with dune growth.

Reconstruction of structures condemned by health or building officials due to natural damage may not be authorized.

Submission of a new application and evaluation as if no structure were present will be required. If a structure is irreparably damaged or not restored within one year, the owner must remove all remnants, including septic tanks, distribution boxes, and drainfields, or as directed by the Department of Health. The owner shall restore the area to a natural state.

C. Supplemental Guidelines

Structures

No permanent structures, except those legally permitted or in Section C.2.b for access, are allowed seaward of the dune crest. No permanent alteration of the dune is permitted except as per the Coastal Primary Sand Dunes Act.

17

Page 18 --- Coastal Primary Sand Dunes / Beaches Guidelines

Because primary sand dunes and islands recede westward and excessive use increases fragility, development is limited to low-density single-family use per parcel. Other uses are unnecessary and contrary to public interest.

Structure density and shoreline occupancy are critical to minimizing sand migration impacts. Data shows impacts are minimized when structures occupy no more than 25% of the shoreline. This will be considered in permit evaluations.

applications, the following guidelines shall be followed:

There must be sufficient non-dune, non-wetland area within the lot for the dwelling and appurtenant structures, including sanitary facilities.

Minimum ocean frontage for a single-family vacation lot is 100 feet.

Minimum side yard is 30 feet.

Setback from dune crest for structures and septic systems is 20 times the local 100-year shoreline recession rate.

The dune crest shall be defined as the location of the highest elevation of the coastal primary sand dune, beach or washover located on the lot.

Max first-floor size: 900 sq ft on 100-foot lots, 1800 sq ft on 200-foot lots, including porches and decks. Larger houses are not deemed necessary economic development.

(6) The maximum height of a dwelling shall be 25 feet measured from the base of the first floor to the peak of the roof.

(7) All dwellings shall be constructed on elevated open pilings a minimum of ten feet above grade. No enclosures will be permitted below the first floor.

(8) An appropriate identification number shall be affixed to all septic tanks made of nonbiodegradable plastic materials to aid in their identification.

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Page 19 --- Coastal Primary Sand Dunes / Beaches Guidelines

Exceptions may be authorized individually. No

such exception shall be authorized unless the Commission finds:

If strict application causes undue hardship, and

And if the exception won't significantly harm barrier islands, resources, or nearby property.

d. Evidence of cumulative environmental impacts of existing and proposed structures, as well as the secondary impacts resulting from their use, shall be considered in passing upon any application for a permit.

Access

a. No cuts through the dune will be permitted. Temporary vehicular access for pur- poses of construction will be permitted only by open-pile or “corduroy” ramps. Per- mits for temporary vehicular access will be limited as necessary to protect significant natural resources. At expiration of the authorized term all structures, ex- cept as noted in subdivision b below, must be removed and the dune restored to its pre-construction contours and revegetated. All plans for temporary construction ac- cess must be specified in the application for any construction permit.

Permanent access is permitted only via approved corduroy or open-pile ramps that allow dune migration. Construction ramps may remain if approved. Plans must be included in permits.

Each dwelling is limited to one vehicle for access.

island's landings. All vehicles shall be subject to the following conditions:

(1) Each vehicle shall have a no-cost annually renewable permit to travel on the beach. The owner shall attest at the time of renewal the vehicle's status and condition.

Permit number must be displayed in 2-foot-high letters on vehicle roof and sides.

Non-functional vehicles must be removed; proof is required before issuing new permits.

Driving is limited to the intertidal zone and approved crossovers; exceeding four hours around low water is a violation.

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Page 20 --- Coastal Primary Sand Dunes / Beaches Guidelines

(5) All bird nesting areas posted by the Virginia Department of Game and Inland Fisheries, U.S. Fish and Wildlife Service, or Department of Conservation and Recreation shall be off limits to all vehicles.

ATVs are prohibited on barrier islands.

(7) Evidence of vehicular use outside authorized areas shall revoke the permit and require removal from the island.

Any person having his or her permit revoked shall be precluded from reapplica- tion for a one-year period.

No roads or trails allowed on or across dunes or wetlands.

Artificial sand relocation is prohibited.

Shoreline hardening structures like bulkheads, riprap, groins, or jetties are not permitted.

Point source discharges are prohibited.

| 7. Bond Requirement. A reasonable bond or letter of credit will be required prior to grant- ing any permit to assure restoration of any temporary alteration of the coastal primary sand dune including, but not limited to, regrading to the original elevation, resprigging with appropriate vegetation and removal of any and all construction debris.

Sand fencing and artificial barriers are discouraged due to interference with natural sand movement.

Solid waste on islands must be removed and disposed of on the mainland.

10. Pets. To prevent wildlife disturbance, pets must (a) be restrained or controlled; (b) stay on property unless leashed; (c) not be abandoned on barrier islands.

11.Endangered Species. Encroachment upon the nesting sites of threatened and endan- gered species identified by the Virginia Department of Game and Inland Fisheries or De- partment of Conservation and Recreation is prohibited. Evidence of impact or potential impact on threatened and endangered species shall be considered in passing upon any ap- plication for a permit.

NN — 20

Page 21 --- Coastal Primary Sand Dunes / Beaches Guidelines

12. Landscaping. The planting of exotic species or introduction of non-native fauna are im- permissible. Broadcast spraying of pesticides or herbicides are impermissible except when necessary to protect the public health or safety as decreed by the appropriate public health official.

D. Public Hearings

The public hearing required by § 6 of the model ordinance may be held in Newport News, Vir- ginia. Such hearing will not be scheduled until the Commission staff has determined that it is in receipt of a complete application.

E. Comments/Advisory Notes

Future event impacts are unpredictable; development on barrier islands requires owners' full risk acceptance.

a. No public protection of private property. Structure authorization does not justify future public resource expenditure for protection.

b. Services. Any services which may be provided by local government to promote pub- lic health, safety and general welfare must be installed, maintained and operated in a manner consistent with the policy, standards and guidelines of both the Wetlands and Dunes Protection Acts.

c. Structure Relocation. When high water approaches within 10 times the recession rate, a relocation plan must be submitted; no movement without Commission approval.

Artificial manipulation worsens sand deficiency, risking export offshore and disrupting natural onshore movement; owners have greater stake in preserving natural processes.

Legislature affirms dunes in natural state protect against flooding and erosion, safeguarding life and property.

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Page 22 --- Coastal Primary Sand Dunes / Beaches Guidelines

a. Accordingly, every reasonable precaution to avoid permanent alteration is expected to be exercised by all users in gaining temporary access to private property for con- struction or for continued access to authorized structures.

b. All construction, including septic systems, must be setback from mean high water to ensure durability; setbacks from dune crest are specified in Section C.1.c(4).

Proper septic systems are unlikely to affect water quality; failing or increased systems may impact shellfish areas. Staff will request biannual assessments from the Health Department.

F. Private Restrictive Agreements Policy

In addition to the above guidelines and advisory comments and as an additional means to rea- sonably “preserve and protect coastal primary sand dunes and beaches and to prevent their de- spoliation and destruction,” and to help achieve the other purposes set forth by the General Assembly in the Coastal Primary Sand Dune Protection Act, the Commission endorses and looks favorably upon restrictive private covenants which “accommodate necessary economic de- velopment in a manner consistent with the protection of (coastal primary sand dunes).” For ex-

ample, the Commission encourages restrictive private covenants which:

Protect the “natural habitat for coastal fauna,” “wildlife habitat,” and “vegetation which stabilizes (Coastal Primary Sand Dunes).”

Prohibit special exemptions or attempts to obtain such from controlling statutes.

Enhance the “scenic and recreational attractiveness of Virginia's coastal area,” protect the “important natural habitat for coastal fauna,” and protect the “vegetation which stabilizes such features.”

Require cooperation with state and federal agencies to protect ecologically significant natural resources, including permission to post critical bird nesting sites.

a 22

Page 23 --- Coastal Primary Sand Dunes / Beaches Guidelines Section VIIT Coastal Dune Vegetation The following dune plants commonly occupy coastal primary dunes and related habitats in Vir- ginia and adjacent states. These plants are important to the dune environment in that they re- duce the effects of the wind erosion and in some cases actually aid in dune development. They are an integral part of coastal dune habitat and play an important role in the ecological integ- rity of this system. Several dune species, such as American Beach Grass and Sea Oats are often planted for dune stabilization or dune creation projects. These two grasses have the capacity of not only surviving but stabilizing accreting sand. When buried by sand, these grasses produce fast growing vertical rhizomes (underground stems) that eventually produce a shock of leaves at the top of the dune. Therefore, if a sand supply is available, a dune can grow and become sta- bilized through the help of these grasses.

