Subtitle I. Activities Administered by the Department of Conservation and Recreation.

Chapter 1. General Provisions.

Article 1. Department of Conservation and Recreation.

§ 10.1-100. Definitions.

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

“Department” means the Department of Conservation and Recreation.

“Director” means the Director of the Department of Conservation and Recreation.

History. 1988, c. 891; 1989, c. 656.

Editor’s note.

Acts 1988, c. 891, cl. 2, 4 and 5 provide: “2. That whenever any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 10 or any other title of this Code as such titles existed prior to July 1, 1988, are transferred in the same or modified form to a new section, article or chapter of this title or any other title of this Code and whenever any such former section, article or chapter is given a new number in this or any other title, all references to any such former section, article or chapter of Title 10 or other title appearing in this Code shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions, contents or portions thereof.

“4. That this recodification of Title 10 as Title 10.1 shall not be construed to require the reappointment of any officer or any member of a board, council, committee or other appointed body referred to in Title 10.1 and each such officer and member shall continue to serve the term for which appointed pursuant to the provisions of Title 10.

“5. That this act shall be deemed to have been enacted prior to any other act enacted in the 1988 regular session of the General Assembly, and any act purporting to amend and reenact any law contained in Title 10 or Title 10.1 of the Code of Virginia is deemed to be added to, amendatory of, or a repealer of, as the case may be, any corresponding law contained in this act; provided, that effect shall be given to such other or subsequent act only to the extent of any apparent changes in the law as it existed prior to the commencement of such session.”

Law Review.

For article addressing significant developments in Virginia law pertaining to air quality, water quality and solid and hazardous waste, between 1990 and 1992, see “Environmental Law,” 26 U. Rich. L. Rev. 729 (1992).

For an article, “The Rhetoric and Reality of Nature Protection: Toward a New Discourse,” see 57 Wash. & Lee L. Rev. 11 (2000).

Research References.

Environmental Law in Real Estate and Business Transactions (Matthew Bender). Berz, Spracker, Strochak.

Environmental Law Practice Guide (Matthew Bender). Gerard.

The Law of Hazardous Waste (Matthew Bender). Cooke.

Treatise on Environmental Law (Matthew Bender). Grad.

§ 10.1-101. Department continued; appointment of Director.

The Department of Conservation and Historic Resources is continued as the Department of Conservation and Recreation. The Department shall be headed by a Director appointed by the Governor to serve at his pleasure for a term coincident with his own.

History. 1984, c. 750, § 10-252; 1988, c. 891; 1989, c. 656.

§ 10.1-102. Powers and duties of Director.

The Director, under the direction and control of the Governor, shall exercise the powers and perform the duties that are conferred upon him by law and he shall perform such other duties as may be required of him by the Governor or the appropriate citizen boards.

History. 1984, c. 750, § 10-252.1; 1988, c. 891.

Editor’s note.

Acts 2021, Sp. Sess. I, c. 348, cl. 1 provides: “That the Department of Conservation and Recreation (the Department) shall develop recommendations for one or more dedicated sources of funding for the system of state parks in the Commonwealth. Such funding source shall be relatively stable from year to year. In developing its recommendations, the Department may meet with and seek input from stakeholders. The Department shall submit its recommendations to the Chairmen of the House Committee on Agriculture, Chesapeake and Natural Resources, the House Committee on Appropriations, the Senate Committee on Agriculture, Conservation and Natural Resources, and the Senate Committee on Finance and Appropriations no later than November 1, 2021.”

§ 10.1-103. Organization of the Department.

The Director shall establish divisions through which the functions of the Department and the corresponding powers and duties may be exercised and discharged. The Director shall appoint competent persons to direct the various functions and programs of the Department, and may delegate any of the powers and duties conferred or imposed by law upon him.

History. 1984, c. 750, § 10-253; 1986, c. 567; 1987, c. 234; 1988, c. 891; 1989, c. 656.

§ 10.1-104. Powers of the Department.

  1. The Department shall have the following powers, which may be delegated by the Director:
    1. To employ such personnel as may be required to carry out those duties conferred by law;
    2. To make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers, including but not limited to contracts with private nonprofit organizations, the United States, other state agencies and political subdivisions of the Commonwealth;
    3. To accept bequests and gifts of real and personal property as well as endowments, funds, and grants from the United States government, its agencies and instrumentalities, and any other source. To these ends, the Department shall have the power to comply with such conditions and execute such agreements as may be necessary, convenient or desirable;
    4. To prescribe rules and regulations necessary or incidental to the performance of duties or execution of powers conferred by law;
    5. To establish noncompetitively procured contracts, notwithstanding the Virginia Public Procurement Act (§ 2.2-4300 et seq.), with private nonprofit organizations that are exempt from federal taxation, to conduct revenue producing activities on Department lands provided the revenue generated after expenses is used to benefit Virginia State Parks and the Natural Area Preserve System. This subsection shall not provide for establishing contracts for capital improvements to state-owned facilities or on Department lands;
    6. To establish the Office of Environmental Education to provide increased opportunities for public education programs on environmental issues. The Office shall initiate and supervise programs designed to educate citizens on ecology, pollution and its control, technology and its relationship to environmental problems and their solutions, population and its relationship to environmental problems, and other matters concerning environmental quality;
    7. To perform acts necessary or convenient to carry out the duties conferred by law; and
    8. To assess civil penalties for violations of § 10.1-200.3 .
  2. Pursuant to the Administrative Process Act (§ 2.2-4000 et seq.), the Department may promulgate regulations necessary to carry out the purposes and provisions of this subtitle. A violation of any regulation shall constitute a Class 1 misdemeanor, unless a different penalty is prescribed by the Code of Virginia. However, a violation of the Virginia State Park Regulations (4 VAC 5-30) shall constitute a Class 3 misdemeanor.

History. 1984, c. 739, §§ 10-21.3:4, 10-21.3:5; 1984, c. 750, § 10-254; 1985, c. 448; 1988, c. 891; 2001, c. 370; 2007, c. 632; 2009, c. 392; 2012, cc. 803, 835.

Cross references.

As to punishment for Class 1 and 3 misdemeanors, see § 18.2-11 .

The 2001 amendments.

The 2001 amendment by c. 370, in subsection A, added subdivision 6 and made related changes.

The 2007 amendments.

The 2007 amendment by c. 632 added the last sentence in subsection B.

The 2009 amendments.

The 2009 amendments by c. 392 added subdivision A 5 and redesignated former subdivisions A 5 and A 6 as subdivisions A 6 and A 7.

The 2012 amendments.

The 2012 amendment by cc. 803 and 835 are identical, and in cl. 79, inserted subdivision A 6 and redesignated the remaining subdivisions accordingly; and updated the parenthetical reference in the last sentence of subsection B.

OPINIONS OF THE ATTORNEY GENERAL

Carrying and possession of firearms within state parks. —

Department of Conservation and Recreation does not have the authority to prohibit the carrying and possession of firearms within state parks beyond that currently prohibited by law. See opinion of Attorney General to The Honorable Ken T. Cuccinelli, II, Member, Senate of Virginia, 08-043, 2008 Va. AG LEXIS 30 (9/26/08).

Carrying concealed handguns in state parks. —

The Department of Conservation and Recreation does not have the authority to issue regulations prohibiting, within state parks, the carrying of concealed handguns by valid permit holders. See opinion of Attorney General to The Honorable Richard H. Black, Member, House of Delegates, 02-074, 2002 Va. AG LEXIS 153 (9/9/02).

Department of Conservation and Recreation may regulate swimming

in public parks, natural preserves, and other areas over which the Department exercises supervisory authority, but lacks the authority to regulate swimming in other waters. See opinion of Attorney General to The Honorable Albert C. Pollard, Jr., Member, House of Delegates, 10-074, 2010 Va. AG LEXIS 50 (8/23/10).

§ 10.1-104.01. Repealed by Acts 2020, c. 490, cl. 2.

Editor’s note.

Former § 10.1-104.01 , pertaining to electric vehicle charging stations, derived from Acts 2018, cc. 295, 446.

§ 10.1-104.1. Department to assist in the nonpoint source pollution management program.

  1. The Department, with the advice of the Board of Conservation and Recreation and the Virginia Soil and Water Conservation Board and in cooperation with other agencies, organizations, and the public as appropriate, shall assist in the Commonwealth’s nonpoint source pollution management program.
  2. The Department shall be assisted in performing its nonpoint source pollution management responsibilities by Virginia’s soil and water conservation districts. Assistance by the soil and water conservation districts in the delivery of local programs and services may include (i) the provision of technical assistance to advance adoption of conservation management services, (ii) delivery of educational initiatives targeted at youth and adult groups to further awareness and understanding of water quality issues and solutions, and (iii) promotion of incentives to encourage voluntary actions by landowners and land managers in order to minimize nonpoint source pollution contributions to state waters.The provisions of this section shall not limit the powers and duties of other state agencies.

History. 1993, cc. 19, 830; 2004, c. 474; 2013, cc. 756, 793.

Editor’s note.

For complete transition provisions related to transfer of certain water quality programs (stormwater management, erosion and sediment control, nutrient trading, and the Chesapeake Bay Preservation Areas) formerly administered by the Department of Conservation and Recreation, to the Department of Environmental Quality, see Acts 2013, cc. 756 and 793, cls. 4 through 14, noted in full under Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1.

The 2004 amendments.

The 2004 amendment by c. 474 inserted the A and B designations and added the first paragraph of subsection B.

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and in subsection A, substituted “shall assist in” for “shall have the lead responsibility for” and deleted the last two sentences, which read: “This responsibility includes coordination of the nonpoint source control elements of programs developed pursuant to certain state and federal laws including § 319 of the Clean Water Act and § 6217 of the Coastal Zone Management Act. Further responsibilities include, but are not limited to, the distribution of assigned funds, the identification and establishment of priorities of nonpoint source related water quality problems, and the administration of the Statewide Nonpoint Source Advisory Committee.”

§ 10.1-104.2. Voluntary nutrient management training and certification program.

  1. The Department shall operate a voluntary nutrient management training and certification program to certify, in accordance with regulations adopted by the Virginia Soil and Water Conservation Board pursuant to subsection D, the competence of persons preparing nutrient management plans for the purpose of (i) assisting landowners and operators in the management of land application of fertilizers, municipal sewage sludges, animal manures, and other nutrient sources for agronomic benefits and for the protection of the Commonwealth’s ground and surface waters and (ii) assisting owners and operators of agricultural land and turf to achieve economic benefits from the effective management and application of nutrients.
  2. The Department shall develop a flexible, tiered, Voluntary Nutrient Management Plan Program to assist owners and operators of agricultural land and turf in (i) preparing nutrient management plans for their own property that meet the nutrient management specifications developed by the Department and (ii) achieving economic benefits for owners and operators as a result of effective nutrient management. The Department shall convene a stakeholder group composed of individuals representing agricultural and environmental organizations to assist in the development of this Program. Individuals representing the agricultural stakeholders shall include both farmers who currently operate farms and agribusiness representatives who serve the farming community. Individuals representing environmental stakeholders shall include at least two members and a staff member of the Virginia Delegation to the Chesapeake Bay Commission and one representative from the Rappahannock River Basin Commission. The Program shall: (a) allow owners and operators of agricultural lands and turf who are not required to have a certified nutrient management plan to prepare their own nutrient management plans; (b) include a tiered approach for lands of different sizes, agricultural production, and nutrient applications; (c) consider similar online programs in other states or sponsored by baccalaureate institutions of higher education; (d) address how the nutrient management plans can be verified and receive credit in the Chesapeake Bay Watershed Model for properties in the Chesapeake Bay watershed; (e) begin testing the software for the Program by July 1, 2013, and begin full implementation by July 1, 2014; and (f) include any other issues related to developing a flexible, tiered, Voluntary Nutrient Management Plan Program for owners and operators of agricultural lands and turf.
  3. Any personal or proprietary information collected pursuant to subsection B shall be exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), except that the Director may release information that has been transformed into a statistical or aggregate form that does not allow identification of the persons who supplied, or are the subject of, particular information. This subsection shall not preclude the application of the Virginia Freedom of Information Act in all other instances of federal or state regulatory actions.
  4. The Virginia Soil and Water Conservation Board shall adopt regulations:
    1. Specifying qualifications and standards for individuals to be deemed competent in nutrient management plan preparation, and providing for the issuance of documentation of certification to such individuals;
    2. Specifying conditions under which a certificate issued to an individual may be suspended or revoked;
    3. Providing for criteria relating to the development of nutrient management plans for various agricultural and urban agronomic practices, including protocols for use by laboratories in determining soil fertility, animal manure nutrient content, or plant tissue nutrient uptake for the purpose of nutrient management;
    4. Establishing fees to be paid by individuals enrolling in the training and certification programs;
    5. Providing for the performance of other duties and the exercise of other powers by the Director as may be necessary to provide for the training and certification of individuals preparing nutrient management plans; and
    6. Giving due consideration to relevant existing agricultural certification programs.
  5. There is hereby established a special, nonreverting fund in the state treasury to be known as the Nutrient Management Training and Certification Fund. The fund shall consist of all fees collected by the Department pursuant to subsection D. No part of the fund, either principal or interest, shall revert to the general fund. The fund shall be administered by the Director, and shall be used solely for the payment of expenses of operating the nutrient management training and certification program.
  6. For the purposes of this section, the term “turf” shall have the same meaning as defined in § 3.2-3600.

History. 1994, c. 159; 2011, cc. 341, 353; 2012, c. 781; 2013, cc. 593, 658.

Cross references.

As to adoption of regulations for the application of regulated products to nonagricultural property, see § 3.2-3601. As to powers and duties of State Water Control Board, see § 62.1-44.15. As to prohibition on land application, marketing and distribution of sewage sludge without permit, see § 62.1-44.19:3.

Editor’s note.

Acts 2011, cc. 341 and 353, cl. 3 provides: “That the Department of Agriculture and Consumer Services shall provide, no later than December 15, 2011, a report to the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources concerning the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer. The report shall (i) conduct an assessment of the most effective means to encourage the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer, (ii) determine the most appropriate percentages of slowly available nitrogen to be included in lawn fertilizer and lawn maintenance fertilizer, (iii) recommend the most appropriate effective date for any change, (iv) calculate the costs to the manufacturer and consumer, and (v) provide a review of any other issues related to the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer. The Department shall consult with the Department of Conservation and Recreation and the Chesapeake Bay Commission and, at the Department’s discretion, may convene a technical advisory committee of stakeholders concerning the development and content of the report.”

Acts 2012, c. 781, cl. 2, provides: “That if no funds are available to the Department of Conservation and Recreation for the purpose described in clause (e) of subsection B of § 10.1-104.2 of the Code of Virginia as amended in this act, the Department may defer the development of the necessary software until such funds become available.”

Acts 2013, cc. 593 and 658, cl. 2 provides: “That the regulations adopted by the Department of Conservation and Recreation and directed for transfer from the Department of Conservation and Recreation to the Virginia Soil and Water Conservation Board in accordance with this act shall remain in full force and effect until transferred to the Virginia Soil and Water Conservation Board.”

Acts 2013, cc. 593 and 658, cl. 3 provides: “That the initial actions of the Virginia Soil and Water Conservation Board to adopt, with necessary amendments, the nutrient management training and certification regulations transferred by this act from the Department of Conservation and Recreation to the Board shall be exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia. Such regulations shall remain in full force and effect until altered, amended, or rescinded by the Virginia Soil and Water Conservation Board.”

Acts 2013, cc. 593 and 658, cl. 4 provides: “That after the transfer of the nutrient management training and certification program, if the Virginia Soil and Water Conservation Board determines that additional amendments to the regulations are necessary solely to enable implementation of the program in accordance with this act, the regulatory actions necessary shall be exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia except that the Board shall provide an opportunity for public comment on the regulatory actions.”

Acts 2013, cc. 593 and 658, cl. 5 provides: “That guidance of the Department of Conservation and Recreation relating to the regulations to be transferred by this act shall remain in effect until amended or repealed.”

Acts 2013, cc. 593 and 658, cl. 6 provides: “That any regulatory action initiated prior to the effective date of this act by the Department of Conservation and Recreation to amend the regulations being transferred by this act shall be continued by the Virginia Soil and Water Conservation Board at the time of the transfer of the regulations. Any regulatory action to amend the regulations being transferred that is initiated by the Department of Conservation and Recreation on and after the effective date of this act may be continued by the Virginia Soil and Water Conservation Board.”

At the direction of the Virginia Code Commission, “baccalaureate institutions of higher education” was substituted for “universities” in clause (c) of subsection B to conform to Acts 2016, c. 588.

The 2011 amendments.

The 2011 amendments by cc. 341 and 353 are identical, and rewrote the section.

The 2012 amendments.

The 2012 amendment by c. 781 added clause (ii) in subsection A; in subsection B, inserted “and turf,” added a new clause (i) designation, inserted new clause (ii), inserted the third and fourth sentences, redesignated former clauses (i) to (vi) as (a) to (f), and substituted the current language in clause (e) for “establish an effective date for implementation”; added subsection C, renumbering the following subsections and correcting an internal reference; added the ending beginning “including protocols” to subdivision 3 in subsection D; added subsection F, and made minor stylistic changes.

The 2013 amendments.

The 2013 amendments by cc. 593 and 658 are identical, and inserted “in accordance with regulations adopted by the Virginia Soil and Water Conservation Board pursuant to subsection D” in subsection A; and substituted “Virginia Soil and Water Conservation Board shall” for “Department shall, with the approval of the Virginia Soil and Water Conservation Board” in the introductory language of subsection D.

§ 10.1-104.2:1. Nitrogen application rates; regulations.

  1. The Virginia Soil and Water Conservation Board shall adopt regulations that amend the application rates in the Virginia Nutrient Management Standards and Criteria by incorporating into such regulations or the documents incorporated by reference the recommended application rates for nitrogen in lawn fertilizer and lawn maintenance fertilizer and the recommended application rates for “slow or controlled release fertilizer” and “enhanced efficiency lawn fertilizer,” as such terms are defined and adopted or proposed for adoption by the Association of American Plant Food Control Officials, as described in the Virginia Department of Agriculture and Consumer Services’ December 2011 “Report on the Use of Slowly Available Nitrogen in Lawn Fertilizer and Lawn Maintenance Fertilizer.”
  2. Such regulatory amendment provided for in subsection A shall follow a fast-track regulatory process established pursuant to § 2.2-4012.1 of the Administrative Process Act and shall be adopted no later than July 1, 2014.

History. 2012, c. 796; 2013, cc. 593, 658.

Editor’s note.

Acts 2013, cc. 593 and 658, cl. 2 provides: “That the regulations adopted by the Department of Conservation and Recreation and directed for transfer from the Department of Conservation and Recreation to the Virginia Soil and Water Conservation Board in accordance with this act shall remain in full force and effect until transferred to the Virginia Soil and Water Conservation Board.”

Acts 2013, cc. 593 and 658, cl. 3 provides: “That the initial actions of the Virginia Soil and Water Conservation Board to adopt, with necessary amendments, the nutrient management training and certification regulations transferred by this act from the Department of Conservation and Recreation to the Board shall be exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia. Such regulations shall remain in full force and effect until altered, amended, or rescinded by the Virginia Soil and Water Conservation Board.”

Acts 2013, cc. 593 and 658, cl. 4 provides: “That after the transfer of the nutrient management training and certification program, if the Virginia Soil and Water Conservation Board determines that additional amendments to the regulations are necessary solely to enable implementation of the program in accordance with this act, the regulatory actions necessary shall be exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia except that the Board shall provide an opportunity for public comment on the regulatory actions.”

Acts 2013, cc. 593 and 658, cl. 5 provides: “That guidance of the Department of Conservation and Recreation relating to the regulations to be transferred by this act shall remain in effect until amended or repealed.”

Acts 2013, cc. 593 and 658, cl. 6 provides: “That any regulatory action initiated prior to the effective date of this act by the Department of Conservation and Recreation to amend the regulations being transferred by this act shall be continued by the Virginia Soil and Water Conservation Board at the time of the transfer of the regulations. Any regulatory action to amend the regulations being transferred that is initiated by the Department of Conservation and Recreation on and after the effective date of this act may be continued by the Virginia Soil and Water Conservation Board.”

At the direction of the Virginia Code Commission, “Association of American Plant Food Control Officials” was substituted for “American Association of Plant Food Control Officials” in subsection A.

The 2013 amendments.

The 2013 amendments by cc. 593 and 658 are identical, and in subsection A, substituted “Virginia Soil and Water Conservation Board” for “Department” near the beginning, and inserted “or the documents incorporated by reference” following “such regulations”; and substituted “regulatory amendment provided for in subsection A” for “regulations” in subsection B.

§ 10.1-104.3. Clean Water Farm Award Program.

The Director shall establish the Clean Water Farm Award Program to recognize farms in the Commonwealth which utilize practices designed to protect water quality and soil resources. A farm shall be eligible for recognition upon application from the farmer or the local soil and water conservation district, if the district concurs that the farmer is implementing conservation practices that effectively address agricultural nonpoint source pollutants. Such practices may include vegetative riparian buffers, cover crops, conservation tillage, livestock exclusion from waterways, and nutrient management plans. The Director may establish guidelines for limiting the quantity of annual recipients, receiving and ranking applications, ensuring geographical representation of awards from the major watersheds of the Commonwealth including the Chesapeake Bay watershed, providing local farm recognition through the local soil and water conservation districts, and providing special statewide recognition to select farms. Recognition under this program shall not be a requirement under any other state program.

History. 1998, c. 93; 2009, c. 349.

The 2009 amendments.

The 2009 amendment by c. 349 substituted “implementing conservation practices that effectively address agricultural nonpoint source pollutants. Such practices may include vegetative riparian buffers, cover crops, conservation tillage, livestock exclusion from waterways, and nutrient management plans” for “fully implementing a nutrient management plan” and deleted “to be known as the Bay-Friendly Farm Awards, within the Chesapeake Bay watershed, and as the Clean Water Farm Awards in all other areas of the Commonwealth. The Department shall report to the General Assembly annually by December 1, the names, addresses and location of signs posted at recipient farms” following “recognition to select farms.”

§ 10.1-104.4. Nutrient management plans required for state lands; review of plans.

  1. On or before July 1, 2006, all state agencies, public institutions of higher education in the Commonwealth, and other state governmental entities that own land upon which fertilizer, manure, sewage sludge or other compounds containing nitrogen or phosphorus are applied to support agricultural, turf, plant growth, or other uses shall develop and implement a nutrient management plan for such land. The plan shall be in conformance with the following nutrient management requirements:
    1. For all state-owned agricultural and forestal lands where nutrient applications occur, state agencies, public institutions of higher education in the Commonwealth, and other state governmental entities shall submit site-specific individual nutrient management plans prepared by a certified nutrient management planner pursuant to § 10.1-104.2 and regulations promulgated thereunder. However, where state agencies are conducting research involving nutrient application rate and timing on state-owned agricultural and forestal lands, such lands shall be exempt from the application rate and timing provisions contained in the regulations developed pursuant to § 10.1-104.2 .
    2. For all state-owned lands other than agricultural and forestal lands where nutrient applications occur, state agencies, public institutions of higher education in the Commonwealth, and other state governmental entities shall submit nutrient management plans prepared by a certified nutrient management planner pursuant to § 10.1-104.2 and regulations promulgated thereunder or planning standards and specifications acceptable to the Department.
  2. Plans or planning standards and specifications submitted under subdivisions A 1 and A 2 shall be reviewed and approved by the Department. Such approved plans and planning standards and specifications shall be in effect for a maximum of three years, and shall be revised and submitted for approval to the Department at least once every three years thereafter.
  3. State agencies, public institutions of higher education in the Commonwealth, and other state governmental entities shall maintain and properly implement any such nutrient management plan or planning standards or specifications on all areas where nutrients are applied.
  4. The Department may (i) provide technical assistance and training on the development and implementation of a nutrient management plan, (ii) conduct periodic reviews as part of its responsibilities authorized under this section, and (iii) assess an administrative charge to cover a portion of the costs for services associated with its responsibilities authorized under this section.
  5. The Department shall develop written procedures for the development, submission, and the implementation of a nutrient management plan or planning standards and specifications that shall be provided to all state agencies, public institutions of higher education in the Commonwealth, and other state governmental entities that own land upon which nutrients are applied.

History. 2005, c. 65.

Editor’s note.

At the direction of the Virginia Code Commission, “public institutions of higher education in the Commonwealth” was substituted for “state colleges and universities” throughout the section to conform to Acts 2016, c. 588.

§ 10.1-104.5. Nutrient management plans required for golf courses; penalty.

  1. On or before July 1, 2017, all persons that own land operated as a golf course and upon which fertilizer, manure, sewage sludge, or other compounds containing nitrogen or phosphorous are applied to support turf, plant growth, or other uses shall develop and implement nutrient management plans for such land in accordance with the regulations adopted pursuant to § 10.1-104.2 . However, such lands shall be exempt from the application rate and timing provisions contained in any regulations developed pursuant to § 10.1-104.2 if research involving nutrient application rate and timing is conducted on such lands.
  2. Nutrient management plans developed pursuant to this section shall be submitted to the Department. The Department shall approve or contingently approve such nutrient management plans within 30 days of submission. Such nutrient management plans shall be revised and resubmitted for approval to the Department every five years thereafter or upon a major renovation or redesign of the golf course lands, whichever occurs sooner.
  3. Golf courses shall maintain and properly implement approved nutrient management plans, planning standards, and specifications on all areas where nutrients are applied.
  4. Nutrient management plans shall be made available to the Department upon request.
  5. The Department shall (i) provide technical assistance and training on the development and implementation of nutrient management plans, planning standards, and specifications and (ii) establish, prior to July 1, 2015, a cost-share program specific to golf courses for implementation of this section.
  6. Any information collected pursuant to this section shall be exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
  7. A golf course owner found to be in violation of this section after July 1, 2017, shall be given 90 days to submit a nutrient management plan to the Department for approval before a $250 civil penalty is imposed. All civil penalties imposed under this section shall be deposited in the Nutrient Management Training and Certification Fund (§ 10.1-104.2 ).
  8. Golf courses in compliance with this section shall not be subject to local ordinances governing the use or application of fertilizer.

History. 2011, cc. 341, 353.

§ 10.1-104.6. Supplemental environmental projects.

  1. As used in this section:“Supplemental environmental project” means an environmentally beneficial project undertaken as partial settlement of a civil enforcement action and not otherwise required by law.
  2. The Virginia Soil and Water Conservation Board or the Director acting on behalf of the Board or under his own authority in issuing any administrative order, or any court of competent jurisdiction as provided for under this Code, may, in its or his discretion and with the consent of the person subject to the order, provide for such person to undertake one or more supplemental environmental projects. The project shall have a reasonable geographic nexus to the violation or, if no such project is available, shall advance at least one of the declared objectives of the environmental law or regulation that is the basis of the enforcement action. Performance of such projects shall be enforceable in the same manner as any other provision of the order.
  3. The following categories of projects may qualify as supplemental environmental projects, provided the project otherwise meets the requirements of this section: public health, pollution prevention, pollution reduction, environmental restoration and protection, environmental compliance promotion, and emergency planning and preparedness. In determining the appropriateness and value of a supplemental environmental project, the following factors shall be considered by the enforcement authority: net project costs, benefits to the public or the environment, innovation, impact on minority or low income populations, multimedia impact, and pollution prevention. The costs of those portions of a supplemental environmental project that are funded by state or federal low-interest loans, contracts or grants shall be deducted from the net project cost in evaluating the project. In each case in which a supplemental environmental project is included as part of a settlement, an explanation of the project with any appropriate supporting documentation shall be included as part of the case file.
  4. Nothing in this section shall require the disclosure of documents exempt from disclosure pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
  5. Any decision whether or not to agree to a supplemental environmental project is within the sole discretion of the Virginia Soil and Water Conservation Board, Director, or court and shall not be subject to appeal.
  6. Nothing in this section shall be interpreted or applied in a manner inconsistent with applicable federal law or any applicable requirement for the Commonwealth to obtain or maintain federal delegation or approval of any regulatory program.

History. 2011, c. 505.

The number of this section was assigned by the Virginia Code Commission, the number in the 2011 act having been § 10.1-104.5 .

§ 10.1-104.6:1. ConserveVirginia program established.

  1. The Department shall develop a program for the creation, maintenance, operation, and regular updating of a data-driven Geographical Information Systems model to prioritize potential conservation areas across the Commonwealth that would provide quantifiable benefits to the citizens of Virginia. Such program shall be known as ConserveVirginia. The model shall synthesize multiple mapped data inputs, divided into categories, each representing a different overarching conservation value, including (i) agriculture and forestry, (ii) natural habitat and ecosystem diversity, (iii) floodplains and flooding resilience, (iv) cultural and historic preservation, (v) scenic preservation, (vi) protected landscapes resilience, and (vii) water quality improvement.
  2. The Department shall consult regularly with the Chief Resilience Officer, the Special Assistant for Coastal Adaptation and Protection, the Department of Forestry, the Department of Agriculture and Consumer Services, the Department of Historic Resources, the Department of Wildlife Resources, the Department of Environmental Quality, the Marine Resources Commission, and any other state or federal agency or private organization deemed appropriate to provide data or information to update methodologies, map layers, and emerging conservation priorities.
  3. The Department shall review and revise the methodology used to develop and prioritize each conservation value identified in subsection A. The Department shall conduct such review and revision process no less than once every two years, and such process shall include public hearings and solicitation of public comment. The Department shall continue to develop ways to incorporate and encourage environmental justice, as defined in § 2.2-234, into all existing and future conservation values. The Department shall not utilize any methodology or conservation value to limit a landowner’s decision on implementing any aspect of an approved forest management plan or any appropriate best management practice to achieve water quality improvements.
  4. The Department shall provide access to the ConserveVirginia model to the public and all state and federal agencies that benefit by using ConserveVirginia to determine conservation priorities.
  5. The Department shall incorporate ConserveVirginia into acquisition or grant decisions when appropriate.
  6. The Department shall utilize information provided by the Department of Agriculture and Consumer Services and the Department of Forestry when creating the Agriculture and Forestry map layers of ConserveVirginia. Such information shall include, as appropriate, new data sources that better reflect the economic viability of working farms and forests. The Department of Agriculture and Consumer Services and the Department of Forestry shall engage agriculture and forestry stakeholders to improve and refine the ConserveVirginia model to accurately reflect the conservation value of agricultural and forestal land in the Commonwealth. Such information shall inform whether the ConserveVirginia conservation values related to agriculture and forestry have been achieved.

History. 2021, Sp. Sess. I, c. 99.

Effective date.

This section is effective July 1, 2021.

Article 1.1. Resource Management Plans.

§ 10.1-104.7. Resource management plans; effect of implementation; exclusions.

  1. Notwithstanding any other provision of law, agricultural landowners or operators who fully implement and maintain the applicable components of their resource management plan, in accordance with the criteria for such plans set out in § 10.1-104.8 and any regulations adopted thereunder, shall be deemed to be in full compliance with (i) any load allocation contained in a total maximum daily load (TMDL) established under § 303(d) of the federal Clean Water Act addressing benthic, bacteria, nutrient, or sediment impairments; (ii) any requirements of the Virginia Chesapeake Bay TMDL Watershed Implementation Plan; and (iii) applicable state water quality requirements for nutrients and sediment.
  2. The presumption of full compliance provided in subsection A shall not prevent or preclude enforcement of provisions pursuant to (i) a resource management plan or a nutrient management plan otherwise required by law for such operation, (ii) a Virginia Pollutant Discharge Elimination System permit, (iii) a Virginia Pollution Abatement permit, or (iv) requirements of the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.).
  3. Landowners or operators who implement and maintain a resource management plan in accordance with this article shall be eligible for matching grants for agricultural best management practices provided through the Virginia Agricultural Best Management Practices Cost-Share Program administered by the Department in accordance with program eligibility rules and requirements. Such landowners and operators may also be eligible for state tax credits in accordance with §§ 58.1-339.3 and 58.1-439.5 .
  4. Nothing in this article shall be construed to limit, modify, impair, or supersede the authority granted to the Commissioner of Agriculture and Consumer Services pursuant to Chapter 4 (§ 3.2-400 et seq.) of Title 3.2.
  5. Any personal or proprietary information collected pursuant to this article shall be exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), except that the Director may release information that has been transformed into a statistical or aggregate form that does not allow identification of the persons who supplied, or are the subject of, particular information. This subsection shall not preclude the application of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) in all other instances of federal or state regulatory actions. Pursuant to subdivision 45 of § 2.2-3711, public bodies may hold closed meetings for discussion or consideration of certain records excluded from the provisions of this article and the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

History. 2011, c. 781; 2015, cc. 27, 169; 2017, c. 616.

The number of this section was assigned by the Virginia Code Commission, the number in the 2011 act having been § 10.1-104.5 .

Cross references.

As to exclusions under the Virginia Freedom of Information Act for proprietary records and trade secrets, see § 2.2-3705.6.

Editor’s note.

At the direction of the Virginia Code Commission, at the end of subsection B, “the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.)” was substituted for “the Chesapeake Bay Preservation Act (§ 10.1-2100 et seq.)” to conform to Acts 2013, cc. 756 and 793.

For § 303(d) of the Clean Water Act, referred to above, see 33 U.S.C.S. § 1313(d).

The 2015 amendments.

The 2015 amendments by cc. 27 and 169 are identical, and in subsection E, added the last sentence.

The 2017 amendments.

The 2017 amendment by c. 615 substituted “subdivision 45” for “subdivision 46” in subsection E.

§ 10.1-104.8. Resource management plans; criteria.

  1. The Soil and Water Conservation Board shall by regulation, and in consultation with the Department of Agriculture and Consumer Services and the Department of Environmental Quality, specify the criteria to be included in a resource management plan.
  2. The regulations shall:
    1. Be technically achievable and take into consideration the economic impact to the agricultural landowner or operator;
    2. Include (i) determinations of persons qualified to develop resource management plans and to perform on-farm best management practice assessments; (ii) plan approval or review procedures if determined necessary; (iii) allowable implementation timelines and schedules; (iv) determinations of the effective life of the resource management plans taking into consideration a change in or a transfer of the ownership or operation of the agricultural land, a material change in the agricultural operations, issuance of a new or modified total maximum daily load (TMDL) implementation plan for the Chesapeake Bay or other local total maximum daily load water quality requirements, and a determination pursuant to Chapter 4 (§ 3.2-400 et seq.) of Title 3.2 that an agricultural activity on the land is creating or will create pollution; (v) factors that necessitate renewal or new plan development; and (vi) a means to determine full implementation and compliance with the plans including reporting and verification;
    3. Provide for a process by which an on-farm assessment of all reportable best management practices currently in place, whether as part of a cost-share program or through voluntary implementation, shall be conducted to determine their adequacy in achieving needed on-farm nutrient, sediment, and bacteria reductions;
    4. Include agricultural best management practices sufficient to implement the Virginia Chesapeake Bay TMDL Watershed Implementation Plan and other local total maximum daily load water quality requirements of the Commonwealth; and
    5. Specify that the required components of each resource management plan shall be based upon an individual on-farm assessment. Such components shall comply with on-farm water quality objectives as set forth in subdivision B 4, including best management practices identified in this subdivision and any other best management practices approved by the Board or identified in the Chesapeake Bay Watershed Model or the Virginia Chesapeake Bay TMDL Watershed Implementation Plan.
      1. For all cropland or specialty crops such components shall include the following, as needed and based upon an individual on-farm assessment:
        1. A nutrient management plan that meets the nutrient management specifications developed by the Department;
        2. A forest or grass buffer between cropland and perennial streams of sufficient width to meet water quality objectives and consistent with Natural Resources Conservation Service standards and specifications;
        3. A soil conservation plan that achieves a maximum soil loss rate of “T,” as defined by the Natural Resources Conservation Service; and
        4. Cover crops meeting best management practice specifications as determined by the Natural Resources Conservation Service or the Virginia Agricultural Best Management Practices Cost-Share Program.
      2. For all hayland, such components shall include the following, as needed and based upon an individual on-farm assessment:
        1. A nutrient management plan that meets the nutrient management specifications developed by the Department;
        2. A forest or grass buffer between cropland and perennial streams of sufficient width to meet water quality objectives and consistent with Natural Resources Conservation Service standards and specifications; and
        3. A soil conservation plan that achieves a maximum soil loss rate of “T,” as defined by the Natural Resources Conservation Service.
      3. For all pasture, such components shall include the following, as needed and based upon an individual on-farm assessment:
        1. A nutrient management plan that meets the nutrient management specifications developed by the Department;
        2. A system that limits or prevents livestock access to perennial streams; and
        3. A pasture management plan or soil conservation plan that achieves a maximum soil loss rate of “T,” as defined by the Natural Resources Conservation Service.

History. 2011, c. 781.

The number of this section was assigned by the Virginia Code Commission, the number in the 2011 act having been § 10.1-104.6 .

Cross references.

As to exclusions under the Virginia Freedom of Information Act for proprietary records and trade secrets, see § 2.2-3705.6.

§ 10.1-104.9. Regulations under this article.

Regulations adopted by the Board for the enforcement of this article shall be subject to the requirements set out in §§ 2.2-4007.03, 2.2-4007.04, 2.2-4007.05, and 2.2-4026 through 2.2-4030 of the Administrative Process Act (§ 2.2-4000 et seq.), and shall be published in the Virginia Register of Regulations. The Board shall convene a stakeholder group to assist in development of these regulations, with representation from agricultural and environmental interests as well as Soil and Water Conservation Districts. All other provisions of the Administrative Process Act shall not apply to the adoption of any regulation pursuant to this article. After the close of the 60-day comment period, the Board may adopt a final regulation, with or without changes. Such regulation shall become effective 15 days after publication in the Virginia Register of Regulations, unless the Board has withdrawn or suspended the regulation or a later date has been set by the Board. The Board shall also hold at least one public hearing on the proposed regulation during the 60-day comment period. The notice for such public hearing shall include the date, time, and place of the hearing.

History. 2011, c. 781.

The number of this section was assigned by the Virginia Code Commission, the number in the 2011 act having been § 10.1-104.7 .

Cross references.

As to exclusions under the Virginia Freedom of Information Act for proprietary records and trade secrets, see § 2.2-3705.6.

Article 2. Board of Conservation and Recreation.

§ 10.1-105. Board of Conservation and Recreation.

The Board of Conservation and Recreation shall be reorganized and is established as a policy board in the executive branch in accordance with § 2.2-2100 and shall consist of 12 members to be appointed by the Governor. The Board shall be the successor to the Board on Conservation and Development of Public Beaches and the Virginia State Parks Foundation. The members of the Board shall initially be appointed for terms of office as follows: three for a one-year term, three for a two-year term, three for a three-year term, and three for a four-year term. The Governor shall designate the term to be served by each appointee at the time of appointment. Appointments thereafter shall be made for four-year terms. No person shall serve more than two consecutive full terms. Any vacancy shall be filled by the Governor for the unexpired term. All terms shall begin July 1. Board members shall serve at the pleasure of the Governor. In making appointments, the Governor shall endeavor to select persons suitably qualified to consider and act upon the various special interests and problems related to the programs of the Department. The Board may appoint subcommittees of not less than three to consider and deal with special interests and problems related to programs of the Department.

History. Code 1950, § 10-3; 1954, c. 487; 1958, c. 427; 1966, cc. 477, 510; 1984, c. 750; 1988, c. 891; 1989, c. 656; 1991, c. 84; 2003, cc. 79, 89.

Editor’s note.

Acts 1991, c. 84, cl. 3 provides: “That existing regulations promulgated by the Department of Conservation and Recreation under the stormwater management program (§ 10.1-603.1 et seq.) are transferred to the Board of Conservation and Recreation and shall remain in full force and effect until any such regulation is amended, modified, or repealed by the Board of Conservation and Recreation.”

Acts 2003, cc. 79 and 89, cl. 3 provides: “That all rules and regulations adopted by the Board on Conservation and Development of Public Beaches that are in effect as of the effective date of this act shall remain in full force and effect until amended or rescinded by the Board of Conservation and Recreation. The Board of Conservation and Recreation shall promulgate as soon as practicable any necessary changes to the regulations to complete the consolidation of the Boards.”

Acts 2003, cc. 79 and 89, cl. 4 provides: “That of the members currently serving on the Board of Conservation and Recreation, the Virginia State Parks Foundation, and the Board on Conservation and Development of Public Beaches, a minimum of two members of each shall be appointed by the Governor to new first-term appointments to the reconstituted Board of Conservation and Recreation.”

The 2003 amendments.

The 2003 amendments by cc. 79 and 89 are identical, and substituted “be reorganized and is established as a policy board in the executive branch in accordance with § 2.2-2100 and shall consist of 12 members to be appointed by the Governor” for “hereafter in this chapter be referred to as the Board” at the end of the first sentence, substituted “be the successor to the Board on Conservation and Development of Public Beaches and the Virginia State Parks Foundation” for “consist of nine members appointed by the Governor” at the end of the second sentence, in the third sentence, substituted “Board” for “board,” and substituted “three for a two-year term, three for a three-year term, and three for a four-year term” for “two for a two-year term, two for a three-year term, and two for a four-year term” at the end, and inserted the fourth sentence.

§ 10.1-106. Officers; meetings; quorum.

The Board shall elect one of its members chairman, and another as vice-chairman. The Director or his designee shall serve as executive secretary to the Board.

The Board shall meet at least three times a year on the call of the chairman or the Director. The vice-chairman shall fill the position of chairman in the event the chairman is not available. A majority of the members of the Board shall constitute a quorum of the Board.

History. Code 1950, §§ 10-4, 10-5; 1958, c. 427; 1968, c. 126; 1988, c. 891; 1991, c. 84; 2003, cc. 79, 89.

Editor’s note.

Acts 2003, cc. 79 and 89, cl. 3, provide: “That all rules and regulations adopted by the Board on Conservation and Development of Public Beaches that are in effect as of the effective date of this act shall remain in full force and effect until amended or rescinded by the Board of Conservation and Recreation. The Board of Conservation and Recreation shall promulgate as soon as practicable any necessary changes to the regulations to complete the consolidation of the Boards.”

Acts 2003, cc. 79 and 89, cl. 4, provide: “That of the members currently serving on the Board of Conservation and Recreation, the Virginia State Parks Foundation, and the Board on Conservation and Development of Public Beaches, a minimum of two members of each shall be appointed by the Governor to new first-term appointments to the reconstituted Board of Conservation and Recreation.”

The 2003 amendments.

The 2003 amendments by cc. 79 and 89 are identical, and in the first paragraph, rewrote the second sentence, which formerly read: “A representative of the Department shall serve as secretary to the Board,” and in the second paragraph, substituted “three” for “four” in the first sentence.

§ 10.1-107. General powers and duties of the Board.

  1. The Board shall advise the Governor and the Director on activities of the Department. Upon the request of the Governor, or the Director, the Board shall institute investigations and make recommendations.The Board shall formulate recommendations to the Director concerning:
    1. Requests for grants or loans pertaining to outdoor recreation.
    2. Designation of recreational sites eligible for recreational access road funds.
    3. Designations proposed for scenic rivers, scenic highways, and Virginia byways.
    4. Acquisition of real property by fee simple or other interests in property for the Department including, but not limited to, state parks, state recreational areas, state trails, greenways, natural areas and natural area preserves, and other lands of biological, environmental, historical, recreational or scientific interest.
    5. Acquisition of bequests, devises and gifts of real and personal property, and the interest and income derived therefrom.
    6. Stage one and stage two plans, master plans, and substantial acquisition or improvement amendments to master plans as provided in § 10.1-200.1 .
  2. The Board shall have the authority to promulgate regulations necessary for the execution of the Public Beach Conservation and Development Act, Article 2 (§ 10.1-705 et seq.) of Chapter 7 of this title.
  3. The Board shall assist the Department in the duties and responsibilities described in Subtitle I (§ 10.1-100 et seq.) of Title 10.1.
  4. The Board is authorized to conduct fund-raising activities as deemed appropriate and will deposit such revenue into the State Parks Projects Fund pursuant to subsection C of § 10.1-202 .
  5. The Board shall advise the Governor and the Director concerning the protection or management of the Virginia Scenic Rivers System as defined in § 10.1-400 . Upon the request of the Governor, or the Director, the Board shall institute investigations and make recommendations. The Board shall have general powers and duties to (i) advise the Director on the appointment of Scenic River Advisory Committees or other local or regional committees pursuant to § 10.1-401 ; (ii) formulate recommendations concerning designations for proposed scenic rivers or extensions of existing scenic rivers; (iii) consider and comment to the Director on any federal, state, or local governmental plans to approve, license, fund, or construct facilities that would alter any of the assets that qualified the river for scenic designation; (iv) assist the Director in reviewing and making recommendations regarding all planning for the use and development of water and related land resources including the construction of impoundments, diversions, roadways, crossings, channels, locks, canals, or other uses that change the character of a stream or waterway or destroy its scenic assets, so that full consideration and evaluation of the river as a scenic resource will be given before alternative plans for use and development are approved; (v) assist the Director in preserving and protecting the natural beauty of the scenic rivers, assuring the use and enjoyment of scenic rivers for fish and wildlife, scenic, recreational, geologic, historic, cultural, or other assets, and encouraging the continuance of existing agricultural, horticultural, forestal and open space land and water uses; (vi) advise the Director and the affected local jurisdiction on the impacts of proposed uses of each scenic river and its related land resources; and (vii) assist local governments in solving problems associated with the Virginia Scenic Rivers System, in consultation with the Director.

History. Code 1950, § 10-12; 1958, c. 427; 1962, c. 355; 1984, c. 750; 1988, c. 891; 1991, c. 84; 1998, c. 780; 2003, cc. 79, 89; 2005, cc. 25, 102; 2009, c. 856; 2012, cc. 803, 835.

Editor’s note.

Acts 2003, cc. 79 and 89, cl. 3, provide: “That all rules and regulations adopted by the Board on Conservation and Development of Public Beaches that are in effect as of the effective date of this act shall remain in full force and effect until amended or rescinded by the Board of Conservation and Recreation. The Board of Conservation and Recreation shall promulgate as soon as practicable any necessary changes to the regulations to complete the consolidation of the Boards.”

Acts 2003, cc. 79 and 89, cl. 4, provide: “That of the members currently serving on the Board of Conservation and Recreation, the Virginia State Parks Foundation, and the Board on Conservation and Development of Public Beaches, a minimum of two members of each shall be appointed by the Governor to new first-term appointments to the reconstituted Board of Conservation and Recreation.”

Acts 2005, c. 102, cl. 2 provides: “That the Governor shall make new appointments for each of the three at-large members of the Board in accordance with the provisions of this act on July 1, 2005. The new appointments of the at-large members of the Board shall go into effect upon the expiration of the current members’ terms in January 2006, and the terms shall be staggered as follows: one member for a term of two years; one member for a term of three years; and one member for a term of four years. The Governor shall designate the term to be served by each appointee at the time of appointment and may reappoint the existing at-large members of the Board.”

The 1998 amendment added subdivision A 6.

The 2003 amendments.

The 2003 amendments by cc. 79 and 89 are identical, and inserted “and for the execution of the Public Beach Conservation and Development Act, Article 2 (§ 10.1-705 et seq.) of Chapter 7 of this title” at the end of subsection B; and added subsections C and D.

The 2005 amendments.

The 2005 amendment by c. 25 deleted “and historical” following “recreational” in subdivision A 2.

The 2005 amendment by c. 102 deleted “Virginia Stormwater Management Act, Article 1.1 § 10.1-603.1 et seq.) of Chapter 6 of this title and for the execution of the” preceding “Public Beach” in B.

The 2009 amendments.

The 2009 amendment by c. 856 substituted “subsection C” for “subsection D” near the end in subsection D.

The 2012 amendments.

The 2012 amendment by cc. 803 and 835, cl. 93, are identical, and added subsection E.

OPINIONS OF THE ATTORNEY GENERAL

Department of Conservation and Recreation may regulate swimming

in public parks, natural preserves, and other areas over which the Department exercises supervisory authority, but lacks the authority to regulate swimming in other waters. See opinion of Attorney General to The Honorable Albert C. Pollard, Jr., Member, House of Delegates, 10-074, 2010 Va. AG LEXIS 50 (8/23/10).

Article 3. Disposition of Department Lands.

§ 10.1-108. Definitions.

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

“Environment” means the natural, scenic, scientific and historic attributes of the Commonwealth.

“Exploration” means the examination and investigation of land for the purpose of locating and determining the extent of minerals, by excavating, drilling, boring, sinking shafts, sinking wells, driving tunnels, or other means.

“Mineral” means petroleum, natural gas, coal, ore, rock and any other solid chemical element or compound which results from the inorganic process of nature. For the purposes of this article, the word mineral shall not include timber.

History. 1978, c. 835, § 10-17.113; 1988, c. 891.

§ 10.1-109. Lease of lands and other properties.

  1. The Director is authorized, subject to the written recommendation of the Department of General Services to the Governor and the written approval of the Governor, following review as to form and content by the Attorney General and the provisions of this article, to lease to any person for consideration, by appropriate instrument signed and executed by the Director, in the name of the Commonwealth: (i) any lands or other properties held for general recreational or other public purposes by the Department, for the Commonwealth, or (ii) any lands over which the Department has supervision and control, or any part of such lands where such lease is for the purposes of recreation, agriculture, or resource management and is consistent with the purposes and duties of the Department. Notwithstanding the provisions of subdivision (ii), whenever land is acquired by purchase or otherwise for public recreation and conservation purposes under the administration of the Department, the Director is authorized to lease the land or any portion of it back to the owner from whom the land is acquired upon terms and conditions in the public interest. No lease granted under this section shall be for an initial term longer than ten years, but any such lease may contain provisions for lease renewals, either contingent or automatic at the discretion of the Director, for a like period upon the same terms and conditions as originally granted. If written notice of termination is received by the Director from the lessee or if use of the lease is in fact abandoned by the lessee at any time prior to the end of the initial term or any renewal, the Director may immediately terminate the lease.
  2. The Director is authorized to lease state-owned housing under the control of the Department to state employees. Such leases shall be approved as to form and content by the Attorney General and the Department of General Services. The leasing of Department-controlled housing to state employees shall be for the purposes of providing security and operational efficiencies to property of the Department and shall not cause the property to be considered surplus to the agency’s need. If the Director determines that the availability of state-owned housing is inadequate to meet the onsite security and operational efficiencies requirements for Department-owned property, he may lease residential property not owned by the Commonwealth from prospective landlords for the purposes of subleasing to state employees who otherwise qualify for leasing state-owned housing. Such leases and subleases shall be approved by the Director.
  3. Property leased under this section shall not be considered surplus to the agency’s need.
  4. The Department shall include information about leasing activities carried out pursuant to this section in an annual report to the General Assembly.

History. 1978, c. 835, § 10-17.114; 1980, c. 451; 1984, c. 739; 1987, c. 453; 1988, c. 891; 1991, c. 461; 2008, c. 22; 2021, Sp. Sess. I, c. 400.

Editor’s note.

Acts 1987, c. 52, cl. 1 and 2, provided that the Director of the Department of Conservation and Historic Resources (now Department of Conservation and Recreation) could execute the appropriate instruments necessary to convey real estate in the Appalachian Trail held in the name of the Commonwealth to the United States of America, Department of the Interior, National Park Service in exchange for real estate in the Appalachian Trail held in the name of the United States of America, and that any such instruments were subject to former § 10-17.114 (now §§ 10.1-109 through 10.1-112 ), including review and approval by the Board of Conservation and Historic Resources (Board of Conservation and Recreation), approval by the Governor and approval of the Attorney General as to form and content. Instruments were executed in October, 1987, from the United States to Virginia and from Virginia to the United States making such conveyances.

Acts 1998, c. 248, cl. 1 provides: “That notwithstanding the provisions of § 10.1-109 of the Code of Virginia, the Department of Conservation and Recreation is hereby authorized to lease to the Chesapeake Bay Foundation, Inc., upon terms as the Department deems proper, with the approval of the Governor and the Attorney General, that parcel of land known as the Jammes property, containing 8.8781 acres, more or less, as shown on a boundary survey recorded in the Office of the Clerk of the Circuit Court of Fairfax County, Virginia, in Deed Book 9501, page 985, together with a parcel adjoining the northwest corner of the Jammes property and providing access to Occoquan Bay, both parcels being a portion of Mason Neck State Park in Fairfax County. The terms of the lease shall require the lessee to make substantial renovations to the existing improvements on the Jammes property, and shall provide that the parcels shall be used as the situs of environmental education programs and such other uses as the Department and the lessee determine are consistent with the purposes for which the parcels were acquired by the Commonwealth. The initial term of this lease shall be for thirty years, and the lease shall be renewable at the option of the lessee for like periods upon the same terms and conditions as the initial lease term. Prior to execution, the lease shall be submitted to the chairmen of the Senate Finance Committee, the Senate Committee for Courts of Justice, the House Committee on Conservation and Natural Resources and the House Appropriations Committee for review.”

Acts 1998, c. 282, cls. 1 and 2 provide: “§ 1. That notwithstanding the lease term limits under § 10.1-109 , the initial term of this lease shall be for a term of thirty years and may be renewed for three additional periods of similar length. All lease renewals shall require the approval of the Governor and the Attorney General.”

“2. Notwithstanding the lease term limits under § 10.1-109 , the initial term of this lease shall be for a term of thirty years and may be renewed for three additional periods of similar length. All lease renewals shall require the approval of the Governor and the Attorney General.”

Acts 2000, c. 263, cls. 1 and 2 provide: “§ 1. That in accordance with and as evidence of General Assembly approval pursuant to § 10.1-109 of the Code of Virginia, the Department of Conservation and Recreation is hereby authorized to lease to Franklin County, upon terms and conditions the Department deems proper, with the approval of the Governor and the Attorney General, a certain parcel of land located on Smith Mountain Lake in Franklin County containing thirty-seven acres, more or less. The lease shall require that the property be developed, maintained, and kept open for public recreational use; if this condition is not satisfied, the lease shall terminate and control of the property shall revert to the Department of Conservation and Recreation.

“§ 2. Notwithstanding the lease term limits under § 10.1-109 , the initial term of this lease shall be for a term of thirty years and may be renewed for three additional periods of similar length. All lease renewals shall require the approval of the Governor and the Attorney General.”

Acts 2000, c. 371, cls. 1 to 3 provide: “§ 1. That in accordance with and as evidence of General Assembly approval pursuant to § 10.1-109 of the Code of Virginia, the Department of Conservation and Recreation is hereby authorized to convey to Woodland Pond, upon such terms as the Department deems proper with the approval of the National Park Service, Governor and Attorney General, a certain parcel of real property containing approximately one acre on the southeast boundary of Pocahontas State Park in Chesterfield County.

Ҥ 2. In consideration for such conveyance, the Department is authorized to accept on behalf of the boundary of approximately equal acreage and of equal or greater economic and recreational value.

Ҥ 3. The exchange of real property shall be for due consideration as determined by the Department and Woodland Pond.

“The deeds of conveyance shall be in the form approved by the Attorney General.”

Acts 2001, c. 247, cls. 1 to 3 provide: “§ 1. That, in accordance with and as evidence of General Assembly approval pursuant to § 10.1-104 of the Code of Virginia, the Department of Conservation and Recreation is hereby authorized to acquire, with the approval of the Governor and in a form approved by the Attorney General, that certain parcel of real property and appurtenances thereto, consisting of 154 acres, plus or minus, known as the Mary B. Stratton Estate property fronting on State Route 643, in Chesterfield County.

“§ 2. Further, in accordance with and as evidence of General Assembly approval pursuant to § 10.1-109 of the Code of Virginia, the Department of Conservation and Recreation is hereby authorized to lease to Chesterfield County upon terms and conditions the Department deems proper, with approval of the Governor, the above described property. The lease shall require that the property be maintained and open to public recreational use. If this condition is not met, the lease shall terminate and control shall revert to the Department of Conservation and Recreation.

“§ 3. Notwithstanding the lease term limits under § 10.1-109 , the initial term of this lease shall be for a term of thirty years and may be renewed for three additional periods of similar length. All lease renewals shall require approval of the Governor.”

Acts 2002, c. 809, cls. 1-6, as amended by Acts 2004, c. 825 and Acts 2006, c. 39, provide:

“§ 1. That, in accordance with and as evidence of General Assembly approval pursuant to §§ 10.1-104 and 10.1-109 of the Code of Virginia, the Department of Conservation and Recreation is hereby authorized to amend on behalf of the Commonwealth, upon terms and conditions the Department deems proper, with approval of the Governor and in a form approved by the Attorney General, a certain lease by and between the Secretary of the Army and the Commonwealth of Virginia. Department of Conservation and Recreation, and to enter into a sublease on behalf of the Commonwealth, upon terms and conditions that the Department deems proper, with approval of the Governor and in a form approved by the Attorney General, with any public entity for a portion of the Occoneechee State Park in Mecklenburg County.

Ҥ 2. The purpose of the amendment is to allow certain property currently owned by the federal government and leased by the Commonwealth within Occoneechee State Park, if approved by the federal government, to be used for a recreational facility not operated under the purview of the Department of Conservation and Recreation, if approved by the federal government.

“§ 3. The amendment to the lease shall be subject to (i) the public participation guidelines of the Administrative Process Act (§ 2.2-4000 et seq.) and (ii) inclusion in the master plan for the park.

Ҥ 4. The sublease shall require approval by the Secretary of the Army.

Ҥ 5. Any further subletting of the property by the public entity shall be to another public entity and shall be subject to review and approval by the Department, with approval of the Governor and in a form approved by the Attorney General. Upon expiration of the sublease, or when the subleasee no longer wishes to have the property operated under the terms of the sublease, the subleasee shall return the property to the Department in the condition specified by the sublease.

“§ 6. The provisions of this act shall expire on July 1, 2008, unless the amendment has been incorporated into the lease agreement by July 1, 2008.”

Acts 2003, c. 100, cls. 1 and 2, provide: “§ 1. That in accordance with and as evidence of General Assembly approval pursuant to § 10.1-109 of the Code of Virginia, the Department of Conservation and Recreation is hereby authorized to convey to the Mount Vernon Ladies’ Association of the Union, upon terms as the Department deems proper, with the approval of the Governor, and the Attorney General as to form of the instrument of conveyance, certain parcels of real property containing 15.4 acres more or less, located in Fairfax County adjacent to George Washington’s grist mill.

“§ 2. If such property is conveyed to the Mount Vernon Ladies’ Association of the Union, the deed shall require that the property be maintained for and open to public use. If this condition is not met, the property shall revert to the Department of Conservation and Recreation.”

Acts 2009, c. 689 provides: “§ 1. That in accordance with and as evidence of General Assembly approval pursuant to § 10.1-109 of the Code of Virginia, the Department of Conservation and Recreation is hereby authorized to convey to the Department of Forestry, upon terms and conditions as the Department of Conservation and Recreation and the Department of Forestry deem proper, and with the approval of the Governor and in a form approved by the Attorney General, also as required by § 10.1-109 of the Code of Virginia, all of its right, title, and interest in a portion of land approved by the Director of the Department of Conservation and Recreation, and located in or adjacent to Grayson Highlands State Park in Grayson County. The boundaries of such conveyance shall be determined by mutual agreement of the Department of Conservation and Recreation and the Department of Forestry.

Ҥ 2. That as a prior condition to such conveyance, the Department of Conservation and Recreation and the Department of Forestry shall mutually ascertain the existence of or, if necessary, acquire public road access to said property acceptable to the Department of Forestry.

“§ 3. That in exchange for such conveyance, the Department of Conservation and Recreation is authorized to receive, and the Department of Forestry is authorized to convey, upon terms and conditions as the Department of Conservation and Recreation and the Department of Forestry deem proper, and with the approval of the Governor and in a form approved by the Attorney General pursuant to § 2.2-1150 of the Code of Virginia, the Department of Forestry’s rights, title, and interest in a portion of land approved by the State Forester, and adjoining Holliday Lake State Park in Appomattox County. The boundaries of such conveyance shall be determined by mutual agreement of the Department of Conservation and Recreation and the Department of Forestry.

Ҥ 4. That the purpose of this exchange is to provide the Department of Conservation and Recreation with additional property for the possible future expansion of Holliday Lake State Park and the protection of its viewshed, and to provide the Department of Forestry with a location for research and seed sources for native species.

“§ 5. That as may be required, the conveyances authorized shall additionally comply with the requirements of the federal Land and Water Conservation Fund Act, 16 U.S.C. § 4601-4 et seq.”

Acts 2011, c. 696, provides: “§ 1. That in accordance with and as evidence of General Assembly approval pursuant to § 10.1-109 of the Code of Virginia, and after judicial approval, as required by the deed of December 28, 2009, the Department of Conservation and Recreation (the Department) is hereby authorized to convey to Muffin Trodding, LLC, Yancey Hardtimes, LLC, and Ms. Elizabeth Breeden, their successors and assigns, separately or together, upon terms and conditions as the Department and the grantees deem proper, and with the approval of the Governor and in a form approved by the Attorney General, all of its right, title, and interest in a parcel or parcels of land that are a part of the 1,191 acres, more or less, known as Biscuit Run in Albemarle County, Virginia, owned by the Department, or such other parcel or parcels of land in proximity to the Biscuit Run property that the Department acquires for the purpose of this exchange. The acreage and boundaries of such parcels shall be determined by mutual agreement of the Department and the grantees, but in no instance shall the negotiated monetary value of the property conveyed from the Property, if unrestricted by the terms of the Deed of Bargain and Sale, exceed the value of the property and life estate described in § 2 hereof. Such acreage and boundaries, and the value thereof, shall be approved by the Director of the Department of General Services. The value of such parcels shall be no more than the value, or the remainder interest value if conveyed subject to a life estate, of the 36 acres, more or less, contemplated in § 2 hereof to be received in exchange therefor by the Department. If the land deeded to Muffin Trodding, LLC, Yancey Hardtimes, LLC, and Ms. Elizabeth Breeden by virtue of this act is taken from the Biscuit Run property, such land shall be subject to all the restrictions contained in the Deed of Bargain and Sale that conveyed Biscuit Run to the Commonwealth until such time as the restrictions are extinguished by a judicial proceeding as provided for in the Deed of Bargain and Sale.

“§ 2. That in exchange for such conveyance, the Department is authorized to receive, subject to the approval of the Governor and in a form approved by the Attorney General and subject to § 2.2-1149 of the Code of Virginia, all the respective right, title, and interest in 36 acres, more or less, owned by Muffin Trodding, LLC, Yancey Hardtimes, LLC, and Ms. Elizabeth Breeden, their successors and assigns, located in the interior of the property known as Biscuit Run. The boundaries of such conveyance shall be determined by mutual agreement of the Department and the owners. The Department is further authorized to allow for the reservation of a life estate in any portion of those 36 acres, more or less, as part of the exchange. The boundaries of such 36 acres, more or less, and the value thereof, including the value of the remainder interest if conveyed subject to a life estate, shall be approved by the Director of the Department of General Services.

“§ 3. That the purpose of this exchange is to provide the Department with a state park site that is less encumbered with private uses that may be detrimental to the operation of a state park on the property.”

Acts 2012, c. 14, provides: “§ 1. That in accordance with and as evidence of General Assembly approval pursuant to § 10.1-109 of the Code of Virginia, the Department of Conservation and Recreation is hereby authorized to convey to Amherst County, upon terms and conditions that the Department deems proper, and with the approval of the Governor and in a form approved by the Attorney General as required by § 10.1-109 of the Code of Virginia, any right, title, or interest that it may have in 31.153 acres, more or less, lying adjacent to the James River at State Route 1004 in Amherst County, Virginia, as more particularly described by deed recorded in the Clerk’s Office of the Amherst County Circuit Court in Deed Book 784, Page 145.

§ 2. Any conveyance shall require that the property be maintained and open to public recreational use, and that if this condition is not met, the property shall revert to the Department.”

The 2008 amendments.

The 2008 amendment by c. 22, in subsection B, inserted “and operational efficiencies” in the third sentence, and added the last two sentences.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 400, effective July 1, 2021, in subsection A, substituted “written recommendation of the Department of General Services to the Governor and the written approval of the Governor” for “consent and approval of the Governor and the General Assembly,” “to lease to any person for consideration, by” for “convey, lease or demise to any person for consideration, by proper deed or other,” and “where such lease is for the purposes of recreation, agriculture, or resource management and is consistent with the purposes and duties of the Department. Notwithstanding the provisions of subdivision (ii), whenever” for “(iii) any right, interest or privilege with respect to such lands. The Director, subject to the consent and approval of the Governor, may renew any such lease, contract or agreement without the consent and approval of the General Assembly. Whenever,” deleted “proper deed or other” preceding “appropriate instrument”; added subsection C and D; and made stylistic changes.

CASE NOTES

Editor’s note.

The case cited in the notes below was decided under former § 10-21.1.

Racial discrimination forbidden. —

The state is required to operate a state park on a nondiscriminatory basis, or, if the park is leased, to see that it is operated by the lessee without racial discrimination. Tate v. Department of Conservation & Dev., 133 F. Supp. 53, 1955 U.S. Dist. LEXIS 2843 (D. Va. 1955), aff'd, 231 F.2d 615, 1956 U.S. App. LEXIS 3431 (4th Cir. 1956).

The “separate but equal” doctrine as applied to the enjoyment of public beaches and bathhouses maintained by public authorities was abolished by Dawson v. Mayor & City Council , 220 F.2d 386 (4th Cir. 1955). It follows that state parks, even where “separate but equal” facilities exist, are governed by the same general principles. Tate v. Department of Conservation & Dev., 133 F. Supp. 53, 1955 U.S. Dist. LEXIS 2843 (D. Va. 1955), aff'd, 231 F.2d 615, 1956 U.S. App. LEXIS 3431 (4th Cir. 1956).

Closing of state park not matter for court determination. —

If, in the wisdom of the leaders of this Commonwealth, it is determined to close a state park, this is not a matter for determination by the court. Tate v. Department of Conservation & Dev., 133 F. Supp. 53 (E.D. Va. 1955), aff’d, 231 F.2d 615 (4th Cir.), cert. denied, 352 U.S. 838, 77 S. Ct. 58, 1 L. Ed. 2d 56 (1956), wherein the court said: “Nor is this court passing upon the right to sell or lease this facility in absolute good faith by giving due notice of its intentions in such a manner that interested parties, regardless of race, may avail themselves of the equal opportunity afforded to submit bids with respect to same.”.

OPINIONS OF THE ATTORNEY GENERAL

Conservation easements. —

A conservation easement obtained under the Virginia Conservation Easement Act (§ 10.1-1009 et seq.) or the Open-Space Land Act (§ 10.1-1700 et seq.) is not extinguished by application of the common-law doctrine of merger of estates when the easement holder acquires fee simple title to the encumbered land. See opinion of Attorney General to The Honorable Thomas Davis Rust, Member, House of Delegates, 11-140, 2012 Va. AG LEXIS 31 (8/31/2012).

§ 10.1-110. Easements to governmental agencies and public service corporations.

  1. The Director is authorized, subject to the consent and approval of the Governor following review as to form and content by the Attorney General, to grant to any governmental agency, political subdivision, public utility company, public service corporation, public service company or authority for consideration by proper deed or other appropriate instrument signed and executed by the Director in the name of the Commonwealth, any easement over, upon and across any lands or other properties held by the Commonwealth or over which it has supervision and control, provided that the easement is consistent with and not in derogation of the general purpose for which the land or other property is held. No easement shall be granted for an initial term longer than ten years, but may contain provisions for renewals either contingent or automatic at the discretion of the Director, for a like period on the same terms and conditions as originally granted. If written notice of termination is received by the Director from the grantee or if use of the easement is in fact abandoned by the grantee at any time prior to the end of the initial term or any renewal, the Director may immediately terminate the easement. If the Department amends its master site plan to include buildings, structures or improvements on or in the vicinity of any easement granted under this section, the Director reserves the right to require, upon written notice given 180 days in advance, the relocation of the easement at the expense of the grantee of the easement.
  2. The relocation requirement of subsection A shall not apply to any easement granted by the Director to the Virginia Department of Transportation.

History. 1978, c. 835, § 10-17.114; 1980, c. 451; 1984, c. 739; 1987, c. 453; 1988, c. 891; 1991, c. 360.

§ 10.1-111. Removal of minerals.

The Director, with the approval of the Governor, is authorized to make and execute leases, contracts or deeds in the name of the Commonwealth, for the removal or mining of minerals that may be found in Departmental lands whenever it appears to the Director that it would be in the best interest of the Commonwealth to dispose of these minerals. Before any deed, contract or lease is made or executed, it shall be approved as to form by the Attorney General, and bids therefor shall be received after notice by publication once each week for four successive weeks in two newspapers of general circulation. The Director shall have the right to reject any or all bids and to readvertise for bids. The accepted bidder shall give bond with good and sufficient surety to the satisfaction of the Director, and in any amount that the Director may fix for the faithful performance of all the conditions and covenants of the lease, contract or deed. The proceeds arising from any contract, deed, or lease shall be deposited into the state treasury to the credit of the State Park Conservation Resources Fund established in subsection A of § 10.1-202 .

History. 1978, c. 835, § 10-17.114; 1980, c. 451; 1984, c. 739; 1987, c. 453; 1988, c. 891; 2003, cc. 79, 89.

The 2003 amendments.

The 2003 amendments by cc. 79 and 89 are identical, and in the last sentence, inserted “State Park,” and “subsection A of.”

§ 10.1-112. Capital improvement projects.

The Director is authorized to make and execute leases and contracts in the name of the Commonwealth for the development and operation of revenue-producing capital improvement projects in Virginia state parks upon the written approval of the Governor. Prior to approval, the Governor shall consider the written recommendation of the Director of the Department of General Services and the Attorney General shall review such leases and contracts as to form.

Any contract or lease for the development and operation of the capital improvement project shall be in accordance with the provisions of the Virginia Public Procurement Act (§ 2.2-4300 et seq.). The accepted bidder shall give a performance bond for the construction, operation and maintenance of the project with good and sufficient surety in an amount fixed by the Director for the faithful performance of the conditions and covenants of such lease or contract.

Such lease or contract, with an initial term not exceeding 30 years, shall be subject to terms, conditions, and limitations as the Director may prescribe and may be renewed with the approval of the Director. The proceeds arising from a contract or lease executed pursuant to this section shall be paid into the State Park Conservation Resources Fund established in subsection A of § 10.1-202 .

History. 1987, c. 835, § 10-17.114; 1980, c. 451; 1984, c. 739; 1987, c. 453; 1988, c. 891; 1998, c. 168; 2003, cc. 79, 89.

The 1998 amendment substituted “thirty years” for “twenty-five years” in the first sentence of the last paragraph.

The 2003 amendments.

The 2003 amendments by cc. 79 and 89 are identical, and in the last paragraph, substituted “30” for “thirty” in the first sentence, and in the last sentence inserted “State Park” and “subsection A of.”

§ 10.1-113. Sale of trees.

For the purpose of managing Departmental lands or maintaining the production of forest products in Departmental lands, the Director, upon the recommendation of the State Forester, may designate and appraise trees to be cut under the principles of scientific forest management, and may sell them for not less than their appraised value. When the appraised value of the trees to be sold is more than $50,000, the Director, before selling them, shall receive bids, after notice by publication once a week for two weeks in two newspapers of general circulation; but the Director shall have the right to reject any and all bids and to readvertise for bids. The proceeds arising from the sale of the timber and trees from state park lands shall be paid into the State Park Conservation Resources Fund established in subsection A of § 10.1-202 . The proceeds arising from the sale of the timber and trees from natural area preserves owned by the Department in fee simple shall be paid into the Natural Area Preservation Fund established in § 10.1-215 .

History. 1988, c. 891; 2003, cc. 79, 89; 2007, c. 158.

The 2003 amendments.

The 2003 amendments by cc. 79 and 89 are identical, and in the last sentence, inserted “State Park” and “subsection A of.”

The 2007 amendments.

The 2007 amendment by c. 158 inserted “managing Departmental lands or” near the beginning of the first sentence, substituted “$50,000” for “$10,000” in the second sentence, inserted “from state park lands” in the next-to-last sentence and added the last sentence.

§ 10.1-114. Commemorative facilities and historic sites management; duties of Director.

In order to further public understanding and appreciation of the persons, places and events that contributed substantially to the development and enhancement of our Commonwealth’s and nation’s democratic and social values and ideals and in order to encourage, stimulate and support the identification, protection, preservation and rehabilitation of the Department’s significant historic, architectural and archaeological sites, the Director has the following duties:

  1. To ensure that Departmental historical and cultural facilities are suitable for public, patriotic, educational and recreational assemblies and events;
  2. To plan, establish, construct, operate, maintain and manage historic museums, commemorative memorials and other facilities as directed by acts of the General Assembly;
  3. To acquire lands, property and structures deemed necessary to the purposes of this chapter by purchase, lease, gift, devise or condemnation proceedings. The title to land and property acquired shall be in the name of the Commonwealth. In the exercise of the power of eminent domain granted under this section, the Director may proceed in the manner provided in Chapter 3 (§ 25.1-300 et seq.) of Title 25.1; and
  4. To lease acquired property to any person, association, firm or corporation for terms and conditions determined by the Director with the Governor’s consent.

History. 1989, c. 656; 2003, c. 940.

The 2003 amendments.

The 2003 amendment by c. 940 substituted “Chapter 3 (§ 25.1-300 et seq.) of Title 25.1” for “§§ 33.1-89 through 33.1-132” in subdivision 3.

Michie’s Jurisprudence.

For related discussion, see 7A M.J. Eminent Domain, § 2.

§ 10.1-114.1. Directory of cultural heritage sites.

  1. The Director is authorized to develop a state directory of cultural heritage facilities and sites. The directory shall recognize commemorative and historic facilities and sites that interpret significant aspects of national, state, or regional culture or history. Sites included in the directory shall not be owned or operated by state agencies.
  2. Owners or managers of a potential commemorative or historic facility desiring to be included in the directory of cultural heritage sites shall submit an application to the Department. To be eligible for inclusion in the directory, the application shall include a discussion of the cultural and historic significance of the facility or site; a description of how the facility or site is staffed and managed; information on any oversight or advisory boards, including their mission statements and goals; information regarding the accessibility of the site to persons with special needs; information confirming the availability of the facility or site to the public for tours and educational or recreational programs on a regular basis; letters of support from local governments, chambers of commerce, tourism bureaus, or other supporting entities; and other information as the Department determines to be necessary. The Department may develop additional qualification criteria and application materials that may be necessary to implement the registry program. Such criteria may be adopted by the Director after considering the recommendations of the Board of Conservation and Recreation.
  3. The Director shall evaluate whether the facility or site qualifies for inclusion in the directory. In evaluating the facility or site, the Director shall consult with the Department of Historic Resources, the Virginia Tourism Corporation, and other state and federal agencies when such consultation would benefit the evaluation.
  4. The Director shall present any findings to the Board for its recommendation. Upon the favorable recommendation of the Board, the Director may designate a facility or site for inclusion in the directory with the Governor’s written approval.
  5. The Department shall maintain the directory of cultural heritage facilities and sites on its website and actively promote those facilities or sites.

History. 2010, c. 29.

Article 4. Conservation Officers.

§ 10.1-115. Appointment of conservation officers; qualifications; oath.

  1. The Director, when he deems it necessary, may request the Governor to commission an individual designated by the Director to act as a conservation officer of the Commonwealth. Upon concurring with the Director’s request, the Governor shall direct the Secretary of the Commonwealth to issue a conservation officer commission to the designated individual. The Secretary of the Commonwealth shall deliver a copy of the commission to the Director. Any individual so commissioned shall hold his commission during his term of employment with the Department, subject to the provisions of § 10.1-118 .
  2. The Director, upon the request of the Breaks Interstate Park Commission, may request the Governor to commission an individual who meets the requirements of § 10.1-120 and is designated by the Director to act as a conservation officer of the Commonwealth. Upon concurring with the Director’s request, the Governor shall direct the Secretary of the Commonwealth to issue a conservation officer commission to the designated individual. The Secretary of the Commonwealth shall deliver a copy of the commission to the Director.
  3. To be qualified to receive a conservation officer commission, a person shall (i) be at least 21 years of age and (ii) have graduated from high school or obtained an equivalent diploma.
  4. Each conservation officer shall qualify before the clerk of the circuit court of the city or county in which he resides, or in which he first is assigned duty, by taking the oaths prescribed by law. An employee of the Breaks Interstate Park Commission shall qualify before the clerk of the circuit court of Dickenson County.
  5. The Director may designate certain conservation officers to be special conservation officers. Special conservation officers shall have the same authority and power as sheriffs throughout the Commonwealth to enforce the laws of the Commonwealth.

History. 1994, c. 205; 2015, cc. 64, 489.

Cross references.

As to definition of law-enforcement officer, see § 9.1-101 . As to exception for conservation officers from minimum training standards, see § 9.1-113 .

As to the Line of Duty Act, see § 9.1-400 . As to Public Safety Medal of Valor Act, see § 9.1-800 et seq. As to malicious bodily injury to law-enforcement officers, etc., see § 18.2-51.1 .

Editor’s note.

Acts 1994, c. 205, cl. 2 provides that all commissions or appointments of conservators of the peace pursuant to § 19.2-16 shall be null and void except for appointment of persons currently employed by the Department of Conservation and Recreation. Any Commission or appointment issued pursuant to § 19.2-16 to persons currently employed by the Department of Conservation and Recreation shall continue in full force and effect until it is replaced by a conservation officer commission issued pursuant to § 10.1-115 or until the individual ceases to be employed by the Department.

The 2015 amendments.

The 2015 amendments by cc. 64 and 489 are identical, and deleted “of the Department” following “Director,” substituted “a conservation officer” for “conservation officers” in subsection A; added subsection B and redesignated former subsections B through D as subsections C through E; substituted “21” for “twenty-one” in subsection C; and added the second sentence to subsection D.

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Arrest, § 4.

§ 10.1-116. Jurisdiction of conservation officers.

Conservation officers shall have jurisdiction throughout the Commonwealth on all Department lands and waters and upon lands and waters under the management or control of the Department, on property of the United States government or a department or agency thereof on which the Commonwealth has concurrent jurisdiction and is contiguous with land of the Department or on which the Department has a management interest, on property operated by the Breaks Interstate Park Commission within the Commonwealth of Virginia with the written agreement of the Commission, on a property of another state agency or department whose property is contiguous with land of the Department, and in those local jurisdictions in which mutual aid agreements have been established pursuant to § 15.2-1736 .

Special conservation officers appointed pursuant to § 10.1-115 shall have jurisdiction throughout the Commonwealth.

History. 1994, c. 205; 2005, c. 87; 2015, cc. 64, 489.

The 2005 amendments.

The 2005 amendment by c. 87 added “on a property . . . pursuant to § 15.2-1736 ” to the end of the present first paragraph and added the second paragraph.

The 2015 amendments.

The 2015 amendments by cc. 64 and 489 are identical, and inserted “on property operated by the Breaks Interstate Park Commission within the Commonwealth of Virginia with the written agreement of the Commission” in the first paragraph and made minor stylistic changes.

§ 10.1-117. Powers and duties of conservation officers.

  1. It shall be the duty of all conservation officers to uphold and enforce the laws of the Commonwealth, the regulations of the Department, and the rules and regulations of the Breaks Interstate Park Commission.
  2. Commissioned conservation officers shall be law-enforcement officers and shall have the power to enforce the laws of the Commonwealth, the regulations of the Department and the collegial bodies under administrative support of the Department, and the rules and regulations of the Breaks Interstate Park Commission. If requested by the chief law-enforcement officer of the locality, conservation officers shall coordinate the investigation of felonies with the local law-enforcement agency.

History. 1994, c. 205; 2005, c. 88; 2015, cc. 64, 489.

The 2005 amendments.

The 2005 amendment by c. 88 deleted the former last sentence of subsection A; and, in subsection B, deleted “and conservators of the peace” following “law-enforcement officers,” and substituted “the power to enforce” for “all of the powers of a conservator of the peace as provided in Article 2 (§ 19.2-18 et seq.) of Chapter 2 of Title 19.2 to enforce” in the first sentence, and rewrote the last sentence.

The 2015 amendments.

The 2015 amendments by cc. 64 and 489 are identical, and deleted “and” following “laws of the Commonwealth” and inserted “and the rules and regulations of the Breaks Interstate Park Commission” at the end of subsection A and in the first sentence in subsection B.

OPINIONS OF THE ATTORNEY GENERAL

Law-enforcement officers may inquire into immigration status. —

Virginia law-enforcement officers, including conservation officers, may inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, Virginia House of Delegates, 10-047, 2010 Va. AG LEXIS 37 (7/30/10).

§ 10.1-118. Decommissioning of conservation officers.

Upon separation from the Department or the Breaks Interstate Park Commission, incapacity, death, or other good cause, the Director may recommend in writing the decommissioning of any conservation officer to the Governor. Upon concurring with the Director’s request, the Governor shall direct the Secretary of the Commonwealth to issue a certificate of decommissioning to the conservation officer. The Secretary of the Commonwealth shall deliver a copy of the certificate to the Director. Upon receipt of the decommissioning certificate, the Director shall ensure that the certificate is recorded at the office of the clerk of the circuit court of any city or county in which the individual took his oath of office.

History. 1994, c. 205; 2015, cc. 64, 489.

The 2015 amendments.

The 2015 amendments by cc. 64 and 489 are identical, and inserted “or the Breaks Interstate Park Commission” in the first sentence.

§ 10.1-119. Defense of conservation officer of the Department prosecuted on criminal charges.

If any conservation officer shall be brought before any regulatory body, summoned before any grand jury, investigated by any other law-enforcement agency, or arrested or indicted or otherwise prosecuted on any charge arising out of any act committed in the discharge of his official duties, the Director may employ special counsel approved by the Attorney General to defend such officer. Upon a finding that (i) the officer did not violate a law or regulation resulting from the act that was the subject of the investigation and (ii) the officer will not be terminated from employment as the result of such act, the Director shall arrange for payment for the special counsel employed. The compensation for special counsel employed pursuant to this section shall, subject to the approval of the Attorney General, be paid out of the funds appropriated for the administration of the Department of Conservation and Recreation or the Breaks Interstate Park Commission as may be applicable.

History. 2007, c. 595; 2015, cc. 64, 489.

The 2015 amendments.

The 2015 amendments by cc. 64 and 489 are identical, and deleted “appointed by the Director” following “If any conservation officer” in the first sentence, substituted “arrange for payment” for “pay” in the second sentence and added “or the Breaks Interstate Park Commission as may be applicable” at the end.

§ 10.1-120. Commissioning of Breaks Interstate Park Commission employees as conservation officers.

  1. The Director shall ensure that an employee of the Breaks Interstate Park Commission whom the Commission recommends for commissioning as a conservation officer in accordance with subsection B of § 10.1-115 meets the minimum qualifications for law-enforcement officers set out in § 15.2-1705 , is subject to the minimum training standards set out in § 9.1-114 , abides by the Department’s law-enforcement in-service training requirements, and abides by the law-enforcement directives of the Department unless exceptions by the Department are granted in writing. For the purposes of law-enforcement directives, the Breaks Interstate Park shall be treated as a Virginia State Park.
  2. The Commission shall bear the expenses associated with training and equipping a Commission employee as a conservation officer to Department standards unless the Department agrees otherwise.

History. 2015, cc. 64, 489.

Chapter 2. Parks and Recreation.

Article 1. State Parks.

§ 10.1-200. Duties related to parks and outdoor recreation; additional powers.

To facilitate and encourage the public use of parks and recreational areas, to further take advantage of the positive economic impact of outdoor recreational facilities to localities and the Commonwealth, to foster the upkeep and maintenance of such resources, and to provide additional means by which the Governor and the General Assembly may determine necessary general fund appropriations and the need for other funding measures, the Department shall establish and implement a long-range plan for acquisition, maintenance, improvement, protection and conservation for public use of those areas of the Commonwealth best adapted to the development of a comprehensive system of outdoor recreational facilities in all fields, including, but not limited to: parks, forests, camping grounds, fishing and hunting grounds, scenic areas, waters and highways, boat landings, beaches and other areas of public access to navigable waters. The Department shall have the power and duty to:

  1. Administer all funds available to the Department for carrying out the purposes of this chapter, and to disburse funds to any department, commission, board, agency, officer or institution of the Commonwealth, or any political subdivision thereof or any park authority.
  2. Study and appraise on a continuing basis the outdoor recreational needs of the Commonwealth; assemble and disseminate information on outdoor recreation; and prepare, maintain and keep up-to-date a comprehensive plan for the development of outdoor recreational facilities of the Commonwealth.
  3. Establish and promote standards for outdoor recreational facilities; encourage and assist in the coordination of federal, state, and local recreational planning; aid and advise various state institutions in the use of existing state parks and similar recreational facilities; work with the appropriate state agencies to develop areas for multiple recreational use, including, but not limited to, traditional uses such as hunting, fishing, hiking, swimming, and boating.
  4. Study and develop plans and, upon request, provide assistance regarding the establishment and implementation of recreational programs for state institutions, agencies, commissions, boards, officers, political subdivisions, and park authorities.
  5. Assist upon request any department, commission, board, agency, officer or institution of the Commonwealth or any political subdivision thereof or any park authority in planning outdoor recreational facilities in conformity with its respective powers and duties and encourage and assist in the coordination of federal, state and local recreational planning.
  6. Apply to any appropriate agency or officer of the United States for participation in or receipt of aid from any federal program respecting outdoor recreation, and in respect thereto, enter into contracts and agreements with the United States or any appropriate agency thereof; keep financial and other records relating to contracts and agreements with the United States or any appropriate agency thereof, and furnish appropriate officials and agencies of the United States reports and information necessary to enable the officials and agencies to perform their duties under federal programs respecting outdoor recreation.
  7. Act either independently or jointly with any department, commission, board, agency, officer or institution of the Commonwealth or any political subdivision thereof or any park authority to carry out the Department’s powers and duties; and coordinate its activities with and represent the interests of the above entities having interests in the planning, maintenance, improvement, protection and conservation of outdoor recreation facilities.
  8. Develop a standard against which the public can determine the extent to which the Commonwealth is meeting park and recreational needs. The standard shall be based on park usage, population trends and densities, and outdoor recreational facility demands. The standard shall be expressed in terms of acres and facilities needed on a regional and a statewide level to serve existing and projected needs and conservation goals. In the comprehensive plan cited in subsection 2 of this section, the Department shall report on (i) the development of the standard; (ii) where the Commonwealth’s park system falls short of, meets or exceeds the standard; and (iii) the methodology used for determining clause (ii).

History. 1984, c. 739, §§ 10-21.3:3, 10-21.3:5; 1988, c. 891; 1998, c. 780; 2004, c. 58.

Editor’s note.

Acts 2016, c. 119, cl. 1 provides: “That the Department of Conservation and Recreation shall develop a plan establishing a fee structure for the use of campsites and cabins in state parks, considering (i) seasonal usage, (ii) local and regional markets, (iii) travel trends, (iv) weather, (v) geographic location of a park, (vi) time of year, and (vii) other factors considered important by the Department. Based on such factors, the plan shall include recommendations for rental rates for campsites and cabins for (a) the general population and (b) persons 65 years of age and older. The plan shall be submitted to the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources no later than November 1, 2016.”

The 1998 amendment, in the introductory paragraph, inserted the language beginning “to further take advantage” and ending “for other funding measures” and added subdivision 8.

The 2004 amendments.

The 2004 amendment by c. 58, in subdivision 8, deleted the former fourth sentence, which read: “The standard shall be developed by July 1, 1999,” added “In the comprehensive plan cited in subsection 2 of this section” at the beginning, deleted “annually” following “department shall,” and deleted “by November 1 of each year to the Governor and the General Assembly” following “report” in the last sentence.

Law Review.

For article, “Legal Issues Affecting Local Governments in Implementing the Chesapeake Bay Preservation Act,” see 24 U. Rich. L. Rev. 1 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Carrying concealed handguns in state parks. —

The Department of Conservation and Recreation does not have the authority to issue regulations prohibiting, within state parks, the carrying of concealed handguns by valid permit holders. See opinion of Attorney General to The Honorable Richard H. Black, Member, House of Delegates, 02-074, 2002 Va. AG LEXIS 153 (9/9/02).

Department of Conservation and Recreation may regulate swimming

in public parks, natural preserves, and other areas over which the Department exercises supervisory authority, but lacks the authority to regulate swimming in other waters. See opinion of Attorney General to The Honorable Albert C. Pollard, Jr., Member, House of Delegates, 10-074, 2010 Va. AG LEXIS 50 (8/23/10).

§ 10.1-200.01. (Effective July 1, 2022) Lyme disease signage.

  1. The Department shall develop and post in each state park and interstate park signage addressing the appropriate steps a visitor can take to prevent tick bites, how to identify Lyme disease, and where to seek treatment.
  2. The Department shall install such signage first in those areas in the Commonwealth that have been identified as most susceptible to Lyme disease and shall complete the installation of such signage in all state parks and interstate parks by January 1, 2028.
  3. Until it completes the installation of all such signage, the Department shall report its progress annually to the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources.

History. 2022, c. 303.

§ 10.1-200.1. State park master planning.

  1. The Department shall undertake a master planning process (i) for all existing state parks, (ii) following the substantial acquisition of land for a new state park, and (iii) prior to undertaking substantial improvements to state parks. A master plan shall be considered a guide for the development, utilization and management of a park and its natural, cultural and historic resources and shall be adhered to closely. Each plan shall be developed in stages allowing for public input.Stage one of the plan shall include the development of a characterization map indicating, at a minimum, boundaries, inholdings, adjacent property holdings, and other features such as slopes, water resources, soil conditions and types, natural resources, and cultural and historic resources. The stage one plan shall include a characterization of the potential types of uses for different portions of the parks and shall provide a narrative description of the natural, physical, cultural and historic attributes of the park. The stage one plan shall include the specific purposes for the park and goals and objectives to support those purposes.Upon completion of a stage one plan, a stage two plan shall be developed by the Department which shall include the potential size, types and locations of facilities and the associated infrastructure including roads and utilities, as applicable. Proposed development of any type shall be in keeping with the character of existing improvements, if appropriate, and the natural, cultural and historic heritage and attributes of the park. The stage two plan shall include a proposed plan for phased development of the potential facilities and infrastructure. The Department shall project the development costs and the operational, maintenance, staffing and financial needs necessary for each of the various phases of park development. Projections shall also be made for the park’s resource management needs and related costs. The projections shall be made part of the stage two plan.Upon completion of the stage two plan, the stage one and stage two plans along with supporting documents shall be combined to form a master plan for the park. Development of a park shall not begin until the master plan has been reviewed by the Board of Conservation and Recreation and adopted by the Director.
  2. All members of the General Assembly shall be given notice of public meetings and, prior to their adoption, the availability for review of stage one, stage two and master plans and proposed amendments for substantial improvements.
  3. The master planning process shall not be considered an impediment to the acquisition of inholdings or adjacent properties. Such properties, when acquired, shall be incorporated into the master plan and their uses shall be amended into the master plan.
  4. Stage one and stage two plans shall be considered complete following review and adoption by the Director. Stage one and stage two plans may only be adopted by the Director following public notice and a public meeting. The Director may make nonsubstantial amendments to master plans following public notice. A master plan or a substantial amendment to a master plan may only be adopted by the Director after considering the recommendations of the Board of Conservation and Recreation following public notice and a public meeting.
  5. The Department shall solicit and consider public comment in the development of the stage one and two plans as well as the master plan and any amendments thereto. Such solicitation shall include reasonable notice to appropriate trade associations and private businesses within a 10-mile radius of the park that offer similar categories of service, including private campgrounds, marinas, and recreational facilities.
  6. Master plans shall be reviewed and updated by the Department and the Board of Conservation and Recreation no less frequently than once every 10 years and shall be referenced in the Virginia Outdoors Plan.
  7. Materials, documents and public testimony and input produced or taken for purposes of park planning prior to January 1, 1999, may be utilized in lieu of the process established in this section provided that it conforms with the requirements of this section and that a master plan shall be developed that conforms with this section which shall not be deemed complete until reviewed and approved in accordance with subsection D.
  8. The planning process contained in this section satisfies the Department of General Services master planning requirements for lands owned or managed by the Department of Conservation and Recreation. The Department of Conservation and Recreation’s Facility Development Plans shall continue to meet the Department of General Service’s requirements.
  9. For purposes of this section, unless the context requires a different meaning:“Development of a park” means any substantial physical alterations within the park boundaries other than those necessary for the repair or maintenance of existing resources or necessary for the development of the master plan.“Substantial acquisition” means the purchase of land valued at $500,000 or more or the acquisition of the major portion of land for a new state park whichever is less.“Substantial improvement” means physical improvements and structures valued at $500,000 or more.

History. 1998, c. 780; 2013, c. 43; 2015, cc. 185, 469.

Cross references.

As to exemption from operation of Virginia Public Procurement Act for certain transactions, see § 2.2-4343.

The 2013 amendments.

The 2013 amendment by c. 43 added the second sentence of subsection E.

The 2015 amendments.

The 2015 amendments by cc. 185 and 469 are identical, and inserted “of Conservation and Recreation” following “Board” in subsections A, D and F and substituted “10” for “five” preceding “years” in subsection F.

§ 10.1-200.2. Littering in state parks; civil penalty.

No person shall improperly dispose of litter, as defined in § 10.1-1414 , within a Virginia state park. In addition to any penalties that may be assessed under § 10.1-104 or § 33.2-802 , any person in violation of this section may be assessed a civil penalty not to exceed $250. All civil penalties imposed under this section shall be deposited in the Conservation Resources Fund.

History. 2001, c. 172.

Editor’s note.

A reference in this section was updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

§ 10.1-200.3. Admittance and parking in state parks; prohibitions; civil penalty.

  1. No person shall make use of, gain admittance to, or attempt to use or gain admittance to the facilities in any state park for the use of which a charge is assessed by the Department, unless the person pays the charge or price established by the Department.
  2. No owner or driver shall cause or permit a vehicle to stand:
    1. Anywhere in a state park outside of designated parking spaces, except for a reasonable time in order to receive or discharge passengers; or
    2. In any space in a state park designated for use by the handicapped unless the vehicle displays a license plate or decal issued by the Commissioner of the Department of Motor Vehicles, or a similar identification issued by a similar authority of another state or the District of Columbia, which authorizes parking in a handicap space.
  3. Any person violating any provision of this section may, in lieu of any criminal penalty, be assessed a civil penalty of twenty-five dollars by the Department. Civil penalties assessed under this section shall be paid into the Conservation Resources Fund.

History. 2001, c. 370.

The number of this section was assigned by the Virginia Code Commission, the number in the 2001 act having been 10.1-200.2 .

§ 10.1-201. Acquisition of lands of scenic beauty, recreational utility or historical interest.

  1. The Director is authorized to acquire by gift or purchase or by the exercise of the power of eminent domain, areas, properties, lands or any estate or interest therein, of scenic beauty, recreational utility, historical interest, biological significance or any other unusual features which in his judgment should be acquired, preserved and maintained for the use, observation, education, health and pleasure of the people of Virginia. Any acquisition shall be within the limits of any appropriation made by the General Assembly for the purchase of such properties, or of voluntary gifts or contributions placed at the disposal of the Department for such purposes.
  2. The Director is authorized to institute and prosecute any proceedings in the exercise of the power of eminent domain for the acquisition of such properties for public use in accordance with Chapter 2 (§ 25.1-200 et seq.) of Title 25.1.
  3. Before any property is purchased or acquired by condemnation, the Director may request the Attorney General to examine and report upon the title of the property, and it shall be the duty of the Attorney General to make such examination and report.
  4. When any property is acquired by the Director under the provisions of this section without the aid of any appropriation made by the General Assembly and exclusively with the aid of gifts or contributions placed at the disposal of the Department for that purpose, he may place the property in the custody of the person or association making such gifts or contributions, or lease the property to such person or association, for a period not to exceed 99 years, upon terms and conditions approved by the Governor, which will best preserve and maintain such property for the use, observation, education, health or pleasure of the people of Virginia.