Most dune plants are necessarily very hardy. They must be able to withstand intense heat, re- flected light, saltspray, nearly sterile substrate, and strong winds. Many of these species have developed specialized morphological features that have helped them adapt to these adverse con- ditions. Despite these outstanding features, these plants are highly susceptible to trampling, off- road vehicles and the like.

The dune plants described here are protected by the Coastal Primary Sand Dune Protection Act, Virginia Code Chapter 14 of Title 28.2.

Reprinted with permission from Plants of the Mid-Atlantic Coast: a field guide, G. M. Silberhorn, illustrated by Mary Warinner, Johns Hopkins University Press, Baltimore, Md. 23

Page 24 --- Coastal Primary Sand Dunes / Beaches Guidelines Coastat Frimary oand Dunes! Deacnes TUL ES ‘. SF Bh ce fo 4 SRR, Se at ° ; SR Wl 2 / Yaa fi i ay ee: fs Bi a ee a 1 haf MO ee em ‘ a AY. ee Spe S & ni i “4 yj u i Si 4 24

Page 25 --- Coastal Primary Sand Dunes / Beaches Guidelines Sea Oats Uniola paniculata L.

This tall, stately grass is one of the most important primary dune plants on the Southeast Coast. Sea Oats ranges from Virginia to the Gulf Coast. It's robust seed head (a panicle of nu- merous wafer-like spikelets) is easily distinguished from Beach Grass which has a rather nar- row, dense spike of flowers.

In late summer, Sea Oats seed head turns bronze-yellow; Beach Grass matures to dull gray. Both adapt to sand, salt, wind, and dryness and are vital dune resources.

Page 26 --- Coastal Primary Sand Dunes / Beaches Guidelines rr Lge & area ween i 4 BN % FH ep he k, Pe a ged # . 4 Boe FA i

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Page 27 --- Coastal Primary Sand Dunes / Beaches Guidelines (text appears garbled; no meaningful reduction possible)

Page 27 --- Coastal Primary Sand Dunes / Beaches Guidelines American Beach Grass Ammophila breviligulata Fern.

Beach Grass, common from New England to North Carolina, has a dense narrow spike, long pointed leaves, and excellent sand-binding ability; it tolerates burial and is used in dune restoration. Sea Oats also withstands these conditions.

27

Page 28 --- Coastal Primary Sand Dunes / Beaches Guidelines aoe ee ca ae E

cre :

27. Running Beach Grass

Page 29 --- Short Dune Grass

Running Beach Grass

Panicum ararum EIl.

This grass is found on dunes from New England to the Gulf Coast.

Ammophila and Uniola, the leaves of Short Dune Grass have blue green color that is quite dis-

tinguishing. The seed head is a rather sparse, narrow panicle of small ellipsoid seeds. Unlike

the other two species, this grass is less adapted to accreting sand.

Ammophila and Uniola can keep up with sand build-up, but Panicum will

eventually become buried by shifting sands. Under optimal conditions,

conditions (less sand accretion and salt spray), this grass forms dense mats

of vegetation from underground rhizomes.

29

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Page 31 --- Coastal Primary Sand Dunes / Beaches Guidelines Seaside Goldenrod Solidago sempervirens L.

Seaside Goldenrod is a striking coastal plant in late summer, tall with bright yellow blooms, dark green fleshy leaves along stems up to 6 feet, found on stable dunes or salt marsh edges.

Page 32 --- Coastal Primary Sand Dunes / Beaches Guidelines (text appears garbled; no meaningful reduction possible)

Page 33 --- Coastal Primary Sand Dunes / Beaches Guidelines Dusty Miller Artemisia stelleriana Besser.

Dusty Miller, an introduced perennial from Quebec to Virginia, has lobed, velvety leaves, spreads via rhizomes, and produces tall flowering stems with many small flowers, typical of the Aster family.

33

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Page 35 --- Coastal Primary Sand Dunes / Beaches Guidelines Dune Bean Beach Bean Strophyostyles helvola (L.) Ell.

Dune Bean, an annual trailing vine, has rose or purple legume flowers, three-part leaves, and produces bean pods. It inhabits dunes, maritime forests, and woodlands.

35

Page 36 --- Coastal Primary Sand Dunes / Beaches Guidelines eee eee eee en
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NN 36

Page 37 --- Coastal Primary Sand Dunes / Beaches Guidelines Arenaria lanuginosa (Michaux) Rohrback, a small plant found on swale margins behind dunes. It is delicate, more vigorous when protected, with small leaves and inconspicuous flowers. Rare in Virginia, its range extends south to South America.

Page 38 --- Coastal Primary Sand Dunes / Beaches Guidelines pee ooo .. ee el & tee Soa Ee: ~ fae. ae er ¥ ee a P ge és i eer a "3 pee Rl es oe Oo Dies i ook Se j Sore te ee Mad pe ye BRO cox. 2 ge aa ak 7 as ae i SPR HM . Sash 3 wen se “2 put J = #, eee se ee MME SE FER a ee ee oe as oe a ow cee. a é Ce do ewe LS a Bee fievte Midge ae, J ge gp oe ao Rs Aap a BES Pe wie eentaer fot) we oll Ad nn eee Pes, | hs et wT? it Se ig BES Perret: a i A TBE OS Roce ge ee sy “ ER “Pees note fae Meee OO PS re et oD a i Be dees a: si, 2. ae ee Se Ape TOS oF ste ee MS Aipscae Dt aes aie ae pore a. Oe Ba ge: Or ok & Fa e ee ee eed hs ae; aeiemnee | se a ae Re a... a GRR OE a oo ge se pears a Se 7. 2 ee Sane oa 4 fr RR gE OP ACR at & pee: Ie: Qa iy ee dal See or aes . Bite ie Pee Ae Sp gs aa _ SEP TE ae ean aE ites. sf of ae. ae we <a ic 2 cee 2g Sage Cfie EO Jo ee qe es. pee ; FF BPR i Fig, eS, ae ge Psi oe

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Page 39 --- Coastal Primary Sand Dunes / Beaches Guidelines Sea Rocket (Cakile edentulata) occupies the zone between dune toe and wrack line. It’s a succulent with fleshy stems, small lavender, blue, or white flowers, and late-developing fleshy fruits. It indicates the zone between dune and high water, despite lacking sand-binding qualities.

39

Page 40 --- Coastal Primary Sand Dunes / Beaches Guidelines (text appears garbled; no meaningful reduction possible)
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Page 41 --- Coastal Primary Sand Dunes / Beaches Guidelines Hudsonia tometosa (Beach Heather) is a low, spreading shrub with scale-like, densely hairy leaves, tiny yellow flowers, and grows on moist, compacted sand, mainly in New England and infrequently as far south as North Carolina.

Page 42 --- Coastal Primary Sand Dunes / Beaches Guidelines (text appears garbled; no meaningful reduction possible)

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a ay : 4 s a % 3 £ % & # % 8 2 eR # of re ee oe ae % F IN ne EPEC regis fh sere _ dale Oo el ee Ed op ERE La, AMR ce s ¢ * geaeet hs OEE OS ales aay 2 ‘4 +4 aa ee Te

Page 43 --- Coastal Primary Sand Dunes / Beaches Guidelines Saltmeadow Hay Spartina patens (Aiton) Muhl.

Saltmeadow Hay is a short, wiry grass growing in dense clumps on landward primary dunes, secondary dunes, swales, and saltmarshes.

Saltmeadow Hay has sparse seed heads, long narrow leaves often rolled inward to reduce water loss, an adaptation for coastal conditions.

43

Page 44 --- Glossary

ACCRETION - growth by accumulation of new material.

BARRIER ISLAND - a low island, often with others, shelters water or marsh between itself and the mainland.

BACKSHORE - beach zone between mean high water and dune toe.

BERM - beach part at wave wash upper limit formed by wave deposits.

COASTAL PRIMARY SAND DUNE - mound of unconsolidated sandy soil which is contiguous to mean high water, whose landward and lateral limits are marked by a change in grade from ten per centum or greater to less than ten per centum, and upon any part of which is growing as of July one, nineteen hundred eighty, or grows thereon subsequent thereto, any one or more of the following: American beach grass (Ammophilla breviligulata), beach heather (Hudsonia tometosa); dune bean (Strophostylis umbellata var, paludigena); dusty miller (Artemisia stelleriana); saltmeadow hay (Spartina patens); seabeach sandwort (Arenaria peploides), sea oats (Uniola paniculata); sea rocket (Cakile edentula); seaside goldenrod (Solidago sempervirens); and short dune grass (Panicum ararum). For purposes of this chapter, “Coastal Primary Sand Dune” shall! not include any mound of sand, sandy soil or dredge spoil which has been deposited by man for the purpose of the temporary stor-

: age of such material for later use.