History. Code 1950, § 10-21; 1950, p. 394; 1984, c. 750; 1988, c. 891; 2003, c. 940.

Cross references.

For constitutional authority, see Va. Const., Art. X, § 10.

The 2003 amendments.

The 2003 amendment by c. 940 substituted “Chapter 2 (§ 25.1-200 et seq.) of Title 25.1” for “Chapter 1.1 (§ 25-46.1 et seq.) of Title 25” in subsection B; and substituted “99” for “ninety-nine” in subsection D.

Law Review.

For note, “Planning for Preservation in Virginia,” see 51 Va. L. Rev. 1214 (1965).

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.22 Condemnation and Eminent Domain. Friend.

§ 10.1-202. Gifts, funds, and fees designated for state parks; establishment of funds.

  1. The State Park Conservation Resources Fund shall consist of all state park fees, fees from concessions, civil penalties assessed pursuant to § 10.1-200.2 and under § 10.1-200.3 , all revenues associated with forest product sales on state parks pursuant to § 10.1-113 , and all funds accruing from, on account of, or to the use or management of state parks acquired or held by the Department. This special fund shall be noninterest bearing. The fund shall be under the direction and control of the Director and may be expended for the conservation, development, maintenance, and operations of state parks acquired or held by the Department. Unexpended portions of the fund shall not revert to the state treasury at the close of any fiscal year unless specified by an act of the General Assembly.
  2. The State Park Acquisition and Development Fund shall consist of the proceeds from the sale of surplus property. This special fund shall be noninterest bearing. The fund shall be under the direction and control of the Director and shall be used exclusively for the acquisition and development of state parks. Unexpended portions of the fund shall not revert to the state treasury at the close of any fiscal year unless specified by an act of the General Assembly.
  3. The State Park Projects Fund shall consist of all income, including grants from any source, gifts and bequests of money, securities and other property, and gifts and devises of real property or interests therein given or bequeathed to the Department for the conservation, development, maintenance, or operations of state parks. This special fund shall be interest bearing and any income earned from these gifts, bequests, securities or other property shall be deposited to the credit of the fund. This fund shall be under the control of the Director and may be expended with advice from the Board for the conservation, development, maintenance, or operations of state parks. Unexpended portions of the fund shall not revert to the state treasury at the close of any fiscal year unless specified by an act of the General Assembly.
  4. The Director is authorized to receive and to sell, exchange, or otherwise dispose of or invest as he deems proper the moneys, securities, or other real or personal property or any interest therein given or bequeathed to the Department for any of the funds established under this section, unless such action is restricted by the terms of a gift or bequest. The Director may enter into contracts and agreements, as approved by the Attorney General, to accomplish the purposes of these funds. The Director may do any and all lawful acts necessary or appropriate to carry out the purposes for which the above funds were established.
  5. These funds shall not include any gifts of money to the Virginia Land Conservation Foundation or other funds deposited in the Virginia Land Conservation Fund.

History. Code 1950, § 10-21.2; 1988, c. 891; 1992, c. 426; 1994, c. 391; 1996, cc. 677, 686; 1999, cc. 900, 906; 2001, cc. 172, 370; 2003, cc. 79, 89; 2007, c. 637; 2009, c. 856.

Cross references.

As to state-owned or leased property that is not being used to full capacity, see § 2.2-1153.

Editor’s note.

Acts 1996, cc. 677 and 686, cl. 2 provides: “[t]hat the provision of this act which requires that expenditures from the Conservation Resources Fund for operation of state parks not exceed, in any fiscal year, an amount equal to forty-five percent of the revenues deposited into the Conservation Resources Fund from fees and charges paid by visitors to state parks shall expire on July 1, 1997, and thereafter, expenditures for this purpose from the Conservation Resources Fund shall not exceed, in any fiscal year, an amount equal to twenty-five percent.”

Acts 2003, cc. 79 and 89, cl. 5, provide: “That all assets remaining in the Virginia State Parks Foundation Fund, established pursuant to former § 10.1-221, shall be deposited in the State Park Projects Fund established pursuant to subsection D of § 10.1-202 .”

Acts 2009, c. 856, cl. 2, provides: “That all moneys deposited in or to be credited to the State Park Operated Concessions Fund shall be transferred to and deposited in the State Park Conservation Resources Fund.”

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 374 D, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of § 10.1-202 , Code of Virginia, amounts deposited to the State Park Conservation Resources Fund may be used for a program of in-state travel advertising. Such travel advertising shall feature Virginia State Parks and the localities or regions in which the parks are located. To the extent possible the department shall enter into cooperative advertising agreements with the Virginia Tourism Authority and local entities to maximize the effectiveness of expenditures for advertising. The department is further authorized to enter into a cooperative advertising agreement with the Virginia Association of Broadcasters.”

The 1996 amendments.

The 1996 amendments by cc. 677 and 686 are identical, and in the first paragraph, substituted “Department” for “Commonwealth” in two places, substituted “entrance fees, fees from contractor-operated concessions” for “entrance and concession fees,” in the first sentence, substituted “forty-five percent” for “twenty-five percent” near the middle of the third sentence, added the present fourth and fifth sentences, and added the second paragraph.

The 1999 amendments.

The 1999 amendments by cc. 900 and 906 are identical, and substituted “Land Conservation Foundation or other funds deposited in the Virginia Land Conservation Fund” for “Conservation and Recreation Foundation or other funds deposited in the Virginia Conservation and Recreation Fund” at the end of the first paragraph.

The 2001 amendments.

The 2001 amendment by c. 172 inserted “civil penalties assessed pursuant to § 10.1-200.2 ” in the first sentence.

The 2001 amendment by c. 370 inserted “civil penalties assessed under § 10.1-200.2 [now § 10.1-200.3 ]” in the first sentence.

The first sentence has been set out in the form above at the direction of the Virginia Code Commission.

The 2003 amendments.

The 2003 amendments by cc. 79 and 89 are identical, and rewrote the section.

The 2007 amendments.

The 2007 amendment by c. 637 deleted “but the amount to be expended shall be annually approved by the Secretary of Natural Resources and shall be reported on a quarterly basis to the Chairmen of the House Committee on Appropriations and Senate Committee on Finance” at the end of the next-to-last sentence in subsection A.

The 2009 amendments.

The 2009 amendment by c. 856, in the first sentence of subsection A, substituted “state park fees, fees from concessions” for “entrance fees, fees from contractor-operated concessions” and inserted “all revenues associated with forest product sales on state parks pursuant to § 10.1-113 ” and “or management”; deleted former subsection B relating to the State Park Operated Concessions Fund; and redesignated former subsections C through F as subsections B through E.

§ 10.1-202.1. Golden Passport established; free entry into state parks.

The Department of Conservation and Recreation shall establish a Golden Passport card that authorizes persons receiving social security disability payments to enter Virginia’s state parks without having to pay an admittance or parking fee. Persons seeking such a card shall, upon the presentation of proof of receiving such disability payments, be issued a card by the Division of State Parks. The card shall remain valid during the time a person is receiving such payments.

History. 1998, c. 778.

§ 10.1-202.2. Disabled Veteran’s Passport established; free entry into state parks and discounted services.

The Department shall establish a Disabled Veteran’s Passport that entitles the bearer to: (i) enter state parks in the Commonwealth without the payment of a parking or admission fee and (ii) receive a 50 percent discount on camping and swimming fees, picnic shelter rentals, and other Department-provided equipment rentals. The passport shall be issued upon request to a veteran of the armed forces of the United States with a letter from the U.S. Department of Veterans Affairs, or from the military service that discharged the veteran, certifying that such veteran has a service-connected disability rating of 100 percent. The passport shall be valid for as long as the determination of the 100 percent service-connected disability by the U.S. Department of Veterans Affairs remains in effect.

History. 2009, c. 560.

§ 10.1-203. Establishment, protection and maintenance of Appalachian Trail.

  1. The Appalachian Trail shall be developed and administered primarily as a footpath, consonant with the provisions of the National Trails Systems Act applicable to the Appalachian Trail as part of the National Scenic Trails System, and its natural scenic beauty shall be preserved insofar as is practicable. The use of motorized vehicles by the general public along the trail is prohibited, and violation of this prohibition shall constitute a Class 1 misdemeanor. However, the owner of private land over which the trail passes may use or authorize use of motorized vehicles on or across the trail for purposes incident to ownership and management of the land and the Department may authorize use of the trail by motorized emergency vehicles. The Department may permit other uses of the trail and land acquired hereunder, by the owner of adjoining land or others, in a manner and for purposes that will not substantially interfere with the primary use of the trail. Furthermore, the Department may grant temporary or permanent rights-of-way across lands acquired under this section, under terms and conditions deemed advisable. Nothing in this section shall limit the right of the public to pass over existing public roads which are part of the trail, or prevent the Department from performing work necessary for forest fire prevention and control, insect, pest and disease control, and the removal of damage caused by natural disaster. The Department may enter into cooperative agreements with agencies of the federal government or with private organizations to provide for the maintenance of the trail. A person who has granted a right-of-way for the trail across his land, or his successor in title, shall not be liable to any user of the trail for injuries suffered on that portion of the trail unless the injuries are caused by his willful or wanton misconduct.
  2. The Department is authorized to (i) enter into written cooperative agreements with landowners, private organizations and individuals and (ii) acquire by agreement, gift or purchase land, rights-of-way and easements for the purpose of establishing, protecting and maintaining a walking trail right-of-way across the Commonwealth, under such terms and conditions, including payment by the Department of property taxes on trail lands or property so acquired or subject to such use, as shall protect the interests of the actual or adjacent landowners or land users and as shall further the purposes of this section. Any department or agency of the Commonwealth, or any political subdivision, may transfer to the Department land or rights in land for these purposes, on terms and conditions as agreed upon, or may enter into an agreement with the Department providing for the establishment and protection of the trail.

History. 1971, Ex. Sess., c. 136, § 10-21.3:1; 1972, c. 413; 1984, cc. 739, 750; 1988, c. 891.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 10.1-204. Statewide system of trails.

  1. As used in this section, unless the context requires a different meaning:“Other power-driven mobility device” means any mobility device powered by batteries, fuel, or other engines, whether or not designed primarily for use by individuals with mobility disabilities, that is used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, electronic personal assistive mobility devices (EPAMDs), or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair within the meaning of this section.“Wheelchair” means a manually-operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of locomotion.
  2. The Department is authorized to enter into such agreements and to acquire interests as may be necessary to establish, maintain, protect, and regulate a statewide system of trails in order to provide for the ever-increasing outdoor recreational needs of an expanding population, and in order to promote public access to, travel within, and enjoyment and appreciation of the outdoor, natural, and remote areas of the Commonwealth. Notwithstanding any other provision of law, the Department shall not develop, establish, or extend any system of trails, including linear parks or greenways, in any county having the county manager form of government, unless it has submitted to the appropriate local agency, commission, or board, a plan of development, where such plan is required by local ordinance, for the proposed system of trails.
  3. The statewide system of trails shall be composed of:
    1. Scenic trails so located as to provide maximum potential for the appreciation of natural areas and for the conservation and enjoyment of the significant scenic, historic, natural, ecological, geological, or cultural qualities of the areas through which such trails may pass;
    2. Recreation trails to provide a variety of outdoor recreation uses in or reasonably accessible to urban areas; and
    3. Connecting trails or side trails to provide additional points of public access to recreation trails or scenic trails, or to provide connections between such trails, or to provide access from urban areas to major outdoor recreation sites.
  4. Each trail shall be limited to foot, horse, or nonmotorized bicycle use, or a combination thereof, as deemed appropriate by the Department. The use of motorized vehicles by the public shall be prohibited along any of the scenic, recreation, or connecting or side trails. This statewide system of trails may contain, at the discretion of the Department, camping sites, shelters, and related public-use and management facilities, which will not substantially interfere with the nature and purposes of the trails.
  5. Nothing in this section shall be construed to prohibit the Department from (i) allowing the use of wheelchairs or other power-driven mobility devices by disabled individuals on the statewide system of trails or (ii) requiring a user of an other power-driven mobility device to provide a credible assurance that the mobility device is required because of the person’s disability, in accordance with the federal Americans with Disabilities Act of 1990 (P.L. 101-336, 104 Stat. 327) and other applicable state and federal laws.Notwithstanding any provision to the contrary, the Department is authorized to permit, in accordance with applicable state and federal laws, the operation of electric power-assisted bicycles and electric personal assistive mobility devices as defined in § 46.2-100 on any bicycle path or trail designated by the Department for such use.

History. 1971, Ex. Sess., c. 136, § 10-21.3:1; 1972, c. 413; 1984, cc. 739, 750; 1988, c. 891; 1993, c. 755; 2012, c. 598.

The 2012 amendments.

The 2012 amendment by c. 598 added subsections A and E; redesignated former subsection A as B; and redesignated former subsection B as subsections C and D; and inserted “or side” in the second sentence of subsection D.

§ 10.1-204.1. (Expires January 1, 2027) State Trails Advisory Committee established; report.

  1. The State Trails Advisory Committee (the Committee) is hereby established as an advisory committee of the Department of Conservation and Recreation to assist the Commonwealth in developing and implementing a statewide system of attractive, sustainable, connected, and enduring trails for the perpetual use and enjoyment of the citizens of the Commonwealth and future generations. The Committee shall be appointed by the Director of the Department of Conservation and Recreation and shall be composed of a representative from the Department of Wildlife Resources, the Virginia Department of Transportation, the Virginia Outdoors Foundation, the U.S. Forest Service, and the U.S. National Park Service; the Virginia Director of the Chesapeake Bay Commission; and nonlegislative citizen members, including representatives from the Virginia Outdoors Plan Technical Advisory Committee and the Recreational Trails Advisory Committee and other individuals with technical expertise in trail creation, construction, maintenance, use, and management. The Committee shall meet at least twice each calendar year.
  2. The Advisory Committee shall examine and provide recommendations regarding (i) options to close the gaps in a statewide system of trails as described in § 10.1-204 ; (ii) creative public and private funding strategies and partnerships to leverage resources to fund the development of trails; (iii) integrated approaches to promote and market trail values and benefits; (iv) the development of specialty trails, including concepts related to old-growth forest trails across the Commonwealth; (v) strategies to encourage and create linkages between communities and open space; (vi) strategies to foster communication and networking among trail stakeholders; (vii) strategies to increase tourism and commercial activities associated with a statewide trail system; (viii) strategies to enhance the involvement of organizations that promote outdoor youth activities, including the Boy Scouts of the U.S.A. and Girl Scouts of the U.S.A. and the 4-H program of the Virginia Cooperative Extension; and (ix) other practices, standards, statutes, and guidelines that the Director of the Department of Conservation and Recreation determines may enhance the effectiveness of trail planning across the Commonwealth, including methods for receiving input regarding potential trail impacts upon owners of underlying or neighboring properties.
  3. No later than October 1 of each year, the Director shall provide a status report on the work of the Committee to the Chairman of the House Committee on Agriculture, Chesapeake and Natural Resources; the Chairman of the Senate Committee on Agriculture, Conservation and Natural Resources; and the Chairman and members of the Virginia delegation to the Chesapeake Bay Commission. The report shall include (i) current and future plans for a statewide system of attractive, sustainable, connected, and enduring trails across the Commonwealth and (ii) any recommendations from the Committee that will be incorporated into the Virginia Outdoors Plan, which plan shall serve as the repository for recommendations from the Committee. The Virginia Outdoors Plan updates shall be used to capture and advance the concepts developed by the Committee.
  4. Members of the Committee shall receive no compensation for their service and shall not be entitled to reimbursement for expenses incurred in the performance of their duties.
  5. For the purposes of this section, “old-growth forest” means a forest ecosystem distinguished by trees older than 150 years and tree-related structures that naturally contribute to biodiversity of the forested ecosystems and provide habitat to native Virginia wildlife species, including wildlife species that have been approved for introduction by the Department of Wildlife Resources.
  6. The provisions of this section shall expire on January 1, 2027.

History. 2015, c. 461; 2020, cc. 314, 958.

Editor’s note.

Acts 2015, c. 431, cl. 2 was codified as subsection F of this section at the direction of the Virginia Code Commission.

Acts 2015, c. 461, cl. 2 was codified as subsection F of this section at the direction of the Virginia Code Commission. Acts 2020, c. 314 extended the sunset in subsection F and repealed Acts 2015, c. 461, cl. 2.

The 2020 amendments.

The 2020 amendment by c. 314, substituted “2027” for “2021” in subsection F.

The 2020 amendment by c. 958, in subsection A, penultimate sentence and in subsection E, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries.”

§ 10.1-205. Management of False Cape State Park.

  1. The Director shall adopt measures to safeguard the environment of False Cape State Park. These shall include, but not be limited to, the following:
    1. Provisions to ensure that adequate drinking water and environmentally sound sewage disposal are provided for visitors to the Park;
    2. Adequate measures to protect the dunes, wildlife, and sensitive areas of the Park;
    3. Adequate measures to protect, wherever practicable, nesting areas of sea turtles, beach nesting birds, peregrine falcons, and other endangered species.
  2. The Director shall be responsible for providing that law-enforcement, fire and rescue services are available for the Park.
  3. The Director shall consider limiting visitors into the Park to less than 2,000 per day if such a lower limit is necessary to preserve the Park environment.
  4. The Director shall consider further limiting visitors into the Park during certain portions of the year if such a limitation is necessary to preserve the environment of the Park and of the Back Bay National Wildlife Refuge.
  5. No motor powered vehicle of any kind shall be permitted upon the land of False Cape State Park except as follows:
    1. A public transportation system operated by the Department, or its licensee or designee, to transport not more than 2,000 persons per day into and out of the Park;
    2. Official vehicles of the Commonwealth and of the City of Virginia Beach;
    3. Vehicles engaged in the construction and maintenance of improvements within the Park authorized by the Commonwealth;
    4. Police and emergency vehicles;
    5. Vehicles for which the operators thereof have been issued permits (i) by the Department of Interior, prior to July 1, 1984, pursuant to Public Law 96-315 to travel through the Back Bay National Wildlife Refuge and (ii) by the Department to travel through the Park.

History. 1984, c. 706, § 10-21.3:2; 1988, c. 891.

Editor’s note.

Acts 1984, c. 706, cl. 2 provides that the Division of Parks and Recreation of the Department of Conservation and Economic Development is authorized to enter into an agreement with the U.S. Department of the Interior pertaining to rights of ingress and egress through Back Bay National Wildlife Refuge to False Cape State Park. Clause 2 also sets forth the terms of the agreement.

Acts 1984, c. 706, cl. 4 and 5 provide:

“4. That the provisions of this act shall be effective upon concurrent execution of this agreement by the Governor on behalf of the Commonwealth and the United States Secretary of the Interior on behalf of the United States Department of the Interior.

“5. That the instrument granting and conveying the right or license of ingress and egress along an access corridor shall be signed and executed in a manner and form approved by the Attorney General.”

This section became effective November 7, 1996, following the completion of a Memorandum of Understanding between the U.S. Department of Interior, Fish and Wildlife Service and the Commonwealth of Virginia.

Article 1.1. Interstate Parks.

§ 10.1-205.1. Breaks Interstate Park Compact of 1954.

§ 1. The Governor is hereby authorized and directed to execute, on behalf of the Commonwealth of Virginia, a compact with the Commonwealth of Kentucky, which compact shall be in form substantially as follows:

BREAKS INTERSTATE PARK COMPACT

Pursuant to authority granted by an Act of the 83rd Congress of the United States, being Public Law 275, approved August 14, 1953, the Commonwealth of Kentucky and the Commonwealth of Virginia do hereby covenant and agree as follows:

Article I.

The Commonwealth of Kentucky and the Commonwealth of Virginia agree to create, develop and operate an interstate park to be known as the Breaks Interstate Park, which shall be located along the Russell Fork of the Levisa Fork of the Big Sandy River and on adjacent areas in Pike County, Kentucky, and Dickenson and Buchanan Counties, Virginia. Said park shall be of such area and of such character as may be determined by the Commission created by this Compact.

Article II.

There is hereby created the Breaks Interstate Park Commission, which shall be a body corporate with the power and duties set forth herein and such additional powers as may be conferred upon it by subsequent action of the appropriate authorities of Kentucky and Virginia. The Commission shall consist of the Director of the Virginia Department of Conservation and Recreation or his designee and the Commissioner of the Kentucky Department of Parks or his designee as voting, ex officio members, and three commissioners from each of the two states, each of whom shall be a citizen of the state he shall represent. Members of the Commission shall be appointed by the Governor. Vacancies shall be filled by the Governor for the unexpired term. The term of the commissioners appointed by the Governor shall be for four years. Their successors shall be appointed for terms of four years each. Each commissioner shall hold office until his successor is appointed and qualified. An officer or employee of the State, a political subdivision or the United States government may be appointed a commissioner under this act.

Article III.

The Commission created herein shall be a joint corporate instrumentality of both the Commonwealth of Kentucky and the Commonwealth of Virginia for the purpose of effecting the objects of this Compact, and shall be deemed to be performing governmental functions of the two states in the performance of its duties hereunder. The Commission shall have power to sue and be sued, to contract and be contracted with, to use a common seal and to make and adopt suitable by-laws, rules and regulations. The Commission shall have the authority to acquire by gift, purchase or otherwise real estate and other property, and to dispose of such real estate and other property. Each Commonwealth agrees that it will authorize the Commission to exercise the right of eminent domain to acquire property located within each Commonwealth required by the Commission to effectuate the purposes of this Compact.

Article IV.

The Commission shall select from among its members a chairman and a vice-chairman, and may select from among its members a secretary and treasurer or may designate other persons to fill these positions. It may appoint, and at its pleasure remove or discharge, such officers and legal, clerical, expert and other assistants and employees as may be required to carry the provisions of this Compact into effect, and shall fix and determine their duties, qualifications and compensation. It may establish and maintain one or more offices for the transaction of its business, and may meet at any time or place. A majority of the commissioners present shall constitute a quorum for the transaction of business. The commissioners shall serve without compensation, but shall be paid their expenses incurred in and incident to the performance of their duties. They shall take the oath of office required of officers and their respective states.

Article V.

Each Commonwealth agrees that the officers and departments of each will be authorized to do all things falling within their respective jurisdictions necessary or incidental to the carrying out of the Compact in every particular. The Commission shall be entitled to the services of any State officer or agency in the same manner as any other department or agency of this State. The Commission shall keep accurate records, showing in full its receipts and disbursements, and said records shall be open at any reasonable time to the inspection of such representatives of the two Commonwealths as may be duly constituted for that purpose. The Commission shall submit annually and at other times as required such reports as may be required by the laws of each Commonwealth or by the Governor thereof.

Article VI.

The cost of acquiring land and other property required in the development and operation of the Breaks Interstate Park and constructing, maintaining and operating improvements and facilities therein and equipping same may be defrayed by funds received from appropriations, gifts, the use of money received as fees or charges for the use of said park and facilities, or by the issuance of revenue bonds, or by a combination of such sources of funds. The Commission may charge for admission to said park, or make other charges deemed appropriate by it and shall have the use of funds so received for park purposes. The Commission is authorized to issue revenue bonds, which shall not be obligations of either state, pursuant to procedures which shall be in substantial compliance with the provisions of laws of either or both states governing the issuance of revenue bonds by governmental agencies.

Article VII.

All money, securities and other property, real and personal, received by way of gift or otherwise or revenue received from its operations may be retained by the Commission and used for the development, maintenance and operation of the park or for other park purposes.

The Commission shall not pledge the credit of either Commonwealth except by and with the authority of the General Assembly thereof.

Article VIII.

This Compact may be amended from time to time by the concurrent action of the two Commonwealth parties hereto.

§ 2. All governmental agencies of the Commonwealth of Virginia are authorized to cooperate with the Breaks Interstate Park Commission, it being the policy of this Commonwealth to perform and carry out the Compact and to accomplish the purposes thereof. The Department of Conservation and Development is authorized to transfer funds available to it to the Breaks Interstate Park Commission with the same effect as if it were expending funds on State parks. The Breaks Interstate Park Commission is authorized to exercise the right of eminent domain on behalf of the Commonwealth of Virginia in acquiring land or other property required in the establishment or enlargement of a Breaks Interstate Park.

§ 3. The Compact approved herein and other provisions of this act dependent thereon shall become effective upon the ratification and approval of the Compact by the General Assembly of the Commonwealth of Kentucky and upon approval of this Compact by the Congress of the United States.

Until such time as the Commonwealth of Kentucky approves the Compact as amended by the first enactment clause hereof, the Compact adopted pursuant to Chapter 37 of the Acts of Assembly of 1954, as amended by Chapter 292 of the Acts of Assembly of 1964, shall prevail.

History. 1954, c. 37; 1964, c. 292; 1994, c. 622.

Editor’s note.

The Breaks Interstate Park Compact of 1954 (Chapter 37 of 1954 Acts as amended by Chapter 292 of 1964 Acts and Chapter 622 of 1994 Acts) has been codified as this section at the direction of the Virginia Code Commission.

Article 2. Outdoor Recreation.

§ 10.1-206. Repealed by Acts 1991, c. 84.

§ 10.1-207. Cooperation of other departments, etc.

All departments, commissions, boards, agencies, officers, and institutions of the Commonwealth, or any political subdivision thereof and park authorities shall cooperate with the Department in the preparation, revision and implementation of a comprehensive plan for the development of outdoor recreational facilities, and such local and detailed plans as may be adopted pursuant thereto. The comprehensive plan shall consider and incorporate, where applicable, wildlife corridors and any recommendation of the Wildlife Corridor Action Plan developed pursuant to § 29.1-579.

History. 1984, c. 739, § 10-21.3:6; 1988, c. 891; 2021, Sp. Sess. I, c. 498.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 498, effective July 1, 2021, added the second sentence.

§ 10.1-208. Acquisition of property; making property available for agricultural and timbering uses, outdoor and recreational uses.

  1. The Director is authorized to acquire by gift or purchase (i) unrestricted fee simple title to tracts, (ii) fee simple title to such land subject to reservation of farming rights or timber rights or (iii) easements in gross or other interests in real estate as are designed to maintain the character of the land as open-space land. Whenever practicable in the judgment of the Director, real property acquired pursuant to this chapter shall be made available for agricultural and timbering uses which are compatible with the purposes of this chapter.
  2. The Director is authorized to acquire, in the name of the Commonwealth, by gift or purchase, any real property or any interest therein, as the Director deems necessary for obtaining, maintaining, improving, protecting and conserving outdoor areas suitable for the development of a system of outdoor recreational facilities, and to transfer such property to other state agencies as provided in § 2.2-1150.

History. 1984, c. 739, § 10-21.3:7; 1988, c. 891.

Article 3. Virginia Natural Area Preserves Act.

§ 10.1-209. Definitions.

Whenever used or referred to in this article, unless a different meaning clearly appears from the text:

“Fund” means the Natural Area Preservation Fund.

“Dedication” means the transfer to the Commonwealth of an estate, interest, or right in a natural area by any manner authorized in § 10.1-213 .

“Instrument of dedication” means any written document by which an estate, interest, or right in a natural area conveys formal dedication as a natural area preserve pursuant to the provisions of § 10.1-213 .

“Natural area” means any area of land, water, or both land and water, whether publicly or privately owned, that retains or has reestablished its natural character, though it need not be completely natural and undisturbed; or which is important in preserving rare or vanishing flora, fauna, native ecological systems, geological, natural historical, scenic or similar features of scientific or educational value benefiting the citizens of the Commonwealth.

“Natural area preserve” means a natural area that has been dedicated pursuant to § 10.1-213 .

“Natural heritage resources” means the habitat of rare, threatened, or endangered plant and animal species, rare or state significant natural communities or geologic sites, and similar features of scientific interest benefiting the welfare of the citizens of the Commonwealth.

“Program” means the Virginia Natural Heritage Program.

“Owner” means any individual, corporation, partnership, trust or association, and all governmental units except the state, its department, agencies or institutions.

“Registry” means an agreement between the Director and the owner of a natural area to protect and manage the natural area for its specified natural heritage resource values.

“System” means the state system of natural area preserves established under § 10.1-214 .

History. 1989, c. 553.

Law Review.

For an article, “The Rhetoric and Reality of Nature Protection: Toward a New Discourse,” see 57 Wash. & Lee L. Rev. 11 (2000).

Michie’s Jurisprudence.

For related discussion, see 5C M.J. Dedication, § 2.

§ 10.1-210. Additional powers of the Department.

In addition to other powers conferred by law and subject to the provisions of this article, the Department shall have the power, which may be delegated by the Director:

  1. To establish criteria for the selection, registration and dedication of natural areas and natural area preserves.
  2. To purchase, lease or otherwise acquire in the name of the Commonwealth, using moneys from the Natural Area Preservation Fund, lands suitable for natural area preserves.
  3. To acquire by gift, devise, purchase, or otherwise, absolutely or in trust, and to hold and, unless otherwise restricted by the terms of a gift or devise, to encumber, convey or otherwise dispose of, any real property, any estate or interests therein, or products on or derived from such real property, as may be necessary and proper in carrying into effect the provisions of this article.
  4. To accept, hold and administer gifts and bequests of money, securities, or other property, absolutely or in trust, made for purposes of this article.  Unless otherwise restricted by the terms of the gift or bequest, the Department may sell, exchange or otherwise dispose of such money, securities or other property given or bequeathed to the Department.  The principal of such funds, together with the income and all revenues derived therefrom, shall be placed in the Natural Area Preservation Fund.

History. 1989, c. 553.

§ 10.1-211. Additional duties of the Department.

In addition to other duties conferred by law, the Department shall, subject to the provisions of this article:

  1. Preserve the natural diversity of biological resources of the Commonwealth.
  2. Maintain a Natural Heritage Program to select and nominate areas containing natural heritage resources for registration, acquisition, and dedication of natural areas and natural area preserves.
  3. Develop and implement a Natural Heritage Plan that shall govern the Natural Heritage Program in the creation of a system of registered and dedicated natural area preserves.
  4. Publish and disseminate information pertaining to natural areas and natural area preserves.
  5. Grant permits to qualified persons for the conduct of scientific research and investigations within natural area preserves.
  6. Provide recommendations to the Commissioner of the Department of Agriculture and Consumer Services and to the Board of Agriculture and Consumer Services on species for listing under the Virginia Endangered Plant and Insect Act, prior to the adoption of regulations therefor.
  7. Provide recommendations to the Executive Director of the Department of Wildlife Resources and to the Board of Wildlife Resources on species for listing under the Virginia Endangered Species Act, prior to the adoption of regulations therefor.
  8. Cooperate with other local, state and federal agencies in developing management plans for real property under their stewardship that will identify, maintain and preserve the natural diversity of biological resources of the Commonwealth.
  9. Provide for management, development and utilization of any lands purchased, leased or otherwise acquired and enforce the provisions of this article governing natural area preserves, the stewardship thereof, the prevention of trespassing thereon, or other actions deemed necessary to carry out the provisions of this article.

History. 1989, c. 553; 2020, c. 958.

The 2020 amendments.

The 2020 amendment by c. 958, substituted “Department of Wildlife Resources and to the Board of Wildlife Resources” for “Department of Game and Inland Fisheries and to the Board of Game and Inland Fisheries” in subdivision 7.

§ 10.1-212. Virginia Natural Heritage Program.

  1. The Virginia Natural Heritage Program is hereby established and shall be administered by the Department.
  2. For purposes of this Program the Department shall:
    1. Produce an inventory of the Commonwealth’s natural heritage resources, including their location and ecological status.
    2. Maintain a natural heritage data bank of inventory data and other relevant information for ecologically significant sites supporting natural heritage resources.  Information from this data bank will be made available to public agencies and may be made available to private institutions or individuals for environmental assessment and land management purposes.
    3. Develop a Natural Heritage Plan which establishes priorities for the protection, acquisition and management of registered and dedicated natural areas and natural area preserves.
  3. The Program shall include other functions as may be assigned by the Director for the registration, dedication, protection and stewardship of natural areas and natural area preserves.

History. 1989, c. 553.

OPINIONS OF THE ATTORNEY GENERAL

Department of Conservation and Recreation may regulate swimming

in public parks, natural preserves, and other areas over which the Department exercises supervisory authority, but lacks the authority to regulate swimming in other waters. See opinion of Attorney General to The Honorable Albert C. Pollard, Jr., Member, House of Delegates, 10-074, 2010 Va. AG LEXIS 50 (8/23/10).

§ 10.1-213. Dedication of natural area preserves.

  1. The Director may, in the name of the Department, accept the dedication of natural areas on lands deemed by the Director to qualify as natural area preserves under the provisions of this article.  Natural area preserves may be dedicated by voluntary act of the owner.  The owner of a qualified natural area may transfer fee simple title or other interest in land to the Commonwealth. Natural area preserves may be acquired by gift, grant, or purchase.
  2. Dedication of a natural preserve shall become effective only upon acceptance of the instrument of dedication by the Director.
  3. The instrument of dedication may:
    1. Contain restrictions and other provisions relating to management, use, development, transfer, and public access, and may contain any other restrictions and provisions as may be necessary or advisable to further the purposes of this article;
    2. Define, consistently with the purposes of this article, the respective rights and duties of the owner and of the Commonwealth and provide procedures to be followed in case of violations of the restrictions;
    3. Recognize and create reversionary rights, transfers upon conditions or with limitations, and gifts over; and
    4. Vary in provisions from one natural area preserve to another in accordance with differences in the characteristics and conditions of the several areas.
  4. Public departments, commissions, boards, counties, municipalities, corporations, and institutions of higher education and all other agencies and instrumentalities of the Commonwealth and its political subdivisions are empowered to dedicate suitable areas within their jurisdiction as natural area preserves.
  5. Subject to the approval of the Governor, the Commonwealth may enter into amendments to the instrument of dedication upon finding that the amendment will not permit an impairment, disturbance, use, or development of the area inconsistent with the provisions of this article.  If the fee simple estate in the natural area preserve is not held by the Department under this article, no amendment may be made without the written consent of the owner of the other interests therein.

History. 1989, c. 553.

Cross references.

As to dedication of lands in Virginia Estuarine and Coastal Research Reserve System, see § 28.2-1104.

Editor’s note.

At the direction of the Virginia Code Commission, “and institutions of higher education” was substituted for “colleges, universities” in subsection D to conform to Acts 2016, c. 588.

§ 10.1-214. Virginia natural area preserves system established.

A state system of natural area preserves is hereby established and shall be called the Virginia Natural Area Preserves System. The system shall consist of natural area preserves dedicated as provided in § 10.1-213 . Once dedicated, a natural area preserve shall be managed in a manner consistent with continued preservation of the natural heritage resources it supports.

History. 1989, c. 553.

§ 10.1-215. Natural Area Preservation Fund established.

  1. A fund consisting of general fund appropriations, gifts, bequests, devises, fees, lease proceeds, and funds accruing from, or attributable to, the use or management of state natural area preserves acquired or held by the Department known as the Natural Area Preservation Fund is hereby established.
  2. Any funds remaining in such fund at the end of the biennium, including all appropriations, gifts, bequests, devises, fees, lease proceeds, and funds accruing from, or attributable to, the use or management of state natural area preserves acquired or held by the Department, and interest accruing thereon, shall not revert to the general fund but shall remain in the Natural Area Preservation Fund.

History. 1989, c. 553; 2005, c. 94.

The 2005 amendments.

The 2005 amendment by c. 94 substituted “devises, fees, lease . . . by the Department” for “and devises” in subsections A and B, and made minor stylistic changes.

§ 10.1-216. Natural area registry.

  1. The Department shall maintain a state registry of voluntarily protected natural areas to be called the Virginia Registry of Natural Areas.  Registration of natural areas shall be accomplished through voluntary agreement between the owner of the natural area and the Director.  State-owned lands may be registered by agreement with the agency to which the land is allocated.  Registry agreements may be terminated by either party at any time, and upon such termination the area shall be removed from the registry.
  2. A natural area shall be registered when an agreement to protect and manage the natural area for its specified natural heritage resource has been signed by the owner and the Director.  The owner of a registered natural area shall be given a certificate signifying the inclusion of the area in the registry.

History. 1989, c. 553.

§ 10.1-217. Gifts, devises and bequests.

Gifts, devises or bequests, whether personal or real property, and the income derived therefrom, accepted by the Director, shall be deemed as gifts to the Commonwealth, which shall be exempt from all state and local taxes, and shall be regarded as the property of the Commonwealth for the purposes of all tax laws.

History. 1989, c. 553.

Article 4. Chippokes Plantation Farm Foundation.

§§ 10.1-217.1 through 10.1-217.6. Repealed by Acts 2012, cc. 803 and 835, cl. 91.

Editor’s note.

Acts 2012, cc. 803 and 835, cl. 92 provide: “That, on and after July 1, 2012, the Department of Conservation and Recreation shall be the successor in interest in matters related to the duties, responsibilities, and functions of the Chippokes Plantation Farm Foundation. All right, title, and interest in and to any real or tangible personal property vested in the Chippokes Plantation Farm Foundation shall be transferred to and taken as standing in the name of the Department of Conservation and Recreation.”

Former § 10.1-217.1 , which created the Chippokes Plantation Farm Foundation, derived from 1977, c. 57, § 3.1-22.7; 2008, c. 860. Former § 10.1-217.2, pertaining to administration of Foundation; appointment and terms of board of trustees, derived from 1977, c. 57, § 3.1-22.8; 1978, c. 399; 1984, c. 750; 1986, c. 390; 1988, c. 182; 2006, cc. 516, 556; 2008, c. 860. Former § 10.1-217.3, pertaining to the purpose of Foundation; establishment of Chippokes Plantation Model Farm and the Agriculture and Forestry Center, derived from 1977, c. 57, § 3.1-22.9; 1984, c. 750; 1986, c. 390; 2008, c. 860. Former § 10.1-217.4, pertaining to powers of Foundation, derived from 1977, c. 57, § 3.1-22.10; 1986, c. 390; 2008, c. 860. Former § 10.1-217.5, pertaining to executive secretary, derived from 1977, c. 57, § 3.1-22.11; 1988, c. 182; 2008, c. 860. Former § 10.1-217.6, pertaining to gifts and bequests to Foundation, derived from 1977, c. 57, § 3.1-22.12; 1986, c. 390; 2008, c. 860.

Chapter 2.1. Virginia State Parks Foundation.

§§ 10.1-218 through 10.1-225.

Repealed by Acts 2003, cc. 79 and 89.

Cross references.

For funds designated for state parks, see § 10.1-202 .

For Board of Conservation and Recreation, see § 10.1-105 et seq.

Editor’s note.

Former §§ 10.1-218 through 10.1-225, pertaining to the Virginia State Parks Foundation, were derived from: 10.1-218 : 1992, c. 775; 2000, cc. 21, 294. 10.1-219: 1992, c. 775. 10.1-220: 1992, c. 775. 10.1-221: 1992, c. 775. 10.1-222: 1992, c. 775. 10.1-223: 1992, c. 775. 10.1-224: 1992, c. 775; 1994, c. 205. 10.1-225: 1992, c. 775.

Chapter 3. State Park Development Revenue Bond Act.

Michie’s Jurisprudence.

For related discussion, see 14A M.J. Parks, Public Squares and Playgrounds, § 2.

§ 10.1-300. Definitions.

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

“Camping and recreational facilities” means camp sites, cabins, lodges, halls, tent camps, trailer camps, public and park lands, as well as equipment, structures and roads which are appurtenant to and useful in connection with state parks including, but not limited to sanitary and utility services, restaurants, cafeterias, stables, horses and riding equipment, bathing beaches, boathouses, boats, conference facilities, sightseeing facilities, sports facilities, bridges, access highways, and all incidental rights, easements, equipment and structures now under the control of the Department or acquired, constructed, enlarged or improved under the provisions of this chapter.

“Cost of camping and recreational facilities” means the purchase price, the cost of construction, the cost of all lands, properties, rights, easements and franchises acquired for construction, enlargements or improvements, reserve funds for the payment of principal or interest on the bonds, interest during construction of the enlargements or improvements, engineering and legal expenses, cost of plans, specifications, surveys, estimates of cost and of revenues, expenses for determining the feasibility or practicability of the enterprise, administrative expense, and other expenses necessary or incident to the financing and operation of any authorized project.

History. Code 1950, § 10-100; 1966, c. 41; 1970, c. 651; 1984, c. 750; 1986, c. 498; 1988, c. 891.

§ 10.1-301. General powers of Director.

In addition to other powers conferred by law, the Director may, subject to the provisions of this chapter:

  1. Acquire, construct, enlarge, improve, operate and maintain camping and recreational facilities in any of the state parks under the control of the Department;
  2. Issue revenue bonds of the Commonwealth to pay the cost of camping and recreational facilities and to pledge to the payment of the principal of and the interest on such revenue bonds all or any portion of the revenues to be derived from camping and recreational facilities to be acquired or constructed from the proceeds of such revenue bonds, after obtaining the consent of the Governor;
  3. Establish and collect fees and charges for the use of camping and recreational facilities;
  4. Receive and accept from any agency or instrumentality of the United States or other public or private body, contributions of either money or property or other things of value, to be held, used and applied for the purposes of this chapter;
  5. Make and enter into all contracts or agreements necessary or incidental to the execution of his powers under this chapter;
  6. Enter into or obtain contracts or policies of insurance, letters of credit or other agreements to secure payment of the bonds authorized to be issued pursuant to this chapter.

History. Code 1950, § 10-101; 1966, c. 41; 1984, c. 750; 1986, c. 498; 1988, c. 891.

OPINIONS OF THE ATTORNEY GENERAL

Law-enforcement officers may inquire into immigration status. —

Virginia law-enforcement officers, including conservation officers, may inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, Virginia House of Delegates, 10-047, 2010 Va. AG LEXIS 37 (7/30/10).

§ 10.1-302. Payment of cost of camping and recreational facilities.

The cost of camping and recreational facilities financed under this chapter shall be paid solely from the proceeds of revenue bonds issued under the provisions of this chapter, or from proceeds from any grant or contribution which may be made pursuant to the provisions of this chapter.

History. Code 1950, § 10-102; 1988, c. 891.

§ 10.1-303. Revenue bonds; form and requirements.

  1. The Director is authorized to provide for the issuance of revenue bonds of the Commonwealth for the purpose of paying all or any part of the cost of camping and recreational facilities. The principal and interest of the bonds shall be payable solely from the special fund provided in this chapter for such payment. All bonds shall be issued and sold through the Treasury Board whose approval of each of the determinations and designations specified in subsection B of this section shall be required.
  2. The revenue bonds shall be dated, shall bear interest rates and be payable at times determined by the Director. The bonds shall mature no longer than thirty years from their date and may be made redeemable before maturity, at a price and under terms and conditions established by the Director prior to the issuance of the bonds. The principal and interest of bonds may be made payable in any lawful medium.
  3. The Director shall determine the form of the bonds, including any attached interest coupons, and shall fix the denominations of the bonds and the places of payment of principal and interest, which may be at any bank or trust company. The bonds shall be signed by the Director and the State Treasurer and shall bear the lesser seal of the Commonwealth or a facsimile thereof, and any attached coupons shall bear the facsimile signature of the Director. The bonds may be executed with the facsimile signature of the Director and the State Treasurer, in which case the bonds shall be authenticated by a corporate trustee or other authenticating agent approved by the Director. If any officer whose signature appears on the bonds or coupons ceases to be such officer before delivery of the bonds, the signature shall nevertheless be valid and sufficient for all purposes.
  4. All revenue bonds issued under the provisions of this chapter shall have all the qualities and incidents of negotiable instruments under the negotiable instruments law of the Commonwealth. Such bonds and the income therefrom shall be exempt from all taxation within the Commonwealth.
  5. The bonds may be issued in coupon or in registered form, or both, as the Director may determine, and provision may be made for the registration of any coupon bond as to both principal and interest, and for the reconversion of any bonds registered as to both principal and interest into coupon bonds.

History. Code 1950, § 10-103; 1958, c. 484; 1986, c. 498; 1988, c. 891.

§ 10.1-304. Sale and proceeds of revenue bonds; additional or temporary bonds.

  1. The Treasury Board as agent for the Director may sell revenue bonds at private or public sale for such price and in the manner it determines to be in the best interests of the Commonwealth.
  2. The proceeds of the bonds shall be used solely for the payment of the cost of camping and recreational facilities for which they are issued, and shall be disbursed by the Director.
  3. If the proceeds of the bonds of any issue are less than the cost of the camping and recreational facilities for which the bonds were issued, additional bonds may be issued to provide the amount of the deficit. Unless otherwise provided in the resolution authorizing the issuance of the bonds or in the trust indenture described in this chapter, the additional bonds shall be deemed to be of the same issue and shall be entitled to payment from the same fund without preference or priority of the bonds first issued for the facilities.
  4. If the proceeds of any bonds issued to pay the cost of camping and recreational facilities exceed the facilities cost, the surplus shall be paid into the fund provided for the payment of principal and interest of the bonds.
  5. Prior to the preparation of definitive bonds, temporary bonds may be issued, under similar restrictions, with or without coupons, exchangeable for subsequently issued definitive bonds.
  6. The Director may replace any bond which is mutilated, destroyed or lost.
  7. The revenue bonds may be issued in accordance with the specific proceedings and conditions required by this chapter.

History. Code 1950, § 10-103; 1958, c. 484; 1986, c. 498; 1988, c. 891.

§ 10.1-305. Bonds not to constitute debt of Commonwealth.

Revenue bonds issued under the provisions of this chapter shall not constitute a debt of the Commonwealth or a pledge of the faith and credit of the Commonwealth, but such bonds shall be payable solely from the funds provided from fees and charges. The bonds shall state on their face that the Commonwealth is not obligated to pay the bonds or the interest on them except from the special fund provided from fees and charges under this chapter, and that the faith and credit of the Commonwealth are not pledged to the payment of the principal or interest of the bonds. The issuance of revenue bonds under the provisions of this chapter shall not obligate the Commonwealth to levy or to pledge any form of taxation for the bonds or to make any appropriation for their payment, other than to appropriate available funds derived as revenue from fees and charges collected under this chapter.

History. Code 1950, § 10-104; 1988, c. 891.

§ 10.1-306. Trust indenture; provisions applicable to bond resolution.

Any issue of revenue bonds may be secured by a trust indenture by and between the Director, in the name of the Commonwealth, and a corporate trustee, which may be any trust company or bank having the powers of a trust company. The trust indenture may pledge fees and charges to be received from the use of and for the services rendered by any camp and recreational facilities to be acquired or constructed from the proceeds of such revenue bonds, but no trust indenture shall convey or mortgage any camping or recreational facilities or any part thereof.

Either the resolution providing for the issuance of revenue bonds or the trust indenture may contain provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the Director in relation to the acquisition, construction, improvement, maintenance, operation, repair and insurance of such facilities, and the custody, safeguarding and application of all moneys. The trust indenture may also provide that camping and recreational facilities shall be acquired, constructed, enlarged or improved, and paid for under the supervision and approval of consulting engineers employed or designated by the Director, in the name of the Commonwealth, and satisfactory to the original purchasers of the bonds issued. The trust indenture may further require that the security given by contractors and by any depository of the proceeds of the bonds or revenues of the camping and recreational facilities or other moneys pertaining to the facilities be satisfactory to the purchasers. It shall be lawful for any bank or trust company incorporated under the laws of this Commonwealth to act as depository and to furnish indemnifying bonds or to pledge securities required by the Director. Such indenture may set forth the rights and remedies of the bondholders and of the trustee, and may restrict the individual right of action of bondholders as is customary in trust indentures securing bonds and debentures of corporations.

In addition, the indenture may contain other provisions that the Director deems reasonable and proper for the security of the bondholders.

History. Code 1950, § 10-105; 1986, c. 498; 1988, c. 891.

§ 10.1-307. Fees and charges.