CONTIGUOUS - bordering or adjoining.

DEFLATION - removal of loose material by wind from beach or dune.

DUNE BACKFACE - zone from dune crest to where grade drops below ten percent.

DUNE CREST - a line connecting the highest points of a dune along its long axis.

DUNE LINE - the line established by several dunes positioned next to one another.

DUNE TOE - a zone on the seaward face of the dune marked by a significant change in grade.

FASTLAND - the comparatively stable upland area adjacent to the shoreline.

FORESHORE - the part of the shore between the high tide wave wash limit and the low water mark.

GRADE - in the Sand Dune Act, the rate of elevation change across a dune, determined by dividing vertical change by horizontal distance in the same units.

LANDWARD LIMIT - in the Act, the onshore boundary of the dune.

a 44

Page 45 --- Coastal Primary Sand Dunes / Beaches Guidelines LATERAL LIMIT - in the Act, the ends of the dune usually found lying perpendicular to the shoreline or the dune boundaries normal to the long axis of the dune.

MEAN HIGH WATER - the average height of high waters over the previous nineteen-year period.

MORPHOLOGY - the form and structure of a dune or dune vegetation.

OFFSHORE BAR - one (or more) sand bar(s) running roughly parallel to the shoreline.

ONE HUNDRED YEAR STORM - the storm expected to occur once in a hundred years on average.

OPEN PILE FOUNDATION - a foundation of large poles driven into the ground supporting a structure above ground.

STORM SURGE - the extra water depth above mean high water during coastal storms.

TRANSITION ZONE - the area where physical and biological features of two adjacent areas (e.g., beach and uplands) coexist.

UNCONSOLIDATED - in the Sand Dune Act, sediments which do not bind together.

WASHOVER DEPOSIT - material deposited by water passing over the beach onto the fastland.

Subaqueous Resources and Dredging GuidelinesDoc ID: 4586

Original: 6,775 words

Condensed: 5,849 words

Reduction: 13.7%

1

Subaqueous Guidelines

Table of Contents Conservation Forward Section I---------------Introduction Section II--------------Dredging Operations Section III-------------Filling and Dredging Material Placement Section IV-------------Structures Section V--------------Overhead and Submarine Crossings Section VI-------------Private Riparian and Non-riparian Moorings Section VII------------Activities in non-tidal areas Section VIII-----------VMRC Regulations

CONSTITUTION OF VIRGINIA

ARTICLE XI

CONSERVATION Section 1. Natural resources and historical sites of the Commonwealth.

To the end that the people have clean air, pure water, and the use and enjoyment for recreation of adequate public lands, waters, and other natural resources, it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings. Further, it shall be the Commonwealth's policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.

FORWARD "Tidewater Virginia" as defined in the Code of Virginia encompasses over 5,000 miles of shoreline. There are roughly 2,300 square miles, or approximately 1,472,000 acres, of tidally influenced submerged lands. This is an area larger than the entire State of Delaware and represents an ever-increasing custodial responsibility for State government. Additionally, it is not widely recognized that this responsibility extends to non-tidal streams throughout the Commonwealth.

In a May 3, 1982, opinion, the Attorney General advised the Commission to assume jurisdiction on non-tidal streams that were determined to be "navigable-in-fact" unless the landowner could show clear title to the riparian land acquired by grant prior to July 4, 1776. Where the stream was determined to be "non-navigable-in-fact", the Commission was advised to assume jurisdiction unless the landowner could show a grant prior to 1792 in that part of the State draining to the Atlantic Ocean, or prior to 1802 in that part of the State draining toward the Gulf of Mexico.

The question of navigability is a question of fact as to whether a stream is being, or has been historically used as a highway for trade or travel or whether it is capable of such use in its 2

ordinary and natural condition (i.e. disregarding artificial obstructions such as dams which could be abated). The Commission assumes that all perennial streams with a drainage basin of greater than 5 square miles, or a mean annual flow greater than 5 cubic feet per second, are navigable-in-fact until evidence is presented proving non-navigability.

In 1962, the Marine Resources Commission began a permit program designed to regulate encroachments in, on, under or over the State-owned submerged lands. The authority for this permit program, established by the General Assembly, now requires that when determining to grant or deny any permit the Commission shall be guided in its deliberations by the provisions of Article XI, Section 1 of the Constitution of Virginia and the Commission shall exercise its authority consistent with the Public Trust Doctrine. The Commission shall also consider effects on other reasonable and permissible uses of state waters and state-owned bottomlands, marine and fisheries resources of the Commonwealth, tidal wetlands, adjacent and nearby properties, water quality and submerged aquatic vegetation pursuant to § 28.2-1205 of the Virginia Code.

With the passage of SB 1074 and HB 2181 by the 2023 General Assembly, eﬀecDve July 1, 2023, any instream work in non-Ddal waters (i.e., encroachments into (on) state-owned submerged lands channelward of ordinary high water) is not required to obtain a permit issued by VMRC provided that the person performing such acDvity obtains a Virginia Water ProtecDon Permit and complies with all requirements of the Virginia Water Resources and Wetlands ProtecDon Program pursuant to ArDcle 2.2 (§ 62.1-44.15:20 et seq.) of Chapter 3.1 of Title 62.1. In determining whether to issue a Virginia Water ProtecDon Permit, the Department of Environmental Quality shall be guided by the factors set forth in subsecDon A of § 28.2-1205 of the Virginia Code.

The number of permit applications have grown steadily from about 15 applications per year for such encroachments initially to over 2,700 in 2022. This steady rise is largely due to increasing developmental pressures along our shoreline. Over this period, and particularly since 1972, increasing numbers of Federal agencies have become involved in the permitting process formerly administered almost exclusively by the U. S. Army Corps of Engineers. This has necessitated much closer State/Federal joint processes in order to help the applicant through the permitting procedures.

All of the foregoing factors have generated the need for a set of criteria by which to evaluate projects. The criteria should be used to assure consistency of decisions and inform applicants regarding the degree of acceptability of project proposals. These guidelines have been developed and are hereby promulgated in the hope that they will serve the best interests of all citizens of this great Commonwealth.

SECTION I

Introduction

A. Purpose 3

The purpose of these guidelines is to make available to applicants and the public-at-large the policies and procedures of the Marine Resources Commission for the permitting of activities directly affecting the subaqueous land of the Commonwealth of Virginia. This document will also be used to guide the Commission and its staff in the application of these policies, criteria and guidelines and serve to inform citizens of the general terms and conditions under which subaqueous activities will be permitted in State waters. Nothing in this statement, however, restricts or impedes the power of the Commission to review each application on its individual merits, apply only those conditions considered appropriate or to consider unusual or mitigating circumstances in the review of applications.
The policies contained herein are designed to protect the rights of all citizens of Virginia to appropriately use the State-owned submerged lands, to resolve competing and incompatible claims for users of public resources, to safeguard marine fisheries by minimizing impacts on aquatic habitat, to promote public health, safety and welfare and to accommodate the economic needs of the Commonwealth.

B. Authority Required for Use of Subaqueous Beds Most activities over, under, or on State-owned submerged lands require a VMRC permit. Section 28.2-1203 of the Virginia Code states that it shall be unlawful and constitute a Class I misdemeanor for anyone to build, dump, or otherwise trespass upon or over or encroach upon or take or use any materials from the beds of the bays and ocean, rivers, streams, creeks, which are the property of the Commonwealth, unless such act is pursuant to statutory authority or a permit by the Marine Resources Commission. The foundation of this concept, the Public Trust Doctrine, dates to the Roman Empire. In short, the Public Trust Doctrine is the principle that the state holds the land lying beneath public waters as trustee for the benefit of all citizens. As trustee, the state is responsible for proper management of the resource to ensure the preservation and protection of all appropriate current and potential future uses, including potentially conflicting uses, by the public.

Statutory Authority (approved by law) is, however, conferred on:

Construction of dams authorized by proper authority.
Fishing devices and shellfishing already regulated under Subtitle II of Title 28.2 of the Code.
Construction and maintenance of Congressionally approved navigation or flood control projects undertaken by an authorized federal agency.
State or local port facilities.
Placement of private piers for noncommercial purposes by riparian landowners 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 construction platforms or protrusions do not exceed 400 total square feet, 4

iv. the piers are determined not to be a navigational hazard by the Commission, and v. in cases where the pier traverses commercially productive oyster grounds, is less than 100 feet in length from mean low water.

Subject to any applicable local ordinances, private piers may also include an attached boatlift and an open-sided roof designed to shelter a single boat slip or boatlift provided the roof does not exceed 700 square feet in coverage or the open-sided shelter roofs or gazebo structures exceed 400 square feet and the adjoining property owners do not object to the proposed roof structure.