The Director shall establish and collect fees and charges for the use of camping and recreational facilities. These revenues shall be pledged to pay the principal of and the interest on revenue bonds issued under the provisions of this chapter. The fees and charges shall be established and adjusted in respect of the aggregate fees and charges for the camping and recreational facilities the revenues of which shall have been pledged to provide a fund sufficient to pay (i) the cost of maintaining, repairing and operating the facilities unless such cost is otherwise provided for, (ii) the bonds and the interest thereon as the bonds become due and (iii) reasonable reserves for such purposes. Such fees and charges shall not be subject to supervision or regulation by any other state commission, board, bureau or agency.

History. Code 1950, § 10-106; 1966, c. 41; 1986, c. 498; 1988, c. 891.

§ 10.1-308. Sinking fund.

The fees, charges and revenues derived from any camping and recreational facilities subject to revenue bonds issued under the provisions of this chapter, except charges required to pay the cost of maintaining, repairing and operating such facilities and to provide fund reserves, shall be set aside in a sinking fund. The sinking fund is pledged to and charged with the payment of (i) the interest upon the bonds as it becomes due, (ii) the principal of the bonds as it becomes due, (iii) the necessary charges of paying agents for paying the interest and principal, and (iv) any premium upon bonds retired by call or purchase as provided in this chapter. The use and disposition of the sinking fund shall be subject to regulations provided in the resolution or the trust indenture. Unless otherwise provided in the resolution or trust indenture, the sinking fund shall be a fund for all such bonds without distinction or priority of one bond over another. Any moneys in the sinking fund in excess of an amount equal to one year’s interest on all bonds then outstanding may be applied to the purchase or redemption of bonds.

History. Code 1950, § 10-107; 1966, c. 41; 1988, c. 891.

§ 10.1-309. Remedies of bondholders and trustee.

Any holder of revenue bonds or attached coupons issued under the provisions of this chapter and any trustee under the trust indenture may protect and enforce all rights granted under the laws of the Commonwealth or under the resolution or trust indenture, and may enforce all duties required by this chapter, or by the resolution or trust indenture, to be performed by the Director, including the establishing, charging and collecting of fees and charges for the use of camping and recreational facilities.

History. Code 1950, § 10-108; 1986, c. 498; 1988, c. 891.

§ 10.1-310. All moneys received to be trust funds; disbursements.

All moneys received pursuant to the authority of this chapter, whether as proceeds from the sale of revenue bonds, as grants or other contributions, or as tolls and revenues, shall be held and applied solely as provided in this chapter. The Director shall, in the resolution or the trust indenture, provide for the payment of the proceeds of the sale of the bonds and the tolls and revenues to be received into the state treasury and carried on the books of the Comptroller in a special account. The Director may provide for the turning over, transfer or paying over of such funds from the state treasury to any officer, agency, bank or trust company, who shall act as trustee of the funds, and hold and apply the fees for the purposes of this chapter subject to such regulation as this chapter and the resolution or trust indenture may provide.

All moneys paid into the state treasury pursuant to the provisions of this chapter are hereby appropriated to the Department for the purpose of carrying out the provisions of this chapter. Disbursements and payments of moneys so paid into the state treasury shall be made by the State Treasurer upon warrants of the State Comptroller which he shall issue upon vouchers signed by the Director or his designee.

History. Code 1950, § 10-109; 1986, c. 498; 1988, c. 891.

§ 10.1-311. Revenue refunding bonds.

The Director is authorized to provide for the issuance of revenue refunding bonds of the Commonwealth, subject to the applicable provisions of this chapter, for the purpose of refunding any revenue bonds issued under the provisions of this chapter and then outstanding, including the redemption premium on the bonds after first obtaining the consent of the Governor.

History. Code 1950, § 10-110; 1986, c. 498; 1988, c. 891.

§ 10.1-312. Bonds declared legal and authorized investments.

The bonds issued pursuant to this chapter shall be legal and authorized investments for banks, savings institutions, trust companies, building and loan associations, insurance companies, fiduciaries, trustees, guardians and for all public funds of the Commonwealth or other political subdivisions of the Commonwealth. Such bonds shall be eligible to secure the deposit of public funds of the Commonwealth and public funds of counties, cities, towns, school districts or other political subdivisions of the Commonwealth. In addition, the bonds shall be lawful and sufficient security for deposits to the extent of their value when accompanied by all unmatured coupons.

History. 1986, c. 498, § 10-112.1; 1988, c. 891; 1996, c. 77.

Chapter 4. Scenic Rivers Act.

Michie’s Jurisprudence.

For related discussion, see 20 M. J. Waters and Watercourses, § 3.

§ 10.1-400. Definitions.

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

“Board” means the Board of Conservation and Recreation.

“Department” means the Department of Conservation and Recreation.

“Director” means the Director of the Department of Conservation and Recreation.

“River” means a flowing body of water, or a section or portion thereof.

“Scenic river” means a river or section or portion of a river that has been designated a “scenic river” by an act of the General Assembly and that possesses superior natural and scenic beauty, fish and wildlife, and historic, recreational, geologic, cultural, and other assets.

“Virginia Scenic Rivers System” means those rivers or sections of rivers designated as a scenic river by an act of the General Assembly.

History. 1970, c. 468, § 10-168; 1984, c. 739; 1985, c. 346; 1988, c. 891; 1989, c. 656; 2003, c. 240; 2012, cc. 803, 835.

The 2003 amendments.

The 2003 amendment by c. 240 added the definitions of “Board” and “Department”; inserted “and that possesses superior natural and scenic beauty, fish and wildlife, and historic, recreational, geologic, cultural, and other assets” in the definition of “Scenic river”; and substituted “Virginia Scenic Rivers System” for “Scenic Rivers System” in the last definition.

The 2012 amendments.

The 2012 amendment by cc. 803 and 835 are identical, and in cl. 93, substituted “the Board of Conservation and Recreation” for “the Virginia Scenic River Board” in the definition for “Board.”

Law Review.

For 2003/2004 survey of environmental law, see 39 U. Rich. L. Rev. 203 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Riparian landowners. —

The provisions of the Virginia Scenic Rivers Act do not apply to riparian landowners constructing dams, docks, or other structures that could impede water flow along tributaries of designated waterways unless those tributaries are included within the scope of the designation. The Scenic Rivers Act does not impose any restrictions on a riparian landowner’s management of surface water on his land abutting a designated waterway, and accordingly that a riparian landowner may engage in grading, plowing, timbering, or otherwise develop his property in a manner that might impede the flow of surface water across his property into a designated scenic river. See opinion of Attorney General to C. Eric Young, Esquire, Tazewell County Attorney, 17-037, 2017 Va. AG LEXIS 28 (12/7/17).

§ 10.1-401. Powers and duties of Director; acquisition of property.

  1. The Director shall have the duty to:
    1. Identify rivers or sections of rivers, including their shores and natural environs, which should be considered for designation because of their scenic, recreational and historic attributes and natural beauty.
    2. Conduct studies of rivers or sections of rivers to be considered for designation as wild, scenic or recreational rivers in cooperation with appropriate agencies of the Commonwealth and the United States.
    3. Recommend to the Governor and to the General Assembly rivers or sections thereof to be considered for designation as scenic rivers.
    4. Appoint Scenic River Advisory Committees or other local or regional committees of not less than three members to consider and manage scenic river interests and issues. The committees shall assist and advise the Director and the local governing body with the protection or management of the scenic river segment in their jurisdiction. The committees may consider and comment to the Director on any federal, state, or local governmental plans to approve, license, fund, or construct facilities that would alter any of the assets that qualified the river for scenic designation.
  2. The Director is authorized to acquire in the name of the Commonwealth, either by gift or purchase, any real property or interest therein which the Director considers necessary or desirable for the protection of any scenic river, and may retain title to or transfer the property to other state agencies. The Director may not exercise the right of eminent domain in acquiring any such property or interest.

History. 1970, c. 468, §§ 10-167, 10-169, 10-170, 10-175; 1984, c. 739; 1985, c. 346; 1988, c. 891; 2003, c. 240.

The 2003 amendments.

The 2003 amendment by c. 240 added subdivision A 4.

Law Review.

For note, “Public Regulation of Water Quality in Virginia,” see 13 Wm. & Mary L. Rev. 424 (1971).

For article assessing the adequacy of Virginia’s water policy, see 14 Wm. & Mary L. Rev. 312 (1972).

For article on stream flow maintenance in Virginia, see 18 U. Rich. L. Rev. 485 (1984).

§ 10.1-402. Development of water and related resources and evaluation as scenic resource.

The Department may review and make recommendations regarding all planning for the use and development of water and related land resources including the construction of impoundments, diversions, roadways, crossings, channels, locks, canals, or other uses that change the character of a stream or waterway or destroy its scenic assets, so that full consideration and evaluation of the river as a scenic resource will be given before alternative plans for use and development are approved. To effectuate the purposes of this section, all state and local agencies shall consider the recommendations of the Department.

History. 1970, c. 468, § 10-167; 1988, c. 891; 2003, c. 240.

The 2003 amendments.

The 2003 amendment by c. 240, in the first sentence, deleted “or administering agency” following “Department,” substituted “that” for “which” following “other uses,” and substituted “assets” for “values” following “scenic”; and deleted “or administering agency” at the end of the last sentence.

§ 10.1-403. Hearing.

Prior to submitting recommendations to the Governor and the General Assembly, the Director shall upon request of any interested state agency or political subdivision, or upon his own motion, hold a public hearing on a proposal to designate a scenic river.

History. 1970, c. 468, § 10-172; 1984, c. 739; 1985, c. 346; 1988, c. 891.

§ 10.1-404. Recommendation that a river be designated a scenic river.

A recommendation to the Governor and General Assembly that a river or section thereof be designated a scenic river shall be submitted with:

  1. The views and recommendations of the State Water Control Board and other affected agencies; and
  2. A report showing the proposed area and classification, the characteristics which qualify the river or section of river for designation, the general ownership and land use in the area, and the estimated costs of acquisition and administration in the Scenic Rivers System.

History. 1970, c. 468, § 10-171; 1984, cc. 739, 750; 1988, c. 891.

§ 10.1-405. Duties and powers of the Department; eminent domain prohibited.

  1. The Department shall:
    1. Administer the Virginia Scenic Rivers System to preserve and protect its natural beauty and to assure its use and enjoyment for its scenic, recreational, geologic, fish and wildlife, historic, cultural or other assets and to encourage the continuance of existing agricultural, horticultural, forestry and open space land and water uses.
    2. Periodically survey each scenic river and its immediate environs and monitor all existing and proposed uses of each scenic river and its related land resources.
    3. Assist local governments in solving problems associated with the Virginia Scenic Rivers System, in consultation with the Director, the Board, and the advisory committees.
  2. The Department shall not exercise the right of eminent domain to acquire any real property or interest therein for the purpose of providing additional access to any scenic river. Nothing in this subsection shall limit or modify any powers granted otherwise to any locality.
  3. The Department may seek assistance and advice related to the scenic river program from the Department of Wildlife Resources, the Department of Forestry, the Department of Historic Resources, the Virginia Marine Resources Commission, the United States Forest Service, other state and federal agencies and instrumentalities, and affected local governing bodies.
  4. The Department shall have the following powers, which may be delegated by the Director:
    1. To make and enter into all contracts and agreements necessary or incidental to the performance of its scenic river duties and the execution of its scenic river powers, including but not limited to contracts with private nonprofit organizations, the United States, other state agencies and political subdivisions of the Commonwealth;
    2. To accept bequests and gifts of real and personal property as well as endowments, funds, and grants from the United States government, its agencies and instrumentalities, and any other source. To these ends, the Department shall have the power to comply with such conditions and execute such agreements as may be necessary, convenient, or desirable; and
    3. To conduct fund-raising activities as deemed appropriate related to scenic river issues.

History. 1970, c. 468, §§ 10-167, 10-173; 1988, c. 891; 2003, c. 240; 2020, c. 958.

Editor’s note.

Acts 2003, c. 240, cl. 3 provides: “That the Department of Conservation and Recreation shall submit a report to the Governor and the General Assembly in 2009, no later than November 1, that evaluates the effectiveness of the Virginia Scenic River Board. The Department shall examine the activities of the Board, determine whether the Board should be continued, abolished, or modified, and recommend other improvements for the administration of the Virginia Scenic Rivers System. The report shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports.”

The 2003 amendments.

The 2003 amendment by c. 240 substituted “Department” for “agency designated by the General Assembly” in the introductory language of subsection A; in subdivision A 1, substituted “Virginia Scenic Rivers System” for “scenic river or section thereof” and “assets” for “values”; in subdivision A 2, substituted “each” for “the” in two places and inserted “its” preceding “related”; in subdivision A 3, substituted “Virginia Scenic Rivers System” for “scenic river,” inserted “the Board,” and substituted “advisory committees” for “Advisory Board”; in subsection B, substituted “Department” for “administering agency” and “any scenic” for “the”; and added subsections C and D.

The 2020 amendments.

The 2020 amendment by c. 958, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in subsection C.

§ 10.1-406. Repealed by Acts 2012, cc. 803 and 835, cl. 94.

Editor’s note.

Former § 10.1-406 , pertaining to the Virginia Scenic River Board, derived from 1970, c. 468, § 10-170; 1984, c. 739; 1985, c. 346; 1988, c. 891; 2003, c. 240.

§ 10.1-406.1. Powers of local governments.

In consultation with the Director, local governments shall have the authority, where a committee has not been established pursuant to subdivision A 4 of § 10.1-401 , to appoint a local scenic river advisory committee to advise the local government and the Director in administering that section of designated scenic river within the local government’s jurisdiction. The committees shall assist and advise the Director and the local governing body on the protection or management of the scenic river segment in their jurisdiction. The committees may consider and comment to the Director on any federal, state or local governmental plans to approve, license, fund or construct facilities that would alter any of the assets that qualified the river for scenic designation.

History. 2003, c. 240.

§ 10.1-407. Act of General Assembly required to construct, etc., dam or other structure.

  1. As used in this chapter, “dam or other structure” means any structure extending from bank to bank of a river that will interfere with the normal movement of waterborne traffic, interfere with the normal movement of fish or wildlife, raise the water level on the upstream side of the structure, or lower the water level on the downstream side of the structure.
  2. After designation of any river or section of river as a scenic river by the General Assembly, no dam or other structure impeding the natural flow thereof shall be constructed, operated, or maintained in such river or section of river unless specifically authorized by an act of the General Assembly.
  3. No new dam or other structure or enlargement of an existing dam or other structure that impedes the natural flow of Goose Creek shall be constructed, operated, or maintained within the section of Goose Creek designated as a scenic river by § 10.1-411 unless specifically authorized by an act of the General Assembly.

History. 1970, c. 468, § 10-174; 1988, c. 891; 2018, c. 273.

The 2018 amendments.

The 2018 amendment by c. 273 added subsections A and C and made related changes.

Law Review.

For article on siting electric power facilities, see 58 Va. L. Rev. 257 (1972).

OPINIONS OF THE ATTORNEY GENERAL

Riparian landowners. —

The provisions of the Virginia Scenic Rivers Act do not apply to riparian landowners constructing dams, docks, or other structures that could impede water flow along tributaries of designated waterways unless those tributaries are included within the scope of the designation. The Scenic Rivers Act does not impose any restrictions on a riparian landowner’s management of surface water on his land abutting a designated waterway, and accordingly that a riparian landowner may engage in grading, plowing, timbering, or otherwise develop his property in a manner that might impede the flow of surface water across his property into a designated scenic river. See opinion of Attorney General to C. Eric Young, Esquire, Tazewell County Attorney, 17-037, 2017 Va. AG LEXIS 28 (12/7/17).

§ 10.1-408. (Effective until July 1, 2022) Uses not affected by scenic river designation.

  1. Except as provided in § 10.1-407 , all riparian land and water uses along or in the designated section of a river that are permitted by law shall not be restricted by this chapter.
  2. Designation as a scenic river shall not be used:
    1. To designate the lands along the river and its tributaries as unsuitable for mining pursuant to § 45.2-1028 or regulations promulgated with respect to such section, or as unsuitable for use as a location for a surface mineral mine as defined in § 45.2-1101 ; however, the Department shall still be permitted to exercise the powers granted under § 10.1-402 ; or
    2. To be a criterion for purposes of imposing water quality standards under the federal Clean Water Act.
  3. Nothing in this chapter shall preclude the federal government, the Commonwealth, or a locality or local governing body from using, constructing, reconstructing, replacing, repairing, operating, or performing necessary maintenance on any road or bridge.
  4. Nothing in § 10.1-414 or 10.1-418.6 shall preclude the Commonwealth or a local governing body or authority from constructing, reconstructing, operating, or performing necessary maintenance on any transportation or public water supply project.
  5. Nothing in this chapter shall preclude the continued:
    1. Use, operation, and maintenance of the existing Loudoun County Sanitation Authority water impoundment or the installation of new water intake facilities in the existing reservoir located within the section of Goose Creek designated by § 10.1-411 ;
    2. Operation and maintenance of existing dams in the section of the Rappahannock River designated by § 10.1-415 ;
    3. Operation, maintenance, alteration, expansion, or destruction  by the City of Fredericksburg of the old VEPCO canal  or any other part of the city’s waterworks; or
    4. Operation and maintenance of existing dams in the section of the Clinch River designated by § 10.1-410.2 .
  6. The City of Richmond shall be allowed to reconstruct, operate, and maintain existing facilities at the Byrd Park and Hollywood Hydroelectric Power Stations at current capacity. Nothing in this chapter shall be construed to prevent the Commonwealth, the City of Richmond, or any common carrier railroad from constructing or reconstructing floodwalls or public common carrier facilities that may traverse the section of the James River designated by § 10.1-412 , such as road or railroad bridges, raw water intake structures, or water or sewer lines that would be constructed below water level.
  7. The owner of the Harvell Dam in the City of Petersburg may construct, reconstruct, operate, and maintain the Harvell Dam subject to other law and regulation.
  8. Nothing in this chapter shall preclude the Commonwealth, the City of Fredericksburg, or the County of Stafford, Spotsylvania, or Culpeper from constructing any new raw water intake structures or devices, including pipes and reservoirs but not dams, or laying water or sewer lines below water level.
  9. Nothing in this chapter shall:
    1. Preclude the construction, operation, repair, maintenance, or replacement of (i) a natural gas pipeline for which the State Corporation Commission has issued a certificate of public convenience and necessity or any connections with such pipeline owned by the Richmond Gas Utility and connected to such pipeline or (ii) the natural gas pipeline, case number PUE 860065, for which the State Corporation Commission has issued a certificate of public convenience and necessity; or
    2. Be construed to prevent the construction, use, operation, and maintenance of a natural gas pipeline (i) traversing the portion of the river designated by § 10.1-411.1 at, or at any point north of, the existing power line that is located approximately 200 feet north of the northern entrance to the Swede Tunnel or (ii) on or beneath the two existing railroad trestles, one located just south of the Swede Tunnel and the other located just north of the confluence of the Guest River with the Clinch River, or to prevent the use, operation, and maintenance of such railroad trestles in furtherance of the construction, operation, use, and maintenance of such pipeline.

History. 1988, c. 891; 2014, c. 823; 2018, c. 273; 2020, cc. 306, 629.

Editor’s note.

Effective October 1, 2021, “§ 45.2-1028 ” was substituted for “§ 45.1-252” and “§ 45.2-1101 ” was substituted for “§ 45.1-161.292:2” to conform to the recodification of Title 45.1 by Acts 2021, Sp. Sess. I, c. 387, at the direction of the Virginia Code Commission.

The 2014 amendments.

The 2014 amendments by c. 823 designated the existing paragraph as A and added subsection B.

The 2018 amendments.

The 2018 amendment by c. 273 substituted “that” for “which” in subsection A; and added subsections C through I.

The 2020 amendments.

The 2020 amendments by cc. 306 and 629 are identical, and added subdivision E 4; in subsection H, deleted “(i) the continued operation and maintenance of existing dams in the section of the Rappahannock River designated by § 10.1-415 or (ii)” following “preclude”; and made stylistic changes.

The 2022 amendments.

The 2022 amendment by c. 175 inserted “10.1-413” in subsection D; in subsection H, deleted “the County of Stafford, Spotsylvania, or” preceding “Culpeper” and inserted “Spotsylvania, or Stafford County” following “Culpeper”; added subdivision I 3; and made stylistic changes.

The 2022 amendment by c. 235 rewrote subdivision E 3, which read: “Operation, maintenance, alteration, expansion, or destruction of the Embrey Dam or its appurtenances by the City of Fredericksburg, including the old VEPCO canal and the existing City Reservoir behind the Embrey Dam, or any other part of the City’s waterworks.”

OPINIONS OF THE ATTORNEY GENERAL

Riparian landowners. —

The provisions of the Virginia Scenic Rivers Act do not apply to riparian landowners constructing dams, docks, or other structures that could impede water flow along tributaries of designated waterways unless those tributaries are included within the scope of the designation. The Scenic Rivers Act does not impose any restrictions on a riparian landowner’s management of surface water on his land abutting a designated waterway, and accordingly that a riparian landowner may engage in grading, plowing, timbering, or otherwise develop his property in a manner that might impede the flow of surface water across his property into a designated scenic river. See opinion of Attorney General to C. Eric Young, Esquire, Tazewell County Attorney, 17-037, 2017 Va. AG LEXIS 28 (12/7/17).

§ 10.1-408. (Effective July 1, 2022) Uses not affected by scenic river designation.

  1. Except as provided in § 10.1-407 , all riparian land and water uses along or in the designated section of a river that are permitted by law shall not be restricted by this chapter.
  2. Designation as a scenic river shall not be used:
    1. To designate the lands along the river and its tributaries as unsuitable for mining pursuant to § 45.2-1028 or regulations promulgated with respect to such section, or as unsuitable for use as a location for a surface mineral mine as defined in § 45.2-1101 ; however, the Department shall still be permitted to exercise the powers granted under § 10.1-402 ; or
    2. To be a criterion for purposes of imposing water quality standards under the federal Clean Water Act.
  3. Nothing in this chapter shall preclude the federal government, the Commonwealth, or a locality or local governing body from using, constructing, reconstructing, replacing, repairing, operating, or performing necessary maintenance on any road or bridge.
  4. Nothing in § 10.1-413 , 10.1-414 , or 10.1-418.6 shall preclude the Commonwealth or a local governing body or authority from constructing, reconstructing, operating, or performing necessary maintenance on any transportation or public water supply project.
  5. Nothing in this chapter shall preclude the continued:
    1. Use, operation, and maintenance of the existing Loudoun County Sanitation Authority water impoundment or the installation of new water intake facilities in the existing reservoir located within the section of Goose Creek designated by § 10.1-411 ;
    2. Operation and maintenance of existing dams in the section of the Rappahannock River designated by § 10.1-415 ;
    3. Operation, maintenance, alteration, expansion, or destruction by the City of Fredericksburg of the old VEPCO canal or any other part of the city’s waterworks; or
    4. Operation and maintenance of existing dams in the section of the Clinch River designated by § 10.1-410.2 .
  6. The City of Richmond shall be allowed to reconstruct, operate, and maintain existing facilities at the Byrd Park and Hollywood Hydroelectric Power Stations at current capacity. Nothing in this chapter shall be construed to prevent the Commonwealth, the City of Richmond, or any common carrier railroad from constructing or reconstructing floodwalls or public common carrier facilities that may traverse the section of the James River designated by § 10.1-412 , such as road or railroad bridges, raw water intake structures, or water or sewer lines that would be constructed below water level.
  7. The owner of the Harvell Dam in the City of Petersburg may construct, reconstruct, operate, and maintain the Harvell Dam subject to other law and regulation.
  8. Nothing in this chapter shall preclude the Commonwealth, the City of Fredericksburg, or Culpeper, Spotsylvania, or Stafford County from constructing any new raw water intake structures or devices, including pipes and reservoirs but not dams, or laying water or sewer lines below water level.
  9. Nothing in this chapter shall:
    1. Preclude the construction, operation, repair, maintenance, or replacement of (i) a natural gas pipeline for which the State Corporation Commission has issued a certificate of public convenience and necessity or any connections with such pipeline owned by the Richmond Gas Utility and connected to such pipeline or (ii) the natural gas pipeline, case number PUE 860065, for which the State Corporation Commission has issued a certificate of public convenience and necessity;
    2. Be construed to prevent the construction, use, operation, and maintenance of a natural gas pipeline (i) traversing the portion of the river designated by § 10.1-411.1 at, or at any point north of, the existing power line that is located approximately 200 feet north of the northern entrance to the Swede Tunnel or (ii) on or beneath the two existing railroad trestles, one located just south of the Swede Tunnel and the other located just north of the confluence of the Guest River with the Clinch River, or to prevent the use, operation, and maintenance of such railroad trestles in furtherance of the construction, operation, use, and maintenance of such pipeline; or
    3. Preclude the construction, use, operation, maintenance, replacement, or removal of any asset owned or operated by an entity organized pursuant to Chapter 9.1 (§ 56-231.15 et seq.) of Title 56 traversing the portion of the river designated by § 10.1-413 at or any point between the confluence of Allen’s Creek and the James River and the confluence of David Creek and the James River.

History. 1988, c. 891; 2014, c. 823; 2018, c. 273; 2020, cc. 306, 629; 2022, cc. 175, 235.

§ 10.1-409. Appomattox State Scenic River.

The Appomattox River, 100 feet from the base of the Brasfield Dam, excluding the Port Walthall Channel of the River, to the confluence with the James River, a distance of approximately 19.2 miles, is hereby designated as the Appomattox State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1984, c. 739, § 10-173.4; 1985, cc. 346, 448; 1988, c. 891; 1998, cc. 82, 167; 2003, c. 240; 2011, c. 276; 2018, c. 273.

The 1998 amendments.

The 1998 amendments by cc. 82 and 167, are identical, and in subsection A, substituted “100 feet from the base of the Lake Chesdin Dam” for “from the abutment dam located approximately 1.3 miles downstream from Lake Chesdin” and substituted “6.2 miles” for “five miles.”

The 2003 amendments.

The 2003 amendment by c. 240 deleted the subsection A designation; and deleted former subsections B and C, which read: “B. The Department of Game and Inland Fisheries is designated to administer the Appomattox State Scenic River in accordance with this section. C. The Governor, in consultation with the Director and affected local governing bodies, shall appoint the Appomattox State Scenic River Advisory Board, which shall be composed of at least three riparian landowners within the designated section and other local residents.”

The 2011 amendments.

The 2011 amendment by c. 276, substituted “Brasfield Dam, excluding the Port Walthall Channel of the River, to the confluence with the James River, a distance of approximately 19.2 miles” for “Lake Chesdin Dam, to the Route 36 bridge crossing in the City of Petersburg, a distance of approximately 6.2 miles” in the first sentence and added the second paragraph.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Appomattox State Scenic River” in the first paragraph; and deleted the former second paragraph, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, operating, or performing necessary maintenance on any road or bridge project. The owner of the Harvell Dam in the City of Petersburg may construct, reconstruct, operate, and maintain the Harvell Dam subject to other law and regulation.”

§ 10.1-410. Catoctin Creek State Scenic River.

The Catoctin Creek from bank to bank in Loudoun County from Waterford to its junction with the Potomac River, a distance of approximately 16 river miles, is hereby designated as the Catoctin Creek State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1984, c. 739, § 10-173.3; 1985, cc. 346, 448; 1988, c. 891; 2003, c. 240; 2018, c. 273.

Editor’s note.

At the direction of the Virginia Code Commission, “Town of” was deleted preceding “Waterford” to correct an error in the 2018 act.

The 2003 amendments.

The 2003 amendment by c. 240 substituted “16” for “sixteen” in subsection A; deleted former subsections B and C, concerning administration by the Northern Virginia Regional Park Authority and appointments to the Catoctin Creek State Scenic River Advisory Board; redesignated former subsection D as present subsection B; and substituted “that” for “which” following “Catoctin Creek” in the second paragraph of present subsection B.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Catoctin Creek State Scenic River”; and deleted former subsection B, which defined and prohibited “dams or other structures” on Catoctin Creek.

§ 10.1-410.1. Chickahominy State Scenic River.

The main channel of the Chickahominy River from the Mechanicsville Turnpike (Route 360) eastward until the terminus of the Henrico County/Hanover County border, is hereby designated as the Chickahominy State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1990, c. 173; 2003, c. 240; 2018, c. 273.

The 2003 amendments.

The 2003 amendment by c. 240 deleted former subsections B and C, regarding administration by the Department of Conservation and Recreation and appointments to the Chickahominy Scenic River Advisory Board; and redesignated former subsections D and E as present subsections B and C.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Chickahominy State Scenic River”; and deleted former subsections B and C, pertaining to construction of bridges and highways, and natural gas pipelines, respectively.

§ 10.1-410.2. Clinch State Scenic River.

The Clinch River in Tazewell and Russell Counties from its confluence with Indian Creek in Cedar Bluff to the Russell-Scott county line, a distance of approximately 66.8 miles and including its tributary, Big Cedar Creek from river mile 5.8 near Lebanon to the confluence, is hereby designated as the Clinch State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1992, c. 308; 1994, c. 329; 2003, c. 240; 2014, c. 823; 2018, c. 273; 2020, cc. 306, 629.

The 2003 amendments.

The 2003 amendment by c. 240 substituted “20” for “twenty” in subsection A; deleted former subsections B and C, concerning administration by the Department of Conservation and Recreation and appointments to the Clinch Scenic River Advisory Board; redesignated former subsection D as present subsection B; and deleted “of Conservation and Recreation” following “Department” in present subsection B 1.

The 2014 amendments.

The 2014 amendments by c. 823 deleted the A designation from the first paragraph and deleted subsection B which stated that this designation shall not be used to designate as unsuitable for mining and as a criterion for imposing water quality standards.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Clinch State Scenic River.”

The 2020 amendments.

The 2020 amendments by cc. 306 and 629 are identical, and rewrote the section, which had read, “The Clinch River in Russell County from its confluence with the Little River to the Nash Ford Bridge at mile 279.5, a distance of approximately 20 miles and including its tributary, Big Cedar Creek from the confluence to mile 5.8 near Lebanon, is hereby designated as the Clinch State Scenic River, a component of the Virginia Scenic Rivers System.”

§ 10.1-411. Goose Creek State Scenic River.

Goose Creek, from bank to bank in Fauquier and Loudoun Counties from the confluence of the North and South Prongs of Goose Creek approximately 0.22 mile downstream of the crossing of the Appalachian Trail in Fauquier County to its junction with the Potomac River in Loudoun County, a distance of approximately 48 river miles, is hereby designated as the Goose Creek State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1984, c. 739, § 10-173.2; 1985, cc. 346, 448; 1988, c. 891; 2003, c. 240; 2007, c. 650; 2018, c. 273.

The 2003 amendments.

The 2003 amendment by c. 240 substituted “28” for “twenty-eight” in subsection A; deleted former subsections B through D, concerning administration by the Northern Virginia Regional Park Authority, appointments to the Goose Creek Scenic River Advisory Board, and the Advisory Board; redesignated former subsections D through G as present subsections B through D; in present subsection B, twice inserted “Northern Virginia Regional Park” preceding “Authority,” and substituted “that” for “which” following “therein”; and in present subsection C, substituted “Scenic River” for “scenic river,” and substituted “that” for “which” following “Goose Creek.”

The 2007 amendments.

The 2007 amendment by c. 650, in subsection A, substituted “Fauquier and Loudoun Counties” for “Loudoun County,” “confluence of the North and South Prongs of Goose Creek approximately 0.22 mile downstream of the crossing of the Appalachian Trail in Fauquier County” for “Loudoun Fauquier County line” and “48” for “28” and inserted “in Loudoun County.”

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Goose Creek State Scenic River”; and deleted former subsections B through D, pertaining to Northern Virginia Regional Park Authority’s authority to acquire property, prohibition of building new dams or other structures, and the use, etc., of the Fairfax City water impoundment, respectively.

§ 10.1-411.1. (Effective until July 1, 2022) Clinch-Guest State Scenic River.

The Clinch River from the Route 58 bridge in St. Paul to the junction with the Guest River, a distance of approximately 9.2 miles, and a segment of the Guest River in Wise County, from a point 100 feet downstream from the Route 72 bridge to its confluence with the Clinch River, a distance of approximately 6.5 miles, are hereby designated as the Clinch-Guest State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1990, c. 397; 1991, c. 487; 2002, c. 251; 2003, c. 240; 2018, c. 273.

The 2002 amendments.

The 2002 amendment by c. 251 inserted “Clinch River from the Route 58 bridge in St. Paul to the junction with the Guest River, a distance of approximately 9.2 miles, and a segment of the” and substituted “6.5 miles, are hereby” for “6.5 miles, is hereby” in subsection A; inserted “Clinch-” preceding “Guest State Scenic River” in subsection B; and in subsection C, substituted “Clinch-Guest Scenic River” for “Guest Scenic River,” substituted “nine” for “seven,” and substituted “landowner on the Clinch River and at least one riparian landowner from” for “landowner, from.”

The 2003 amendments.

The 2003 amendment by c. 240 deleted former subsections B and C, concerning administration by the Department of Conservation and Recreation and appointments to the Clinch-Guest Scenic River Advisory Board; redesignated former subsections D and E as present subsections B and C; and substituted “that” for “which” in the last sentence of present subsection B.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Clinch-Guest State Scenic River” and deleted “however, this description shall not be construed as making the lands along such river unsuitable for underground mining pursuant to § 45.1-252 or regulations promulgated thereunder” at the end; deleted former subsections B and C, pertaining to construction, etc. of natural gas pipelines, and construction, etc., of public roads or bridges, respectively.

The 2022 amendments.

The 2022 amendment by c. 235 deleted “Clinch River from the Route 58 bridge in St. Paul to the junction with the Guest River, a distance of approximately 9.2 miles, and a segment of the” preceding “Guest River in Wise County”; and substituted “is” for “are” and “Guest State Scenic River” for “Clinch-Guest State Scenic River.”

§ 10.1-411.1. (Effective July 1, 2022) Guest State Scenic River.

The Guest River in Wise County, from a point 100 feet downstream from the Route 72 bridge to its confluence with the Clinch River, a distance of approximately 6.5 miles, is hereby designated as the Guest State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1990, c. 397; 1991, c. 487; 2002, c. 251; 2003, c. 240; 2018, c. 273; 2022, c. 235.

§ 10.1-411.2. Russell Fork State Scenic River.

The Russell Fork River from the Splashdam railroad crossing to the Kentucky state line, a distance of nine miles in Dickenson County, is hereby designated as the Russell Fork State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2010, c. 290; 2014, c. 823; 2018, c. 273.

The 2014 amendments.

The 2014 amendments by c. 823 deleted subsection B which stated that this designation shall not be used to designate as unsuitable for mining and as a criterion for imposing water quality standards.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Russell Fork State Scenic River”; and deleted former subsection B, which read “Nothing in this chapter shall preclude the construction or reconstruction of any road or bridge by the Commonwealth or by any county, city, or town.”

§ 10.1-411.3. Banister State Scenic River.

The Banister River from the Route 29 bridge in Pittsylvania County to the confluence with the Dan River in Halifax County, a distance of approximately 63.3 miles, is hereby designated as the Banister State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2013, c. 352; 2014, c. 149; 2018, c. 273.

The 2014 amendments.

The 2014 amendment by c. 149, in subsection A, substituted “29” for “640” and “63.3” for “38.4.”

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Banister State Scenic River”; and deleted former subsection B, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, or performing necessary maintenance on any road or bridge.”

§ 10.1-411.4. Cranesnest State Scenic River.

The Cranesnest River from Route 637 to the Flanagan Reservoir Cranesnest Launch Ramp in Dickenson County, a distance of approximately 10.7 miles, is hereby designated as the Cranesnest State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2014, c. 823; 2018, c. 273.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Cranesnest State Scenic River”; and deleted former subsection B, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, or performing necessary maintenance on any road or bridge.”

§ 10.1-411.5. Pound State Scenic River.

The Pound River in Wise and Dickenson Counties, from the northern boundary of the Town of Pound near Old Mill Village Road northeastward to the Pound River Campground at Little Laurel Branch in Dickenson County, a distance of approximately 17 miles, is hereby designated as the Pound State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2020, cc. 316.

§ 10.1-411.6. Grays Creek State Scenic River.

Grays Creek in Surry County from Southwark Road (Route 618) to its confluence with the James River, a distance of approximately six miles, is hereby designated as the Grays Creek State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2020, cc. 322, 457.

The number of this section was assigned by the Virginia Code Commission, the number in Acts 2020, cc. 322 and 457 having been § 10.1-411.5 .

§ 10.1-412. (Effective until July 1, 2022) Historic Falls of the James State Scenic River.

The Historic Falls of the James from Orleans Street extended in the City of Richmond westward to the 1970 corporate limits of the city is hereby designated as the Historic Falls of the James State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1972, c. 404, § 10-176; 1984, cc. 176, 739; 1985, c. 346; 1988, c. 891; 2003, c. 240; 2018, c. 273.

The 2003 amendments.

The 2003 amendment by c. 240 deleted former subsections B and C, concerning administration by the City of Richmond and appointments to the Falls of the James Advisory Board; redesignated former subsections D and E as present subsections B and C; and twice substituted “that” for “which” in present subsection C.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Historic Falls of the James State Scenic River”; and deleted former subsections B and C, pertaining to reconstruction, etc., at the Byrd Park and Hollywood Hydroelectric Power Stations, and constructing or reconstructing floodwalls or public common carrier facilities that may traverse the river, respectively.

The 2022 amendments.

The 2022 amendment by c. 235 rewrote the section, which read: “The Historic Falls of the James from Orleans Street extended in the City of Richmond westward to the 1970 corporate limits of the city is hereby designated as the Historic Falls of the James State Scenic River, a component of the Virginia Scenic Rivers System.”

§ 10.1-412. (Effective July 1, 2022) Historic Falls of the James State Scenic River.

The Historic Falls of the James in the City of Richmond, from the western 1970 corporate limits of the city to Orleans Street extended, a distance of approximately eight miles, is hereby designated as the Historic Falls of the James State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1972, c. 404, § 10-176; 1984, cc. 176, 739; 1985, c. 346; 1988, c. 891; 2003, c. 240; 2018, c. 273; 2022, c. 235.

§ 10.1-413. (Effective until July 1, 2022) James State Scenic River.

The James River in Botetourt and Rockbridge Counties, including the Towns of Buchanan and Glasgow, from its origination at the confluence of the Jackson and Cowpasture Rivers running approximately 59 miles southeastward to the Rockbridge-Amherst-Bedford County line and the James River in Albemarle, Buckingham, and Fluvanna Counties from one mile upstream of Warren boat ramp running approximately 20 miles to New Canton are hereby designated as the James State Scenic River, components of the Virginia Scenic Rivers System.

History. 1985, c. 501, § 10-173.9; 1988, c. 891; 2003, c. 240; 2017, cc. 149, 549; 2018, c. 273; 2020, c. 319.

Editor’s note.

At the direction of the Virginia Code Commission, substituted “and Rockbridge Counties, including the Towns of Buchanan and Glasgow, from its origination at the confluence of the Jackson and Cowpasture Rivers” for “County, from a point two miles southeast of the point where Route 43 (old Route 220) crosses the James River at Eagle Rock,” “59” for “14” and “Rockbridge-Amherst-Bedford County line” for “point where Route 630 crosses the James River at Springwood” to correct an error in the 2018 act.

Acts 2022, c. 175, cl. 2 provides:” That the provisions of Chapter 4 ( § 10.1-400 et seq.) of Title 10.1 of the Code of Virginia shall not apply prior to July 1, 2027, to any water supply project undertaken by a locality or authority within the portion of the James State Scenic River designated as a state scenic river pursuant to this act.”

The 2003 amendments.

The 2003 amendment by c. 240 substituted “14” for “fourteen” in subsection A; deleted former subsection B, concerning administration by the Botetourt County Board of Supervisors; and redesignated former subsection C as present subsection B.

The 2017 amendments.

The 2017 amendments by cc. 149 and 549 are identical, and rewrote subsection A, which read “That portion of the James River in Botetourt County, from a point two miles southeast of the point where Route 43 (old Route 220) crosses the James River at Eagle Rock running approximately 14 miles southeastward to the point where Route 630 crosses the James River at Springwood is hereby designated a component of the Virginia Scenic Rivers System”; and inserted “or Rockbridge” in subsection B.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the James State Scenic River”; and deleted former subsection B, which read “No dam or other structure that impedes the natural flow of the James River in Botetourt or Rockbridge County shall be constructed, operated, or maintained within the section of the James River designated as a scenic river by this statute unless specifically authorized by an act of the General Assembly.”

The 2020 amendments.

The 2020 amendment by c. 319, rewrote the section, which read: “That portion of the James River in Botetourt and Rockbridge Counties, including the Towns of Buchanan and Glasgow, from its origination at the confluence of the Jackson and Cowpasture Rivers running approximately 59 miles southeastward to the Rockbridge-Amherst-Bedford County line is hereby designated as the James State Scenic River, a component of the Virginia Scenic Rivers System.”

The 2022 amendments.

The 2022 amendment by c. 175 inserted “Nelson, Appomattox”; and substituted “the confluence of Allens Creek running approximately 57 miles to Stearnes” for “one mile upstream of Warren boat ramp running approximately 20 miles to New Canton”; and made a stylistic change.

§ 10.1-413. (Effective July 1, 2022) James State Scenic River.

The James River in Botetourt and Rockbridge Counties, including the Towns of Buchanan and Glasgow, from its origination at the confluence of the Jackson and Cowpasture Rivers running approximately 59 miles southeastward to the Rockbridge-Amherst-Bedford County line and the James River in Nelson, Appomattox, Albemarle, Buckingham, and Fluvanna Counties from the confluence of Allens Creek running approximately 57 miles to Stearnes are hereby designated as the James State Scenic River, components of the Virginia Scenic Rivers System.

History. 1985, c. 501, § 10-173.9; 1988, c. 891; 2003, c. 240; 2017, cc. 149, 549; 2018, c. 273; 2020, c. 319; 2022, c. 175.

§ 10.1-413.1. Moormans State Scenic River.

The Moormans River in Albemarle County, from the Charlottesville Reservoir to its junction with the Mechums River, is hereby designated as the Moormans State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1988, cc. 21, 300, 891; 2003, c. 240; 2018, c. 273.

The 2003 amendments.

The 2003 amendment by c. 240 deleted former subsections B and C, concerning administration by the County of Albemarle, and appointments to the Moormans Scenic River Advisory Board; and redesignated former subsection D as present subsection B.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Moormans State Scenic River”; and deleted former subsection B, which read “No dam or other structure impeding the natural flow of the river shall be constructed, operated, or maintained unless specifically authorized by an act of the General Assembly.”

§ 10.1-413.2. North Landing and Tributaries State Scenic River.

The North Landing from the North Carolina line to the bridge at Route 165, the Pocaty River from its junction with the North Landing River to the Blackwater Road bridge, West Neck Creek from the junction with the North Landing River to Indian River Road bridge, and Blackwater Creek from the junction with the North Landing River to the confluence, approximately 4.2 miles, of an unnamed tributary approximately 1.75 miles, more or less, west of Blackwater Road, are hereby designated as the North Landing and Tributaries State Scenic River, components of the Virginia Scenic Rivers System.

History. 1988, cc. 490, 891; 1989, c. 656; 2003, c. 240; 2018, c. 273.

The 2003 amendments.

The 2003 amendment by c. 240 deleted former subsections B and C, concerning administration by the Department of Conservation and Recreation and appointments to the North Landing and Tributaries Scenic River Advisory Board; and redesignated former subsection D as present subsection B.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “the North Landing and Tributaries State Scenic River”; and deleted former subsection B, which read “No dam or other structure impeding the natural flow of the river shall be constructed, operated, or maintained unless specifically authorized by an act of the General Assembly.”

§ 10.1-413.3. Dan State Scenic River.

The Dan River from Berry Hill Road at Route 880 in Pittsylvania County to the downstream property boundary of Abreu/Grogan Park in Danville, a distance of approximately 15 miles, and the Dan River from the North Carolina-Virginia state line in Halifax County to the confluence with Aaron’s Creek in Halifax County, a distance of approximately 38.6 miles, are hereby designated as the Dan State Scenic River, components of the Virginia Scenic Rivers System.

History. 2013, c. 705; 2015, c. 46; 2018, c. 273.

The 2015 amendments.

The 2015 amendment by c. 46 substituted “and the Dan River from the North Carolina-Virginia state line in Halifax County to the confluence with Aaron’s Creek in Halifax County, a distance of approximately 38.6 miles, are hereby designated as components” for “is hereby designated a component” in subsection A and substituted “areas” for “area” in subsection B.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Dan State Scenic River”; and deleted former subsection B, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, operating, or performing necessary maintenance on any road or bridge in the designated areas.”

§ 10.1-414. Nottoway State Scenic River.

The Nottoway River in Sussex County and Southampton County, from the Route 40 bridge at Stony Creek to the North Carolina line, a distance of approximately 72.5 miles, is hereby designated as the Nottoway State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1984, c. 739, § 10-173.6; 1985, cc. 346, 448; 1988, c. 891; 1992, c. 183; 2003, c. 240; 2011, cc. 96, 136; 2018, c. 273.

The 2003 amendments.

The 2003 amendment by c. 240 deleted the subsection A designation; and deleted former subsections B and C, concerning administration by the Department of Conservation and Recreation, and appointments to the Nottoway State Scenic River Advisory Board.

The 2011 amendments.

The 2011 amendments by cc. 96 and 136 are identical, and in the first paragraph, substituted “North Carolina line” for “Careys Bridge at Route 653” and “72.5 miles” for “39 1/2 miles”; and added the last paragraph.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Nottoway State Scenic River”; and deleted the former second paragraph, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, operating, or performing necessary maintenance on any transportation or public water supply project.”

§ 10.1-415. Rappahannock State Scenic River.

The mainstem of the Rappahannock River in Rappahannock, Culpeper, Fauquier, Stafford, Spotsylvania, Caroline, King George, Westmoreland, Essex, and Richmond Counties and the City of Fredericksburg from its headwaters near Chester Gap to the Essex-Middlesex and Richmond-Lancaster County lines, a distance of approximately 165 river miles, is hereby designated as the Rappahannock State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1985, c. 124, § 10-173.8; 1988, c. 891; 1990, c. 225; 2003, c. 240; 2018, c. 273; 2021, Sp. Sess. I, c. 399.

The 2003 amendments.

The 2003 amendment by c. 240 substituted “86” for “eighty-six” in subsection A; deleted former subsections B and C, concerning administration by the Department of Game and Inland Fisheries and appointments to the Rappahannock Scenic River Advisory Board; and redesignated former subsections D through G as present subsections B through E.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Rappahannock State Scenic River”; and deleted former subsections B through E, pertaining to continued operation, etc., of existing dams, continued operation, etc., of the Embrey Dam or its appurtenances, construction, etc., of any road, bridge or intake structures by certain counties, and construction, etc., of natural gas pipeline case number PUE 860065, respectively.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 399, effective July 1, 2021, inserted “Caroline, King George, Westmoreland, Essex, and Richmond”; substituted “Essex-Middlesex and Richmond-Lancaster County lines” for “Ferry Farm-Mayfield Bridge” and “165” for “86”; and made a stylistic change.

§ 10.1-415.1. Rockfish State Scenic River.

The Rockfish River in Albemarle and Nelson Counties from the Route 693 bridge in Schuyler to its confluence with the James River, a distance of approximately 9.75 miles, is hereby designated as the Rockfish State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1990, cc. 381, 422; 2003, c. 240; 2018, c. 273.

The 2003 amendments.

The 2003 amendment by c. 240 deleted former subsections B and C, concerning administration by the Department of Conservation and Recreation and appointments to the Rockfish State Scenic River Advisory Board; and redesignated former subsection D as present subsection B.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Rockfish State Scenic River”; and deleted former subsection B, which read “Nothing in this chapter shall preclude the Commonwealth or local governing body from constructing or reconstructing any road or bridge.”

§ 10.1-416. Rivanna State Scenic River.