Maintenance or replacement of a previously authorized pier, provided that it is reconstructed within the footprint of the exisDng pier.
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.

Recreational gold mining consistent with the specifications outlined in § 28.2-

1203A(7)

Any acDvity conducted in nonDdal waters, provided that the person performing such acDvity obtains a Virginia Water ProtecDon Permit and complies with all requirements of the Virginia Water Resources and Wetlands ProtecDon Program pursuant to ArDcle 2.2 (§ 62.1-44.15:20 et seq.) of Chapter 3.1 of Title 62.1. In determining whether to issue a Virginia Water ProtecDon Permit, the Department of Environmental Quality shall be guided by the factors set forth in subsecDon A of § 28.2-1205.

C. General Considerations Applying to All Permits

The submerged lands and the overlying waters in the state are a valuable public resource. Therefore, permitted encroachments will strive to minimize interference with the rights of all citizens of the Commonwealth to other appropriate uses.
In granting or denying any permit for use of State-owned submerged lands and the waters overlying those lands, the Commission will consider, among other things, the effect of the proposed project upon: other reasonable and permissible uses of State waters and State-owned submerged lands; marine and fisheries resources, wetlands, adjacent or nearby properties; anticipated public and private benefits, submerged aquatic vegetation, and water quality. The Commission will also consider the water-dependency of the project and alternatives for reducing any anticipated adverse impacts. 5

As defined by the Commission, water dependent means "those structures and activities that must be located in, on, or over State-owned submerged lands." When applying this definition, both of the following questions must be answered affirmatively:

Is it necessary that the structure be located over water? and,
Is it necessary that the activity associated with the structure be over the water?

Use of the definition for water dependency does not necessarily preclude issuance of a permit for non-water dependent structures over State-owned submerged lands. At public hearing, the Commission may determine that, while a structure is not water dependent, it is a reasonable use of State-owned submerged lands. These types of projects are evaluated on a case-by-case basis.

Should a permitted project result in a loss or impact to submerged aquatic vegetation (SAV), compensatory mitigation may be required. This may include transplantation of SAV from the area of impact or planting of a new area. Compensation ratios and requirements will depend on the density, location, and species of SAV. More information related to the management of SAV can be found in Virginia’s SAV Guidance.
All permit applicants must complete a Joint Permit Application (JPA) which is available from the local wetlands board, the Marine Resources Commission, the Norfolk District, U. S.

Army Corps of Engineers, or can be downloaded from the Norfolk District Corps of Engineers web site at Corps JPA link.

In most cases, the owner of the property from which a proposed project will originate, or a person who has obtained legal right through an easement or other legal instrument, shall serve as the applicant. Applications by third parties cannot be accepted. Exceptions may be made for aquaculture projects and mooring buoys.
Where the total value of the project exceeds $500,000, §28.2-1207 of the Code of Virginia requires that any permit issued by the Marine Resources Commission must be approved at one of the monthly Commission meetings. The Commission normally meets on the fourth Tuesday of each month. The applicant is normally informed ten days prior to the meeting at which his application will be considered. The Commissioner of the Marine Resources Commission or his/her designated representative may approve projects costing less than $500,000 and unprotested by any individual or agency.
Property owners listed by the applicant as adjacent to the project location will be notified of the permit application and provided a copy of the application drawings. Comments received from adjacent property owners are given consideration in the permit review process.
In order to assure an adequate public interest review, an appropriate public notice of the proposed project will generally be promulgated pursuant to regulation 4 VAC 20-120-10. A notice will be placed in a newspaper having general circulation in the area of the proposed project. Commission staff will prepare the notice and forward it to the newspaper. The expense of publication will be borne by the project applicant.
All permits shall contain an expiration date by which the work is to be completed. All general and special conditions contained in the permit remain in effect for the life of the project. The Commission has established procedures for notifying permit holders of work completion dates. Permits cannot be modified, extended or transferred without the written permission of the Commissioner or his/her designated representative. 6

10. It is the permit applicant's responsibility to determine if the project will be located within another individual's water rights and/or on leased oyster planting grounds. Written permission from the holder of such rights to encroach thereon is helpful. Regardless, all permits issued contain a clause that the permit is conditioned upon any existing leases.

Oyster planting ground maps may be examined at the VMRC Engineering Department office. 11. Copies of the completed application are sent to other state agencies for review and comments. These agencies include, but are not necessarily limited to, the Virginia Institute of Marine Science, the Divisions of Wastewater Engineering and Shellfish Sanitation of the Department of Health, Department of Environmental Quality, Department of Conservation and Recreation, Department of Game and Inland Fisheries and, when needed, the Department of Historic Resources. A Commission environmental engineer normally conducts a field inspection of the project site. After expiration of the time allotted for public interest review by State agencies, adjacent property owners and other interested parties, the application is acted upon by the Commission at its regular monthly meeting or by the Commissioner or his/her designated representative if the total project cost is under $500,000 and unprotested by any agency or individual. 12. The completion date for construction of permitted projects is normally five years from the date of approval. Time-of-year restrictions may be placed on projects in proximity to sensitive living resources. Completion dates may be administratively extended at the request of the Permittee if such requests are timely (i.e. received prior to the permit expiration date). 13. The individual listed as Permittee must sign the permit. In cases where the Permittee is a corporation, company or political jurisdiction, the individual signing the permit for that body should be a person who has been properly authorized to bind that corporate entity to the financial and performance obligations that could result from the activity authorized by the permit. In addition, a duly authorized agent may sign a permit on behalf of an applicant. 14. A permit may be revoked at any time by the Commission upon failure of the permittee to comply with any of the terms and conditions or at the will of the General Assembly of Virginia. 15. The permit does not confer upon the permittee any interest or title to submerged land. Fee simple interest in submerged lands always remains in the Commonwealth. 16. Any person, firm, or corporation constructing or erecting any structure upon or over State-owned submerged lands shall be responsible for the maintenance or removal of such structure upon its abandonment or its falling into a state of disrepair. 17. If the nature of the proposed work is such that it could create a safety hazard, endanger adjoining property, create environmental problems or endanger living resources, a performance bond or surety bond satisfactory to the Commonwealth may be required to guarantee the faithful performance of the proposed work.

D. Permit Compliance, Inspections and Enforcement

Commission staff conducts compliance inspections on every VMRC authorized project. Any work found not to be in compliance with the conditions stipulated in a permit will be subject to enforcement action.

7

Projects completed without a permit or constructed in a manner other than that authorized in an issued permit are illegal and may be subject to prosecution. Where it appears that a project for which an application is made has been completed or work thereon already begun at the time the application is made, additional fees and royalties up to triple the normal amount may be assessed in lieu of prosecution. The Commission may also elect to consider civil charges not to exceed $10,000 for each violation. In the event that the Commission and the applicant cannot agree to a resolution of the violation, the case will be forwarded to the State Attorney General's Office for prosecution and enforcement. Maximum penalties may reach up to $25,000 for each day of violation upon such finding by the appropriate circuit court.

E. Permit Fees and Royalties

Some fees and royalties are defined by statute §28.2-1206 of the Code of Virginia; others are within the discretion of the Commission. Permit fees and royalties are due and payable only after the proposed project is approved.

Permit fees are determined by the total project costs. A non-refundable $100.00 application fee is assessed for some applications. The fee for permits to recover underwater historic property is $25.00. A $100.00 permit fee is assessed for projects with total costs of $10,000 or less. Permits with a total project cost between $10,000 and $500,000 is $300.00. If the project costs exceeds $500,000 the permit fee is $600.00.

Royalties are fees paid to the Commonwealth for certain uses of submerged public lands. They are assessed in addition to permit fees. All royalties are subject to change in accordance with the Commission's public participation procedures and regulatory adoption process. Contact the Virginia Marine Resources Commission Habitat Management Division for a current royalties schedule.

SECTION II

Dredging Operations

A. Where dredging is proposed to increase the depth of navigable water, the depths should be determined by the proposed use and controlling water depths outside the area to be dredged.

B. Overdredging to reduce the frequency of maintenance dredging should not exceed an additional two feet and the need for overdredging should be based on the expected rate of sedimentation at the dredge site. Applicants should take care to request authorization for maximum total depth (desired depth + overdredge). Commission permits will be issued with a stipulated maximum allowable depth. Any dredged areas found to exceed this maximum allowable depth will be considered to be out of compliance with the permit conditions and the permittee will be subject to enforcement action by the Commission.

C. Generally, side slope cuts of a dredging area should not be steeper than a two horizontal to one vertical slope (1V: 2H) to prevent slumping of material into the dredged area.

D. In order to lessen the possibility of dredging having adverse effects on commercially or recreationally important fisheries, certain seasonal dredging limitations may be imposed on 8

a site specific basis depending on sediment type, proximity to shellfish areas or spawning grounds, dredging method, the project's size, location and measures taken to reduce turbidity. In important spawning and nursery areas in fresh and near fresh waters, dredging may be restricted to the months of November through mid-March. For brackish and saline waters where significant quantities of oysters and clams are present the better months for dredging are mid-March through June and in October and November. Where commercial dredging for crabs in deeper waters is an important consideration, the better months for dredging are from April through November. These limitations will be judiciously applied in order to prevent undue economic burdens on the Permittee or his contractor. Where dredging in commercially productive clamming grounds is necessary, the permittee will be limited to the minimum dredge footprint necessary to accomplish the stated objective of the project and may be required to mitigate for the loss of the resource through the purchase and planting of clams at a sanctuary. The number of clams required for mitigation of impacts is determined by the density of clams impacted by the proposed dredging project multiplied by a ratio determine by the Commission. Typically, the required mitigation ratio is 1.33:1, although it can be greater.

E. Dredging for proposed small craft channels should be no more than one foot deeper than adjacent natural water bodies and only as wide as necessary to safely navigate in order to avoid creating water circulation and flushing problems. Dredging to depths deeper than the nearest channel can create stagnant conditions that can lead to decreased oxygen levels, unpleasant odors and degradation of local marine resources.

F. Only under special or unusual circumstances should dredged material be double handled.

This practice involves the placement of dredged material at another location in the waterway from which it was dredged only to be redredged for proper disposal.

G. Sidecast dredging with overboard disposal will only be authorized under exceptional circumstances.

H. Dredging in or near shellfish areas, both public and private, beds of submerged aquatic vegetation and other highly productive areas is discouraged. In cases where no other alternatives exist, a plan for compensation for the lost or impacted resources will be required.

I. The minimum and maximum royalty for new dredging is prescribed by law. The maximum may be assessed if the material is to be used for fill or other commercial use. Please see §28.2-1206 of the Code of Virginia for more information regarding minimum and maximum royalty assessments. As of 2005, the Commission is assessing a minimum royalty of $0.45 per cubic yard for all new dredging.

J. In order to prevent the slumping of vegetated tidal wetlands into dredge cuts, channels and basins should be designed with a buffer. The buffer width normally recommended is four times the depth of material (buffer = 4X depth) measured from the edge of the base width of the design channel side slope.

K. Maintenance dredging is strictly defined by the VMRC as dredging activities for navigation purposes that have been previously authorized by the Commission, to the depth previously authorized by the Commission, and where a royalty has been previously paid to the Commission for the initial removal State-owned submerged lands. Dredging to reach additional depths in a previously authorized area or in an area where no VMRC permit has ever been issued will be treated as new dredging subject to royalty assessment regardless of any authorization that may have been granted by any other agencies. 9

L. Typically, a pre-dredging conference, to be held on site prior to the commencement of the dredging, is required. The permittee, the dredging contractor and a member of the VMRC staff must attend the meeting. The meeting should be held within seven (7) days prior to the commencement of dredging and includes an inspection of the dredge material containment area, an inspection of the previously staked dredge area, and a discussion of the terms and conditions of the permit.

M. For most projects, the permittee will be required to provide a post-dredging bathymetric survey of the dredged area within 30 days after the completion of the dredging. The survey must be signed and dated as being accurate and true. The survey must be referenced to mean low water and include a transect at the channelward end of the dredge cut and at 50 foot intervals along the dredged channel to the landward terminus of the dredged area.

Accurate bathymetric data from each transect shall be used to establish the top width of the dredge cut (± 1') and must include a depth measurement exterior to both sides of the dredge cut. If applicable, the survey must also indicate the horizontal distance between the top of the dredge cut and the vegetated wetlands depicted on the project drawings.

SECTION III

Filling And Dredged Material Placement

A. Filling on State-owned subaqueous land for the purpose of reclaiming or creaDng highland property is generally not permiQed. If special circumstances warrant such ﬁll, an appropriate royalty will be assessed on a square foot basis. Clean material from an upland source is generally preferable to dredged material for use as ﬁll.

B. Filling on wetlands to create upland property is generally not permiQed unless unusual condiDons warrant. Decisions by a local wetlands board or the Commission will be based on the Commission's Wetlands Guidelines that categorize wetlands species according to type and relaDve importance.

C. Dredged material must be placed in a disposal area which is acceptable to the Commission.

Factors considered include, but are not limited to, the following:

Encroachment into natural drainage ways.
Chemical nature of the dredged material and its potenDal for polluDng adjacent or nearby underground water supplies.
Encroachment over underground uDliDes, i.e., water lines and sewer faciliDes.
Value of the site to the natural environment.
Proximity to populated areas.
AnDcipated use of the material or disposal site aSer dredged material is placed and consolidated.

D. The disposal area should be property prepared to receive and permanently contain the ﬁll before the start of dredging or ﬁlling.

E. Overboard disposal of dredged material into Ddal waters is generally not permiQed unless the material is uncontaminated and granular (sand size).

When overboard disposal is authorized, areas to be used for placement of the material will be located to minimize impacts on commercially important boQom dwelling organisms such as oysters and clams, submerged aquaDc vegetaDon, wetlands and other producDve shallow water habitats. 10

Overboard disposal areas should be properly shaped and posiDoned to reduce scour and sedimentaDon.

F. Quality dredged material is a valuable State resource and may be used for beach replenishment at public beaches in Virginia where natural sources of sand supply are inadequate. In accordance with § 10.1-704 of the Code of Virginia, the beaches of the Commonwealth shall be given priority consideraDon as sites for the disposal of that porDon of dredged material determined to be suitable for beach nourishment. Sandy dredged materials of suitable quality may be placed on private beaches if a public beach placement site is not suitable or available.

G. Fill material may only be placed on submerged land for shoreline stabilizaDon and/or wetland enhancement when the project can be shown to have posiDve aquaDc resource beneﬁts.

SECTION IV

Structures

A. Piers, Wharves and Boathouses.

The placement of open-pile or ﬂoaDng private piers, uncovered liSs and boathouses for non-commercial purposes by owners of riparian lands in the riparian waters opposite such lands may require a permit from the Commission. Submission of a Joint Permit ApplicaDon is required in order for Commission staﬀ to evaluate whether a proposed pier is statutorily authorized or requires authorizaDon from the Marine Resources Commission. Commission staﬀ will consider the following when reviewing applicaDons for private piers, uncovered liSs, and boathouses: a. impacts to navigaDon; b. width of the proposed pier; c. size of any L- or T- head, plaUorms, ﬁnger piers and ﬂoaDng dock secDons; d. statements by an applicaDon explaining their desire for oversized porDons of a pier; e. square footage and design of boathouses; f. encroachment into producDve oyster grounds; g. concurrence or opposiDon by adjacent property owners h. water dependency of any structures, i.e. roofs for shade and storage faciliDes, to be placed over submerged lands; i. presence or absence of submerged aquaDc vegetaDon (SAV).

Commission authorizaDon for design and placement of piers, boathouses, liSs, and other similar or related structures may be subject to local ordinances. Please contact your local government to ensure compliance with any local standards or requirements. RestricDons regarding the placement of structures within the Resource ProtecDon Area (RPA) as deﬁned under the Chesapeake Bay ProtecDon Act are not a jusDﬁcaDon for placement of non-water dependent structures on piers over submerged lands.

Piers for commercial or community purposes do require a permit from the Commission. A structure is considered commercial if it is in support of operaDons that charge for the 11

producDon, distribuDon or sale of goods or services. For example, dock faciliDes associated with condominium type dwellings are considered commercial because they increase the value of units oﬀered for sale. Community and shared use piers are also considered to be commercial.

ConstrucDon material and designs being used should ensure stability and safety.
UDlizaDon of open-pile type structures to gain access to navigable waters are preferred over construcDon of solid ﬁll structures. FloaDng piers are generally acceptable when located in water deep enough that they ﬂoat during all normal Dde condiDons.
Piers constructed over vegetated wetlands should be high enough to prevent loss of exisDng vegetaDon through shading and generally should be limited to no more than 5 feet in width.