The river, stream, or waterway known as the Rivanna from the base of the South Fork Rivanna River reservoir to the junction of the Rivanna with the James River, a distance of approximately 46 miles, is hereby designated as the Rivanna State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1984, c. 739, § 10-173.1; 1988, cc. 20, 299, 891; 2003, c. 240; 2009, c. 541; 2018, c. 273.

The 2003 amendments.

The 2003 amendment by c. 240 deleted former subsections B and C, concerning administration by the Department and appointments to the Rivanna Scenic River Advisory Board; and redesignated former subsection D as present subsection B.

The 2009 amendments.

The 2009 amendment by c. 541, in subsection A, substituted “South Fork Rivanna River reservoir” for “dam of the woolen mills in the City of Charlottesville” and “46 miles” for “37 miles” and inserted “as” following “designated”; and added subsection C.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “State” preceding “Scenic River”; and deleted former subsections B and C, pertaining to dams or other structures, and construction, etc., of roads or bridges.

Research References.

Virginia Forms (Matthew Bender). No. 16-579. Deeds of Easement to Local Government for Natural Open Space, Conservation or Rural Preservation.

§ 10.1-417. Shenandoah State Scenic River.

The Shenandoah River in Clarke County from the Warren-Clarke County line to the Virginia line, a distance of approximately 21.6 miles, is hereby designated as the Shenandoah State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1984, c. 739, § 10-173.7; 1985, cc. 346, 448; 1988, c. 891; 1992, c. 341; 2003, c. 240; 2018, c. 273.

The 2003 amendments.

The 2003 amendment by c. 240 deleted former subsections B and C, concerning administration by the Department of Game and Inland Fisheries and appointments to the Shenandoah State Scenic River Advisory Board; redesignated former subsection D as present subsection B; and substituted “that” for “which” in the last paragraph of present subsection B.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Shenandoah State Scenic River”; and deleted former subsection B, which prohibited and defined “dams or other structures.”

§ 10.1-417.01. (Effective July 1, 2022) North Fork of the Shenandoah State Scenic River.

The North Fork of the Shenandoah River in Shenandoah County, from Chapman Landing boat ramp in Edinburg, Virginia, to the downstream boundary of Seven Bends State Park, a distance of approximately 8.8 miles, is hereby designated as the North Fork of the Shenandoah State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2022, c. 661.

§ 10.1-417.1. South State Scenic River.

The South River in the City of Waynesboro from South Oak Lane to Hopeman Parkway, a distance of approximately 6.5 miles, is hereby designated as the South State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2021, Sp. Sess. I, c. 407.

Effective date.

This section is effective July 1, 2021.

§ 10.1-418. Staunton State Scenic River.

The river, stream, or waterway known as the Staunton or the Roanoke, from State Route 761 at the Long Island Bridge to the Staunton River State Park boat landing, a distance of approximately 62.8 river miles, is hereby designated as the Staunton State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1984, c. 739, § 10-173.5; 1988, c. 891; 2001, c. 58; 2003, cc. 240, 687; 2018, c. 273; 2020, c. 320.

The 2001 amendments.

The 2001 amendment by c. 58, in subsection A, substituted “State Route 360 to State Route 761 at the Long Island Bridge” for “river mile 49.9 at the Brookneal Public Landing to river mile 60.7 at the State Route 761 bridge,” and substituted “40.5” for “10.8,” and deleted the former second sentence of subsection A, which read: “River mile numbers are those used by the State Water Control Board beginning at the mouth of Buggs Island Lake.”

The 2003 amendments.

The 2003 amendment by c. 240 deleted the subsection A designation; substituted “51.3” for “40.5”; and deleted former subsection B, concerning administration by the Department of Game and Inland Fisheries.

The 2003 amendment by c. 687 also substituted “51.3” for “40.5.”

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as” preceding “the Staunton State Scenic River.”

The 2020 amendments.

The 2020 amendment by c. 320, deleted “State Route 360 to” preceding “State Route 761,” inserted “to the Staunton River State Park boat landing” and substituted “62.8” for “51.3.”

§ 10.1-418.1. North Meherrin State Scenic River.

The North Meherrin River in Lunenburg County from the Route 712 Bridge to the junction with the South Meherrin River, a distance of approximately 7.5 miles, is hereby designated as the North Meherrin State Scenic River, a component of the Virginia Scenic Rivers System.

History. 1997, cc. 45, 505; 2003, c. 240; 2018, c. 273.

The 2003 amendments.

The 2003 amendment by c. 240 deleted the subsection A designation; and deleted former subsections B and C, concerning administration by the Department of Conservation and Recreation and appointments to the North Meherrin Scenic River Advisory Board.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the North Meherrin State Scenic River.”

§ 10.1-418.2. St. Mary’s State Scenic River.

  1. Because the authority of the federal government over the St. Mary’s River prevents the Commonwealth from legally including the river as a component of the Virginia Scenic Rivers System, the segment of the St. Mary’s River from its headwaters to the border of the George Washington National Forest, all on national forest property, is hereby recognized as one of Virginia’s Scenic River resources and is worthy of designation as such.
  2. The Department shall consult with the Augusta County Board of Supervisors and the Supervisor of the George Washington National Forest on matters related to this scenic river.

History. 2003, c. 240; 2018, c. 273.

The 2018 amendments.

The 2018 amendment by c. 273 substituted “Because” for “As” at the beginning of subsection A; deleted former subsection B, which read “All land and water uses along this portion of the St. Mary’s River that are permitted by law shall not be restricted”; and made stylistic changes.

§ 10.1-418.3. Meherrin State Scenic River.

The Meherrin River within Mecklenburg, Lunenburg, and Brunswick Counties from the confluence with the North Meherrin River, a designated scenic river, to the Brunswick/Greensville County line, a distance of approximately 54.8 miles, is hereby designated as the Meherrin State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2006, cc. 4, 44; 2013, c. 341; 2018, c. 273.

Editor’s note.

The number of this section was assigned by the Virginia Code Commission, the number in Acts 2006, cc. 4 and 44, having been § 10.1-418.2 .

The 2013 amendments.

The 2013 amendment by c. 341 rewrote the section which read: “The Meherrin River within Brunswick County, a distance of approximately 37 miles, is hereby designated a component of the Virginia Scenic Rivers System.”

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Meherrin State Scenic River” and deleted the former second sentence, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, or performing necessary maintenance on any road or bridge.”

§ 10.1-418.4. North Mayo State Scenic River.

The North Mayo River in Henry County from the Route 695 crossing to the North Carolina line, a distance of approximately 7.1 miles, is hereby designated as the North Mayo State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2008, cc. 14, 336; 2018, c. 273.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the North Mayo State Scenic River” and deleted the former second sentence, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, or performing necessary maintenance on any road or bridge.”

§ 10.1-418.5. South Mayo State Scenic River.

The South Mayo River in Henry County from the Patrick County line to the North Carolina line, a distance of approximately 6.9 miles, is hereby designated as the South Mayo State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2008, cc. 14, 336; 2018, c. 273.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the South Mayo State Scenic River” and deleted the former second sentence, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, or performing necessary maintenance on any road or bridge.”

§ 10.1-418.6. Blackwater State Scenic River.

The Blackwater River in Isle of Wight and Southampton Counties and the Cities of Franklin and Suffolk, from Proctor’s Bridge at Route 621 to its confluence with the Nottoway River at the North Carolina line, a distance of approximately 56 miles, is hereby designated as the Blackwater State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2010, cc. 139, 308; 2018, c. 273.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Blackwater State Scenic River” and deleted the former second sentence, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, operating, or performing necessary maintenance on any transportation or public water supply project.”

§ 10.1-418.7. Jordan State Scenic River.

The Jordan River in Rappahannock County, from the Route 522 bridge at Flint Hill to its confluence with the Rappahannock River, a distance of approximately seven miles, is hereby designated as the Jordan State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2010, c. 231; 2018, c. 273.

The number of this section was assigned by the Virginia Code Commission, the number in the 2010 act having been § 10.1-418.6 .

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Jordan State Scenic River” and deleted the former second sentence, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, or performing necessary maintenance on any road or bridge.”

§ 10.1-418.8. Hughes State Scenic River.

The Hughes River in Culpeper, Madison, and Rappahannock Counties from the Shenandoah National Park line in Madison County to its confluence with the Hazel River, a distance of approximately 10 miles, is hereby designated as the Hughes State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2010, c. 232; 2018, c. 273.

The number of this section was assigned by the Virginia Code Commission, the number in the 2010 act having been § 10.1-418.6 .

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Hughes State Scenic River” and deleted the former second sentence, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, or performing necessary maintenance on any road or bridge.”

§ 10.1-418.9. Tye State Scenic River.

The Tye River in Nelson County from Route 738 (Tye Depot Road) to its confluence with the James River, a distance of approximately 12.7 miles, is hereby designated as the Tye State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2014, c. 107; 2018, c. 273.

The 2018 amendments.

The 2018 amendment by c. 273 inserted “as the Tye State Scenic River” and deleted the former second sentence, which read “Nothing in this section shall preclude the Commonwealth or a local governing body from constructing, reconstructing, or performing necessary maintenance on any road or bridge.”

§ 10.1-418.10. (Effective until July 1, 2022) Maury State Scenic River.

The Maury River in Rockbridge County from its origination at the confluence of the Calfpasture and Little Calfpasture Rivers to Furrs Mill Road bridge in Beans Bottom on Route 631, a distance of approximately 19.25 miles, is hereby designated as the Maury State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2020, cc. 403, 404.

The 2022 amendments.

The 2022 amendments by cc. 409 and 410 are identical, and substituted “the confluence with the James River” for “Furrs Mill Road bridge in Beans Bottom on Route 631” and “42.4 miles” for “19.25 miles.”

§ 10.1-418.10. (Effective July 1, 2022) Maury State Scenic River.

The Maury River in Rockbridge County from its origination at the confluence of the Calfpasture and Little Calfpasture Rivers to the confluence with the James River, a distance of approximately 42.4 miles, is hereby designated as the Maury State Scenic River, a component of the Virginia Scenic Rivers System.

History. 2020, cc. 403, 404; 2022, cc. 409, 410.

Chapter 4.1. Historic Lower James River.

§ 10.1-419. Declared a state historic river; planning for use and development.

  1. In keeping with the public policy of the Commonwealth of Virginia to conserve the portions of certain rivers possessing superior natural beauty, thereby assuring their use and enjoyment for their historic, scenic, recreational, geologic, fish and wildlife, cultural and other values, that portion of the Lower James River in Charles City, James City and Surry Counties, from an unnamed tributary to the James River approximately 1.2 miles east of Trees Point in Charles City County (northside) and Upper Chippokes Creek (southside) to Grices Run (northside) and Lawnes Creek (southside), is hereby declared to be an historic river with noteworthy scenic and ecological qualities.
  2. In all planning for the use and development of water and related land resources which changes the character of a stream or waterway or destroys its historic, scenic or ecological values, full consideration and evaluation of the river as an historic, scenic and ecological resource should be given before such work is undertaken. Alternative solutions should also be considered before such work is undertaken.
  3. The General Assembly hereby designates the Department of Conservation and Recreation as the agency of the Commonwealth responsible for assuring that the purposes of this chapter are achieved. Nothing in this designation shall impair the powers and duties of the local jurisdictions listed above or the Virginia Department of Transportation.

History. 1988, cc. 721, 891; 1989, c. 656; 2011, cc. 594, 681.

The 2011 amendments.

The 2011 amendments by cc. 594 and 681 are nearly identical, and deleted subsection C, which read: “The Counties of Charles City, James City and Surry and the Governor shall appoint a seven-member advisory committee of area residents and other qualified persons. The governing bodies of the Counties of James City and Surry shall each appoint two persons to the Lower James River Advisory Committee. The governing body of Charles City County shall appoint one person to the Advisory Committee. The Governor shall appoint two persons to the Advisory Committee. Committee members will serve four-year terms, without compensation. The Advisory Committee shall assist and advise the Department of Conservation and Recreation, the political subdivisions through which the Lower James River passes, and other public bodies concerning the protection and management of this portion of the River. The Advisory Committee shall have no regulatory authority”; and redesignated former subsection D as subsection C.

Chapter 5. Soil and Water Conservation.

Michie’s Jurisprudence.

For related discussion, see 20 M. J. Waters and Watercourses, § 3.

Article 1. General Provisions.

§ 10.1-500. Definitions.

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

“Board” means the Virginia Soil and Water Conservation Board.

“County” includes towns.

“City” includes all cities chartered under the Commonwealth.

“District” or “soil and water conservation district” means a political subdivision of this Commonwealth organized in accordance with the provisions of this chapter.

“District director” means a member of the governing body of a district authorized to serve as a director.

“Due notice” means notice published at least twice, with an interval of at least seven days between the two publication dates, in a newspaper or other publication of general circulation within the appropriate area, or if no such publication of general circulation is available, by posting at a reasonable number of conspicuous places within the appropriate area. Such posting shall include, where possible, posting at public places where it is customary to post notices concerning county or municipal affairs. Hearings held pursuant to such notice, at the time and place designated in the notice, may be adjourned from time to time without renewing the notice for the adjourned dates.

“Governing body of a city or county” means the entire governing body regardless of whether all or part of that city or county is included or to be included within a district.

“Government” or “governmental” includes the government of this Commonwealth, the government of the United States, and any of their subdivisions, agencies or instrumentalities.

“Land occupier” or “occupier of land” includes any person, firm or corporation who holds title to, or is in possession of, any lands lying within a district organized, or proposed to be organized, under the provisions of this chapter, in the capacity of owner, lessee, renter, tenant, or cropper. The terms “land occupier” and “occupier of land” shall not include an ordinary employee or hired hand who is furnished a dwelling, garden, utilities, supplies, or the like, as part payment, or payment in full, for his labor.

“Locality” means a county, city or town.

History. Code 1950, § 21-3; 1950, p. 76; 1954, c. 670; 1964, c. 512; 1970, c. 480; 1985, c. 448; 1988, c. 891.

Cross references.

As to agricultural stewardship generally, see Chapter 4 (§ 3.2-400 et seq.) of Title 3.2.

Research References.

Virginia Forms (Matthew Bender). No. 16-577. Deed of Easement for Open-Space Land — Riparian Zone.

§ 10.1-500.1. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this chapter the Board or the Director is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the Board or the Director may be sent by regular mail.

History. 2011, c. 566.

§ 10.1-501. Duty of the Attorney General.

The Attorney General shall represent and provide consultation and legal advice in suits or actions under this chapter upon request of the district directors or districts.

History. Code 1950, § 21-89; 1964, c. 512; 1970, c. 480; 1988, c. 891; 2005, c. 236; 2008, c. 577.

The 2005 amendments.

The 2005 amendment by c. 236 added “unless the Attorney General provides legal services pursuant to § 2.2-507” at the end of the section.

The 2008 amendments.

The 2008 amendment by c. 577 rewrote this section, which read: “The attorney for the Commonwealth of the county or city in which the suits or actions under this chapter may arise shall represent the district directors or districts in such suits or actions unless the Attorney General provides legal services pursuant to § 2.2-507.”

§ 10.1-501.1. Defense of claims.

The Attorney General shall provide the legal defense against any claim made against any soil and water conservation district, director, officer, agent or employee thereof (i) arising out of the ownership, maintenance or use of buildings, grounds or properties owned, leased or maintained by any soil and water conservation district or used by district employees or other authorized persons in the course of their employment, or (ii) arising out of acts or omissions of any nature while acting in an authorized governmental or proprietary capacity and in the course and scope of employment or authorization.

History. 1988, cc. 763, 780, 891.

Article 2. Virginia Soil and Water Conservation Board.

§ 10.1-502. Soil and Water Conservation Board; composition.

The Virginia Soil and Water Conservation Board is continued and shall perform the functions conferred upon it in this chapter. The Board shall consist of nine nonlegislative citizen members and one ex officio member with nonvoting privileges. The Director of the Department of Conservation and Recreation or his designee shall be a nonvoting ex officio member of the Board. Three nonlegislative citizen members of the Board shall be appointed by the Governor as at-large members, of whom at least two members shall have a demonstrated interest in natural resource conservation with a background or knowledge in dam safety, soil conservation, or water quality protection. Additionally, four nonlegislative citizen members shall be farmers at the time of their appointment and two nonlegislative citizen members shall be farmers or district directors. Each of the six nonlegislative members who is a farmer or district director shall be a resident of a different one of the six geographic areas represented in the Virginia Association of Soil and Water Conservation Districts and shall be appointed by the Governor from a list of two qualified nominees for each vacancy jointly submitted by the Board and the Board of Directors of the Virginia Association of Soil and Water Conservation Districts in consultation with the Virginia Farm Bureau Federation and the Virginia Agribusiness Council. Nonlegislative citizen members shall be appointed for a term of four years. All appointed members shall not serve more than two consecutive full terms. Appointments to fill vacancies shall be made in the same manner as the original appointments, except that such appointments shall be for the unexpired terms only. The Board may invite the Virginia State Conservationist, Natural Resources Conservation Service, to serve as an advisory nonvoting member. The Board shall keep a record of its official actions and adopt a seal and may perform acts, hold public hearings, and adopt regulations necessary for the execution of its functions under this chapter.

History. Code 1950, § 21-6; 1950, p. 77; 1954, c. 670; 1956, c. 654; 1960, c. 208; 1964, c. 512; 1968, c. 149; 1970, c. 480; 1984, c. 750; 1985, c. 448; 1988, c. 891; 1989, c. 656; 1991, c. 188; 1992, c. 121; 2003, c. 128; 2005, c. 102; 2011, cc. 213, 228; 2013, cc. 756, 793; 2021, Sp. Sess. I, cc. 43, 44.

Editor’s note.

Acts 2005, c. 102, cl. 2 provides: “That the Governor shall make new appointments for each of the three at-large members of the Board in accordance with the provisions of this act on July 1, 2005. The new appointments of the at-large members of the Board shall go into effect upon the expiration of the current members’ terms in January 2006, and the terms shall be staggered as follows: one member for a term of two years; one member for a term of three years; and one member for a term of four years. The Governor shall designate the term to be served by each appointee at the time of appointment and may reappoint the existing at-large members of the Board.”

Acts 2011, cc. 213 and 228, cl. 2 provides: “That the provisions of this act shall not be construed to affect existing appointments for which the terms have not expired. However, any new appointments made after the effective date of this act shall be made in accordance with the provisions of this act.”

For complete transition provisions related to transfer of certain water quality programs (stormwater management, erosion and sediment control, nutrient trading, and the Chesapeake Bay Preservation Areas) formerly administered by the Department of Conservation and Recreation, to the Department of Environmental Quality, see Acts 2013, cc. 756 and 793, cls. 4 through 14, noted in full under Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1.

Acts 2013, cc. 756 and 793, cl. 3 provides: “That the provisions of § 10.1-502 , as amended by this act, shall not be construed to affect existing appointments for which the terms have not expired. However, any new appointments or appointments to fill vacancies made after the effective date of this act shall be made in accordance with the provisions of this act.”

The 2003 amendments.

The 2003 amendment by c. 128 substituted “10” for “twelve” in the second sentence; in the third sentence, substituted “or his designee” for “the Director of the State Cooperative Extension Service, the Director of Agriculture and Life Sciences, Virginia Polytechnic Institute and State University, Research Division, the Associate Vice President for Agriculture and Extension of Virginia State University, and the State Commissioner of Agriculture and Consumer Services or their designees” and “a member” for “members”; in the fourth sentence, substituted “Three at-large members” for “One member,” and “members” for “member”; added the fifth sentence; and substituted “Natural Resources” for “Soil” in the next-to-last sentence.

The 2005 amendments.

The 2005 amendment by c. 102 deleted “to serve at the pleasure of the Governor, for a term coincident with that of the appointing Governor; vacancies in the office of such appointed members shall be filled by the Governor” following “Governor” in the fourth sentence, inserted the present fifth sentence, substituted “Additionally, four members” for “Four members” in the seventh sentence and substituted “All appointed” for “Appointed” in the eighth sentence.

The 2011 amendments.

The 2011 amendments by cc. 213 and 228 are identical, and in the second sentence, substituted “12 voting members” for “10 voting members,” in the third sentence, inserted “nonvoting ex officio,” in the fourth sentence, substituted “Six” for “Three,” in the sixth sentence, deleted “three” preceding “at-large members,” added the seventh sentence, and in the eighth sentence, inserted “jointly,” and deleted “in joint session” following “Water Conservation Board.”

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and substituted “nine” for “12” in the second sentence, “Three” for “Six” at the beginning of the fourth sentence, and “two members shall be appointed by the Governor as at-large members and shall have” for “two of the at-large members should have” and deleted “or urban point or nonpoint source pollution control. At least three of the at-large members, by their education, training, or experience, shall be knowledgeable of stormwater management and shall be representative of business and local government interests” at the end of the sixth sentence, and made a related change; and inserted “at the time of their appointment,” “in consultation with the Virginia Farm Bureau Federation and the Virginia Agribusiness Council,” and “Virginia” in the seventh sentence; and substituted “the original appointments” for “described above” in the tenth sentence.

The 2021 Sp. Sess. I amendments.

The 2021 amendments by Sp. Sess. I, cc. 43 and 44, effective July 1, 2021, are identical, and rewrote the section, which read “The Virginia Soil and Water Conservation Board is continued and shall perform the functions conferred upon it in this chapter. The Board shall consist of nine voting members. The Director of the Department of Conservation and Recreation, or his designee, shall be a nonvoting ex officio member of the Board. Three at-large members of the Board shall be appointed by the Governor. After the initial staggering of terms, nonlegislative citizen members shall be appointed for a term of four years. At least two members shall be appointed by the Governor as at-large members and shall have a demonstrated interest in natural resource conservation with a background or knowledge in dam safety, soil conservation, or water quality protection. Additionally, four members shall be farmers at the time of their appointment and two members shall be farmers or district directors, appointed by the Governor from a list of two qualified nominees for each vacancy jointly submitted by the Board of Directors of the Virginia Association of Soil and Water Conservation Districts, in consultation with the Virginia Farm Bureau Federation and the Virginia Agribusiness Council, and the Virginia Soil and Water Conservation Board, each for a term of four years. All appointed members shall not serve more than two consecutive full terms. Appointments to fill vacancies shall be made in the same manner as the original appointments, except that such appointments shall be for the unexpired terms only. The Board may invite the Virginia State Conservationist, Natural Resources Conservation Service, to serve as an advisory nonvoting member. The Board shall keep a record of its official actions, shall adopt a seal and may perform acts, hold public hearings, and promulgate regulations necessary for the execution of its functions under this chapter.”

Law Review.

For 2003/2004 survey of environmental law, see 39 U. Rich. L. Rev. 203 (2004).

§ 10.1-503. Administrative officer and other employees; executive committee.

The Director shall provide technical experts and other agents and employees, permanent and temporary, necessary for the execution of the functions of the Board. The Board may create an executive committee and delegate to the chairman of the Board, or to the committee or to the Director, such powers and duties as it deems proper. Upon request of the Board, for the purpose of carrying out any of its functions, the supervising officer of any state agency or of any state institution of learning shall, insofar as possible under available appropriations, and having due regard for the needs of the agency to which the request is directed, assign or detail to the Board, members of the staff or personnel of the agency or institution, and make special reports, surveys, or studies requested by the Board.

History. Code 1950, § 21-7; 1964, c. 512; 1984, cc. 444, 750; 1988, c. 891; 2003, c. 128.

The 2003 amendments.

The 2003 amendment by c. 128 substituted “the Director” for “one or more agents or employees” in the second sentence.

§ 10.1-504. Chairman; quorum.

The Board shall designate its chairman and may, from time to time, change such designation. Five members of the Board shall constitute a quorum, and the concurrence of a majority of those present and voting shall be required for all determinations.

History. Code 1950, § 21-8; 1964, c. 512; 1988, c. 891; 2013, cc. 756, 793.

Editor’s note.

For complete transition provisions related to transfer of certain water quality programs (stormwater management, erosion and sediment control, nutrient trading, and the Chesapeake Bay Preservation Areas) formerly administered by the Department of Conservation and Recreation, to the Department of Environmental Quality, see Acts 2013, cc. 756 and 793, cls. 4 through 14, noted in full under Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1.

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and substituted “Five” for “Six” at the beginning of the second sentence.

§ 10.1-505. Duties of Board.

In addition to other duties and powers conferred upon the Board, it shall have the following duties and powers:

  1. To give or loan appropriate financial and other assistance to district directors in carrying out any of their powers and programs.
  2. To keep district directors informed of the activities and experience of all other districts, and to facilitate an interchange of advice and experience between the districts.
  3. To oversee the programs of the districts.
  4. To secure the cooperation and assistance of the United States and any of its agencies, and of agencies of the Commonwealth, in the work of the districts.
  5. To disseminate information throughout the Commonwealth concerning the activities and programs of the districts, and to encourage the formation of such districts in areas where their organization is desirable.
  6. To assist persons, associations, and corporations engaged in furthering the programs of the districts; to encourage and assist in the establishment and operation of such associations and corporations, and to authorize financial assistance to the officers and members of such associations and corporations in the discharge of their duties.
  7. To receive, review, approve or disapprove applications for assistance in planning and carrying out works of improvement under the Watershed Protection and Flood Prevention Act (Public Law 566 — 83rd Congress, as amended), and to receive, review and approve or disapprove applications for any other similar soil and water conservation programs provided in federal laws which by their terms or by related executive orders require such action by a state agency.
  8. To advise and recommend to the Governor approval or disapproval of all work plans developed under Public Law 83-566 and Public Law 78-535 and to advise and recommend to the Governor approval or disapproval of other similar soil and water conservation programs provided in federal laws which by their terms or by related executive orders require approval or comment by the Governor.
  9. To provide for the conservation of soil and water resources, control and prevention of soil erosion, flood water and sediment damages thereby preserving the natural resources of the Commonwealth.
  10. To adopt regulations (i) for the operation of the voluntary nutrient management training and certification program as required by § 10.1-104.1 and (ii) that amend the application rates in the Virginia Nutrient Management Standards and Criteria as required by § 10.1-104.2:1 .
  11. To provide, from such funds appropriated for districts, financial assistance for the administrative, operational and technical support of districts.

History. Code 1950, § 21-10; 1956, c. 654; 1958, c. 410; 1962, c. 213; 1964, c. 512; 1970, c. 480; 1972, c. 557; 1988, c. 891; 2013, cc. 593, 658.

Editor’s note.

For the Watershed Protection and Flood Prevention Act, referred to above, see generally 16 U.S.C.S. § 1001.

Acts 2013, cc. 593 and 658, cl. 2 provides: “That the regulations adopted by the Department of Conservation and Recreation and directed for transfer from the Department of Conservation and Recreation to the Virginia Soil and Water Conservation Board in accordance with this act shall remain in full force and effect until transferred to the Virginia Soil and Water Conservation Board.”

Acts 2013, cc. 593 and 658, cl. 3 provides: “That the initial actions of the Virginia Soil and Water Conservation Board to adopt, with necessary amendments, the nutrient management training and certification regulations transferred by this act from the Department of Conservation and Recreation to the Board shall be exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia. Such regulations shall remain in full force and effect until altered, amended, or rescinded by the Virginia Soil and Water Conservation Board.”

Acts 2013, cc. 593 and 658, cl. 4 provides: “That after the transfer of the nutrient management training and certification program, if the Virginia Soil and Water Conservation Board determines that additional amendments to the regulations are necessary solely to enable implementation of the program in accordance with this act, the regulatory actions necessary shall be exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia except that the Board shall provide an opportunity for public comment on the regulatory actions.”

Acts 2013, cc. 593 and 658, cl. 5 provides: “That guidance of the Department of Conservation and Recreation relating to the regulations to be transferred by this act shall remain in effect until amended or repealed.”

Acts 2013, cc. 593 and 658, cl. 6 provides: “That any regulatory action initiated prior to the effective date of this act by the Department of Conservation and Recreation to amend the regulations being transferred by this act shall be continued by the Virginia Soil and Water Conservation Board at the time of the transfer of the regulations. Any regulatory action to amend the regulations being transferred that is initiated by the Department of Conservation and Recreation on and after the effective date of this act may be continued by the Virginia Soil and Water Conservation Board.”

The 2013 amendments.

The 2013 amendments by cc. 593 and 658 are identical, and substituted “oversee the programs of the districts” for “coordinate the programs of the districts so far as this may be done by advice and consultation” in subdivision 3; and added subdivisions 10 and 11.

Article 3. Soil and Water Conservation Districts.

§ 10.1-506. Power to create new districts and to relocate or define district boundaries; composition of districts.

  1. The Board shall have the power to (i) create a new district from territory not previously within an existing district, (ii) merge or divide existing districts, (iii) transfer territory from an existing district to another district, (iv) modify or create a district by a combination of the above and (v) relocate or define the boundaries of soil and water conservation districts in the manner hereinafter prescribed.
  2. An incorporated town within any county having a soil and water conservation district shall be a part of that district. If a town lies within the boundaries of more than one county, it shall be considered to be wholly within the county in which the larger portion of the town lies.

History. Code 1950, § 21-2; 1956, c. 654; 1970, c. 480, § 21-12.1; 1988, c. 891.

Editor’s note.

Acts 2013, cc. 756 and 793, cl. 12 provides: “That the Directors of the Departments of Environmental Quality and Conservation and Recreation, the Commissioner of Agriculture and Consumer Services, and members of the Senate Committee on Agriculture, Conservation and Natural Resources and the House Committee on Agriculture, Chesapeake and Natural Resources, appointed by their respective Chairs, shall convene public meetings throughout the Commonwealth to evaluate the role of soil and water conservation districts in providing effective delivery of water quality services and technical assistance. In their deliberations the representatives of the executive branch agencies and legislators shall:

“A. Discuss the provisions of this act and its implications and solicit comments from the public and affected parties;

“B. Determine the extent of the role soil and water conservation districts should play in providing assistance in delivery of water quality services for nonpoint source pollution management and providing technical assistance for such programs as erosion and sediment control and stormwater management; and

“C. Determine whether the mission of soil and water conservation districts is more effectively delivered under the current statutory framework or whether organizational changes would enhance the effectiveness and efficiency of the delivery of such services.”

§ 10.1-507. Petitions filed with the Board.

Petitions to modify or create districts, or relocate or define boundaries of existing districts, shall be initiated and filed with the Board for its approval or disapproval by any of the following methods:

  1. By petition of a majority of the directors of any or each district or by petition from a majority of the governing body of any or each county or city.
  2. By petition of a majority of the governing body of a county or city not within an existing district, requesting to be included in an existing district and concurred in by the district directors.
  3. By petition of a majority of the governing body of a county or city or parts thereof not included within an existing district, requesting that a new district be created.
  4. By petition, signed by a number of registered voters equal to twenty-five percent of the vote cast in the last general election, who are residents of a county or city not included within an existing district, requesting that a new district be created, or requesting to be included within an existing district. If the petition bears the signatures of the requisite number of registered voters of a county or city, or two or more cities, then the petition shall be deemed to be the joint petition of the particular combination of political subdivisions named in the petition. If the petition deals in whole or in part with a portion or portions of a political subdivision or subdivisions, then the number of signatures necessary for each portion of a political subdivision shall be the same as if the whole political subdivision were involved in the petition, and may come from the political subdivision at large.

History. 1970, c. 480, § 21-12.2; 1988, c. 891.

§ 10.1-508. Contents and form of petition.

The petition shall set forth:

  1. The proposed name of the district;
  2. That there is need, in the interest of the public health, safety, and welfare, for the proposed district to function in the territory described in the petition, and a brief statement of the grounds upon which this conclusion is based;
  3. A description of the territory proposed to be organized as a district, which description shall not be required to be given by metes and bounds or by legal subdivision, but shall be deemed sufficient if generally accurate;
  4. A request that the Board define the boundaries for such district; that a hearing be held within the territory so defined on the question of the creation of a district in such territory; and that the Board determine that such a district be created.

    Where more than one petition is filed covering parts of the same territory, the Board may consolidate the petitions.

    The Board shall prescribe the petition form.

History. Code 1950, § 21-13; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-509. Disapproval of petition.

If the Board disapproves the petition, its determination shall be recorded, and if the petitioners are the governing body of a district, county or city or a part of a county or city, the governing body shall be notified in writing. If the petitioners are the requisite number of registered voters prescribed by subdivision 4 of § 10.1-507 , notification shall be by a notice printed once in a newspaper of general circulation within the area designated in the petition.

History. 1970, c. 480, § 21-13.1; 1988, c. 891.

§ 10.1-510. Petition approved; Board to give notice of hearing.

If the Board approves the petition, within sixty days after such determination, the Board shall provide due notice of the approval in a newspaper of general circulation in each county or city involved. The notice shall include notice of a hearing upon the question of the desirability and necessity, in the interest of the public health, safety, and welfare, of the action proposed by the petition upon (i) the question of the appropriate boundaries to be assigned to such district, (ii) the propriety of the petition and other proceedings taken under this chapter, and (iii) all questions relevant to such inquiries.

History. Code 1950, § 21-14; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-511. Adjournment of hearing when additional territory appears desirable.

If it appears upon the hearing that it may be desirable to include within the proposed district territory outside of the area within which due notice of the hearing has been given, the hearing shall be adjourned and due notice of a further hearing shall be given throughout the entire area considered for inclusion in the district.

History. Code 1950, § 21-16; 1988, c. 891.

§ 10.1-512. Determination of need for district.

After a public hearing, if the Board determines that there is need, in the interest of the public health, safety, and welfare, for the proposed district to function in the territory considered at the hearing, it shall record its determination, and shall define, by metes and bounds or by legal subdivisions the boundaries of the district. In so doing, the Board shall consider (i) the topography of the area considered and of the Commonwealth, (ii) the composition of soils in the area, (iii) the distribution of erosion, (iv) the prevailing land-use practices, (v) the desirability and necessity of including within the boundaries the particular lands under consideration and the benefits the lands may receive from being included within such boundaries, (vi) the relation of the proposed area to existing watersheds and to other soil and water conservation districts already organized or proposed for organization, (vii) the existing political subdivisions, and (viii) other relevant physical, geographical, economic, and funding factors. The territory to be included within such boundaries need not be contiguous.

History. Code 1950, § 21-17; 1964, c. 512; 1970, c. 480; 1988, c. 891; 2002, c. 192.

The 2002 amendments.

The 2002 amendment by c. 192 substituted “geographical, economic, and funding factors” for “geographical, and economic factors” at the end of the next-to-last sentence.

§ 10.1-513. Determination that district not needed.

If the Board determines after the hearing, and after due consideration of the relevant facts, that there is no need for a soil and water conservation district to function in the territory considered at the hearing, it shall record its determination and deny the petition.

History. Code 1950, § 21-18; 1964, c. 512; 1988, c. 891.

§ 10.1-514. Determination of feasibility of operation.

After the Board has made and recorded a determination that there is need for the organization of the proposed district in a particular territory, and has defined the boundaries, it shall consider whether the operation of a district within such boundaries is administratively practicable and feasible. In making its determination, the Board shall consider the attitudes of the occupiers of lands lying within the defined boundaries, the probable expense of the operation of such district, the effect upon the programs of any existing districts, and other relevant economic and social factors. If the Board determines that the operation of a district is administratively practicable and feasible, it shall record its determination and proceed with the organization of the district. If the Board determines that the operation of a district is not administratively practicable and feasible, it shall record its determination and deny the petition. If the petition is denied, the Board shall notify the petitioner in the manner provided in this chapter.

History. Code 1950, § 21-20; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-515. Composition of governing body.

If the Board determines that the operation of the proposed district within the defined boundaries is administratively practicable and feasible, and the proposed district is created, then its governing body shall be a board of district directors appointed or elected in the number and manner specified as follows:

  1. If the district embraces one county or city, or less than one county or city, the board of district directors shall consist of five members, three to be elected by the registered voters of the district and two appointed by the Board.
  2. If the district embraces more than one county or city, or parts thereof, the board of district directors shall consist of two members elected by the registered voters from each county or city, or parts thereof embraced by the district. Two members-at-large shall be appointed by the Board.

History. Code 1950, § 21-27; 1964, c. 512; 1970, c. 480; 1978, c. 763; 1988, c. 891; 2002, cc. 143, 236.

The 2002 amendments.

The 2002 amendments by cc. 143 and 236, effective March 22, 2002, are identical, and deleted “and may include members of the governing body of a local government” following “appointed or elected” in the first paragraph.

§ 10.1-516. Status of district directors in event of transfer, merger, or division of districts.

In the event of the transfer, merger, or division of districts, the status of the district directors involved shall be affected as follows:

  1. The composition of an existing district board of a district to which territory is transferred shall remain in effect until the terms of office of the present elected members expire. Upon the transfer of a county or city, or parts thereof, from one district to another district, (i) elected district directors residing within the territory transferred shall be appointed as directors of the district to which the territory is transferred for a term of office to coincide with that of the elected directors of the district to which the territory is transferred; and (ii) appointed district directors residing within the territory transferred shall be appointed as directors of the district to which the territory is transferred for a term of office to coincide with that of the appointed directors, either as an extension agent appointee or an at-large appointee of the district to which the territory is transferred. At the option of the petitioners, a petition may request that a proposed transfer be treated as a merger or division for the purpose of this section, and the Board at its discretion may grant or refuse such request.
  2. Upon the merger of existing districts, or upon the separation from two or more existing districts of a county or city, or parts thereof, which merge to create a new district, all district directors residing within the territory merged shall be appointed as directors of the new district. Following the merger, (i) elected district directors residing within the territory of the new district shall be appointed as directors of the new district for a term of office to coincide with that of elected directors as provided in § 10.1-529 ; and (ii) appointed district directors residing within the new district shall be appointed as directors of the new district for a term of office to coincide with that of the appointed directors, either as an extension agent appointee or an at-large appointee of the district as provided in § 10.1-529 .
  3. Upon the division of an existing district, to create a new district, all elected or appointed district directors residing within the territory to be divided from the existing district shall be appointed as directors of the new district. Following the division, (i) elected district directors residing within the territory of the new district shall be appointed as directors of the new district for a term of office to coincide with that of elected directors as provided in § 10.1-529 ; and (ii) appointed district directors residing within the territory of the new district shall be appointed as directors of the new district for a term of office to coincide with that of the appointed directors, either as an extension agent appointee or an at-large appointee of the district as provided in § 10.1-529 .This section shall not be construed as broadening or limiting the size of a governing body of a district as prescribed by § 10.1-515 . If the operation of this section results in a governing body larger or smaller than the appropriate size permitted by § 10.1-515 , then such a variation, if not otherwise corrected by operation of this section, shall be cured by appropriate appointments by the Board and with the next general election after the transfer, merger, or division in which all those elected directors prescribed by § 10.1-515 may be elected.

History. 1970, c. 480, § 21-27.2; 1988, c. 891; 2002, cc. 143, 236.

The 2002 amendments.

The 2002 amendments by cc. 143 and 236, effective March 22, 2002, are identical, and inserted “elected” preceding “district directors” in clause (i) of the first sentence of subdivision 1; added clause (ii) of that sentence; rewrote subdivision 2; rewrote the first paragraph of subdivision 3; and inserted “by appropriate appointments by the Board and” following “be cured by” in the second paragraph of subdivision 3.

§ 10.1-517. Application and statement to the Secretary of the Commonwealth.

Upon the creation of a district by any means authorized by this chapter, two district directors appointed by the Board and authorized by the Board to do so, shall present to the Secretary of the Commonwealth an application signed by them, which shall set forth: (i) that a petition for the creation of the district was filed with the Board pursuant to the provisions of this chapter, and that the proceedings specified in this chapter were conducted; (ii) that the application is being filed in order to complete the organization of the district as a political subdivision under this chapter; (iii) that the Board has appointed them as district directors; (iv) the name and official residence of each of the district directors together with a certified copy of the appointments evidencing their right to office; (v) the term of office of each of the district directors; (vi) the proposed name of the district; and (vii) the location of the principal office of the district directors. The application shall be subscribed and sworn to by the two district directors authorized by the Board to make such application before an officer authorized by the laws of the Commonwealth to take and certify oaths. The application shall be accompanied by a certified statement by the Board that the district was created as required by law. The statement shall set forth the boundaries of the district as they have been defined by the Board.

If the creation of a district necessitates the dissolution of an existing district, an application shall be submitted to the Secretary of the Commonwealth, with the application for the district to be created, by the directors of the district to be dissolved, for the discontinuance of such district, contingent upon the creation of the new district. The application for discontinuance, duly verified, shall simply state that the lands encompassed in the district to be dissolved shall be included within the territory of the district created. The application for discontinuance of such district shall be accompanied by a certified statement by the Board that the discontinued district was dissolved as required by law and the new district was created as required by law. The statement shall contain a description of the boundaries of each district dissolved and shall set forth the boundaries of the district created as defined by the Board. The Secretary of the Commonwealth shall issue to the directors of each district a certificate of dissolution and shall record the certificate in an appropriate book of record in his office.

When the boundaries of districts are changed pursuant to the provisions of this chapter, the various affected district boards shall each present to the Secretary of the Commonwealth an application, signed by them, for a new certificate of organization evidencing the change of boundaries. The application shall be filed with the Secretary of the Commonwealth accompanied by a certified statement by the Board that the boundaries have been changed in accordance with the provisions of this chapter. The statement by the Board shall define the new boundary line in a manner adequate to describe the boundary changes of districts. When the application and statement have been filed with the Secretary of the Commonwealth, the change of boundary shall become effective and the Secretary of the Commonwealth shall issue to the directors of each of the districts a certificate of organization evidencing the change of boundaries.

History. Code 1950, § 21-28; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-518. Action of Secretary on the application and statement; change of name of district.

The Secretary of the Commonwealth shall examine the application and statement and, if he finds that the name proposed for the district is not identical to that of any other soil and water conservation district shall receive and file them and shall record the application in an appropriate book of record in his office. If the Secretary of the Commonwealth finds that the name proposed for the district is identical to that of any other soil and water conservation district, or so nearly similar as to lead to confusion and uncertainty, he shall certify such fact to the Board, which shall submit to the Secretary of the Commonwealth a new name for the district. Upon receipt of the new name, the Secretary of the Commonwealth shall record the application, with the name so modified, in an appropriate book of record in his office. When the application and statement have been made, filed and recorded, as herein provided, the district shall constitute a political subdivision of the Commonwealth. The Secretary of the Commonwealth shall make and issue to the directors a certificate, under the lesser seal of the Commonwealth, of the due organization of the district and shall record the certificate with the application and statement. The boundaries of the district shall include the territory as determined by the Board, but shall not include any area included within the boundaries of another district, except in those cases otherwise provided for in this article. The name of any district may be changed if a petition for such change is subscribed by twenty-five or more landowners from each county or city comprising the district and adopted by resolution of the district directors at any regular meeting. The district directors shall submit a copy of the resolution to the Board and, if the Board concurs, it shall present the resolution, together with a certified statement that it concurs, to the Secretary of the Commonwealth who shall file the resolution and issue a new or amended certificate of organization.

History. Code 1950, § 21-29; 1954, c. 670; 1958, c. 409; 1960, c. 208; 1962, c. 212; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-518.1. Secretary to send copies of certificates to State Board of Elections.

Whenever the Secretary issues a certificate creating, dissolving, or changing the name or composition of a district, the Secretary shall promptly send a certified copy of such certificate to the State Board of Elections.

History. 2001, c. 53.

§ 10.1-519. Renewal of petition after disapproval or denial.

After six months have expired from the date of the disapproval or denial of any petition for a soil and water conservation district, subsequent petitions covering the same or substantially the same territory may be filed with the Board as provided in this chapter.

History. Code 1950, § 21-30; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-520. Contracts to remain in force; succession to rights and obligations.

Upon consummation of any transfer, merger, or division, or any combination thereof, using territory within a previously existing district to form a new district or to add to an existing district, all contracts in effect at the time of the consummation, affecting or relating to the territory transferred, merged, or divided, to which the governing body of the district from which such territory was acquired is a party shall remain in force for the period provided in the contracts. Rights and obligations acquired or assumed by the district from which the territory was acquired shall succeed to the district to which the territory is transferred.

History. 1970, c. 480, § 21-31.2; 1988, c. 891.

§ 10.1-521. Determination of status of district boundaries upon annexation or consolidation.

Notwithstanding the provisions of § 10.1-507 , the Board may, in its discretion, relocate or redefine district boundaries on its own motion pending or subsequent to any annexation or consolidation.

If the Board determines on its own motion to relocate or redefine district boundaries, the Board shall serve written notice of its determination, containing the full terms of the proposed relocation or redefinition, on the governing body of each district, county, city and town affected by the relocation or redefinition of boundaries. If within forty-five days from the date of service of such notice each governing body affected approves the Board’s action by resolution of a majority of the members, the Board may then proceed to act on its motion without a public hearing.

History. 1970, c. 480, § 21-31.3; 1988, c. 891.

§ 10.1-522. Certificate of Secretary of Commonwealth as evidence.

In any suit, action, or proceeding involving the validity or enforcement of, or relating to, any contract, proceeding, or action of the district, the district shall be deemed to have been established, reorganized, or renamed, in accordance with the provisions of this chapter upon proof of the issuance of the certificate by the Secretary of the Commonwealth. A copy of such certificate shall be admissible in evidence in any such suit, action, or proceeding and shall be proof of the issuance and contents thereof.

History. Code 1950, § 21-32; 1954, c. 670; 1988, c. 891.

§ 10.1-523. Nominating petitions; posting of notice.

  1. Beginning 30 days after the date of issuance by the Secretary of the Commonwealth of a certificate of organization of a district, but not later than the filing date specified in § 24.2-507 for the November 2003 general election and each fourth year thereafter, nominating petitions, statements of qualifications, and declarations of candidacy shall be filed with the general registrar of the county or city where the candidate resides, pursuant to §§ 24.2-501 , 24.2-503 , 24.2-505 , 24.2-506 , and 24.2-507 , to nominate candidates for elected directors of such districts. Nominating petitions, statements of qualifications, and declarations of candidacy for elected directors of existing districts shall be filed with the general registrar of the county or city where the candidate resides, pursuant to §§ 24.2-501 , 24.2-503 , 24.2-505 , 24.2-506 , and 24.2-507. Notice of the date for filing such petitions and the time of the election shall be posted in a prominent location accessible to the public at each district office at least 30 days before the filing date. In addition, districts may use newsletters, websites, public service announcements, and other notices to advise the public of elections of district directors.
  2. Registered voters may sign more than one nominating petition to nominate more than one candidate for district director.
  3. The Virginia Soil and Water Conservation Board shall notify each district of the requirement (i) to post notice of the dates for filing such petitions and the election and (ii) that the posting shall be in a prominent location accessible to the public at each district office at least 30 days before the filing date.
  4. Beginning in the year 2003, elections shall be held only at the November general election in 2003 and at the November general election in each fourth year thereafter.

History. Code 1950, §§ 21-33 to 21-36; 1964, c. 512; 1970, c. 480; 1988, c. 891; 2001, c. 53; 2002, cc. 143, 236; 2009, cc. 370, 629.

The 2001 amendments.

The 2001 amendment by c. 53, in subsection A, substituted “Beginning” for “Within,” substituted “the filing date specified in § 24.2-507 , nominating petitions, statements of qualifications, and declarations of candidacy shall be filed with the general registrar of the county or city where the candidate resides, pursuant to §§ 24.2-501 , 24.2-503 , 24.2-505 , 24.2-506 , and 24.2-507 ” for “a date set by the Board, nominating petitions may be filed with the Board,” inserted “statements of qualifications, and declarations of candidacy,” substituted “general registrar of the county or city where the candidate resides, pursuant to §§ 24.2-501 , 24.2-503 , 24.2-505 , 24.2-506 , and 24.2-507” for “Board no later than a date set by the Board,” and deleted the former last sentence, which read: “The Board may extend the time during which nominating petitions may be filed”; deleted former subsection B, which read: “A nominating petition shall not be accepted by the Board, unless it is subscribed by twenty-five or more registered voters residing within the boundaries of the district”; redesignated former subsections C and D as present subsections B and C; and inserted “Virginia Soil and Water Conservation” in present subsection C.

The 2002 amendments.

The 2002 amendments by cc. 143 and 236, effective March 22, 2002, are identical, and inserted “for the November 2003 general election and each fourth year thereafter” in the middle of the first sentence of subsection A; deleted “fix the time and” preceding “give due notice” in subsection C; and added subsection D.

The 2009 amendments.

The 2009 amendments by cc. 370 and 629 are identical, and in subsection A, substituted “posted in a prominent location accessible to the public at each district” for “published in a newspaper of general circulation within the district” and added the last sentence; and substituted “notify each district of the requirement (i) to post notice of the dates for filing such petitions and the election and (ii) that the posting shall be in a prominent location accessible to the public at each district office at least 30 days before the filing date” for “give due notice of an election to be held for the election of district directors” in subsection C; and made minor stylistic changes.

§ 10.1-524. Names of nominees furnished electoral board; how ballots printed, etc.

The names of all nominees shall be furnished to the secretary of the electoral board of the respective county or city and shall be printed upon ballots. The ballots shall be printed, voted, counted and canvassed in conformity with the provisions of general law relating to elections, except as herein otherwise provided.

History. Code 1950, § 21-37; 1960, c. 208; 1970, c. 480; 1988, c. 891.

§ 10.1-525. Canvassing returns.

The result of the election shall be canvassed and certified by the electoral board for the county or city in which the candidate resides pursuant to §§ 24.2-671 through 24.2-678 . The State Board of Elections shall, promptly after the meeting required by § 24.2-679 , certify to the Director of the Department of Conservation and Recreation a list of the candidates elected and certified as Directors of Soil and Water Conservation Districts, as reported pursuant to § 24.2-675 .

History. Code 1950, § 21-38; 1960, c. 208; 1964, c. 512; 1988, c. 891; 2001, c. 53; 2002, cc. 143, 236.

The 2001 amendments.

The 2001 amendment by c. 53 deleted “If the district embraces more than one county or city, either in whole or in part” from the beginning of the first sentence, and in that sentence substituted “and certified by the electoral board for the county or city in which the candidate resides pursuant to §§ 24.2-671 through 24.2-678 ” for “by the State Board of Elections,” and added the last sentence.

The 2002 amendments.

The 2002 amendments by cc. 143 and 236, effective March 22, 2002, are identical, and deleted the former second sentence, which read: “If the election is held at any other time than that fixed for the general election in November, the canvass shall be made as in the case of a special election to fill a vacancy.”

§ 10.1-526. Persons eligible to vote.

All registered voters residing within each county or city or part thereof shall be eligible to vote in the election for their respective nominees.

History. Code 1950, § 21-39; 1970, c. 480; 1988, c. 891.

§ 10.1-527. Determination of candidates elected.

If the district embraces one county or city, or less than one county or city, the three candidates who receive the largest number of the votes cast in the election shall be elected directors for the district.

If the district embraces more than one county or city, or parts thereof, the two candidates from each county or city, or part thereof, receiving the largest number of the votes cast in the election shall be the elected directors for the district.

History. Code 1950, § 21-40; 1970, c. 480; 1988, c. 891.

§ 10.1-528. Expenses and publication of results.

The expenses of such elections shall be paid by the counties or cities concerned. The State Board of Elections shall publish, or have published within the district, the results of the election.

History. Code 1950, § 21-41; 1960, c. 208; 1964, c. 512; 1988, c. 891; 2002, cc. 143, 236.

The 2002 amendments.

The 2002 amendments by cc. 143 and 236, effective March 22, 2002, are identical, and deleted the former second sentence, which read: “However, if the election is held at any other time than that fixed for the general election in November, the expenses shall be paid by the Board.”

§ 10.1-529. District directors constitute governing body; qualifications.

The governing body of the district shall consist of five or more district directors, elected and appointed as provided in this article.

The two district directors appointed by the Board shall be persons who are by training and experience qualified to perform the specialized skilled services which will be required of them in the performance of their duties. One of the appointed district directors shall be the extension agent of the county or city, or one of the counties or cities constituting the district, or a part thereof. Other appointed and elected district directors shall reside within the boundaries of the district.

History. Code 1950, §§ 21-42, 21-43; 1954, c. 670; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-529.1. Duties of district directors.

In addition to other duties and powers, district directors shall:

  1. Identify soil and water issues and opportunities within the district or related to the district and establish priorities for addressing these issues;
  2. Seek a comprehensive understanding of the complex issues that impact soil and water, and assist in resolving the identified issues at the watershed, local, regional, state, and national levels;
  3. Engage in actions that will improve soil and water stewardship by use of locally led programs;
  4. Increase understanding among community leaders, including elected officials and others, of their role in soil and water quality protection and improvement;
  5. Foster discussion and advancement within the community of positions and programs by their district;
  6. Actively participate in the activities of the district and ensure district resources are used effectively and managed wisely; and
  7. Support and promote the advancement of districts and their capabilities.

History. 2005, c. 73.

§ 10.1-530. Designation of chairman; terms of office; filling vacancies.

  1. The district directors shall designate a chairman from the elected members, or from the Board-appointed members, of the district board and may change such designation.
  2. The term of office of each district director shall be  four years. A district director shall hold office until his successor has been elected or appointed and has qualified. The selection of successors to fill a full term shall be made in accordance with the provisions of this article. Beginning in the year 2003, the election of district directors shall be held at the November 2003 general election and each fourth year thereafter. The terms of office of elected district directors shall begin on January 1 following the November general election. The term of office of any district director elected in November 1999 shall be extended to the January 1 following the November 2003 general election. The term of office of any district director elected in November 2000 shall expire on the January 1 following the November 2003 general election. The term of office of any district director elected in November 2001 or 2002 shall be extended to expire on the January 1 following the November general election in 2007. Appointments made by the Board to the at-large position held by an extension agent shall be made to commence January 1, 2005, and each fourth year thereafter. Appointments made by the Board to the other at-large position shall be made to commence January 1, 2007, and each fourth year thereafter. Any appointment made by the Board prior to January 1, 2005, to an at-large position held by an extension agent shall be made to expire January 1, 2005; and any appointment made by the Board prior to January 1, 2007, to the other at-large position shall be made to expire January 1, 2007.
  3. A vacancy shall exist in the event of the death, resignation or removal of residence from the district of any director or the elimination or detachment from the district of the territory in which a director resides, or by the removal of a director from office by the Board. Any vacancy in an elected or appointed director’s position shall be filled by an appointment made by the Board for the unexpired term. In the event of the creation of a new district, the transfer of territory from an existing district to an existing district, or the addition of territory not previously within an existing district to an existing district, the Board may appoint directors to fill the vacancies of elected directors prescribed by § 10.1-515 in the newly created district or in the territory added to an existing district. Such appointed directors shall serve in office until the elected directors prescribed by § 10.1-515 take office after the next general election at which directors for the entire district are selected.

History. Code 1950, §§ 21-44, 21-45; 1954, c. 670; 1956, c. 654; 1964, c. 512; 1970, c. 480; 1988, c. 891; 2001, c. 54; 2002, cc. 143, 236.

The 2001 amendments.

The 2001 amendment by c. 54, in subsection A, deleted a comma following “chairman,” and inserted “from the elected members, or from the Board-appointed members, of the district board.”

The 2002 amendments.

The 2002 amendments by cc. 143 and 236, effective March 22,2002, are identical, and rewrote subsection B; and in subsection C, inserted “in an elected or appointed director’s position” following “Any vacancy” in the second sentence, and deleted the former third sentence, which read: “The Board may fill vacancies in elective district directors’ positions by appointment for the unexpired term.”

§ 10.1-531. Quorum and expenses.

A majority of the district directors currently in office shall constitute a quorum and the concurrence of a majority of those present and voting shall be required for all determinations. A district director shall receive no compensation for his services, but shall be entitled to expenses, including traveling expenses, necessarily incurred in the discharge of his duties.

History. Code 1950, § 21-46; 1970, c. 480; 1988, c. 891; 2003, c. 616.

The 2003 amendments.

The 2003 amendment by c. 616 inserted “currently in office” in the first sentence.

§ 10.1-532. Employment of officers, agents and employees.

The district directors may employ a secretary-treasurer, whose qualifications shall be approved by the Board, technical experts, and such other officers, agents and employees, permanent and temporary, as they may require, and shall determine their qualifications, duties and compensation.

History. Code 1950, § 21-47; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-533. Delegation of powers.

The district directors may delegate to their chairman or to one or more district directors, agents or employees such powers and duties as they may deem proper.

History. Code 1950, § 21-48; 1970, c. 480; 1988, c. 891.

§ 10.1-534. Information furnished Board.

The district directors shall furnish to the Board or Department, upon request, copies of ordinances, rules, regulations, orders, contracts, forms, and other documents that they adopt or employ, and other information concerning their activities as the Board or Department may require in the performance of its duties under this chapter.

History. Code 1950, § 21-49; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-535. Bonds of officers and employees; records and accounts.

The district directors shall (i) provide for the execution of surety bonds for all employees and officers who shall be entrusted with funds or property; (ii) provide for the keeping of a full and accurate record of all proceedings and of all resolutions, regulations, and orders issued or adopted; and (iii) provide for an annual audit of the accounts of receipts and disbursements by the Auditor of Public Accounts or a certified public accountant approved by him.

History. Code 1950, § 21-50; 1970, c. 480; 1988, c. 891.

§ 10.1-536. Removal from office.

Any district director may be removed by the Board for neglect of duty or malfeasance in office, or may be removed in accordance with the provisions of general law. Upon receipt of a sworn complaint against a director filed by a majority of the directors of that same district, the Board shall (i) notify the district director that a complaint has been filed against him and (ii) hold a hearing to determine whether the district director’s conduct constitutes neglect of duty or malfeasance in office.

History. Code 1950, § 21-51; 1964, c. 512; 1970, c. 480; 1988, c. 891; 1996, c. 493.

§ 10.1-537. Representatives of governing bodies to be invited to consult with directors.

The district directors shall invite the legislative body of any locality located near the territory comprised within the district to designate a representative to advise and consult with the directors of the district on all questions of program and policy which may affect the property, water supply, or other interests of such locality.

History. Code 1950, § 21-52; 1970, c. 480; 1988, c. 891.

§ 10.1-538. District is political subdivision.

A soil and water conservation district organized under the provisions of this article shall constitute a political subdivision of this Commonwealth.

History. Code 1950, § 21-53; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-539. Surveys and dissemination of information.

Districts are authorized to (i) conduct surveys, investigations, and research relating to soil erosion and floodwater and sediment damages, and to agricultural and nonagricultural phases of the conservation, development, utilization, and disposal of water, and the preventive and control measures and works of improvement needed; (ii) publish the results of such surveys, investigations, or research; and (iii) disseminate information concerning preventive and control measures and works of improvement. However, in order to avoid duplication of research activities, no district shall initiate any research program except in cooperation with the government of the Commonwealth or the United States.

History. Code 1950, § 21-54; 1956, c. 654; 1970, c. 480; 1988, c. 891.

§ 10.1-540. Demonstrational projects.

Districts are authorized to conduct demonstrational projects within the district on lands owned or controlled by the Commonwealth or any of its agencies, with the consent and cooperation of the agency administering and having jurisdiction thereof, and on any other lands within the district upon obtaining the consent of the owner and occupier of such lands or the necessary rights or interests in such lands. The purpose of such projects is to demonstrate by example the means, methods, and measures by which soil and water resources may be conserved, and soil erosion in the form of soil washing may be prevented and controlled, and works of improvement for flood prevention or agricultural and nonagricultural phases of the conservation, development, utilization, and disposal of water may be carried out.

History. Code 1950, § 21-55; 1956, c. 654; 1970, c. 480; 1988, c. 891.

§ 10.1-541. Preventive and control measures.

Districts are authorized to carry out preventive and control measures and works of improvement for flood prevention or agricultural and nonagricultural phases of the conservation, development, utilization, and disposal of water within the district including, but not limited to, engineering operations, methods of cultivation, the growing of vegetation and changes in use of land on lands owned or controlled by the Commonwealth or any of its agencies, with the consent and cooperation of the agency administering and having jurisdiction thereof, and on any other lands within the district upon obtaining the consent of the owner and occupier of such lands or the necessary rights or interests in such lands.

History. Code 1950, § 21-56; 1956, c. 654; 1970, c. 480; 1988, c. 891.

§ 10.1-542. Financial aid to agencies and occupiers.

Districts are authorized to enter into agreements, within the limits of available appropriations, to give, lend or otherwise furnish financial or other aid to any governmental or other agency, or any occupier of lands within the district, to provide erosion-control and prevention operations and works of improvement for flood prevention or agricultural and nonagricultural phases of the conservation, development, utilization, and disposal of water within the district. Agreements shall be subject to such conditions as the directors may deem necessary to advance the purposes of this chapter.

History. Code 1950, § 21-57; 1956, c. 654; 1970, c. 480; 1988, c. 891.

§ 10.1-543. Acquisition, improvement and disposition of property.

Districts are authorized to (i) obtain options upon and to acquire, by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any property, real or personal, or rights or interests therein; (ii) maintain, administer, and improve any properties acquired, to receive income from such properties and to expend such income in carrying out the purposes and provisions of this article; and (iii) sell, lease, or otherwise dispose of any of their property or interests therein in furtherance of the provisions of this chapter.

History. Code 1950, § 21-58; 1988, c. 891.

§ 10.1-544. Making material and equipment available.

Districts are authorized to make available, on terms they prescribe, to land occupiers within the district, agricultural and engineering machinery and equipment, fertilizer, seeds and seedlings and other material or equipment that will assist land occupiers to conserve soil resources, to prevent and control soil erosion and to prevent floods or to carry out the agricultural and nonagricultural phases of the conservation, development, utilization, and disposal of water.

History. Code 1950, § 21-59; 1956, c. 654; 1970, c. 480; 1988, c. 891.

§ 10.1-545. Construction, improvement, operation and maintenance of structures.

Districts are authorized to construct, improve, operate and maintain such structures as may be necessary or convenient for the performance of any of the operations authorized in this chapter.

History. Code 1950, § 21-60; 1956, c. 654; 1988, c. 891.

§ 10.1-546. Development of programs and plans.

Districts are authorized to develop comprehensive programs and plans for the conservation of soil resources, for the control and prevention of soil erosion, for flood prevention or for agricultural and nonagricultural phases of the conservation, development, utilization, and disposal of water within the district. Such programs and plans shall specify the acts, procedures, performances, and avoidances which are necessary or desirable to effect such programs and plans, including the specification of engineering operations, methods of cultivation, the growing of vegetation, cropping programs, tillage practices, and changes in use of land. After such programs and plans have been approved by the Board, districts are authorized to publish such programs and plans, and information, and bring them to the attention of occupiers of lands within the district.

History. Code 1950, § 21-61; 1956, c. 654; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-546.1. Delivery of Agricultural Best Management Practices Cost-Share Program.

Districts shall locally deliver the Virginia Agricultural Best Management Practices Cost-Share Program described under § 10.1-2128.1 , under the direction of the Board, as a means of promoting voluntary adoption of conservation management practices by farmers and land managers in support of the Department’s nonpoint source pollution management program.

History. 2004, c. 474; 2009, cc. 209, 263; 2013, cc. 593, 658.

The 2009 amendments.

The 2009 amendments by cc. 209 and 263 are identical, and substituted “Virginia Agricultural Best Management Practices Cost-Share Program described under § 10.1-2128.1 ” for “Commonwealth’s Agricultural Best Management Practices Cost-Share Assistance Program.”

The 2013 amendments.

The 2013 amendments by cc. 593 and 658 are identical, and substituted “Board” for “Department.”

§ 10.1-547. Acquisition and administration of projects; acting as agent for United States, etc.; acceptance of gifts.

Districts shall have the following additional authority:

  1. To acquire by purchase, lease, or other similar means, and to administer, any soil conservation, flood prevention, drainage, irrigation, agricultural and nonagricultural water management, erosion control, or erosion prevention project, or combinations thereof, located within its boundaries undertaken by the United States or any of its agencies, or by the Commonwealth or any of its agencies;
  2. To manage, as agent of the United States or any of its agencies, or of the Commonwealth or any of its agencies, any soil conservation, flood prevention, drainage, irrigation, agricultural and nonagricultural water management, erosion control or erosion prevention project, or combinations thereof, within its boundaries;
  3. To act as agent for the United States or any of its agencies, or for the Commonwealth or any of its agencies, in connection with the acquisition, construction, maintenance, operation, or administration of any soil conservation, flood prevention, drainage, irrigation, agricultural and nonagricultural water management, erosion control, or erosion prevention project, or combinations thereof, within its boundaries;
  4. To accept donations, gifts, and contributions in money, services, materials, or otherwise, from the United States or any of its agencies, or from the Commonwealth or any of its agencies or from any other source, and to use or expend such moneys, services, materials, or other contributions in carrying on its operations.

History. Code 1950, § 21-62; 1956, c. 654; 1970, c. 480; 1988, c. 891.

Research References.

Virginia Forms (Matthew Bender). No. 16-577. Deed of Easement for Open-Space Land — Riparian Zone.

§ 10.1-548. Contracts; rules.

Districts are authorized to have a seal; to have perpetual succession unless terminated as hereinafter provided; to make and execute contracts and other instruments necessary or convenient to the exercise of their powers; to make, amend and repeal regulations not inconsistent with this chapter, to effect their purposes and powers.

History. Code 1950, § 21-63; 1988, c. 891.

§ 10.1-549. Cooperation between districts.

The directors of any two or more districts may cooperate in the exercise of any or all powers conferred in this chapter.

History. Code 1950, § 21-4; 1970, c. 480; 1988, c. 891.

§ 10.1-549.1. Virginia Envirothon.

Districts in partnership with other districts, agencies, organizations, and associations are authorized to coordinate and implement the Virginia Envirothon Program, administered by the Virginia Association of Soil and Water Conservation Districts, which enables learning experiences for high school students through competitive events focusing on natural resource conservation.

History. 2003, c. 402.

§ 10.1-550. State agencies to cooperate.

Agencies of the Commonwealth which have jurisdiction over or administer any state-owned lands, and agencies of any political subdivision of the Commonwealth which have jurisdiction over or administer any publicly owned lands lying within the boundaries of any district, shall cooperate to the fullest extent with the district directors in the effectuation of programs and operations undertaken pursuant to this chapter. The district directors shall be given free access to enter and perform work upon such public-owned lands.

History. Code 1950, § 21-5; 1970, c. 480; 1988, c. 891.

§ 10.1-551. Conditions for extension of benefits.

As a condition to the extending of any benefits under this chapter to, or the performance of work upon, any lands not owned or controlled by the Commonwealth or any of its agencies, the district directors may require contributions in money, services, materials, or otherwise to any operations conferring such benefits, and may require land occupiers to enter into and perform such agreements or covenants as to the permanent use of such lands that will tend to prevent or control erosion and prevent floodwaters and sediment damages thereon.

History. Code 1950, § 21-64; 1956, c. 654; 1970, c. 480; 1988, c. 891.

§ 10.1-552. Renting machinery and equipment.

Districts are authorized to rent the machinery and other equipment made available to them by the Department to governing bodies and, individuals, or groups of individuals to be used by them for the purpose of soil and water conservation upon such terms as the district directors deem proper.

History. Code 1950, § 21-65; 1954, c. 670; 1964, c. 512; 1970, c. 480; 1988, c. 891.

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 373 H, effective for the biennium ending June 30, 2022, provides: “Notwithstanding § 10.1-552 , Code of Virginia, Soil and Water Conservation Districts are hereby authorized to recover a portion of the direct costs of services rendered to landowners within the district and to recover a portion of the cost for use of district-owned conservation equipment. Such recoveries shall not exceed the amounts expended by a district on these services and equipment.”

§ 10.1-553. Petition by landowners.

Any time after two years after the organization of a district, any twenty-five owners of land lying within the boundaries of the district may file a petition with the Board requesting that the operations of the district be terminated and the existence of the district discontinued.

History. Code 1950, § 21-106; 1964, c. 512; 1988, c. 891.

§ 10.1-554. Hearings.

The Board may conduct public meetings and public hearings upon the termination petition to assist it in the considerations thereof.

History. Code 1950, § 21-107; 1964, c. 512; 1988, c. 891.

§ 10.1-555. Referendum.

Within sixty days after a termination petition has been received by the Board it shall give due notice of the holding of a referendum and shall supervise the referendum, and issue appropriate regulations governing the conduct thereof. The ballot shall contain the following question: “Shall the existence of the (name of the soil and water conservation district) be terminated?

• Yes

• No”

All registered voters residing within the boundaries of the district shall be eligible to vote in the referendum. No informalities in the conduct of the referendum or in any related matters shall invalidate the referendum or the result if proper notice has been given and if the referendum has been fairly conducted.

History. Code 1950, § 21-108; 1964, c. 512; 1988, c. 891.

§ 10.1-556. Determination of Board.

The Board shall publish the result of the referendum and shall thereafter consider and determine whether the continued operation of the district within the defined boundaries is administratively practicable and feasible. If the Board determines that the continued operation of the district is administratively practicable and feasible, it shall record the determination and deny the petition. If the Board determines that the continued operation of the district is not administratively practicable and feasible, it shall record its determination and certify the determination to the district directors. In making its determination the Board shall consider the proportion of the votes cast in favor of the discontinuance of the district to the total number of votes cast, the probable expense of carrying on erosion control operations within the district, and other relevant economic and social factors. However, the Board shall not have authority to determine that the continued operation of the district is administratively practicable and feasible unless at least a majority of the votes cast in the referendum have been cast in favor of the continuance of such district.

History. Code 1950, § 21-109; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-557. Duty of directors after certification of Board.

Upon receiving from the Board certification that the Board has determined that the continued operation of the district is not administratively practicable and feasible, the district directors shall proceed to determine the affairs of the district. The district directors shall dispose of all property belonging to the district at public auction and shall pay the proceeds of the sale into the state treasury. The district directors shall then file an application, duly verified, with the Secretary of the Commonwealth, for the discontinuance of the district, and shall transmit with the application the certificate of the Board setting forth the determination of the Board that the continued operation of the district is not administratively practicable and feasible. The application shall recite that the property of the district has been disposed of and the proceeds paid over as provided by law, and shall set forth a full accounting of such properties and proceeds of the sale. The Secretary of the Commonwealth shall issue to the district directors a certificate of dissolution and shall record the certificate in an appropriate book of record in his office.

History. Code 1950, § 21-110; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-558. Effect of issuance of certificate of dissolution.

Upon issuance of a certificate of dissolution, all ordinances and regulations previously adopted and in force within such district shall be of no further force. All contracts entered into, to which the district or district directors are parties, shall remain in force for the period provided in the contracts. The Board shall be substituted for the district or district directors as party to the contracts. The Board shall be entitled to all benefits and subject to all liabilities under the contracts and shall have the same right and liability to perform, to require performance, to sue and be sued thereon, and to modify or terminate such contracts by mutual consent or otherwise, as the district directors would have had.

History. Code 1950, § 21-111; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-559. Petitions limited to once in five years.

The Board shall not entertain petitions for the discontinuance of any district, conduct elections upon such petitions or make determinations pursuant to such petitions more often than once in five years.

History. Code 1950, § 21-112; 1964, c. 512; 1988, c. 891.

Article 3.1. Agricultural Stewardship Act.

§§ 10.1-559.1 through 10.1-559.11. Repealed by Acts 2008, c. 860, cl. 9, effective October 1, 2008.

Article 4. Erosion and Sediment Control Law.

§§ 10.1-560 through 10.1-571. Repealed by Acts 2013, cc. 756 and 793, cl. 2.

Cross references.

For current provisions related to Virginia erosion and sediment control program, see Article 2.4 (§ 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1.

Editor’s note.

Acts 2013, cc. 756 and 793, recodified Article 4 (§ 10.1-560 et seq.) of Chapter 5 of Title 10.1, as Article 2.4 (§ 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1. In addition to revision by Acts 2013, cc. 756 and 793, Article 4 was also amended by other acts passed at the 2013 Session. As required by § 30-152, the Code Commission has incorporated the majority of these amendments into the new sections. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For tables of corresponding former and new sections, see the tables in Volume 10.

Article 5. Soil Survey.

§§ 10.1-572, 10.1-573. Repealed by Acts 2012, cc. 785 and 819, cl. 2.

Editor’s note.

Former § 10.1-572 , duty of Department to complete Virginia portion of National Cooperative Soil Survey, derived from Acts 1972, c. 557, § 21-5.2; 1984, c. 177; 1988, c. 891; 1994, c. 465; 1999, c. 155.

Former § 10.1-573, immunity from prosecution for trespass, derived from Acts 1975, c. 485, § 21-5.3; 1988, c. 891.

Chapter 6. Flood Protection and Dam Safety.

Article 1. Flood Damage Reduction Act.

§ 10.1-600. Definitions.

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

“Emergency flood insurance program” or “emergency program” means the Emergency Program of the Federal Insurance Administration which provides subsidized flood insurance for potential flood victims, applicable to both new and existing structures, pending completion of applicable actuarial rates which is a prerequisite for eligibility to participate in the regular program.

“Flood hazard area” means those areas susceptible to flooding.

“Flood plain” or “flood-prone areas” means those areas adjoining a river, stream, water course, ocean, bay or lake which are likely to be covered by floodwaters.

“Flood plain management regulations” means zoning ordinances, subdivision regulations, the building code, health regulations, special purpose ordinances such as flood plain ordinances, grading ordinances or erosion control ordinances, and other rules, regulations and ordinances which may affect flood plain uses. The term describes such legally enforceable regulations, in any combination thereof, which provide standards for the control of the use and occupancy of flood-prone areas.

“Hundred year flood” means a flood of that level which on the average will have a one percent chance of being equaled or exceeded in any given year at designated locations.

“Locality” means a county, city, or town.

“National flood insurance program” means the program established by the United States Congress under provisions of the National Flood Insurance Act of 1968, as amended, and as expanded in the Flood Disaster Protection Act of 1973, designed to provide flood insurance at rates made affordable through federal subsidy.

“Nonfederal cost” means the flood protection project costs provided by sources other than the federal government.

“Regular flood insurance program” means a program of insurance under the national flood insurance program, for which the Federal Insurance Administrator has issued a flood insurance rate map and applicable actuarial rates, and under which new construction will not be eligible for flood insurance except at the applicable actuarial rates.

History. 1977, c. 310, § 62.1-44.110; 1987, c. 163; 1988, c. 891; 1989, cc. 468, 497.

Editor’s note.

For the provisions of the National Flood Insurance Program, generally, see 42 USCS § 4011 et seq. For the provisions of the Flood Disaster Protection Act of 1973, see generally 42 USCS § 4001 et seq.

§ 10.1-601. Repealed by Acts 1989, cc. 468, 497.

Cross references.

For current provisions as to powers and duties of the Department relating to flood protection, see § 10.1-602 . For current provisions as to comprehensive flood control program, see § 10.1-658 et seq.

§ 10.1-602. (Effective until July 1, 2022) Powers and duties of Department.

The Department shall:

  1. Develop a flood protection plan for the Commonwealth. This plan shall include:
    1. An inventory of flood-prone areas;
    2. An inventory of flood protection studies;
    3. A record of flood damages;
    4. Strategies to prevent or mitigate flood damage; and
    5. The collection and distribution of information relating to flooding and flood plain management.The flood protection plan shall be reviewed and updated by the Department on a regular basis, but at least once every five years, and for each of the items listed in provisions a through e, the plan shall state when that provision was last updated and when the next update is planned. The plan shall be maintained in an online format so as to be easily accessed by other government entities and by the public. The online plan shall contain links to the most current information available from other federal, state, and local sources. All agencies of the Commonwealth shall provide assistance to the Department upon request.

2. Serve as the coordinator of all flood protection programs and activities in the Commonwealth, including the coordination of federal flood protection programs administered by the United States Army Corps of Engineers, the United States Department of Agriculture, the Federal Emergency Management Agency, the United States Geological Survey, the Tennessee Valley Authority, other federal agencies and local governments.

3. Make available flood and flood damage reduction data to localities for planning purposes, in order to assure necessary local participation in the planning process and in the selection of desirable alternatives which will fulfill the intent of this article. This shall include the development of a data base to include (i) all flood protection projects implemented by federal agencies and (ii) the estimated value of property damaged by major floods.

4. Assist localities in their management of flood plain activities in cooperation with the Department of Housing and Community Development.

5. Carry out the provisions of this article in a manner which will ensure that the management of flood plains will preserve the capacity of the flood plain to carry and discharge a hundred year flood.

6. Make, in cooperation with localities, periodic inspections to determine the effectiveness of local flood plain management programs, including an evaluation of the enforcement of and compliance with local flood plain management ordinances, rules and regulations.

7. Coordinate with the United States Federal Emergency Management Agency to ensure current knowledge of the identification of flood-prone communities and of the status of applications made by localities to participate in the National Flood Insurance Program.

8. Establish guidelines which will meet minimum requirements of the National Flood Insurance Program in furtherance of the policy of the Commonwealth to assure that all citizens living in flood-prone areas may have the opportunity to indemnify themselves from flood losses through the purchase of flood insurance under the regular flood insurance program of the National Flood Insurance Act of 1968 as amended.

9. Subject to the provisions of the Appropriations Act, provide financial and technical assistance to localities in an amount not to exceed fifty percent of the nonfederal costs of flood protection projects.

History. 1977, c. 310, § 62.1-44.112; 1981, c. 315; 1987, c. 163; 1988, c. 891; 1989, cc. 468, 497; 2015, cc. 172, 251.

Editor’s note.

Acts 2015, cc. 172 and 251, cl. 2 provides: “That the Department, in carrying out its responsibilities under this act, shall work in cooperation with the Joint Subcommittee to Formulate Recommendations to Address Recurrent Flooding [HJ 16 (2014); SJ 3 (2014)]. The Department and the Joint Subcommittee shall receive input from interested parties in preparation of the Department’s plan update.”

Act 2022, c. 495, cl. 2 provides: “That the Special Assistant to the Governor for Coastal Adaptation and Protection, in coordination with the Director of the Department of Conservation and Recreation, shall update the Virginia Coastal Resilience Master Plan in accordance with § 10.1-658 of the Code of Virginia, as amended by this act, no later than December 31, 2024, to incorporate all major flood hazards, including precipitation-driven flooding; a list of all projects considered and an update of the status of all projects previously implemented; and a comprehensive risk assessment of critical human and natural infrastructure.

Act 2022, c. 495, cl. 3 provides: “That the Director of the Department of Conservation and Recreation (the Department), jointly with the Director of Diversity, Equity, and Inclusion, and in coordination with the Chief Resilience Officer and the Special Assistant to the Governor for Coastal Adaptation and Protection, shall prepare a Community Outreach and Engagement Plan for updates to the Virginia Coastal Resilience Master Plan and for development and updates to the Virginia Flood Protection Master Plan (the Plans) no later than December 31, 2022. The outreach and engagement plan shall strive for meaningful involvement by ensuring that (i) affected and vulnerable community residents have access and opportunity to participate in the full cycle of the decision-making process about the development of and updates to the Plans, and (ii) decision-makers shall seek out and consider such participation, allowing the views and perspectives of community residents to shape and influence decisions. The Department shall seek input to the Community Outreach and Engagement Plan from representatives of Virginia Indian tribes, community-based organizations, the public health sector, nongovernmental organizations, civil rights organizations, communities impacted by recurring flooding, and the Emergency Management Equity Working Group established pursuant to subdivision B 19 of § 44-146.18 of the Code of Virginia.”

Act 2022, c. 495, cl. 3 provides: “That the Director of the Department of Conservation and Recreation (the Department), jointly with the Director of Diversity, Equity, and Inclusion, and in coordination with the Chief Resilience Officer and the Special Assistant to the Governor for Coastal Adaptation and Protection, shall prepare a Community Outreach and Engagement Plan for updates to the Virginia Coastal Resilience Master Plan and for development and updates to the Virginia Flood Protection Master Plan (the Plans) no later than December 31, 2022. The outreach and engagement plan shall strive for meaningful involvement by ensuring that (i) affected and vulnerable community residents have access and opportunity to participate in the full cycle of the decision-making process about the development of and updates to the Plans, and (ii) decision-makers shall seek out and consider such participation, allowing the views and perspectives of community residents to shape and influence decisions. The Department shall seek input to the Community Outreach and Engagement Plan from representatives of Virginia Indian tribes, community-based organizations, the public health sector, nongovernmental organizations, civil rights organizations, communities impacted by recurring flooding, and the Emergency Management Equity Working Group established pursuant to subdivision B 19 of § 44-146.18 of the Code of Virginia.”

Act 2022, c. 495, cl. 3 provides: “That the Director of the Department of Conservation and Recreation (the Department), jointly with the Director of Diversity, Equity, and Inclusion, and in coordination with the Chief Resilience Officer and the Special Assistant to the Governor for Coastal Adaptation and Protection, shall prepare a Community Outreach and Engagement Plan for updates to the Virginia Coastal Resilience Master Plan and for development and updates to the Virginia Flood Protection Master Plan (the Plans) no later than December 31, 2022. The outreach and engagement plan shall strive for meaningful involvement by ensuring that (i) affected and vulnerable community residents have access and opportunity to participate in the full cycle of the decision-making process about the development of and updates to the Plans, and (ii) decision-makers shall seek out and consider such participation, allowing the views and perspectives of community residents to shape and influence decisions. The Department shall seek input to the Community Outreach and Engagement Plan from representatives of Virginia Indian tribes, community-based organizations, the public health sector, nongovernmental organizations, civil rights organizations, communities impacted by recurring flooding, and the Emergency Management Equity Working Group established pursuant to subdivision B 19 of § 44-146.18 of the Code of Virginia.”

The 2015 amendments.

The 2015 amendments by cc. 172 and 251 are identical, and added the last paragraph in subdivision 1.

The 2022 amendments.

The 2022 amendments by cc. 494 and 495 are identical, and in subdivision 1, rewrote the introductory language, which read: “Develop a flood protection plan for the Commonwealth. This plan shall include,” and substituted “Plan” for “flood protection plan” in the last paragraph; and added subdivisions 10 through 12.

§ 10.1-602. (Effective July 1, 2022) Powers and duties of Department.

The Department shall:

  1. Develop a Virginia Flood Protection Master Plan (the Plan) for the Commonwealth. This Plan shall be a place-specific plan for mitigating severe and repetitive flooding and shall, at a minimum, (i) base decision making on the best-available science; (ii) identify and address socioeconomic inequities and strive to enhance equity through the adaptation and protection measures by considering all areas of recurrent flooding; (iii) recognize the importance of protecting and enhancing natural infrastructure and nature-based approaches to flood mitigation, when possible; (iv) utilize community and regional scale planning to the maximum extent possible, seeking region-specific approaches tailored to the needs of individual communities; and (v) include an understanding of fiscal realities and focus on cost-effective solutions for the protection and adaptation of communities, businesses, and critical infrastructure. The Plan shall include, at a minimum:
    1. An inventory of flood-prone areas;
    2. An inventory of flood protection studies;
    3. A record of flood damages;
    4. Strategies to prevent or mitigate flood damage; and
    5. The collection and distribution of information relating to flooding and flood plain management.

      The Plan shall be reviewed and updated by the Department on a regular basis, but at least once every five years, and for each of the items listed in provisions a through e, the plan shall state when that provision was last updated and when the next update is planned. The plan shall be maintained in an online format so as to be easily accessed by other government entities and by the public. The online plan shall contain links to the most current information available from other federal, state, and local sources. All agencies of the Commonwealth shall provide assistance to the Department upon request.

2. Serve as the coordinator of all flood protection programs and activities in the Commonwealth, including the coordination of federal flood protection programs administered by the United States Army Corps of Engineers, the United States Department of Agriculture, the Federal Emergency Management Agency, the United States Geological Survey, the Tennessee Valley Authority, other federal agencies and local governments.

3. Make available flood and flood damage reduction data to localities for planning purposes, in order to assure necessary local participation in the planning process and in the selection of desirable alternatives which will fulfill the intent of this article. This shall include the development of a data base to include (i) all flood protection projects implemented by federal agencies and (ii) the estimated value of property damaged by major floods.

4. Assist localities in their management of flood plain activities in cooperation with the Department of Housing and Community Development.

5. Carry out the provisions of this article in a manner which will ensure that the management of flood plains will preserve the capacity of the flood plain to carry and discharge a hundred year flood.

6. Make, in cooperation with localities, periodic inspections to determine the effectiveness of local flood plain management programs, including an evaluation of the enforcement of and compliance with local flood plain management ordinances, rules and regulations.

7. Coordinate with the United States Federal Emergency Management Agency to ensure current knowledge of the identification of flood-prone communities and of the status of applications made by localities to participate in the National Flood Insurance Program.

8. Establish guidelines which will meet minimum requirements of the National Flood Insurance Program in furtherance of the policy of the Commonwealth to assure that all citizens living in flood-prone areas may have the opportunity to indemnify themselves from flood losses through the purchase of flood insurance under the regular flood insurance program of the National Flood Insurance Act of 1968 as amended.

9. Subject to the provisions of the Appropriations Act, provide financial and technical assistance to localities in an amount not to exceed fifty percent of the nonfederal costs of flood protection projects.

10. Serve as the lead administrator for the Virginia Coastal Resilience Master Plan and the Virginia Flood Protection Master Plan.

11. Implement the Virginia Coastal Resilience Master Plan and the Virginia Flood Protection Master Plan.

12. Ensure that the Virginia Coastal Resilience Master Plan and the Virginia Flood Protection Master Plan are integrated.

History. 1977, c. 310, § 62.1-44.112; 1981, c. 315; 1987, c. 163; 1988, c. 891; 1989, cc. 468, 497; 2015, cc. 172, 251; 2022, cc. 494, 495.

§ 10.1-603. State agency compliance.

All agencies and departments of the Commonwealth shall comply with the flood plain regulations established pursuant to this article when planning for facilities in flood plains.

History. 1977, c. 310, § 62.1-44.108; 1988, c. 891; 1989, cc. 468, 497.

Article 1.1. Stormwater Management.

§§ 10.1-603.1 through 10.1-603.8:1. Repealed by Acts 2013, cc. 756 and 793, cl. 2, effective July 2, 2013.

Cross references.

For current provisions related to Stormwater Management program, see Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1.

Editor’s note.

Acts 2013, cc. 756 and 793, recodified Article 1.1 (§ 10.1-603.1 et seq.) of Chapter 6 of Title 10.1, as Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1. In addition to revision by Acts 2013, cc. 756 and 793, Article 1.1 was also amended by other acts passed at the 2013 Session. As required by § 30-152, the Code Commission has incorporated the majority of these amendments into the new sections. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For tables of corresponding former and new sections, see the tables in Volume 10.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

§ 10.1-603.9. Repealed by Acts 2012, cc. 785 and 819, cl. 2.

Editor’s note.

Former § 10.1-603.9 , permit application required for issuance of grading, building, or other permits, derived from Acts 1989, cc. 467, 499; 2004, c. 372.

§§ 10.1-603.10 through 10.1-603.15.

Repealed by Acts 2013, cc. 756 and 793, cl. 2, effective July 2, 2013.

Cross references.

For provisions related to Stormwater Management program, see Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1.

Editor’s note.

Acts 2013, cc. 756 and 793, recodified Article 1.1 (§ 10.1-603.1 et seq.) of Chapter 6 of Title 10.1, as Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1. In addition to revision by Acts 2013, cc. 756 and 793, Article 1.1 was also amended by other acts passed at the 2013 Session. As required by § 30-152, the Code Commission has incorporated the majority of these amendments into the new sections. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For tables of corresponding former and new sections, see the tables in Volume 10.

Acts 2013, cc. 756 and 793, cl. 5 provides: “That the transfer of the responsibility for administering the issuance and enforcement of national pollutant discharge elimination system permits for the control of stormwater discharges shall become effective on July 1, 2013, or upon the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board, whichever occurs later.” Pursuant to a letter received from the Environmental Protection Agency on July 2, 2013, the transfer of responsibility from DCR to DEQ has been approved as required by this provision.

Article 1.1:1. Nutrient Trading Act.

§§ 10.1-603.15:1 through 10.1-603.15:5. Repealed by Acts 2013, cc. 756 and 793, cl. 2.

Cross references.

For current provisions related to Nutrient Trading program, see §§ 62.1-44.19:21 through 62.1-44.19:23.

Editor’s note.

For complete transition provisions related to transfer of certain water quality programs (stormwater management, erosion and sediment control, nutrient trading, and the Chesapeake Bay Preservation Areas) formerly administered by the Department of Conservation and Recreation, to the Department of Environmental Quality, see Acts 2013, cc. 756 and 793, cls. 4 through 14, noted in full under Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1.

Acts 2013, cc. 756 and 793, recodified Article 1.1:1 (§ 10.1-603.15:1 et seq.) of Chapter 6 of Title 10.1, as §§ 62.1-44.19:21 through 62.1-44.19:23. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For tables of corresponding former and new sections, see the tables in Volume 10.

Acts 2013, cc. 756 and 793, cl. 6 provides: “That upon the Governor’s approval of the provisions of this act, the Department of Environmental Quality shall seek the U.S. Environmental Protection Agency’s rescission of authorization for delegation of program authority to the Virginia Soil and Water Conservation Board to return delegation of program authority to the State Water Control Board for the issuance of the national pollutant discharge elimination system permits for the control of stormwater discharges for MS4 and construction activities under the federal Clean Water Act. Permits issued by the Virginia Soil and Water Conservation Board or a Virginia Erosion and Sediment Control Program authority or a Virginia Stormwater Management Program authority acting under the Virginia Soil and Water Conservation Board’s authority that have not expired or been revoked or terminated before or on the program transfer date shall continue to remain in full force and effect until their specified expiration dates.”

Article 1.2. Dam Safety, Flood Prevention, and Protection Assistance Fund.

§ 10.1-603.16. Definitions.

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

“Authority” means the Virginia Resources Authority created in Chapter 21 (§ 62.1-197 et seq.) of Title 62.1.

“Board” means the Board of Directors of the Virginia Resources Authority.

“Cost,” as applied to any project financed under the provisions of this article, means the total of all costs incurred by the local government or private entity as reasonable and necessary for carrying out all works and undertakings necessary or incident to the accomplishment of any project. It includes, without limitation, all necessary developmental, planning and feasibility studies, surveys, plans and specifications; hydrologic and hydraulic studies and analyses; architectural, engineering, financial, legal or other special services; mapping; the cost of acquisition of flood-prone land and any buildings and improvements thereon, including the discharge of any obligations of the sellers of such land, buildings or improvements; site preparation and development, including demolition or removal of existing structures; construction and reconstruction; labor; materials, machinery and equipment; the reasonable costs of financing incurred by the local government or private entity in the course of the development of the project; carrying charges incurred before placing the project in service; necessary expenses incurred in connection with placing the project in service; the funding of accounts and reserves that the Authority may require; and the cost of other items that the Authority determines to be reasonable and necessary.

“Dam owner” means the owner of the land on which a dam is situated, the holder of an easement permitting the construction of a dam and any person or entity agreeing to maintain a dam.

“Department” means the Department of Conservation and Recreation.

“Director” means the Director of the Department of Conservation and Recreation.

“Flood prevention or protection” means the construction of dams, levees, flood walls, channel improvements or diversions, local flood proofing, evacuation of flood-prone areas or land use controls which reduce or mitigate damage from flooding.

“Flood prevention or protection studies” means hydraulic and hydrologic studies of flood plains with historic and predicted floods, the assessment of flood risk and the development of strategies to prevent or mitigate damage from flooding.

“Fund” or “revolving fund” means the Dam Safety, Flood Prevention and Protection Assistance Fund.

“Local funds” means cash provided for project or study implementation that is not derived from federal or state grants or loans.

“Local government” means any county, city, town, municipal corporation, authority, district, commission, or political subdivision created by the General Assembly or pursuant to the Constitution or laws of the Commonwealth, or any combination of any two or more of the foregoing.

“Private entities” means dam owners, whether individuals, partnerships, corporations, or other nongovernmental entities.

“Project” means the development and implementation of activities or measures performed to eliminate, prevent, reduce, or mitigate damages caused by flooding or to identify flood hazards; the design, repair, and safety modifications of a dam or impounding structure, as defined in § 10.1-604 , and identified in dam safety reports generated pursuant to § 10.1-607 or 10.1-609 ; or the mapping and digitization of dam break inundation zones. The term includes, without limitation, the construction, modification or repair of dams, levees, flood walls, channel improvements or diversions; evacuation, relocation, and retrofitting of flood-prone structures; flood warning and response systems; redevelopment, acquisition, and open-space use of flood-prone areas; hydrologic and hydraulic studies of floodplains with historic and predicted floods; remapping of regulated flood hazard areas; the assessment of flood risks; the development of flood hazard mitigation strategies and plans, flood prevention and protection studies, and matching funds for federal funds for these activities. The lands involved with such projects shall be located within the Commonwealth.

History. 1989, cc. 462, 498; 1995, c. 510; 2002, c. 320; 2006, cc. 648, 765.

The numbers of §§ 10.1-603.16 through 10.1-603.23 were assigned by the Code Commission, the numbers in the 1989 act having been 10.1-603.1 through 10.1-603.8.

Editor’s note.

Acts 2006, cc. 648 and 765, cl. 3 provides: “That the Department of Conservation and Recreation shall repeal through an exempt action the Flood Prevention and Protection Assistance Fund Regulations (4 VAC 5-50-10 et seq.).”

Acts 2006, cc. 648 and 765, cl. 4 provides: “That upon the effective date of this act, the Department of Accounts, with the concurrence of the Department of Conservation and Recreation, may transfer the Dam Safety, Flood Prevention and Protection Assistance Fund and its unobligated balance to the Virginia Resources Authority to be administered and managed in accordance with this act.”

The 2002 amendments.

The 2002 amendment by c. 320 added the definition of “Dam owner.”

The 2006 amendments.

The 2006 amendments by cc. 648 and 765 are identical, and inserted the paragraphs defining “Authority,” “Board” and “Cost”; inserted “Dam Safety” in the paragraph defining “Fund”; deleted the paragraph defining “Local public body”; and added the paragraphs defining “Local government,” “Private entities” and “Project.”

§ 10.1-603.16:1. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this article the Board is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the Board may be sent by regular mail.

History. 2011, c. 566.

§ 10.1-603.17. Dam Safety, Flood Prevention and Protection Assistance Fund established.

The Dam Safety, Flood Prevention and Protection Assistance Fund is hereby established and set apart as a permanent and nonreverting fund. The Fund shall consist of any moneys appropriated by the General Assembly, funds returned by localities or other public or private sources in the form of interest and repayment of loan principal, deposits pursuant to §§ 15.2-2243.1 and 38.2-401.1, all income from the investment of moneys held in the Fund, and any other sums designated for deposit in the Fund from any source public or private, including without limitation any federal grants, and awards or other forms of assistance received by the Commonwealth that are eligible for deposit in the Fund under federal law. Any moneys remaining in the Fund at the end of the biennium including any appropriated funds and all principal interest accrued, interest and payments shall not revert to the general fund.

History. 1989, cc. 462, 498; 2002, c. 320; 2006, cc. 648, 765; 2008, c. 491.

Cross references.

As to civil penalties and program administration fees to be paid into the Flood Prevention and Protection Assistance Fund, see §§ 10.1-613.2 and 10.1-613.5 , respectively.

Editor’s note.

Acts 2006, cc. 648 and 765, cl. 3 provides: “That the Department of Conservation and Recreation shall repeal through an exempt action the Flood Prevention and Protection Assistance Fund Regulations (4 VAC 5-50-10 et seq.).”

Acts 2006, cc. 648 and 765, cl. 4 provides: “That upon the effective date of this act, the Department of Accounts, with the concurrence of the Department of Conservation and Recreation, may transfer the Dam Safety, Flood Prevention and Protection Assistance Fund and its unobligated balance to the Virginia Resources Authority to be administered and managed in accordance with this act.”

Acts 2008, c. 491, cl. 3 provides: “That the provisions of this act amending or adding §§ 10.1-603.17 , 10.1-603.19:1 , 10.1-606.3 , and 15.2-2243.1 shall become effective on July 1, 2009.”