B. Marinas

The appropriate siDng of marinas is a complex process that requires careful review of numerous factors. Speciﬁc siDng guidelines have been adopted by the Commission under regulaDon 4 VAC 20-360-10 ET SEQ.in the Virginia AdministraDve Code.
Marinas provide a public service (beneﬁt) through increased public access but can result in a net public detriment (loss) in certain locaDons through degradaDon of living resources.
The numbers of waterborne craS that may be drawn to the waterway, and exisDng and anDcipated congesDon must be considered.
Adequate riparian waters which can accommodate all aspects of the project is essenDal, i.e., vessel movement in and out of the facility should not infringe on the riparian waters of adjacent properDes.
The structure should encroach no more than one third the distance across the waterway except in unusual channel conﬁguraDons.
Development along concave shorelines can create serious congesDon problems and infringement on the riparian rights of adjacent property owners is more likely to occur.
Convex shoreline areas are generally beQer suited to marina acDvity where a marginal wharf with perpendicular ﬁnger piers can be uDlized to reduce encroachment into the waterway.
LocaDons near the mouth of a waterway provide beQer ﬂushing characterisDcs for marine acDvity than is provided further upstream.
In accordance with §28.2-1205(C) of the Code of Virginia, approval of a plan for onshore sanitary and pump-out faciliDes by the State Department of Health is required prior to issuance of a Commission permit. 10. Dry storage type faciliDes are encouraged because of their greatly reduced encroachment into the waterway and greater polluDon controls. 11. The condemnaDon of shellﬁsh areas as a result of marina locaDon is a serious consideraDon in the permiVng process and should be avoided if at all possible. The Department of Health, Division of Shellﬁsh SanitaDon advises the Commission as to shellﬁsh condemnaDons which may occur. 12. In presently condemned shellﬁsh areas, measures to ensure no further degradaDon of water quality may be required. 13. In order to reduce the amount of dredging required for a marina, slips for deep draS boats should be built in the naturally deeper waters of the marina. This is commonly referred to a zonaDon mooring. 12

14. Proper water circulaDon and Ddal exchange should be maintained by avoiding dead-end canals and restricted inlets. 15. Applicants are encouraged to consider parDcipaDon in the Virginia Clean Marina Program.

For more informaDon, please contact VMRC Habitat Management Division staﬀ or hQp://www.deq.state.va.us/vacleanmarina

C. Bulkheads and Riprap

Where soil condiDons are suitable, sloped stone riprap with a ﬁlter cloth barrier between the highland and the riprap is preferable to a verDcal bulkhead.
Where verDcal bulkheads are necessary, either concrete or chemically treated tongue and groove wood material with equally spaced deadmen, ﬁlter cloth, and galvanized Debacks is recommended. Vinyl sheet bulkheads are also acceptable. Depending on manufacturer recommendaDons, ﬁlter cloth may or may not be necessary.
Railroad De bulkheads are discouraged.
Bulkheads should have return walls or be Ded into adjacent bulkheads to prevent ﬂanking.
Bulkheads should be placed landward of vegetated wetlands. Where no vegetated wetlands exist, bulkheads should be placed as far landward as possible to minimize impacts on non-vegetated wetlands and the marine environment.
Areas of highly unstable shorelines and/or areas having high levels of reﬂected wave energy will normally require construcDon materials which absorb and dissipate wave energy.

Structures such as riprap revetments, gabions, breakwaters, marsh toe sills are examples of shoreline stabilizaDon structures that dissipate wave energy. When uDlizing verDcal bulkheading, which tends to deﬂect and reﬂect wave energy onto adjoining parcels, a protecDve riprap toe is oSen desirable.

D. Je5es, Groins and Breakwaters

JeVes, groins and breakwaters should be designed in such a manner that their locaDon will not create adverse sediment transport paQerns or unduly disturb marine resources.
JeVes, groins and breakwaters should be designed in such a manner that they will not be breached by Ddes and/or fail under wind, current or Dde condiDons normally experienced at the site.
Professional advice on the suitability of jeVes, groins and breakwaters is recommended since their eﬀecDveness at a speciﬁc site is diﬃcult to predict.
The anDcipated eﬀect of a proposed groin-ﬁeld upon adjacent properDes is an extremely important consideraDon in evaluaDng a permit applicaDon.

SECTION V

Overhead And Submarine Crossings

Overhead and/or submarine crossings are normally permiQed if reasonable measures are taken to protect aquaDc resources and other uses of the waterway.

A. Overhead Crossings 13

Overhead structures must be designed in such a manner that they will not impede normal waterborne traﬃc.
Where pracDcal, overhead structures should be designed in such a manner that supports will not be constructed in the natural channel.
Overhead crossings should be located at or near exisDng crossings.

B. Submarine Crossings

Submarine crossings should be designed such that a minimum of three feet of cover will be provided over the upper extremity of the submerged structure when placed in an area where ﬁshing devices are normally employed.
AlteraDon of submerged aquaDc vegetaDon, shellﬁsh beds and wetlands should be minimized wherever possible in the planning and locaDon of submerged structures.
Backﬁll material for submarine crossings should clean and serve to restore, as closely as possible, the depth and natural condiDon of the original boQom.
In general, direcDonal drill methodologies are preferred over trenching.

SECTION VI

Private Riparian and Non-riparian Moorings

A. General Condi6ons

Mooring buoys should not normally be located: a. On private shellﬁsh leases or on designated public shellﬁsh grounds. b. In submerged cable-crossing areas. c. In or near designated navigaDonal channels. d. Within 200 feet of a public or commercial bathing beach. e. So as to interfere with the operaDon of or access through any bridge. f. So as to infringe on the riparian rights of adjacent properDes. g. Within beds of submerged aquaDc vegetaDon (SAV).

Moorings should be marked and maintained in accordance with the "Uniform State Waterway Marking System" (USWMS) as approved by the U. S. Coast Guard which require buoys to be white with a blue band around the middle and must be further marked with the VMRC permit number for idenDﬁcaDon purposes.
All permits granted by the Commission will contain a sDpulaDon that "The PermiQee agrees to remove said structure from State-owned subaqueous boQom within ninety (90) days aSer receiving wriQen noDﬁcaDon by the Commissioner."
The PermiQee is required to noDfy the Commission within thirty (30) days of any changes to the informaDon contained in the permit applicaDon as submiQed. This includes, but is not limited to changes in PermiQee domicile, vessel type, vessel registraDon, or intent to vacate the buoy.
The PermiQee is required to noDfy the Commission of their desire to conDnue to occupy the mooring on an annual basis. 14

Upon revocaDon of the permit, or a noDce of intent to vacate, the permiQee will be required to completely remove all anchors, weights, and mooring tackle.

B. Riparian Moorings

The Commission will normally honor a permit request by a riparian owner for a single mooring to be placed in accordance with the general condiDons above and which is located within his riparian waters.

C. Non-Riparian Moorings

The Commission may grant a permit requested by an individual who does not own waterfront property for a single mooring buoy if: a. The mooring is placed in accordance with the general condiDons in paragraph 1 above. b. It can be demonstrated that there is access to the mooring without trespassing on private riparian property. c. Approval, in wriDng, is obtained from the riparian owner if the mooring buoy will be placed in their riparian area.

The Commission may consider a permit request for a group (mulDple) mooring under unusual circumstances.

D. Designa6on of Mooring Areas, Mooring Restric6ons

Any local government or state or federal agency may recommend to the Commission that the placement of moorings in the waters that fall within their poliDcal jurisdicDon be restricted in certain areas or that certain areas be designated as mooring areas in order to protect public safety, welfare, and recreaDonal and commercial interests.

SECTION VII

Ac6vi6es in non-6dal areas Prior to July 1, 2023, the Virginia Marine Resources Commission, as the long-standing custodian of Virginia's submerged lands, had the proprietary authority and responsibility to issue permits for all acDviDes that take place over, under, through and on all submerged lands owned by the Commonwealth. The Code of Virginia vests ownership of "all the beds of the bays, rivers, creeks and the shores of the sea within the jurisdicDon of the Commonwealth, not conveyed by special grant or compact according to law," in the Commonwealth to be used as a common by all the people of the Commonwealth.

As stated in the beginning of the Guidelines, with the passage of SB 1074 and HB 2181 by the 2023 General Assembly, eﬀecDve July 1, 2023, VMRC will no longer require permits for any acDvity conducted in nonDdal waters, provided that the person performing such acDvity obtains a Virginia Water ProtecDon Permit and complies with all requirements of the Virginia Water Resources and Wetlands ProtecDon Program pursuant to ArDcle 2.2 (§ 62.1-44.15:20 et seq.) of 15

Chapter 3.1 of Title 62.1. The Commission will conDnue to require permits for encroachments over or under jurisdicDonal State-owned submerged lands.

The Commission has deﬁned the minimum size of non-Ddal waterways as those perennial streams with a drainage area of 5 square miles or with a mean annual instream ﬂow of 5 cubic feet per second. AcDviDes within waterways with characterisDcs below these threshold aQributes do not require authorizaDon from this agency.