Acts 2008, c. 491, cl. 5 provides: “That provisions of this act shall not affect those site plans or subdivision plans that are submitted prior to the effective date of this act.”

Acts 2014, cc. 475 and 489, cl. 1, effective April 1, 2014, provides: Ҥ 1. That the Department of Conservation and Recreation, on behalf of the Virginia Soil and Water Conservation Board, shall utilize a storm-based approach in order to derive the Probable Maximum Precipitation (PMP) for locations within or affecting the Commonwealth. The PMP revisions shall be based on accepted storm evaluation techniques and take into account such factors as basin characteristics that affect the occurrence and location of storms and precipitation, regional and basin terrain influences, available atmospheric moisture, and seasonality of storm types. The results shall be considered by the Virginia Soil and Water Conservation Board in its decision to authorize the use of the updated PMP values in Probable Maximum Flood calculations, thus replacing the current PMP values. Such PMP revisions shall be adopted by the Board if it finds that the analysis is valid and reliable and will result in cost savings to owners for impounding structure spillway construction or rehabilitation efforts.

Ҥ 2. The development of the methodology shall be completed by December 1, 2015.

“§ 3. Owners of impounding structures with spillway design inadequacies who maintain coverage under a Conditional Operation and Maintenance Certificate in accordance with the Board’s Impounding Structure Regulations (4VAC50-20) shall not be required to rehabilitate the spillway of their impounding structure until the analysis required under § 1 has been completed and reviewed by the Virginia Soil and Water Conservation Board. Such owners shall remain subject to all other requirements of the Dam Safety Act (§ 10.1-604 et seq.) and regulations.”

Acts 2014, cc. 475 and 489, cl. 2, effective April 1, 2014, provides: “That in addition to other sums made available, the Department of Conservation and Recreation is authorized to utilize up to $500,000 in unobligated balances in the Dam Safety, Flood Prevention and Protection Assistance Fund established pursuant to § 10.1-603.17 of the Code of Virginia or the Dam Safety Administrative Fund established pursuant to § 10.1-613.5 of the Code of Virginia to contract out for the analysis required under § 1.”

The 2002 amendments.

The 2002 amendment by c. 320 inserted “or other public or private sources” in the second sentence.

The 2006 amendments.

The 2006 amendments by cc. 648 and 765 are identical, and added “Dam Safety” at the beginning of the section heading; in the first sentence, inserted “Dam Safety” and added “and set apart as a permanent and nonreverting fund” at the end, and in the second sentence, added the language beginning “deposits pursuant to § 38.2-401.1” and made a related change.

The 2008 amendments.

The 2008 amendment by c. 491, effective July 1, 2009, inserted “§ 15.2-2243.1 and” in the second sentence.

§ 10.1-603.18. Administration of the Fund.

The Authority shall administer and manage the Fund, and establish the interest rates and the repayment terms of such loans as provided in this article, in accordance with a memorandum of agreement with the Director. The Director shall, after consultation with all interested parties, develop a guidance document governing project eligibility and project priority criteria, and the Director, upon approval from the Virginia Soil and Water Conservation Board, shall direct the distribution of loans and grants from the Fund to local governments and private entities. In order to carry out the administration and management of the Fund, the Authority may employ officers, employees, agents, advisers and consultants, including without limitation, attorneys, financial advisors, engineers, and other technical advisors and public accountants, and determine their duties and compensation without the approval of any other agency or instrumentality. The Authority may disburse from the Fund reasonable costs and expenses incurred in the administration and management of the Fund and may establish and collect a reasonable fee for its management services. However, any such fee shall not exceed one-eighth of one percent of any bond par, loan or grant amount.

History. 1989, cc. 462, 498; 1995, c. 510; 2002, c. 320; 2006, cc. 648, 765; 2010, c. 13.

Cross references.

As to repeal of Flood Prevention and Protection Assistance Fund Regulations and the transfer of fund balances to Virginia Resources Authority, see Acts 2006, cc. 648 and 765, cls. 3 and 4, noted under § 10.1-613.17.

The 2002 amendments.

The 2002 amendment by c. 320 deleted “to particular local public bodies” at the end of the first sentence and substituted “applicant” for “local public body applying” in the last sentence.

The 2006 amendments.

The 2006 amendments by cc. 648 and 765 are identical, and rewrote the section.

The 2010 amendments.

The 2010 amendment by c. 13 substituted “distribution of loans and grants from the Fund to local governments and private entities” for “distribution of loans from the Fund to local governments and private entities and the distribution of grants to local governments” at the end of the second sentence.

§ 10.1-603.18:1. Deposit of money; expenditures; investments.

All money belonging to the Fund shall be deposited in an account or accounts in banks or trust companies organized under the laws of the Commonwealth or in national banking associations located in Virginia or in savings institutions located in Virginia organized under the laws of the Commonwealth or the United States. The money in these accounts shall be paid by check signed by the Executive Director of the Authority or other officers or employees designated by the Board of Directors of the Authority. All deposits of money shall, if required by the Authority, be secured in a manner determined by the Authority to be prudent, and all banks, trust companies, and savings institutions are authorized to give security for the deposits. Money in the Fund shall not be commingled with other money of the Authority. Money in the Fund not needed for immediate use or disbursement may be invested or reinvested by the Authority in obligations or securities that are considered lawful investments for public funds under the laws of the Commonwealth.

History. 2006, cc. 648, 765.

Cross references.

As to repeal of Flood Prevention and Protection Assistance Fund Regulations and the transfer of fund balances to Virginia Resources Authority, see Acts 2006, cc. 648 and 765, cls. 3 and 4, noted under § 10.1-613.17.

§ 10.1-603.18:2. Collection of money due Fund.

The Authority is empowered to collect, or to authorize others to collect on its behalf, amounts due to the Fund under any loan to a local government or private entity, including, if appropriate, taking the action required by § 15.2-2659 or 62.1-216.1 to obtain payment of any amounts in default. Proceedings to recover amounts due to the Fund may be instituted by the Authority in the name of the Fund in the appropriate circuit court.

History. 2006, cc. 648, 765.

Cross references.

As to repeal of Flood Prevention and Protection Assistance Fund Regulations and the transfer of fund balances to Virginia Resources Authority, see Acts 2006, cc. 648 and 765, cls. 3 and 4, noted under § 10.1-613.17.

§ 10.1-603.19. Purposes for which Fund is to be used; Authority to set terms and conditions of loans.

  1. The Director may make grants or loans to any local government for the purpose of assisting the local government in the development and implementation of flood prevention or protection projects, or for flood prevention or protection studies.
  2. The Director may expend from the Fund up to $50,000 annually for cost share with federal agencies in flood protection studies of statewide or regional significance.
  3. The Director may, in order to protect public safety and welfare, make (i) grants or loans to a local government that owns a dam, to a local government for a dam located within the locality, or to a private entity that owns a dam for the design, repair, and the safety modifications of such a dam if it is identified in a safety report generated pursuant to § 10.1-607 or 10.1-609 and (ii) grants to a local government or private entity for the determination of the hazard classification for impounding structures, dam break analysis, the mapping and digitization of dam break inundation zones, incremental damage analysis, and other engineering requirements such as emergency action plan development.
  4. The Director may, in order to reduce dam owner expenses associated with hazard classification, dam break analysis, the mapping and digitization of dam break inundation zones, incremental damage analysis, and other engineering requirements such as emergency action plan development, expend moneys from the Fund to employ staff or to directly contract for these services. The Director may establish a fee to be paid by the dam owner to offset a portion of these services. Such fee shall not exceed 50 percent of the cost incurred by the Department.
  5. The Director may, in order to protect people at risk from a dam failure and to assist dam owners, localities, and emergency responders, expend moneys from the Fund to maintain a statewide dam failure early warning system in cooperation with the Department of Emergency Management and the U.S. National Weather Service.
  6. The total amount of expenditures for grants in any fiscal year shall not exceed 50 percent of the total noninterest or income deposits made to the Fund during the previous fiscal year, together with the total amount collected in interest or income from the investment of moneys in the Fund from the previous fiscal year as determined at the beginning of the fiscal year.
  7. Any grants made from the Fund shall require a 50 percent project match by the applicant. Any loans made from the Fund shall require a minimum of a 10 percent project match by the applicant.
  8. Except as otherwise provided in this article, moneys in the Fund shall be used solely to make loans or grants to local governments or private entities to finance or refinance the cost of a project. The local government or private entity to which loans or grants are made, the purposes of the loan or grant, the required match for the specific loan or grant, and the amount of each loan or grant, shall be designated in writing by the Director to the Authority. No loan or grant from the Fund shall exceed the total cost of the project to be financed or the outstanding principal amount of the indebtedness to be refinanced plus reasonable financing expenses. Loans may also be from the Fund, at the Director’s discretion, to a local government that has developed a low-interest loan program to provide loans or other incentives to facilitate the correction of dam or impounding structure deficiencies, as required by the Department, provided that the moneys are to be used only for the program and that the dams or impounding structures to be repaired or upgraded are owned by private entities.
  9. Except as otherwise provided in this article, the Authority shall determine the interest rate and terms and conditions of any loan from the Fund, which may vary between different loans and between local governments and private entities to finance or refinance the cost of a project. Each loan shall be evidenced by appropriate bonds or notes of the local government or by the appropriate debt instrument for private entities payable to the Fund. Private entities shall duly authorize an appropriate debt instrument and execute same by their authorized legal representatives. The bonds or notes shall have been duly authorized by the local government and executed by its authorized legal representatives. The Authority may require in connection with any loan from the Fund such documents, instruments, certificates, legal opinions, covenants, conditions, and other information as it may deem necessary or convenient to further the purpose of the loan. In addition to any other terms or conditions that the Authority may establish, the Authority may require, as a condition to making any loan from the Fund, that the local government or private entity receiving the loan covenant to perform any of the following:
    1. Establish and collect rents, rates, fees, and charges to produce revenue sufficient to pay all or a specified portion of (i) the costs of operation, maintenance, replacement, renewal, and repairs of the project; (ii) any outstanding indebtedness incurred for the purposes of the project, including the principal of, premium, if any, and interest on the loan from the Fund; and (iii) any amounts necessary to create and maintain any required reserve, including any rate stabilization fund deemed necessary or appropriate by the Authority to offset the need, in whole or part, for future increases in rents, rates, fees, or charges;
    2. With respect to local governments, levy and collect ad valorem taxes on all property within the jurisdiction of the local government subject to local taxation sufficient to pay the principal of and premium, if any, and interest on the loan from the Fund to the local government;
    3. Create and maintain a special fund or funds for the payment of the principal of, premium, if any, and interest on the loan from the Fund and any other amounts becoming due under any agreement entered into in connection with the loan, or for the operation, maintenance, repair, or replacement of the project or any portions thereof or other property of the borrower, and deposit into any fund or funds amounts sufficient to make any payments on the loan as they become due and payable;
    4. Create and maintain other special funds as required by the Authority;
    5. Perform other acts otherwise permitted by applicable law to secure payment of the principal of, premium, if any, and interest on the loan from the Fund and to provide for the remedies of the Fund in the event of any default by the borrower in payment of the loan, including, without limitation, any of the following:
      1. The conveyance of, or the granting of liens on or security interests in, real and personal property, together with all rights, title and interest therein;
      2. The procurement of insurance, guarantees, letters of credit and other forms of collateral, security, liquidity arrangements or credit supports for the loan from any source, public or private, and the payment therefor of premiums, fees, or other charges;
      3. The combination of one or more projects, or the combination of one or more projects with one or more other undertakings, facilities, utilities, or systems, for the purpose of operations and financing, and the pledging of the revenues from such combined projects, undertakings, facilities, utilities and systems to secure the loan from the Fund borrower made in connection with such combination or any part or parts thereof;
      4. The maintenance, replacement, renewal, and repair of the project; and
      5. The procurement of casualty and liability insurance;

6. Obtain a review of the accounting and internal controls from the Auditor of Public Accounts or his legally authorized representatives, as applicable. The Authority may request additional reviews at any time during the term of the loan. In addition, anyone receiving a report in accordance with § 10.1-603.23 may request an additional review as set forth in this section; and

7. Directly offer, pledge, and consent to the Authority to take action pursuant to § 62.1-216.1 to obtain payment of any amounts in default, as applicable.All local governments or private entities borrowing money from the Fund are authorized to perform any acts, take any action, adopt any proceedings, and make and carry out any contracts that are contemplated by this article. Such contracts need not be identical among all local governments or private entities but may be structured as determined by the Authority according to the needs of the contracting local governments or private entities and the Fund.Subject to the rights, if any, of the registered owners of any of the bonds of the Authority, the Authority may consent to and approve any modification in the terms of any loan to any local government.

History. 1989, cc. 462, 498; 1995, c. 510; 2002, c. 320; 2005, c. 80; 2006, cc. 648, 765; 2010, c. 13; 2011, c. 637; 2017, c. 245.

Cross references.

As to repeal of Flood Prevention and Protection Assistance Fund Regulations and the transfer of fund balances to Virginia Resources Authority, see Acts 2006, cc. 648 and 765, cls. 3 and 4, noted under § 10.1-613.17.

The 2002 amendments.

The 2002 amendment by c. 320, in subsection A, inserted “for flood prevention or protection projects, or for flood prevention or protection studies” in both the second and third sentences; and added subsection C.

The 2005 amendments.

The 2005 amendment by c. 80 inserted “and to make grants for the mapping and digitization of dam break inundation zones” in subsection C, and made minor stylistic changes.

The 2006 amendments.

The 2006 amendments by cc. 648 and 765 are identical, and rewrote the section.

The 2010 amendments.

The 2010 amendment by c. 13 inserted “to local governments and private entities for dam break analysis” and “and incremental damage analysis” near the end of subsection C; substituted “shall not exceed 50 percent of the total noninterest or income deposits made to the Fund during the previous fiscal year, together with the total amount” for “shall not exceed 50% of the total amount” in subsection D; deleted “local government” preceding “applicant” in the first sentence of subsection E; substituted “governments or private entities” for “governments, or loans to private entities” in the first sentence of subsection F; and made minor stylistic changes throughout.

The 2011 amendments.

The 2011 amendment by c. 637, in subsections A and B, substituted “may make grants” for “is authorized to make grants”; in subsection C, substituted “The Director may” for “The Director is also authorized” and added the clause (i) and (ii) designations, in the latter inserting “the determination of the hazard classification for impounding structures” and adding “and other engineering requirements such as emergency action plan development” and making a related change; and added subsections D and E and redesignated the remaining subsections accordingly.

The 2017 amendment.

The 2017 amendment by c. 245 rewrote subsection C, which formerly read “The Director may, in order to protect public safety and welfare, make (i) grants or loans to local governments owning dams and loans to private entities for the design, repair, and the safety modifications of dams identified in safety reports generated pursuant to § 10.1-607 or 10.1-609 and (ii) grants to local governments and private entities for the determination of the hazard classification for impounding structures, dam break analysis, the mapping and digitization of dam break inundation zones, incremental damage analysis, and other engineering requirements such as emergency action plan development.”; and in subsection H, substituted “moneys in the Fund” for “money in the Fund.”

§ 10.1-603.19:1. Payments from a developer or subdivider.

  1. The Authority shall administer and manage deposits made to the Fund pursuant to § 15.2-2243.1 in accordance with a memorandum of agreement with the Director. From funds deposited pursuant to this section the Authority may charge an administrative fee, which shall be determined in consultation with the Director. The Director is authorized to expend these deposits to allow a dam owner to make the necessary upgrades to an impounding structure made necessary by a proposed development or subdivision in a dam break inundation zone.
  2. Fifty percent of any funds held pursuant to subsection A shall be provided to the owner upon receipt of an alteration permit from the Virginia Soil and Water Conservation Board. The remaining funds shall be provided to the owner upon completion of the necessary upgrades and receipt of a regular operation and maintenance certificate from the Board. The owner shall post a bond or other financial guarantee payable to the Fund conditioned on completion of the stages of necessary upgrades prior to any release of payment to the owner. Such bond or other financial guarantee shall be released within 60 days of the receipt of a regular operation and maintenance certificate by the dam owner.
  3. Interest generated pursuant to these deposits shall remain in the Fund and may be utilized for the purposes set out in § 10.1-603.19 .

History. 2008, c. 491.

Editor’s note.

Acts 2008, c. 491, cl. 3 provides: “That the provisions of this act amending or adding §§ 10.1-603.17 , 10.1-603.19:1 , 10.1-606.3 , and 15.2-2243.1 shall become effective on July 1, 2009.”

Acts 2008, c. 491, cl. 5 provides: “That provisions of this act shall not affect those site plans or subdivision plans that are submitted prior to the effective date of this act.”

Acts 2008, c. 491, cl. 6 provides: “That the provisions of this act shall not apply to any dams or refuse piles approved pursuant to § 45.1-222 or 45.1-225.1.”

§ 10.1-603.20. Condition for making loans or grants.

  1. The Director may authorize a loan or grant for flood prevention or protection projects, or for flood prevention or protection studies under the provisions of § 10.1-603.19 only when the following conditions exist:
    1. An application for the loan or grant has been submitted by an applicant in the manner and form specified by the Director, setting forth the amount of the loan or grant requested, and the use to which the loan or grant will be applied. The application shall describe in detail (i) the area to be studied or protected, including the population and the value of property to be protected, historic flooding data and hydrologic studies projecting flood frequency; (ii) the estimated cost-benefit ratio of the project; (iii) the ability of the locality to provide its share of the cost; (iv) the administration of local flood plain management regulations; and (v) other necessary information to establish project or study priority.
    2. The local government agrees and furnishes assurance, satisfactory to the Director, that it will satisfactorily maintain any structure financed, in whole or in part, through the loans or grants provided under this article.
    3. If the requested loan or grant is sought to acquire land, the Director shall require satisfactory evidence prior to acting on the request that the local government will acquire the land if the loan or grant is made.
    4. A local government is eligible to receive a grant once every five years, provided that it has a flood mitigation plan approved by the Director and has demonstrated satisfactory evidence of plan implementation. Lacking an approved plan the local government is eligible for a grant once every ten years.
    5. [Repealed.]
  2. The Director shall develop guidance criteria for making loans and grants for dam safety repair projects. Priority shall be given to making loans for high hazard dams.

History. 1989, cc. 462, 498; 1995, c. 510; 2002, c. 320; 2006, cc. 648, 765.

Cross references.

As to repeal of Flood Prevention and Protection Assistance Fund Regulations and the transfer of fund balances to Virginia Resources Authority, see Acts 2006, cc. 648 and 765, cls. 3 and 4, noted under § 10.1-613.17.

The 2002 amendments.

The 2002 amendment by c. 320 inserted “for flood prevention or protection projects or studies” in the section catchline and “for flood prevention or protection projects, or for flood prevention or protection studies” in the introductory language of subsection A; and deleted subdivision A 6, which read: “The Director shall award no grant which would reduce the available balance of the Fund below $200,000; however, the Director may provide a loan from the unencumbered balance of the Fund.”

The 2006 amendments.

The 2006 amendments by cc. 648 and 765 are identical, and substituted “an applicant” for “the applicant” in the first sentence of subdivision A 1; substituted “government” for “public body” in subdivisions A 2, present A 3 and twice in present A 4; deleted former subdivision A 3; redesignated former subdivisions A 4 through A 6 as subdivisions A 3 through A 5; deleted former subsections B and C; and added present subsection B.

§§ 10.1-603.21, 10.1-603.22. Repealed by Acts 2006, cc. 648 and 765, cl. 2.

Editor’s note.

Former § 10.1-603.218, pertaining to period of loan; interest rate; loan shall constitute a lien the Virginia State Parks Foundation, was derived from 1989, cc. 462, 498. Former § 10.1-603.22, pertaining to recovery of money due to Fund, was derived from 1989, cc. 462, 498; 1995, c. 510.

§ 10.1-603.22:1. Pledge of loans to secure bonds of Authority.

The Authority is empowered at any time and from time to time to pledge, assign, or transfer from the Fund to banks or trust companies designated by the Authority any or all of the assets of the Fund to be held in trust as security for the payment of the principal of, premium, if any, and interest on any or all of the bonds, as defined in § 62.1-199, issued to finance any project. The interests of the Fund in any assets so transferred shall be subordinate to the rights of the trustee under the pledge, assignment, or transfer. To the extent funds are not available from other sources pledged for such purpose, any of the assets or payments of principal and interest received on the assets pledged, assigned, or transferred or held in trust may be applied by the trustee thereof to the payment of the principal of, premium, if any, and interest on such bonds of the Authority secured thereby, and, if such payments are insufficient for such purpose, the trustee is empowered to sell any or all of such assets and apply the net proceeds from the sale to the payment of the principal of, premium, if any, and interest on such bonds of the Authority. Any assets of the Fund pledged, assigned, or transferred in trust as set forth above and any payments of principal, interest, or earnings received thereon shall remain part of the Fund but shall be subject to the pledge, assignment, or transfer to secure the bonds of the Authority and shall be held by the trustee to which they are pledged, assigned, or transferred until no longer required for such purpose by the terms of the pledge, assignment, or transfer.

History. 2006, cc. 648, 765.

Cross references.

As to repeal of Flood Prevention and Protection Assistance Fund Regulations and the transfer of fund balances to Virginia Resources Authority, see Acts 2006, cc. 648 and 765, cls. 3 and 4, noted under § 10.1-613.17.

§ 10.1-603.22:2. Sale of loans.

The Authority is empowered at any time and from time to time to sell, upon such terms and conditions as the Authority shall deem appropriate, any loan, or interest therein, made pursuant to this article. The net proceeds of sale remaining after the payment of the costs and expenses of the sale shall be designated for deposit to, and become part of, the Fund.

History. 2006, cc. 648, 765.

Cross references.

As to repeal of Flood Prevention and Protection Assistance Fund Regulations and the transfer of fund balances to Virginia Resources Authority, see Acts 2006, cc. 648 and 765, cls. 3 and 4, noted under § 10.1-613.17.

§ 10.1-603.22:3. Powers of the Authority.

The Authority is authorized to do any act necessary or convenient to the exercise of the powers granted in this article or reasonably implied thereby.

History. 2006, cc. 648, 765.

Cross references.

As to repeal of Flood Prevention and Protection Assistance Fund Regulations and the transfer of fund balances to Virginia Resources Authority, see Acts 2006, cc. 648 and 765, cls. 3 and 4, noted under § 10.1-613.17.

§ 10.1-603.22:4. Liberal construction of article.

The provisions of this article shall be liberally construed to the end that its beneficial purposes may be effectuated. Insofar as the provisions of this article are inconsistent with the provisions of any other law, general, special or local, the provisions of this article shall be controlling.

History. 2006, cc. 648, 765.

Cross references.

As to repeal of Flood Prevention and Protection Assistance Fund Regulations and the transfer of fund balances to Virginia Resources Authority, see Acts 2006, cc. 648 and 765, cls. 3 and 4, noted under § 10.1-613.17.

§ 10.1-603.23. Record of application for grants or loans and action taken.

A record of each application for a grant or loan and the action taken thereon shall be open to public inspection at the office of the Department. The Authority shall report annually to the General Assembly and the Governor on the Fund and the administration of all grants and loans made from the Fund.

History. 1989, cc. 462, 498; 2006, cc. 648, 765.

Cross references.

As to repeal of Flood Prevention and Protection Assistance Fund Regulations and the transfer of fund balances to Virginia Resources Authority, see Acts 2006, cc. 648 and 765, cls. 3 and 4, noted under § 10.1-613.17.

The 2006 amendments.

The 2006 amendments by cc. 648 and 765 are identical, and in the first sentence, deleted “pursuant to § 10.1-603.19 ” following “grant or loan” and “and shall be presented to the Governor and members of the legislature prior to budgetary sessions of the General Assembly” following “Department” and added the last sentence.

Article 1.3. Virginia Community Flood Preparedness Fund.

§ 10.1-603.24. Definitions.

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

“Authority” means the Virginia Resources Authority.

“Cost,” as applied to any project financed under the provisions of this article, means the total of all costs incurred by the local government as reasonable and necessary for carrying out all works and undertakings necessary or incident to the accomplishment of any project.

“Department” means the Virginia Department of Conservation and Recreation.

“Flood prevention or protection” means the construction of hazard mitigation projects, acquisition of land, or implementation of land use controls that reduce or mitigate damage from coastal or riverine flooding.

“Flood prevention or protection study” means the conduct of a hydraulic or hydrologic study of a flood plain with historic and predicted floods, the assessment of flood risk, and the development of strategies to prevent or mitigate damage from coastal or riverine flooding.

“Fund” means the Virginia Community Flood Preparedness Fund created pursuant to § 10.1-603.25 .

“Local government” means any county, city, town, municipal corporation, authority, district, commission, or political subdivision created by the General Assembly or pursuant to the Constitution of Virginia or laws of the Commonwealth.

“Low-income geographic area” means any locality, or community within a locality, that has a median household income that is not greater than 80 percent of the local median household income, or any area in the Commonwealth designated as a qualified opportunity zone by the U.S. Secretary of the Treasury via his delegation of authority to the Internal Revenue Service.

“Nature-based solution” means an approach that reduces the impacts of flood and storm events through the use of environmental processes and natural systems. A nature-based solution may provide additional benefits beyond flood control, including recreational opportunities and improved water quality.

History. 2016, c. 762; 2020, cc. 1199, 1219, 1254, 1280.

Editor’s note.

Acts 2020, cc. 1199, 1219, 1254, and 1280 substituted “Virginia Community Flood Preparedness Fund” for “Virginia Shoreline Resiliency Fund” in the Article 1.3 heading.

The 2020 amendments.

The 2020 amendments by cc. 1199, 1219, 1254, and 1280 are identical, and inserted the definitions of “Flood prevention or protection,” “Flood prevention or protection study,” “Low-income geographic area” and “Nature-based solution”; in the definition of “Department,” substituted “Conservation and Recreation” for “Emergency Management” and in the definition of “Fund,” substituted “Virginia Community Flood Preparedness Fund created pursuant to § 10.1-603.25 ” for “Virginia Shoreline Resiliency Fund.”

§ 10.1-603.25. Virginia Community Flood Preparedness Fund; loan and grant program.

  1. The Virginia Shoreline Resiliency Fund is hereby continued as a permanent and perpetual fund to be known as the Virginia Community Flood Preparedness Fund. All sums that are designated for deposit in the Fund from revenue generated by the sale of emissions allowances pursuant to subdivision C 1 of § 10.1-1330 , all sums that may be appropriated to the Fund by the General Assembly, all receipts by the Fund from the repayment of loans made by it to local governments, all income from the investment of moneys held in the Fund, and any other sums designated for deposit to the Fund from any source, public or private, including any federal grants and awards or other forms of assistance received by the Commonwealth that are eligible for deposit in the Fund under federal law, shall be designated for deposit to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including any appropriated funds and all principal, interest accrued, and payments, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. All loans and grants provided under this article shall be deemed to promote the public purposes of enhancing flood prevention or protection and coastal resilience.
  2. Moneys in the Fund shall be used solely for the purposes of enhancing flood prevention or protection and coastal resilience as required by this article. The Authority shall manage the Fund and shall establish interest rates and repayment terms of such loans as provided in this article in accordance with a memorandum of agreement with the Department. The Authority may disburse from the Fund its reasonable costs and expenses incurred in the management of the Fund. The Department shall direct distribution of loans and grants from the Fund in accordance with the provisions of subsection D.
  3. The Authority is authorized at any time and from time to time to pledge, assign, or transfer from the Fund or any bank or trust company designated by the Authority any or all of the assets of the Fund to be held in trust as security for the payment of principal of, premium, if any, and interest on any and all bonds, as defined in § 62.1-199, issued to finance any flood prevention or protection project undertaken pursuant to the provisions of this article. In addition, the Authority is authorized at any time and from time to time to sell upon such terms and conditions as the Authority deems appropriate any loan or interest thereon made pursuant to this article. The net proceeds of the sale remaining after payment of costs and expenses shall be designated for deposit to, and become part of, the Fund.
  4. The Fund shall be administered by the Department as prescribed in this article. The Department, in consultation with the Secretary of Natural and Historic Resources and the Special Assistant to the Governor for Coastal Adaptation and Protection, shall establish guidelines regarding the distribution and prioritization of loans and grants, including loans and grants that support flood prevention or protection studies of statewide or regional significance.
  5. Localities shall use moneys from the Fund primarily for the purpose of implementing flood prevention and protection projects and studies in areas that are subject to recurrent flooding as confirmed by a locality-certified floodplain manager. Moneys in the Fund may be used to mitigate future flood damage and to assist inland and coastal communities across the Commonwealth that are subject to recurrent or repetitive flooding. No less than 25 percent of the moneys disbursed from the Fund each year shall be used for projects in low-income geographic areas. Priority shall be given to projects that implement community-scale hazard mitigation activities that use nature-based solutions to reduce flood risk.
  6. Any locality is authorized to secure a loan made pursuant to this section by placing a lien up to the value of the loan against any property that benefits from the loan. Such a lien shall be subordinate to each prior lien on such property, except prior liens for which the prior lienholder executes a written subordination agreement, in a form and substance acceptable to the prior lienholder in its sole and exclusive discretion, that is recorded in the land records where the property is located.
  7. Any locality using moneys in the Fund to provide a loan for a project in a low-income geographic area is authorized to forgive the principal of such loan. If a locality forgives the principal of any such loan, any obligation of the locality to repay that principal to the Commonwealth shall not be forgiven and such obligation shall remain in full force and effect. The total amount of loans forgiven by all localities in a fiscal year shall not exceed 30 percent of the amount appropriated in such fiscal year to the Fund by the General Assembly.

History. 2016, c. 762; 2020, cc. 1199, 1219, 1254, 1280; 2021, Sp. Sess. I, c. 401.

Editor’s note.

Acts 2020, cc. 1199 and 1254, cl. 2 provides: “That any moneys in the Virginia Shoreline Resiliency Fund as created by Chapter 762 of the Acts of Assembly of 2016 shall remain in the Virginia Community Flood Preparedness Fund pursuant to § 10.1-603.25 of the Code of Virginia, as amended and reenacted by this act.”

Acts 2020, cc. 1219 and 1280, cl. 3 provides: “That any moneys in the Virginia Shoreline Resiliency Fund as created by Chapter 762 of the Acts of Assembly of 2016 shall remain in the Virginia Community Flood Preparedness Fund pursuant to § 10.1-603.25 of the Code of Virginia, as amended and reenacted by this act.”

The 2020 amendments.

The 2020 amendments by cc. 1199, 1219, 1254, and 1280 are nearly identical, and added subsection designations A through G, including adding subsections C, D, and G; in subsection A, rewrote the paragraph, which read, “There shall be set apart a permanent and perpetual fund, to be known as the Virginia Shoreline Resiliency Fund, consisting of such sums that may be appropriated to the Fund by the General Assembly, all receipts by the Fund from loans made by it to local governments, all income from the investment of moneys held in the Fund, and any other sums designated for deposit to the Fund from any source, public or private. The Fund shall be administered by the Department as prescribed in this article. The Department shall establish guidelines regarding the distribution of loans from the Fund and prioritization of such loans”; in subsection B, added the first and last sentences and in the second sentence, added “in accordance with a memorandum of agreement with the Department” at the end; in subsection E in the first sentence, substituted “implementing flood prevention and protection projects and studies in areas” for “creating a low-interest loan program to help residents and businesses”; in the second sentence, added “and to assist inland and coastal communities across the Commonwealth that are subject to recurrent or repetitive flooding” at the end and added the third and last sentences and in subsection F, substituted “pursuant to this section” for “through such a low-interest loan program” in the first sentence. Subsection A has been set out in the form above at the direction of the Virginia Code Commission.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 401, effective July 1, 2021, inserted “and Historic” in subsection D.

§ 10.1-603.26. Deposit of moneys; expenditures; investments.

All moneys in the Fund shall be deposited in an account or accounts in banks or trust companies organized under the laws of the Commonwealth or in national banking associations located in Virginia or in savings institutions located in Virginia organized under the laws of the Commonwealth or the United States. The moneys in these accounts shall be paid by check signed by the Executive Director of the Authority or other officers or employees designated by the Board of Directors of the Authority. All deposits of moneys shall, if required by the Authority, be secured in a manner determined by the Authority to be prudent, and all banks, trust companies, and savings institutions are authorized to give security for the deposits. Moneys in the Fund shall not be commingled with other moneys of the Authority. Moneys in the Fund not needed for immediate use or disbursement may be invested or reinvested by the Authority in obligations or securities that are considered lawful investments for public funds under the laws of the Commonwealth.

History. 2016, c. 762.

§ 10.1-603.27. Annual audit.

The Auditor of Public Accounts, or his legally authorized representatives, shall annually audit the accounts of the Authority, and the cost of such audit services as shall be required shall be borne by the Authority. The audit shall be performed at least each fiscal year, in accordance with generally accepted auditing standards and, accordingly, include such tests of the accounting records and such auditing procedures as are considered necessary under the circumstances. The Authority shall furnish copies of such audit to the Governor.

History. 2016, c. 762.

Article 1.4. Resilient Virginia Revolving Fund.

§ 10.1-603.28. (Effective July 1, 2022) Definitions.

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

“Authority” means the Virginia Resources Authority created in Chapter 21 (§ 62.1-197 et seq.) of Title 62.1.

“Cost,” as applied to any project financed under the provisions of this article, means the total of all costs incurred as reasonable and necessary for carrying out all works and undertakings necessary or incident to the accomplishment of any project. “Cost” includes, without limitation, all necessary developmental, planning, and feasibility studies, surveys, plans and specifications, architectural, engineering, financial, legal, or other special services, the cost of acquisition of land and any buildings and improvements thereon, including the discharge of any obligations of the sellers of such land, buildings, or improvements, site preparation and development, including demolition or removal of existing structures, construction and reconstruction, labor, materials, machinery and equipment, the reasonable costs of financing incurred in the course of the development of the project, carrying charges incurred before placing the project in service, interest on funds borrowed to finance the project to a date subsequent to the estimated date the project is to be placed in service, necessary expenses incurred in connection with placing the project in service, the funding of accounts and reserves that the Authority may require, and the cost of other items that the Authority determines to be reasonable and necessary.

“Department” means the Department of Conservation and Recreation.

“Fund” means the Resilient Virginia Revolving Fund created by this article.

“Local government” means any county, city, town, municipal corporation, authority, district, commission, or political subdivision created by the General Assembly or pursuant to the Constitution or laws of the Commonwealth or any combination of any two or more of the foregoing.

“Person” has the same meaning as set forth in § 1-230.

“Project” means (i) home upgrades for resilience purposes, home buyouts necessary for the construction of mitigation or resilience projects, relocations, and buyout assistance for homes, all including multifamily units; (ii) gap funding related to buyouts in order to move residents out of floodplain hazard areas and restore or enhance the natural flood mitigation capacity of functioning floodplains; (iii) assistance to low-income and moderate-income homeowners to help lower flood risk through structural and nonstructural mitigation projects, or other means; (iv) loans and grants to persons for hazard mitigation and infrastructure improvement projects for resilience purposes; and (v) projects identified in the Virginia Flood Protection Master Plan or the Virginia Coastal Resilience Master Plan.

“Resilience” means the capability to anticipate, prepare for, respond to, and recover from significant multi-hazard threats with minimum damage to social well-being, health, the economy, and the environment.

History. 2022, cc. 739, 782.

§ 10.1-603.29. (Effective July 1, 2022) Resilient Virginia Revolving Fund.

There shall be set apart as a permanent and perpetual fund, to be known as the “Resilient Virginia Revolving Fund,” sums appropriated to the Fund by the General Assembly, sums allocated to the Commonwealth for resilience purposes through the federal government, all receipts by the Fund from loans made by it to local governments, all income from the investment of moneys held in the Fund, and any other sums designated for deposit to the Fund from any source public or private. The Fund shall be administered and managed by the Authority as prescribed in this article, subject to the right of the Department, following consultation with the Authority, to direct the distribution of loans or grants from the Fund to particular local governments and to establish the interest rates and repayment terms of such loans as provided in this article. A portion of the Fund shall be reserved to hold money that is allocated only for the hazard mitigation of buildings and that shall not be available for other uses. In order to carry out the administration and management of the Fund, the Authority is granted the power to employ officers, employees, agents, advisers, and consultants, including, without limitation, attorneys, financial advisers, engineers, and other technical advisers and public accountants and, the provisions of any other law to the contrary notwithstanding, to determine their duties and compensation without the approval of any other agency or instrumentality. The Authority may disburse from the Fund its reasonable costs and expenses incurred in the administration and management of the Fund and a reasonable fee to be approved by the Department for its management services. The Authority may provide a portion of that fee to the Department to cover the Department’s costs and expenses in administering the Fund.

History. 2022, cc. 739, 782.

§ 10.1-603.30. (Effective July 1, 2022) Deposit of moneys; expenditures; investments.

All moneys belonging to the Fund shall be deposited in an account or accounts in banks or trust companies organized under the laws of the Commonwealth or in national banking associations located in Virginia or in savings institutions located in Virginia organized under the laws of the Commonwealth or the United States. The money in these accounts shall be paid by electronic transfer or check signed by the Executive Director of the Authority or other officers or employees designated by the Board of Directors of the Authority. All deposits of money shall, if required by the Authority, be secured in a manner determined by the Authority to be prudent, and all banks, trust companies, and savings institutions are authorized to give security for the deposits. Money in the Fund shall not be commingled with other money of the Authority. Money in the Fund not needed for immediate use or disbursement may be invested or reinvested by the Authority in obligations or securities that are considered lawful investments for public funds under the laws of the Commonwealth. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including any appropriated funds and all principal, interest accrued, and payments at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund.

History. 2022, cc. 739, 782.

§ 10.1-603.31. (Effective July 1, 2022) Annual audit.

The Auditor of Public Accounts, or his legally authorized representatives, shall annually audit the accounts of the Authority, and the cost of such audit services as shall be required shall be borne by the Authority. The audit shall be performed at least each fiscal year, in accordance with generally accepted auditing standards and, accordingly, include such tests of the accounting records and such auditing procedures as considered necessary under the circumstances. The Authority shall furnish copies of such audit to the Governor and to the Department.

History. 2022, cc. 739, 782.

§ 10.1-603.32. (Effective July 1, 2022) Collection of money due to Fund.

The Authority is empowered to collect, or to authorize others to collect on its behalf, amounts due to the Fund under any loan to a local government, including, if appropriate, taking the action required by § 15.2-2659 to obtain payment of any amounts in default. Proceedings to recover amounts due to the Fund may be instituted by the Authority in the name of the Fund in the appropriate circuit court.

History. 2022, cc. 739, 782.

§ 10.1-603.33. (Effective July 1, 2022) Loans to local governments.

Except as otherwise provided in this article, moneys in the Fund shall be used to make loans to local governments to finance or refinance the cost of any project. The local governments to which loans are to be made, the purposes of the loan, the amount of each such loan, the interest rate thereon, and the repayment terms thereof, which may vary between loan recipients, shall be designated in writing by the Department to the Authority following consultation with the Authority. No loan from the Fund shall exceed the total cost of the project to be financed or the outstanding principal amount of the indebtedness to be refinanced plus reasonable financing expenses.

Except as set forth in this section, the Authority shall determine the terms and conditions of any loan from the Fund, which may vary between loan recipients. Each loan shall be evidenced by appropriate bonds or notes of the local government payable to the Fund. The bonds or notes shall have been duly authorized by the local government and executed by its authorized legal representatives. The Authority is authorized to require in connection with any loan from the Fund such documents, instruments, certificates, legal opinions, and other information as it may deem necessary or convenient. In addition to any other terms or conditions that the Authority may establish, the Authority may require, as a condition to making any loan from the Fund, that the local government receiving the loan covenant to perform any of the following:

  1. Establish and collect rents, rates, fees, and charges to produce revenue sufficient to pay all or a specified portion of (i) the costs of operation, maintenance, replacement, renewal, and repairs of the project; (ii) any outstanding indebtedness incurred for the purposes of the project, including the principal of and premium, if any, and interest on the loan from the Fund to the local government; and (iii) any amounts necessary to create and maintain any required reserve, including any rate stabilization fund deemed necessary or appropriate by the Authority to offset the need, in whole or part, for future increases in rents, rates, fees, or charges;
  2. With respect to local governments, levy and collect ad valorem taxes on all property within the jurisdiction of the local government subject to local taxation sufficient to pay the principal of and premium, if any, and interest on the loan from the Fund to the local government;
  3. Create and maintain a special fund or funds for the payment of the principal of and premium, if any, and interest on the loan from the Fund to the local government and any other amounts becoming due under any agreement entered into in connection with the loan, or for the operation, maintenance, repair, or replacement of the project or any portions thereof or other property of the local government, and deposit into any fund or funds amounts sufficient to make any payments on the loan as they become due and payable;
  4. Create and maintain other special funds as required by the Authority; and
  5. Perform other acts, including the conveyance of, or the granting of liens on or security interests in, real and personal property, together with all rights, title, and interest therein, to the Fund, or take other actions as may be deemed necessary or desirable by the Authority to secure payment of the principal of and premium, if any, and interest on the loan from the Fund and to provide for the remedies of the Fund in the event of any default in the payment of the loan, including, without limitation, any of the following:
    1. The procurement of insurance, guarantees, letters of credit, and other forms of collateral, security, liquidity arrangements, or credit supports for the loan from any source, public or private, and the payment therefor of premiums, fees, or other charges;
    2. The combination of one or more projects, or the combination of one or more projects with one or more other undertakings, facilities, utilities, or systems, for the purpose of operations and financing, and the pledging of the revenues from such combined projects, undertakings, facilities, utilities, and systems to secure the loan from the Fund made in connection with such combination or any part or parts thereof;
    3. The maintenance, replacement, renewal, and repair of the project; and
    4. The procurement of casualty and liability insurance.

      All local governments borrowing money from the Fund are authorized to perform any acts, take any action, adopt any proceedings, and make and carry out any contracts that are contemplated by this article. Such contracts need not be identical among all local governments but may be structured as determined by the Authority according to the needs of the contracting local governments and the Fund.

      Subject to the rights, if any, of the registered owners of any of the bonds of the Authority, the Authority may consent to and approve any modification in the terms of any loan subject to guidelines adopted by the Department.

History. 2022, cc. 739, 782.

§ 10.1-603.34. (Effective July 1, 2022) Grants to local governments.

Subject to any restrictions that may apply to the use of money in the Fund, the Department may approve the use of money in the Fund to make grants or appropriations to local governments to pay the cost of any project. The Department may establish such terms and conditions on any grant as it deems appropriate. Grants shall be disbursed from the Fund by the Authority in accordance with the written direction of the Department.

History. 2022, cc. 739, 782.

§ 10.1-603.35. (Effective July 1, 2022) Loans and grants for regional projects, etc.

In approving loans and grants, the Department shall give preference to loans and grants for projects that will utilize private industry in the operation and maintenance of such projects where a material savings in cost can be shown over public operation and maintenance; will serve two or more local governments to encourage regional cooperation; or both.

History. 2022, cc. 739, 782.

§ 10.1-603.36. (Effective July 1, 2022) Loans and grants to a local government for a funding program.

Loans and grants may be made from the Fund, in the Department’s discretion, to a local government that has developed a funding program to provide low-interest loans or grants to any persons of the Commonwealth eligible for projects for resilience purposes. In order to secure the loans authorized pursuant to this section, the local government is authorized to place a lien equal in value to the loan against any property where such project is being undertaken. Such liens shall be subordinate to all liens on the property as of the date the loan authorized under this section is made, except that with the prior written consent of the holders of all liens on the property as of such date, the liens securing loans authorized pursuant to this section shall be liens on the property ranking on parity with liens for unpaid local taxes. The local government may bundle or package such loans for transfer to private lenders in such a manner that would allow the liens to remain in full force to secure the loans.

History. 2022, cc. 739, 782.

§ 10.1-603.37. (Effective July 1, 2022) Pledge of loans to secure bonds of Authority.

The Authority is empowered at any time and from time to time to transfer from the Fund to banks or trust companies designated by the Authority any or all of the assets of the Fund to be held in trust as security for the payment of the principal of and premium, if any, and interest on any or all of the bonds, as defined in § 62.1-199, of the Authority. The interests of the Fund in any obligations so transferred shall be subordinate to the rights of the trustee under the pledge. To the extent that funds are not available from other sources pledged for such purpose, any payments of principal and interest received on the assets transferred or held in trust may be applied by the trustee thereof to the payment of the principal of and premium, if any, and interest on such bonds of the Authority to which the obligations have been pledged, and if such payments are insufficient for such purpose, the trustee is empowered to sell any or all of such assets and apply the net proceeds from the sale to the payment of the principal of and premium, if any, and interest on such bonds of the Authority. Any assets of the Fund transferred in trust as set forth in this section and any payments of principal, interest, or earnings received thereon shall remain part of the Fund but shall be subject to the pledge to secure the bonds of the Authority and shall be held by the trustee to which they are pledged until no longer required for such purpose by the terms of the pledge. On or before January 10 of each year, the Authority shall transfer, or shall cause the trustee to transfer, to the Fund any assets transferred or held in trust as set forth in this section that are no longer required to be held in trust pursuant to the terms of the pledge.

History. 2022, cc. 739, 782.

§ 10.1-603.38. (Effective July 1, 2022) Sale of loans.

The Authority is empowered at any time and from time to time to sell, upon such terms and conditions as the Authority shall deem appropriate, any loan, or interest therein, made pursuant to this article. The net proceeds of sale remaining after the payment of the costs and expenses of the sale shall be designated for deposit to, and become part of, the Fund.

History. 2022, cc. 739, 782.

§ 10.1-603.39. (Effective July 1, 2022) Powers of the Authority.

The Authority is authorized to do any act necessary or convenient to the exercise of the powers granted in this article or reasonably implied thereby.

History. 2022, cc. 739, 782.

§ 10.1-603.40. (Effective July 1, 2022) Liberal construction of article.

The provisions of this article shall be liberally construed to the end that its beneficial purposes may be effectuated. Insofar as the provisions of this article are inconsistent with the provisions of any other law, general, special, or local, the provisions of this article shall be controlling.

History. 2022, cc. 739, 782.

Article 2. Dam Safety Act.

§ 10.1-604. Definitions.

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

“Alteration” means changes to an impounding structure that could alter or affect its structural integrity. Alterations include, but are not limited to, changing the height or otherwise enlarging the dam, increasing normal pool or principal spillway elevation or physical dimensions, changing the elevation or physical dimensions of the emergency spillway, conducting necessary repairs or structural maintenance, or removing the impounding structure.

“Board” means the Soil and Water Conservation Board.

“Construction” means the construction of a new impounding structure.

“Dam break inundation zone” means the area downstream of a dam that would be inundated or otherwise directly affected by the failure of a dam.

“Height” means the structural height of a dam which is defined as the vertical distance from the natural bed of the stream or watercourse measured at the downstream toe of the dam to the top of the dam.

“Impounding structure” means a man-made structure, whether a dam across a watercourse or other structure outside a watercourse, used or to be used to retain or store waters or other materials. The term includes: (i) all dams that are twenty-five feet or greater in height and that create an impoundment capacity of fifteen acre-feet or greater, and (ii) all dams that are six feet or greater in height and that create an impoundment capacity of fifty acre-feet or greater. The term “impounding structure” shall not include: (a) dams licensed by the State Corporation Commission that are subject to a safety inspection program; (b) dams owned or licensed by the United States government; (c) dams operated primarily for agricultural purposes which are less than twenty-five feet in height or which create a maximum impoundment capacity smaller than 100 acre-feet; (d) water or silt retaining dams approved pursuant to § 45.2-618 or 45.2-1301 ; or (e) obstructions in a canal used to raise or lower water.

“Owner” means the owner of the land on which a dam is situated, the holder of an easement permitting the construction of a dam and any person or entity agreeing to maintain a dam.

“Watercourse” means a natural channel having a well-defined bed and banks and in which water normally flows.

History. 1982, c. 583, § 62.1-115.1; 1986, c. 9; 1988, c. 891; 2001, c. 92; 2006, c. 30.