The Commission has determined the extent of jurisdicDon within non-Ddal waterways to extend no further landward than the ordinary high water mark. While the State of Virginia has not adopted a legal deﬁniDon of ordinary high water, the Federal deﬁniDon represents an informaDve explanaDon of the term. The Army Corps of Engineers deﬁnes ordinary high water in 33 CFR Part 329 "DeﬁniDon of Navigable Waters of the US" SecDon 329.11a.1. This regulaDon states that the "ordinary high water mark" on non-Ddal rivers is the line on the shore established by the ﬂuctuaDons of water and indicated by the physical characterisDcs such as a clear, natural line impressed on the bank, shelving; changes in the character of soil; destrucDon of terrestrial vegetaDon; the presence of liQer and debris; or other appropriate means that consider the characterisDcs of the surrounding area."

When evaluaDng project proposals that fall within the jurisdicDon of this agency, Commission staﬀ will normally consult with the Department of Game and Island Fisheries, the Department of ConservaDon and RecreaDon, the Department of Environmental Quality, and local government oﬃcials before granDng permits for any encroachments into State-owned submerged lands.

This coordinaDon may result in speciﬁc permit condiDons such as limits on the Dme of year when instream construcDon acDviDes can take place (e.g. construcDon should be performed only during low-ﬂow condiDons.) Speciﬁc construcDon methodologies may be required, such as the use of coﬀerdams constructed of non-erodible materials and placement of coﬀerdams in such a manner that no more than half the width of the waterway shall be obstructed at any point in Dme. In all cases, the coﬀerdams and any excess material will be required to be removed to an approved upland area upon compleDon of construcDon, and the streambed will be required to be restored to its pre-exisDng contours and condiDons.

It should be noted that the Virginia Erosion and Sediment Control Handbook (3rd EdiDon, 1992 or subsequent ediDon) should be followed throughout construcDon. If blasDng to create a trench is necessary, the Department of Game and Inland Fisheries shall be noDﬁed a week prior to the blasDng to permit representaDves of that agency to observe the operaDon.

1

Subaqueous Guidelines

Table of Contents Conservation Forward Section I---------------Introduction Section II--------------Dredging Operations Section III-------------Filling and Dredging Material Placement Section IV-------------Structures Section V--------------Overhead and Submarine Crossings Section VI-------------Private Riparian and Non-riparian Moorings Section VII------------Activities in non-tidal areas Section VIII-----------VMRC Regulations

CONSTITUTION OF VIRGINIA

ARTICLE XI

CONSERVATION Section 1. Natural resources and historical sites of the Commonwealth.

To ensure clean air, water, and recreation, the Commonwealth shall conserve, develop, and utilize its natural resources, public lands, and historical sites, and protect its environment from pollution and harm.

FORWARD "Tidewater Virginia" as defined in the Code of Virginia encompasses over 5,000 miles of shoreline. There are roughly 2,300 square miles, or approximately 1,472,000 acres, of tidally influenced submerged lands. This is an area larger than the entire State of Delaware and represents an ever-increasing custodial responsibility for State government. Additionally, it is not widely recognized that this responsibility extends to non-tidal streams throughout the Commonwealth.

In a May 3, 1982, opinion, the Attorney General advised the Commission to assume jurisdiction on non-tidal streams that were determined to be "navigable-in-fact" unless the landowner could show clear title to the riparian land acquired by grant prior to July 4, 1776. Where the stream was determined to be "non-navigable-in-fact", the Commission was advised to assume jurisdiction unless the landowner could show a grant prior to 1792 in that part of the State draining to the Atlantic Ocean, or prior to 1802 in that part of the State draining toward the Gulf of Mexico.

Navigability is a factual question of whether a stream has been or can be used as a trade or travel highway in its natural state (excluding artificial obstructions).

ordinary and natural condition (i.e. disregarding artificial obstructions such as dams which could be abated). The Commission assumes that all perennial streams with a drainage basin of greater than 5 square miles, or a mean annual flow greater than 5 cubic feet per second, are navigable-in-fact until evidence is presented proving non-navigability.

In 1962, the Marine Resources Commission began a permit program designed to regulate encroachments in, on, under or over the State-owned submerged lands. The authority for this permit program, established by the General Assembly, now requires that when determining to grant or deny any permit the Commission shall be guided in its deliberations by the provisions of Article XI, Section 1 of the Constitution of Virginia and the Commission shall exercise its authority consistent with the Public Trust Doctrine. The Commission shall also consider effects on other reasonable and permissible uses of state waters and state-owned bottomlands, marine and fisheries resources of the Commonwealth, tidal wetlands, adjacent and nearby properties, water quality and submerged aquatic vegetation pursuant to § 28.2-1205 of the Virginia Code.

Effective July 1, 2023, under SB 1074 and HB 2181, instream work in non-tidal waters on state-owned submerged lands does not require VMRC permits if a Virginia Water Protection Permit is obtained and all Wetlands Program requirements are met; DEQ considers § 28.2-1205 factors when issuing permits.

The number of permit applications have grown steadily from about 15 applications per year for such encroachments initially to over 2,700 in 2022. This steady rise is largely due to increasing developmental pressures along our shoreline. Over this period, and particularly since 1972, increasing numbers of Federal agencies have become involved in the permitting process formerly administered almost exclusively by the U. S. Army Corps of Engineers. This has necessitated much closer State/Federal joint processes in order to help the applicant through the permitting procedures.

All of the foregoing factors have generated the need for a set of criteria by which to evaluate projects. The criteria should be used to assure consistency of decisions and inform applicants regarding the degree of acceptability of project proposals. These guidelines have been developed and are hereby promulgated in the hope that they will serve the best interests of all citizens of this great Commonwealth.

SECTION I

Introduction

A. Purpose 3

The purpose of these guidelines is to make available to applicants and the public-at-large the policies and procedures of the Marine Resources Commission for the permitting of activities directly affecting the subaqueous land of the Commonwealth of Virginia. This document will also be used to guide the Commission and its staff in the application of these policies, criteria and guidelines and serve to inform citizens of the general terms and conditions under which subaqueous activities will be permitted in State waters. Nothing in this statement, however, restricts or impedes the power of the Commission to review each application on its individual merits, apply only those conditions considered appropriate or to consider unusual or mitigating circumstances in the review of applications.
These policies protect Virginia citizens' rights to use State-owned submerged lands, resolve conflicting claims, safeguard fisheries, promote health and safety, and support the Commonwealth's economy.

B. Authority Required for Use of Subaqueous Beds Most activities over, under, or on State-owned submerged lands require a VMRC permit. Section 28.2-1203 of the Virginia Code states that it shall be unlawful and constitute a Class I misdemeanor for anyone to build, dump, or otherwise trespass upon or over or encroach upon or take or use any materials from the beds of the bays and ocean, rivers, streams, creeks, which are the property of the Commonwealth, unless such act is pursuant to statutory authority or a permit by the Marine Resources Commission. The foundation of this concept, the Public Trust Doctrine, dates to the Roman Empire. In short, the Public Trust Doctrine is the principle that the state holds the land lying beneath public waters as trustee for the benefit of all citizens. As trustee, the state is responsible for proper management of the resource to ensure the preservation and protection of all appropriate current and potential future uses, including potentially conflicting uses, by the public.

Statutory authority (by law) is conferred on:

Construction of dams authorized by proper authority.
Fishing devices and shellfishing already regulated under Subtitle II of Title 28.2 of the Code.
Construction and maintenance of federally approved navigation or flood control projects by authorized agencies.
State or local port facilities.
Private noncommercial piers by riparian owners are allowed if: i. they do not extend beyond navigation or pier lines; ii. do not exceed 6 ft width; iii. L or T platforms do not exceed 400 sq ft.

Piers are approved if not a navigational hazard and, if crossing oyster grounds, are under 100 feet from mean low water.

Private piers, subject to local ordinances, may include a boatlift and open-sided shelter up to 700 sq ft, with property owner approval, if no objections exist.

Maintenance or replacement of an authorized pier is allowed if reconstructed within its existing footprint.
Irrigation or watering on riparian lands is permitted if: i. no permanent structures are placed; ii. water withdrawal complies with DEQ requirements under Title 62.1; iii. no adverse impacts to instream uses.

Recreational gold mining consistent with the specifications outlined in § 28.2-

1203A(7)

Activities in nondnal waters require a Virginia Water Protection Permit, issued based on factors in § 28.2-1205, and compliance with the Water Resources and Wetlands Program.

C. General Considerations Applying to All Permits

Virginia's submerged lands and waters are valuable public resources; encroachments should minimize interference with citizens' rights to other uses.
In granting or denying any permit for use of State-owned submerged lands and the waters overlying those lands, the Commission will consider, among other things, the effect of the proposed project upon: other reasonable and permissible uses of State waters and State-owned submerged lands; marine and fisheries resources, wetlands, adjacent or nearby properties; anticipated public and private benefits, submerged aquatic vegetation, and water quality. The Commission will also consider the water-dependency of the project and alternatives for reducing any anticipated adverse impacts. 5

As defined by the Commission, water dependent means "those structures and activities that must be located in, on, or over State-owned submerged lands." When applying this definition, both of the following questions must be answered affirmatively:

Is the structure necessary over water?
Is the activity necessary over water?

Use of the definition for water dependency does not necessarily preclude issuance of a permit for non-water dependent structures over State-owned submerged lands. At public hearing, the Commission may determine that, while a structure is not water dependent, it is a reasonable use of State-owned submerged lands. These types of projects are evaluated on a case-by-case basis.

Should a permitted project result in a loss or impact to submerged aquatic vegetation (SAV), compensatory mitigation may be required. This may include transplantation of SAV from the area of impact or planting of a new area. Compensation ratios and requirements will depend on the density, location, and species of SAV. More information related to the management of SAV can be found in Virginia’s SAV Guidance.
All applicants must complete a Joint Permit Application (JPA) available from local wetlands boards, the Marine Resources Commission, or the Norfolk District, U.S.

Army Corps of Engineers permits can be downloaded from the Norfolk District's website at Corps JPA link.

In most cases, the owner of the property from which a proposed project will originate, or a person who has obtained legal right through an easement or other legal instrument, shall serve as the applicant. Applications by third parties cannot be accepted. Exceptions may be made for aquaculture projects and mooring buoys.
Where the total value of the project exceeds $500,000, §28.2-1207 of the Code of Virginia requires that any permit issued by the Marine Resources Commission must be approved at one of the monthly Commission meetings. The Commission normally meets on the fourth Tuesday of each month. The applicant is normally informed ten days prior to the meeting at which his application will be considered. The Commissioner of the Marine Resources Commission or his/her designated representative may approve projects costing less than $500,000 and unprotested by any individual or agency.
Property owners listed by the applicant as adjacent to the project location will be notified of the permit application and provided a copy of the application drawings. Comments received from adjacent property owners are given consideration in the permit review process.
In order to assure an adequate public interest review, an appropriate public notice of the proposed project will generally be promulgated pursuant to regulation 4 VAC 20-120-10. A notice will be placed in a newspaper having general circulation in the area of the proposed project. Commission staff will prepare the notice and forward it to the newspaper. The expense of publication will be borne by the project applicant.
All permits shall contain an expiration date by which the work is to be completed. All general and special conditions contained in the permit remain in effect for the life of the project. The Commission has established procedures for notifying permit holders of work completion dates. Permits cannot be modified, extended or transferred without the written permission of the Commissioner or his/her designated representative. 6

10. It is the permit applicant's responsibility to determine if the project will be located within another individual's water rights and/or on leased oyster planting grounds. Written permission from the holder of such rights to encroach thereon is helpful. Regardless, all permits issued contain a clause that the permit is conditioned upon any existing leases.

Oyster planting ground maps may be examined at the VMRC Engineering Department office. 11. Copies of the completed application are sent to other state agencies for review and comments. These agencies include, but are not necessarily limited to, the Virginia Institute of Marine Science, the Divisions of Wastewater Engineering and Shellfish Sanitation of the Department of Health, Department of Environmental Quality, Department of Conservation and Recreation, Department of Game and Inland Fisheries and, when needed, the Department of Historic Resources. A Commission environmental engineer normally conducts a field inspection of the project site. After expiration of the time allotted for public interest review by State agencies, adjacent property owners and other interested parties, the application is acted upon by the Commission at its regular monthly meeting or by the Commissioner or his/her designated representative if the total project cost is under $500,000 and unprotested by any agency or individual. 12. The completion date for construction of permitted projects is normally five years from the date of approval. Time-of-year restrictions may be placed on projects in proximity to sensitive living resources. Completion dates may be administratively extended at the request of the Permittee if such requests are timely (i.e. received prior to the permit expiration date). 13. The individual listed as Permittee must sign the permit. In cases where the Permittee is a corporation, company or political jurisdiction, the individual signing the permit for that body should be a person who has been properly authorized to bind that corporate entity to the financial and performance obligations that could result from the activity authorized by the permit. In addition, a duly authorized agent may sign a permit on behalf of an applicant. 14. A permit may be revoked at any time by the Commission upon failure of the permittee to comply with any of the terms and conditions or at the will of the General Assembly of Virginia. 15. The permit does not confer upon the permittee any interest or title to submerged land. Fee simple interest in submerged lands always remains in the Commonwealth. 16. Any person, firm, or corporation constructing or erecting any structure upon or over State-owned submerged lands shall be responsible for the maintenance or removal of such structure upon its abandonment or its falling into a state of disrepair. 17. If the nature of the proposed work is such that it could create a safety hazard, endanger adjoining property, create environmental problems or endanger living resources, a performance bond or surety bond satisfactory to the Commonwealth may be required to guarantee the faithful performance of the proposed work.

D. Permit Compliance, Inspections and Enforcement

Commission staff conducts compliance inspections on every VMRC authorized project. Any work found not to be in compliance with the conditions stipulated in a permit will be subject to enforcement action.

7

Projects completed without a permit or constructed in a manner other than that authorized in an issued permit are illegal and may be subject to prosecution. Where it appears that a project for which an application is made has been completed or work thereon already begun at the time the application is made, additional fees and royalties up to triple the normal amount may be assessed in lieu of prosecution. The Commission may also elect to consider civil charges not to exceed $10,000 for each violation. In the event that the Commission and the applicant cannot agree to a resolution of the violation, the case will be forwarded to the State Attorney General's Office for prosecution and enforcement. Maximum penalties may reach up to $25,000 for each day of violation upon such finding by the appropriate circuit court.

E. Permit Fees and Royalties

Some fees and royalties are defined by statute §28.2-1206 of the Code of Virginia; others are within the discretion of the Commission. Permit fees and royalties are due and payable only after the proposed project is approved.

Permit fees are determined by the total project costs. A non-refundable $100.00 application fee is assessed for some applications. The fee for permits to recover underwater historic property is $25.00. A $100.00 permit fee is assessed for projects with total costs of $10,000 or less. Permits with a total project cost between $10,000 and $500,000 is $300.00. If the project costs exceeds $500,000 the permit fee is $600.00.

Royalties are fees paid to the Commonwealth for certain uses of submerged public lands. They are assessed in addition to permit fees. All royalties are subject to change in accordance with the Commission's public participation procedures and regulatory adoption process. Contact the Virginia Marine Resources Commission Habitat Management Division for a current royalties schedule.

SECTION II

Dredging Operations

A. Dredging to increase navigable water depth should be based on intended use and surrounding water depths.

B. Overdredging to reduce the frequency of maintenance dredging should not exceed an additional two feet and the need for overdredging should be based on the expected rate of sedimentation at the dredge site. Applicants should take care to request authorization for maximum total depth (desired depth + overdredge). Commission permits will be issued with a stipulated maximum allowable depth. Any dredged areas found to exceed this maximum allowable depth will be considered to be out of compliance with the permit conditions and the permittee will be subject to enforcement action by the Commission.

C. Side slopes should generally not be steeper than 1V:2H to prevent slumping.

D. Seasonal dredging limits may be imposed to protect important fisheries.

a site specific basis depending on sediment type, proximity to shellfish areas or spawning grounds, dredging method, the project's size, location and measures taken to reduce turbidity. In important spawning and nursery areas in fresh and near fresh waters, dredging may be restricted to the months of November through mid-March. For brackish and saline waters where significant quantities of oysters and clams are present the better months for dredging are mid-March through June and in October and November. Where commercial dredging for crabs in deeper waters is an important consideration, the better months for dredging are from April through November. These limitations will be judiciously applied in order to prevent undue economic burdens on the Permittee or his contractor. Where dredging in commercially productive clamming grounds is necessary, the permittee will be limited to the minimum dredge footprint necessary to accomplish the stated objective of the project and may be required to mitigate for the loss of the resource through the purchase and planting of clams at a sanctuary. The number of clams required for mitigation of impacts is determined by the density of clams impacted by the proposed dredging project multiplied by a ratio determine by the Commission. Typically, the required mitigation ratio is 1.33:1, although it can be greater.

E. Dredging for proposed small craft channels should be no more than one foot deeper than adjacent natural water bodies and only as wide as necessary to safely navigate in order to avoid creating water circulation and flushing problems. Dredging to depths deeper than the nearest channel can create stagnant conditions that can lead to decreased oxygen levels, unpleasant odors and degradation of local marine resources.

F. Only under special or unusual circumstances should dredged material be double handled.

H. Dredged material should not be placed elsewhere in the waterway for redredging unless necessary for disposal.