Cross references.

As to impoundment of diffused surface waters, see § 62.1-105.

Editor’s note.

Acts 2014, cc. 475 and 489, cl. 1, effective April 1, 2014, provides: Ҥ 1. That the Department of Conservation and Recreation, on behalf of the Virginia Soil and Water Conservation Board, shall utilize a storm-based approach in order to derive the Probable Maximum Precipitation (PMP) for locations within or affecting the Commonwealth. The PMP revisions shall be based on accepted storm evaluation techniques and take into account such factors as basin characteristics that affect the occurrence and location of storms and precipitation, regional and basin terrain influences, available atmospheric moisture, and seasonality of storm types. The results shall be considered by the Virginia Soil and Water Conservation Board in its decision to authorize the use of the updated PMP values in Probable Maximum Flood calculations, thus replacing the current PMP values. Such PMP revisions shall be adopted by the Board if it finds that the analysis is valid and reliable and will result in cost savings to owners for impounding structure spillway construction or rehabilitation efforts.

Ҥ 2. The development of the methodology shall be completed by December 1, 2015.

“§ 3. Owners of impounding structures with spillway design inadequacies who maintain coverage under a Conditional Operation and Maintenance Certificate in accordance with the Board’s Impounding Structure Regulations (4VAC50-20) shall not be required to rehabilitate the spillway of their impounding structure until the analysis required under § 1 has been completed and reviewed by the Virginia Soil and Water Conservation Board. Such owners shall remain subject to all other requirements of the Dam Safety Act (§ 10.1-604 et seq.) and regulations.”

Effective October 1, 2021, “§ 45.2-618 or 45.2-1301 ” was substituted for “§ 45.1-222 or § 45.1-225.1” to conform to Acts 2021, Sp. Sess. I, c. 387, at the direction of the Virginia Code Commission.

The 2001 amendments.

The 2001 amendment by c. 92, effective July 1, 2002, in the paragraph defining “Impounding structure,” inserted the present second sentence, and in the present third sentence, substituted the designations (a) through (e) for former designations (i) through (v), and deleted “(vi) nonagricultural dams which are less than twenty-five feet in height or which create a maximum impoundment smaller than 50 acre-feet; or (vii) dams not more than six feet in height regardless of storage capacity or with a storage capacity of not more than 15 acre-feet regardless of height” at the end thereof.

The 2006 amendments.

The 2006 amendment by c. 30 added the paragraphs defining “Alteration,” “Construction,” and “Dam break inundation zone”; and in the definition for “Impounding structure,” substituted “man-made structure” for “man-made device” in the first sentence and deleted “constructed maintained or” following “(c) dams.”

Research References.

Virginia Forms (Matthew Bender). No. 9-121. Affidavit for Dam Inspection Warrant; No. 9-122. Dam Inspection Warrant; No. 16-573. Agreement for Right to Inundate.

Michie’s Jurisprudence.

For related discussion, see 12B M.J. Mills and Milldams, § 1.

OPINIONS OF THE ATTORNEY GENERAL

“Impounding structure.” —

Irrigation is not a necessary element for a farm pond to qualify for the agricultural exemption, provided the impounded waters are utilized in a manner found to be required for agricultural production. The determination of whether the agricultural exemption applies to any particular structure is primarily a factual question reserved to the Director of the Department of Conservation and Recreation on a case-by-case basis. See opinion of Attorney General to The Honorable Thomas C. Wright, Jr., Member, House of Delegates, 12-074, 2013 Va. AG LEXIS 1 (1/4/13).

Agricultural exemption. —

Absent a specific definition in the Dam Safety Act, it is appropriate to look to the definition of the term “forester” provided in the statutes governing the Department of Forestry as an interpretative guide, and that a forester differs from an orchardist in that an orchardist harvests fruit, nuts or sap from trees, while a forester is concerned with the timber itself. See opinion of Attorney General to The Honorable Thomas C. Wright, Jr., Member, House of Delegates, 12-074, 2013 Va. AG LEXIS 1 (1/4/13).

§ 10.1-604.1. Determination of hazard potential classification.

  1. The hazard potential classification for an impounding structure shall be determined by one of the following procedures:
    1. The owner of an impounding structure that does not currently hold a regular or conditional certificate from the Board, or the owner of an impounding structure that is already under certificate but the owner believes that a condition has changed downstream of the impounding structure that may reduce its hazard potential classification, may request that the Department conduct a simplified dam break inundation zone analysis to determine whether the impounding structure has a low hazard potential classification. The owner shall pay 50 percent of the cost of the analysis. If the Department finds that the impounding structure has a low hazard potential classification, the owner shall be eligible for general permit coverage in accordance with § 10.1-605.3 . If the Department finds that the impounding structure appears to be a high or significant hazard potential structure, the owner’s engineer shall provide further analysis in accordance with § 10.1-606.2 and the criteria set out in the Impounding Structure Regulations (4 VAC 50-20). The owner may be eligible for grant assistance in accordance with § 10.1-603.19 .
    2. The owner may propose a hazard potential classification that shall be subject to approval by the Board. To support the proposed hazard classification, an analysis shall be conducted by the owner’s engineer and shall comply with the criteria set out in the Impounding Structure Regulations (4 VAC 50-20). If the engineer finds that the impounding structure has a low hazard potential classification, the owner shall be eligible for general permit coverage in accordance with § 10.1-605.3 .An impounding structure’s hazard potential classification’s determination shall include an analysis of those hazards created by flood and nonflood dam failures. In conducting the hazard potential classification, the Department or the owner’s engineer may utilize an incremental damage analysis. When considering the failure of the impounding structure under a flood condition, such engineers shall only consider those hazards that exceed those created by the flood event.
  2. Any owner aggrieved by a decision of the Department regarding his impounding structure shall have the right to judicial review of the final decision pursuant to the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
  3. The Board may adopt regulations in accordance with § 10.1-605 to establish a simplified methodology for dam break inundation zone analysis.

History. 2011, c. 637.

Research References.

Virginia Forms (Matthew Bender). No. 6-1101. Petition to Impound Surface Waters.

§ 10.1-605. Promulgation of regulations by the Board; guidance document.

  1. The Board shall adopt regulations to ensure that impounding structures in the Commonwealth are properly and safely constructed, maintained and operated. Dam safety regulations promulgated by the State Water Control Board shall remain in full force until amended in accordance with applicable procedures.
  2. The Board’s Impounding Structure Regulations shall not require any impounding structure in existence or under a construction permit prior to July 1, 2010, that is currently classified as high hazard, or is subsequently found to be high hazard through reclassification, to upgrade its spillway to pass a rainfall event greater than the maximum recorded within the Commonwealth, which shall be deemed to be 90 percent of the probable maximum precipitation.
    1. Such an impounding structure shall be determined to be in compliance with the spillway requirements of the regulations provided that (i) the impounding structure will pass two-thirds of the reduced probable maximum precipitation requirement described in this subsection and (ii) the dam owner certifies annually and by January 15 that such impounding structure meets each of the following conditions:
      1. The owner has a current emergency action plan that is approved by the Board and that is developed and updated in accordance with the regulations;
      2. The owner has exercised the emergency action plan in accordance with the regulations and conducts a table-top exercise at least once every two years;
      3. The Department has verification that both the local organization for emergency management and the Virginia Department of Emergency Management have on file current emergency action plans and updates for the impounding structure;
      4. That conditions at the impounding structure are monitored on a daily basis and as dictated by the emergency action plan;
      5. The impounding structure is inspected at least annually by a professional engineer and all observed deficiencies are addressed within 120 days of such inspection;
      6. The owner has a dam break inundation zone map developed in accordance with the regulations that is acceptable to the Department;
      7. The owner is insured in an amount that will substantially cover the costs of downstream property losses to others that may result from a dam failure; and
      8. The owner shall post the dam’s emergency action plan on his website, or upon the request of the owner, the Department or another state agency responsible for providing emergency management services to citizens agrees to post the plan on its website. If the Department or another state agency agrees to post the plan on its website, the owner shall provide the plan in a format suitable for posting.
  3. The Board’s regulations shall establish an incremental damage analysis procedure that permits the spillway design flood requirement for an impounding structure to be reduced to the level at which dam failure shall not significantly increase downstream hazard to life or property, provided that the spillway design flood requirement shall not be reduced to below the 100-year flood event for high or significant hazard impounding structures, or to below the 50-year flood event for low hazard potential impounding structures.
  4. The Board shall consider the impact of limited-use or private roadways with low traffic volume and low public safety risk that are downstream from or across an impounding structure in the determination of the hazard potential classification of an impounding structure.

2. A dam owner who meets the conditions of subdivisions 1 a through 1 h, but has not provided record drawings to the Department for his impounding structure, shall submit a complete record report developed in accordance with the construction permit requirements of the Impounding Structure Regulations, excluding the required submittal of the record drawings.

3. A dam owner who fails to submit certifications required by subdivisions 1 a through 1 h in a timely fashion shall not enjoy the presumption that such impounding structure is deemed to be in compliance with the spillway requirements of the Board’s Impounding Structure Regulations (4 VAC 50-20).

4. Any dam owner who has submitted the certifications required by subdivisions 1 a through 1 h shall make (i) such certifications, (ii) the emergency action plan required by subdivision 1 a, and (iii) the certificate of insurance required by subdivision 1 g available, upon request and within five business days, to any person. A dam owner may comply with the requirements of this subdivision by providing the same information on a website and directing the requestor to such website. A dam owner who fails to comply with this subdivision shall be subject to a civil penalty pursuant to § 10.1-613.2 .

History. 1982, c. 583, § 62.1-115.2; 1986, c. 9; 1988, c. 891; 2010, cc. 249, 270; 2011, c. 323.

Editor’s note.

Acts 2010, c. 249, cl. 2 provides: “That the Virginia Soil and Water Conservation Board may amend its Impounding Structure Regulations to conform with the provisions of this act through a regulatory process that is exempt from the requirements of the Administrative Process Act (§ 2.2-4000 et seq.) of the Code of Virginia.”

The 2010 amendments.

The 2010 amendment by c. 249, effective April 8, 2010, added subsection B and inserted the subsection A designation.

The 2010 amendment by c. 270 added the subsection A designator, substituted “adopt” for “promulgate” in subsection A, and added subsections B and C, which were redesignated as subsections C and D at the direction of the Virginia Code Commission.

The 2011 amendments.

The 2011 amendment by c. 323 in subsection B, redesignated former subdivisions B 1 to 8 as paragraphs B 1 a to h, inserted present subdivision designations, inserted “and by January 15” in clause B 1 (ii), added B 3 and B 4, and made related changes.

OPINIONS OF THE ATTORNEY GENERAL

“Impounding structure.” —

Irrigation is not a necessary element for a farm pond to qualify for the agricultural exemption, provided the impounded waters are utilized in a manner found to be required for agricultural production. The determination of whether the agricultural exemption applies to any particular structure is primarily a factual question reserved to the Director of the Department of Conservation and Recreation on a case-by-case basis. See opinion of Attorney General to The Honorable Thomas C. Wright, Jr., Member, House of Delegates, 12-074, 2013 Va. AG LEXIS 1 (1/4/13).

§ 10.1-605.1. Delegation of powers and duties.

The Board may delegate to the Director or his designee any of the powers and duties vested in the Board by this article, except the adoption and promulgation of regulations. Delegation shall not remove from the Board authority to enforce the provisions of this article. At each meeting of the Board, the Director shall identify those impounding structures that are currently classified as high hazard and determined noncompliant with the spillway requirements of the Board’s Impounding Structure Regulations (4 VAC 50-20) or with statutory presumption provided by subsection B of § 10.1-605 .

History. 2006, c. 30; 2011, c. 323.

The 2011 amendments.

The 2011 amendment by c. 323 deleted “or the issuance of certificates” at the end of the first sentence, and added the last sentence.

§ 10.1-605.2. Certain regulations affecting impounding structures.

The Virginia Soil and Water Conservation Board shall, in accordance with the Administrative Process Act (§ 2.2-4000 et seq.), adopt regulations that consider the impact of downstream limited-use or private roadways with low traffic volume and low public safety risk on the determination of the hazard potential classification of an impounding structure under the Dam Safety Act (§ 10.1-604 et seq.).

History. 2010, c. 41.

The number of this section was assigned by the Virginia Code Commission, the 2010 act having assigned no number.

§ 10.1-605.3. General permit for certain impounding structures.

  1. The Board shall develop a general permit for the regulation of low hazard potential impounding structures in accordance with § 10.1-605 .
  2. The regulations shall include the following:
    1. A registration statement requiring:
      1. The name and address of the owner;
      2. The location of the impounding structure;
      3. The height of the impounding structure;
      4. The volume of water impounded; and
      5. A certification from the owner that the impounding structure (i) is classified as low hazard pursuant to a determination by the Department or the owner’s professional engineer in accordance with § 10.1-604.1 ; (ii) is, to the best of his knowledge, properly and safely constructed and currently has no observable deficiencies; and (iii) shall be maintained and operated in accordance with the provisions of the general permit.
  3. The owner shall notify the Department immediately of any change in circumstances that would cause the impounding structure to no longer qualify for coverage under the general permit. In the event of a failure or an imminent failure at the impounding structure, the owner shall immediately notify the local emergency services coordinator, the Department of Emergency Management, and the Department. The Department shall take actions in accordance with § 10.1-608 or 10.1-609 , depending on the degree of hazard and the imminence of failure caused by the unsafe condition.
  4. Failure to comply with the provisions of the general permit may result in penalties assessed in accordance with §§ 10.1-613.1 and 10.1-613.2 .
  5. In order to qualify for the provisions of § 10.1-606.3 , a dam owner eligible for a general permit shall file a dam break inundation map with the Department and with the offices with plat and plan approval authority or zoning responsibilities as designated by the locality for each locality in which the dam break inundation zone resides in accordance with § 10.1-606.2 .
  6. If the failure of a low hazard potential impounding structure is not expected to cause loss of human life or economic damage to any property except property owned by the owner, the owner may follow the special criteria established for certain low hazard impounding structures in the Impounding Structure Regulations (4 VAC 50-20) in lieu of coverage under the general permit.

2. A spillway design flood requirement of the 100-year flood. When appropriate, the spillway design flood requirement may be reduced to the 50-year flood in accordance with an incremental damage analysis.

3. A simplified emergency preparedness plan that provides:

a. Name and location information for the impounding structure;

b. Name of owner and operator and associated contact information;

c. Contact information for relevant emergency responders;

d. Procedures for notifying downstream property owners or occupants; and

e. Identification of any downstream roadways that would be impacted by a failure.

4. An annual inspection of the impounding structure by the owner. No inspection of the impounding structure by a licensed professional engineer shall be required if the owner certifies at the time of general permit coverage renewal that conditions at the impounding structure and downstream are unchanged.

5. Procedures for seeking and issuing coverage under the general permit.

6. A six-year term of coverage under the general permit after which time the owner shall reapply for coverage by filing a new registration statement. The Board may, by regulation, establish a fee for the processing of registration statements.

History. 2011, c. 637.

Research References.

Virginia Forms (Matthew Bender). No. 6-1101. Petition to Impound Surface Waters.

§ 10.1-606. Local advisory committee.

When requested by the governing body of any affected county or city, the Board shall provide for the creation of a local advisory committee to advise the Board on impoundments within that locality. The advisory committee shall include, but not be limited to, representation of the owner and each affected county or city. Prior to the issuance of any permits under this article, the Board shall advise any existing local advisory committee of any affected jurisdiction for which a permit is being sought, and request comments from the committee on the permit application. No permit shall be issued until at least sixty days after such a local advisory committee has been so advised.

History. 1982, c. 583, § 62.1-115.3; 1984, c. 240; 1988, c. 891.

§ 10.1-606.1. Repealed by Acts 2008, c. 491, cl. 2.

Cross references.

For current provisions as to mapping of dam break inundation zones, see § 10.1-606.2 .

Editor’s note.

Former § 10.1-606.1 authorized localities to map dam break inundation zones and was derived from 2005, c. 80; 2006, cc. 30, 648, 765.

§ 10.1-606.2. Mapping of dam break inundation zones.

  1. An owner of an impounding structure shall prepare a map of the dam break inundation zone for the impounding structure in accordance with criteria set out in the Virginia Impounding Structure Regulations (4 VAC 50-20). Existing maps prepared by the locality in accordance with these regulations may be used for this purpose.
  2. All maps prepared in accordance with subsection A shall be filed with the Department of Conservation and Recreation and with the offices with plat and plan approval authority or zoning responsibilities as designated by the locality for each locality in which the dam break inundation zone resides.
  3. Owners of impounding structures may be eligible for matching grants of up to 50 percent from the Dam Safety, Flood Prevention and Protection Assistance Fund and other sources of funding available to the Director to assist in the development of dam break inundation zone maps and for conducting incremental damage assessments in accordance with the Virginia Impounding Structure Regulations.
  4. All properties identified within the dam break inundation zone shall be incorporated by the owner into the dam safety emergency action plan of that impounding structure so as to ensure the proper notification of persons downstream and other affected persons or property owners in the event of an emergency condition at the impounding structure.

History. 2008, c. 491.

Cross references.

As to the Dam Safety, Flood Prevention and Protection Assistance Fund, generally, see Article 1.2 (§ 10.1-603.17 et seq.) of this chapter.

Editor’s note.

Acts 2008, c. 491, cl. 5 provides: “That provisions of this act shall not affect those site plans or subdivision plans that are submitted prior to the effective date of this act.”

Acts 2008, c. 491, cl. 6 provides: “That the provisions of this act shall not apply to any dams or refuse piles approved pursuant to § 45.1-222 or 45.1-225.1.”

Research References.

Virginia Forms (Matthew Bender). No. 6-1101. Petition to Impound Surface Waters.

§ 10.1-606.3. Requirement for development in dam break inundation zones.

  1. For any development proposed within the boundaries of a dam break inundation zone that has been mapped in accordance with § 10.1-606.2 , the locality shall, as part of a preliminary plan review pursuant to § 15.2-2260 , or as part of a plan review pursuant to § 15.2-2259 if no preliminary review has been conducted, (i) review the dam break inundation zone map on file with the locality for the affected impounding structure, (ii) notify the dam owner, and (iii) within 10 days forward a request to the Department of Conservation and Recreation to make a determination of the potential impacts of the proposed development on the spillway design flood standards required of the dam. The Department shall notify the dam owner and the locality of its determination within 45 days of the receipt of the request. Upon receipt of the Department’s determination, the locality shall complete the review in accordance with § 15.2-2259 or 15.2-2260 . If a locality has not received a determination within 45 days of the Department’s receipt of the request, the Department shall be deemed to have no comments, and the locality shall complete its review. Such inaction by the Department shall not affect the Board’s authority to regulate the impounding structure in accordance with this article.If the Department determines that the plan of development would change the spillway design flood standards of the impounding structure, the locality shall not permit development as defined in § 15.2-2201 or redevelopment in the dam break inundation zone unless the developer or subdivider agrees to alter the plan of development so that it does not alter the spillway design flood standard required of the impounding structure or he contributes payment to the necessary upgrades to the affected impounding structure pursuant to § 15.2-2243.1 .The developer or subdivider shall provide the dam owner and all affected localities with information necessary for the dam owner to update the dam break inundation zone map to reflect any new development within the dam break inundation zone following completion of the development.The requirements of this subsection shall not apply to any development proposed downstream of a dam for which a dam break inundation zone map is not on file with the locality as of the time of the official submission of a development plan to the locality.
  2. The locality is authorized to map the dam break inundation zone in accordance with criteria set out in the Virginia Impounding Structure Regulations (4VAC50-20) and recover the costs of such mapping from the owner of an impounding structure for which a dam break inundation zone map is not on file with the locality and a map has not been prepared by the impounding structure owner.
  3. This section shall not be construed to supersede or conflict with the authority granted to the Department of Energy for the regulation of mineral extraction activities in the Commonwealth as set out in Title 45.2. Nothing in this section shall be interpreted to permit the impairment of a vested right in accordance with § 15.2-2307 .

History. 2008, c. 491; 2021, Sp. Sess. I, c. 532.

Editor’s note.

Acts 2008, c. 491, cl. 3 provides: “That the provisions of this act amending or adding §§ 10.1-603.17 , 10.1-603.19:1 , 10.1-606.3 , and 15.2-2243.1 shall become effective on July 1, 2009.”

Acts 2008, c. 491, cl. 5 provides: “That provisions of this act shall not affect those site plans or subdivision plans that are submitted prior to the effective date of this act.”

Acts 2008, c. 491, cl. 6 provides: “That the provisions of this act shall not apply to any dams or refuse piles approved pursuant to § 45.1-222 or 45.1-225.1.”

Effective October 1, 2021, “Title 45.2” was substituted for “Title 45.1” to conform to the recodification of Title 45.1 by Acts 2021, Sp. Sess. I, c. 387, at the direction of the Virginia Code Commission.

Acts 2021, Sp. Sess. I, c. 532, cl. 2 provides: “That the provisions of this act shall become effective on October 1, 2021.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 532, effective October 1, 2021, substituted “Department of Energy” for “Department of Mines, Minerals and Energy” in subsection C.

Research References.

Virginia Forms (Matthew Bender). No. 6-1101. Petition to Impound Surface Waters.

§ 10.1-606.4. Notice to the public.

  1. When applying to the Department for a permit under the Virginia Impounding Structure Regulations (4 VAC 50-20) to construct a new high or significant hazard potential impounding structure, the applicant shall provide localities that lie within the inundation zone with copies of the construction permit request and the dam break inundation zone map.
  2. When submitting the application to the Department, the permit applicant shall publish a notice in a newspaper of general circulation in the affected localities summarizing the permit request and providing the address of locations where copies of the construction permit request and the dam break inundation zone map may be examined. The applicant shall provide copies of the published notice to the Department and to the local government offices with plat and plan approval authority or zoning responsibilities as designated by the locality.
  3. The Department may hold, on behalf of the Virginia Soil and Water Conservation Board, a public hearing on safety issues associated with the construction permit application for the impounding structure.
  4. The Department may require a permit applicant to provide other forms of reasonable notice, such as the placement of a sign on the proposed site, to ensure that affected parties have been informed.
  5. The permit applicant shall send, by certified mail, to each property owner within the dam break inundation zone, a summary of the permit request and the addresses of locations where the map of the dam break inundation zone may be viewed. In the case of a condominium or cooperative, such information shall be sent to each property owner or the owners’ association. The permit applicant may rely upon real estate assessment records to identify property owners. If requested by the Department, the applicant shall provide a list of the persons to whom notice has been sent.

History. 2008, c. 491; 2011, c. 637.

Editor’s note.

Acts 2008, c. 491, cl. 5 provides: “That provisions of this act shall not affect those site plans or subdivision plans that are submitted prior to the effective date of this act.”

Acts 2008, c. 491, cl. 6 provides: “That the provisions of this act shall not apply to any dams or refuse piles approved pursuant to § 45.1-222 or 45.1-225.1.”

The 2011 amendments.

The 2011 amendment by c. 637 inserted “high or significant hazard potential” in subsection A.

Research References.

Virginia Forms (Matthew Bender). No. 6-1101. Petition to Impound Surface Waters; No. 6-1102. Order of Publication.

§ 10.1-607. Safety inspections.

No one shall maintain a dam which unreasonably threatens the life or property of another. The Board shall cause safety inspections to be made of impounding structures on such schedule as it deems appropriate. The time of the initial inspection and the frequency of reinspection shall depend on such factors as the condition of the structure and its size, type, location and downstream hazard potential. The owners of dams found to have deficiencies which could threaten life or property if not corrected shall take the corrective actions needed to remove such deficiencies within a reasonable time. All safety inspections shall be conducted by or under the supervision of a licensed professional engineer. Each report shall bear the seal and signature of the licensed professional engineer responsible for the inspection.

The Board shall be responsible for the inspection and reinspection of flood control dams where the maintenance and operation of the dam is the responsibility of a soil and water conservation district and where the permit for operation of the impounding structure is held by such a district.

History. 1982, c. 583, § 62.1-115.4; 1986, c. 209; 1988, c. 891; 2000, c. 14.

The 2000 amendments.

The 2000 amendment by c. 14, in the first paragraph, deleted “not to exceed that of a phase I inspection report as established by the U.S. Army Corps of Engineers” following “shall cause safety inspections” in the second sentence; and deleted “which may include a phase II inspection report as established by the U.S. Army Corps of Engineers” following “take the corrective actions” in the fourth sentence.

§ 10.1-607.1. Criteria for designating a dam as unsafe.

  1. Designation of a dam as unsafe shall be based on one or more of the following findings:
    1. The dam has serious deficiencies in its design or construction or has a physical condition that if left unaddressed could result in a failure that may result in loss of life or significant damage to downstream property.
    2. The design, construction, operation, or maintenance of the dam is such that its expected performance during flooding conditions threatens the structural integrity of the dam.
  2. After completion of the safety inspections pursuant to § 10.1-607 , or as otherwise informed of an unsafe condition, the Department shall take actions in accordance with § 10.1-608 or 10.1-609 depending on the degree of hazard and imminence of failure caused by the unsafe condition.

History. 2006, c. 30; 2010, c. 270.

The 2010 amendments.

The 2010 amendment by c. 270 inserted “significant” near the end of subdivision A 1.

§ 10.1-608. Unsafe dams presenting imminent danger.

When the Director finds an unsafe dam constituting an imminent danger to life or property, he shall immediately notify the Department of Emergency Management and confer with the owner. The owner of a dam found to constitute an imminent danger to life or property shall take immediate corrective action. If the owner does not take appropriate and timely action to correct the danger found, the Governor shall have the authority to take immediate appropriate action, without the necessity for a hearing, to remove the imminent danger. The Attorney General may bring an action against the owner of the impounding structure for the Commonwealth’s expenses in removing the imminent danger. There shall be a lien upon the owner’s real estate for the Commonwealth’s expenses in removing the imminent danger. The owner may avoid the Commonwealth’s costs, and recover any damages, upon proving that the dam was known to be safe at the time such action was taken, and that the owner had provided or offered to immediately provide such proof to the Director before the action complained of was taken. Nothing herein shall in any way limit any authority existing under the Emergency Services and Disaster Law (§ 44-146.13 et seq.).

History. 1982, c. 583, § 62.1-115.5; 1986, c. 9; 1988, c. 891.

§ 10.1-609. Unsafe dams presenting nonimminent danger.

  1. Within a reasonable time after completion of a safety inspection of an impounding structure authorized by § 10.1-607 , the Board shall issue a report to the owner of the impounding structure containing its findings and recommendations for correction of any deficiencies which could threaten life or property if not corrected. Owners who have been issued a report containing recommendations for correction of deficiencies shall undertake to implement the recommendations contained in the report according to the schedule of implementation contained in the report. If an owner fails or refuses to commence or diligently implement the recommendations for correction of deficiencies according to the schedule contained in an issued report, the Director shall have the authority to issue an administrative order directing the owner to commence implementation and completion of such recommendations according to the schedule contained in the report with modifications as appropriate. Within thirty days after being served by personal service or by mail with a copy of an order issued pursuant to this section, any owner shall have the right to petition the Board for a hearing. As part of his petition, a dam owner may submit to the Board his own plan, consistent with regulations adopted pursuant to § 10.1-605 , to address the recommendations for correction of deficiencies and the schedule of implementation contained in the report. The Board shall determine if the submitted plan and schedule are sufficient to address deficiencies. A timely filed petition shall stay the effect of the administrative order.The hearing shall be conducted before the Board or a designated member thereof pursuant to § 2.2-4019. The Board shall have the authority to affirm, modify, amend or cancel the administrative order. Any owner aggrieved by a decision of the Board after a hearing shall have the right to judicial review of the final Board decision pursuant to the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
  2. The provisions of subsection A of this section notwithstanding, if the Director determines, after the report is issued, that changed circumstances justify reclassifying the deficiencies of an impounding structure as an imminent danger to life or property, the Director may proceed directly under § 10.1-613 for enforcement of his order, and the owner shall have the opportunity to contest the fact based upon which the administrative order was issued.
  3. The Director, upon a determination that there is an unsafe condition at an impounding structure, is authorized to cause the lowering or complete draining of such impoundment until the unsafe condition has been corrected at the owner’s expense and prior to any authorization to refill.An owner who fails to comply with the provisions contained in an administrative order of the Department shall be subject to procedures set out in § 10.1-613 and the penalties authorized under §§ 10.1-613.1 and 10.1-613.2 .
  4. No persons, other than those authorized to maintain an impounding structure, shall interfere with the operation of an impounding structure.

History. 1982, c. 583, § 62.1-115.6; 1986, cc. 9, 615; 1988, c. 891; 1999, c. 110; 2006, c. 30; 2010, c. 270.

The 1999 amendment added subsections C and D.

The 2006 amendments.

The 2006 amendment by c. 30, in subsection C, added “at the owner’s expense and prior to any authorization to refill” in the first paragraph and added the second paragraph.

The 2010 amendments.

The 2010 amendment by c. 270 inserted the fifth and sixth sentences in the first paragraph of subsection A.

§ 10.1-609.1. Installation of IFLOWS gauges.

A soil and water conservation district responsible for the maintenance and operation of a flood control dam shall be permitted to install Integrated Flood Observing and Warning Systems (IFLOWS) gauges and associated equipment, or a device approved by the Department of Emergency Management, while awaiting funds to make structural modifications to correct emergency spillway capacity deficiencies in the dam, identified by the Board in a report issued pursuant to § 10.1-609 , when any of the following conditions exist: (i) funds are not available to make such structural modifications to the dam, (ii) the completion of such structural modifications requires the acquisition of additional property or easements by exercise of the power of eminent domain, or (iii) funds for the IFLOWS equipment or an equivalent device have been appropriated by the General Assembly. Installation of IFLOWS gauges or similar devices shall not affect the regulated status of the dam under the Virginia Dam Safety Act (§ 10.1-604 et seq.). Any IFLOWS gauges and associated equipment shall be installed in a manner approved by the Department of Emergency Management and shall be operated and maintained by the Department of Emergency Management.

History. 1993, c. 709.

§ 10.1-609.2. Prohibited vegetation; certain wetland vegetation allowed.

  1. Dam owners shall not permit the growth of trees and other woody vegetation and shall remove any such vegetation from the slopes and crest of embankments and the emergency spillway area and within a distance of 25 feet from the toe of the embankment and abutments of the dam.
  2. The provisions of subsection A shall not apply to wetland vegetation, including woody shrubs, trees, and plants, that is growing on a permanent aquatic or safety bench that has been added to the upstream embankment slope of a regulated impounding structure if such vegetation is associated with a wetland mitigation bank or in-lieu fee site that (i) has been approved by the U.S. Army Corps of Engineers and the Department of Environmental Quality and (ii) is the subject of a restrictive covenant or other permanent instrument that specifically protects the particular wetland vegetation from removal and is recorded among the land records of the locality. However, the Department may require the dam owner to remove trees by flush cutting unless the Department determines on the basis of site-specific information that the grubbing of roots is necessary to protect the integrity of the dam in a particular case.
  3. Owners failing to maintain their dam in accordance with this section shall be subject to enforcement pursuant to § 10.1-613 .

History. 2006, c. 30; 2019, c. 148.

The 2019 amendments.

The 2019 amendment by c. 148 designated the existing provisions as subsections A and C, and added subsection B.

§ 10.1-610. Right of entry.

  1. The Board and its agents and employees shall have the right to enter any property at reasonable times and under reasonable circumstances to perform such inspections and tests or to take such other actions it deems necessary to fulfill its responsibilities under this article, including the inspection of dams that may be subject to this article, provided that the Board or its agents or employees make a reasonable effort to obtain the consent of the owner of the land prior to entry.
  2. If entry is denied, the Board or its designated agents or employees may make an affidavit under oath before any magistrate whose territorial jurisdiction encompasses the property to be inspected or entered for a warrant authorizing such investigation, tests or other actions. Such warrant shall issue if the magistrate finds probable cause to believe that there is a dam on such property which is not known to be safe. After issuing a warrant under this section, the magistrate shall file the affidavit in the manner prescribed by § 19.2-54 . After executing the warrant, the Board or its designated agents or employees shall return the warrant to the clerk of the circuit court of the city or county wherein the investigation was made.

History. 1982, c. 583, § 62.1-115.7; 1988, c. 891; 2005, c. 117; 2014, c. 354.

The 2005 amendments.

The 2005 amendments by c. 117 rewrote the first sentence and inserted “or its designated agents or employees” in the second sentence.

The 2014 amendments.

The 2014 amendment by c. 354 designated the existing provisions as subsections A and B; in subsection B substituted “make an affidavit under oath before” for “apply to,” and added the last two sentences.

Research References.

Virginia Forms (Matthew Bender). No. 9-121. Affidavit for Dam Inspection Warrant; No. 9-122. Dam Inspection Warrant.

§ 10.1-610.1. Monitoring progress of work.

  1. During the maintenance, construction, or alteration of any dam or reservoir, the Department shall make periodic inspections for the purpose of securing conformity with the approved plans and specifications. The Department shall require the owner to perform at his expense such work or tests as necessary to obtain information sufficient to enable the Department to determine whether conformity with the approved plans and specifications is being secured.
  2. If, after any inspections, investigations, or examinations, or at any time as the work progresses, or at any time prior to issuance of a certificate of approval, it is found by the Director that project modifications or changes are necessary to ensure conformity with the approved plans and specifications, the Director may issue an administrative order to the owner to comply with the plans and specifications. Within 15 calendar days after being served by personal service or by mail with a copy of an order issued pursuant to this section, any owner shall have the right to petition the Board for a hearing. A timely filed petition shall stay the effect of the administrative order. The hearing shall be conducted before the Board or a designated member of the Board pursuant to § 2.2-4019. The Board shall have the authority to affirm, modify, amend, or cancel the administrative order. Any owner aggrieved by a decision of the Board after a hearing shall have the right to judicial review of the final Board decision pursuant to the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
  3. Following the Board hearing, subject to judicial review of the final decision of the Board, if conditions are revealed that will not permit the construction of a safe dam or reservoir, the certificate of approval may be revoked. As part of the revocation, the Board may compel the owner to remove the incomplete structure sufficiently to eliminate any safety hazard to life or property.

History. 2006, c. 30.

§ 10.1-611. Dam safety coordination.

The Board shall coordinate all impoundment safety activities in the Commonwealth, which shall include, but not be limited to: (i) the maintenance of an inventory of all impoundment structures and of all other similar structures that are not regulated under this article to the extent the Board deems necessary; (ii) the maintenance of a repository for record drawings of all such structures to the extent the Board deems necessary; (iii) the maintenance of an inventory of safety inspection reports for each such structure to the extent the Board deems necessary; and (iv) the maintenance of a secondary repository for all dam safety emergency action plans, which are primarily filed with the Department of Emergency Management. The Board shall consult with the Department of Emergency Management in its planning for impoundment safety and shall provide technical assistance in the preparation, updating, and execution of dam safety emergency action plans. It shall establish uniform maintenance-of-records requirements and uniform inspection standards to be applied to all impounding structures in the Commonwealth and to be recommended for all other similar structures. It may inspect or cause to be inspected state-owned or state-licensed dams on a cost-reimbursable basis at the request of the state agency owning the state-owned dam or of the licensor of the state-licensed dam.

History. 1982, c. 583, § 62.1-115.8; 1986, c. 9; 1988, c. 891; 2012, cc. 70, 230.

The 2012 amendments.

The 2012 amendments by cc. 70 and 230 are identical, and substituted “that” for “which” in clause (i) in the first sentence, in the second sentence, inserted “consult with the Department of Emergency Management in its planning for impoundment safety and shall” near the beginning and substituted “dam safety emergency action plans” for “such plans” at the end and made minor stylistic changes.

§ 10.1-611.1. Soil and Water Conservation District Dam Maintenance, Repair, and Rehabilitation Fund established; Department to manage; Board to expend moneys; regulations.

  1. There is hereby created in the state treasury a special nonreverting fund to be known as the Soil and Water Conservation District Dam Maintenance, Repair, and Rehabilitation Fund, hereafter referred to as “the Fund.” The Fund shall be comprised of moneys appropriated to the Fund by the General Assembly and any other moneys designated for deposit to the Fund from any source, public or private. The Fund shall be established on the books of the Comptroller and the moneys shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for (i) the maintenance and repair of any dams owned by soil and water conservation districts and (ii) the rehabilitation and major repair of Class I and Class II dams owned by soil and water conservation districts, in order to bring such dams into compliance with regulations promulgated pursuant to Article 2 (§ 10.1-604 et seq.) of Chapter 6 of this title. Expenditures from the Fund made under clause (ii) of this subsection may include, but are not limited to, the following repairs to the infrastructure of a dam: increasing the height of a dam, modifying the spillway, and reducing wave erosion of a dam’s inside face. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Director of the Department of Conservation and Recreation.
  2. The Fund shall be administered and managed by the Department of Conservation and Recreation, subject to the right of the Board, following consultation with the Department of Conservation and Recreation, to direct the distribution of moneys in the Fund to particular soil and water conservation districts.
  3. The Board is authorized to promulgate regulations for the proper administration of the Fund. Such regulations may include, but are not limited to, the type and amount of financial assistance, the terms and conditions of the assistance, and project eligibility criteria.

History. 1997, c. 356; 2000, cc. 23, 205.

The 2000 amendments.

The 2000 amendments by cc. 23 and 205 are identical, and in subsection A, substituted “Maintenance, Repair, and Rehabilitation” for “Maintenance and Small Repair Fund” in the first sentence, in the sixth sentence added the clause (i) designation preceding “the maintenance and repair of,” inserted “any” thereafter and added clause (ii), and added the seventh sentence; and in subsection B, inserted “water” preceding “conservation districts.”

§ 10.1-612. Technical Advisory Committee.

The Board shall establish an Impoundment Safety Technical Advisory Committee to provide technical review. The Committee may make recommendations to the Board.

History. 1982, c. 583, § 62.1-115.9; 1988, c. 891.

§ 10.1-612.1. Temporary stop work order; hearing; injunctive relief.

  1. The Director may issue a temporary stop work order on a construction or alteration project if he finds that an owner is constructing or altering a dam without having first obtained the necessary certificate of approval, or if the activities are not in accordance with approved plans and specifications. The order shall include written notice to the owner of the date, time, and location where the owner may appear at a hearing before the Board or a designated member thereof pursuant to § 2.2-4019 to show cause why the temporary order should be vacated. The hearing shall be held within 15 calendar days of the date of the order, unless the owner consents to a longer period.
  2. Following the hearing, the Board may affirm or cancel the temporary order and may issue a final order directing that immediate steps be taken to abate or ameliorate any harm or damage arising from the violation. The owner may seek judicial review of the final decision of the Board pursuant to the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
  3. If the violation continues after the Board has issued a final decision and order pursuant to subsection B or a temporary order issued by the Director pursuant to subsection A, the Board may apply for an injunction from the appropriate court. A decision to seek injunctive relief does not preclude other forms of relief, enforcement, or penalties against the owner.

History. 2006, c. 30.

§ 10.1-613. Enforcement.

Any person or legal entity failing or refusing to comply with an order issued pursuant to this article may be compelled to comply with the order in a proceeding instituted in any appropriate court by the Board. The Board shall bring suit in the name of the Commonwealth in any court of competent jurisdiction to enjoin the unlawful construction, modification, operation, or maintenance of any dam regulated under this article. Such court may require the removal or modification of any such dam by mandatory injunction. If the court orders the removal of the dam, the owner shall be required to bear the expenses of such removal.

Should the Board be required to implement and carry out the action, the Board shall charge the owner for any expenses associated with the action, and if the repayment is not made within 90 days after written demand, the Board may bring an action in the proper court to recover this expense. The Board shall file an action in the court having jurisdiction over any owner or the owner’s property for the recovery of such costs. A lien in the amount of such costs shall be automatically created on all property owned by any such owner at or proximate to such dam or reservoir.

History. 1982, c. 583, § 62.1-115.10; 1988, c. 891; 2006, c. 30.

The 2006 amendments.

The 2006 amendment by c. 30 added the last three sentences in the first paragraph and added the second paragraph.

§ 10.1-613.1. Criminal penalties.

  1. It is unlawful for any owner to knowingly:
    1. Operate, construct, or alter a dam without an approval as provided in this article;
    2. Violate the terms of an approval, order, regulation, or requirement of the Board or Director under this article; or
    3. Obstruct, hinder, or prevent the Board or its designated agents or employees from performing duties under this article.A violation of any provision of this subsection or this article is a Class 3 misdemeanor.
  2. Each day that any such violation occurs after notice of the original violation is served upon the violator by the Board or its designated agents or employees by registered mail shall constitute a separate offense. Upon conviction, the violator is subject to a fine not exceeding $500 per day for each day of the offense, not to exceed a total fine of $25,000, with costs imposed at the discretion of the court. In determining the amount of the penalty, the appropriate court shall consider the degree of harm to the public; whether the violation was knowing or willful; the past conduct of the defendant; whether the defendant should have been on notice of the violation; whether the defendant has taken steps to cease, remove, or mitigate the violation; and any other relevant information.

History. 2006, c. 30.

Cross references.

As to punishment for Class 3 misdemeanors, see § 18.2-11 .

Research References.

Virginia Forms (Matthew Bender). No. 6-1101. Petition to Impound Surface Waters.

§ 10.1-613.2. Civil penalties.

In addition to or in lieu of any other forfeitures, remedies, or penalties authorized by law or regulations, any owner violating any provision of this article may be assessed a civil penalty of up to $500 per day by the Board not to exceed a maximum of $25,000.

In setting the civil penalty amount, the Board shall consider (i) the nature, duration, and number of previous instances of failure by the owner to comply with requirements of law relating to dam safety and the requirements of Board regulations and orders; (ii) the efforts of the owner to correct deficiencies or other instances of failure to comply with the requirements of law relating to dam safety and the requirements of Board regulations and orders that are the subject of the proposed penalty; (iii) the cost of carrying out actions required to meet the requirements of law and Board regulations and orders; (iv) the hazard classification of the dam; and (v) other factors deemed appropriate by the Board.

All civil penalties will be assessed by written penalty notice from the Board and given by certified mail or personal service. The notice shall state the specific reasons for the penalty, the number of days the Department considers the owner in violation, and the total amount due. Within 30 days after receipt of a copy of the order issued pursuant to this section, any owner subject to the civil penalty provisions shall have the right to petition the Board, in writing, for a hearing. A timely filed petition shall stay the effect of the penalty notice.

The hearing shall be conducted before the Board or a designated member thereof pursuant to § 2.2-4019. The Board shall affirm, modify, amend, or cancel the penalty notice within 10 days following the conclusion of the hearing. Any owner aggrieved by a decision of the Board after a hearing shall have the right to judicial review of the final Board decision pursuant to the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

If any civil penalty has not been paid within 45 days after the final Board decision or court order has been served on the violator, the Board shall request the Attorney General to institute a civil action in the court of any county in which the violator resides or has his principal place of business to recover the amount of the assessment.

Civil penalties assessed under this section shall be paid into the Flood Prevention and Protection Assistance Fund, established pursuant to § 10.1-603.17 , and shall be used for the administration of the dam safety program, including for the repair and maintenance of dams.

History. 2006, c. 30.

Research References.

Virginia Forms (Matthew Bender). No. 6-1101. Petition to Impound Surface Waters.

§ 10.1-613.3. No liability of Board, Department, employees, or agents.

An owner may not bring an action against the Commonwealth, the Board, the Department, or agents or employees of the Commonwealth for the recovery of damages caused by the partial or total failure of a dam or reservoir, or by the operation of a dam or reservoir, or by an act or omission in connection with:

  1. Approval of the construction, alteration, or maintenance of a dam or reservoir, or approval of flood-operations plans during or after construction;
  2. Issuance or enforcement of orders relating to maintenance or operation of the dam or reservoir;
  3. Control or regulation of the dam or reservoir;
  4. Measures taken to protect against failure of the dam or reservoir during an emergency;
  5. Investigations or inspections authorized under this article;
  6. Use of design and construction criteria prepared by the Department; or
  7. Determination of the hazard classification of the dam.

History. 2006, c. 30.

§ 10.1-613.4. Liability of owner or operator.

  1. Notwithstanding subsection B, nothing in this article, and no order, notice, approval, or advice of the Director or Board shall relieve any owner or operator of an impounding structure from any legal duties, obligations, and liabilities resulting from such ownership or operation. The owner or operator shall be responsible for liability for damage to the property of others or injury to persons, including the loss of life resulting from the operation or failure of an impounding structure. Compliance with this article does not guarantee the safety of an impounding structure or relieve the owner or operator of liability in case of an impounding structure failure.
  2. The owner of the land upon which an impounding structure owned, maintained, or operated by a soil and water conservation district is situated shall not be responsible for liability for damages to the property of others or injury to persons, including the loss of life, resulting from the operation or failure of the impounding structure. The provisions of this subsection shall not apply if the damages to the property of others or injury to persons is the result of an act or omission of the landowner unrelated to ownership, maintenance, or operation of the impounding structure.
  3. Prior to dissolution or termination of an entity that owns an impounding structure, the entity shall either convey ownership to a third party by deed or other legal conveyance or decommission the impounding structure pursuant to the requirements of the Virginia Impounding Structure Regulations. Prior to conveying ownership, the owner shall notify the Director of such transfer of ownership in accordance with requirements set out in the Virginia Impounding Structure Regulations. Such notice to the Director shall include a warrant by the transferring owner that the transferee is a responsible party capable of discharging all obligations of an impounding structure owner imposed by law and regulations.
  4. The Commonwealth, the Board, or the Department shall not be deemed to become an owner of an impounding structure by providing funding or other assistance for maintenance, repair, or decommissioning of an impounding structure owned by another person or entity.

History. 2006, c. 30; 2014, cc. 146, 304, 593.

Cross references.

As to payments by developer or subdivider of costs associated with development in dam break inundation zones, see § 15.2-2243.1 .

The 2014 amendments.

The 2014 amendments by cc. 146 and 304 are identical, and substituted “A. Notwithstanding subsection B, nothing” for “Nothing” and “an impounding” for “a” in the first sentence; deleted “but not limited to,” following “persons, including” in the second sentence; substituted “an impounding structure” for “a dam” once in the second sentence and twice in the third sentence; and added subsection B.

The 2014 amendment by c. 593 designated the existing provision as subsection A, substituted “an impounding” for “such a,” “the loss” for “but not limited to, loss,” “an impounding structure” for “a dam” three times, and inserted “or operator” twice; and added subsections B and C, which were subsequently redesignated as subsections C and D by the Virginia Code Commission.

Research References.

Virginia Forms (Matthew Bender). No. 6-1101. Petition to Impound Surface Waters.

§ 10.1-613.5. Program administration fees; establishment of Dam Safety Administrative Fund.

  1. The Board is authorized to establish and collect application fees from any applicant to be deposited into the Dam Safety Administrative Fund established pursuant to subsection B. Permit applications shall not be reviewed without a full payment of the required fee. Virginia Soil and Water Conservation Districts shall be exempt from all fees established pursuant to this section.
  2. There is hereby created in the state treasury a special nonreverting fund to be known as the Dam Safety Administrative Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. The Fund shall consist of permit application fees authorized under subsection A and shall be used for the administration of the dam safety program, including actions taken in accordance with §§ 10.1-608 , 10.1-609 , and 10.1-613 . All such funds shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Director.

History. 2006, c. 30; 2010, c. 13.

Editor’s note.

Acts 2014, cc. 475 and 489, cl. 1, effective April 1, 2014, provides: Ҥ 1. That the Department of Conservation and Recreation, on behalf of the Virginia Soil and Water Conservation Board, shall utilize a storm-based approach in order to derive the Probable Maximum Precipitation (PMP) for locations within or affecting the Commonwealth. The PMP revisions shall be based on accepted storm evaluation techniques and take into account such factors as basin characteristics that affect the occurrence and location of storms and precipitation, regional and basin terrain influences, available atmospheric moisture, and seasonality of storm types. The results shall be considered by the Virginia Soil and Water Conservation Board in its decision to authorize the use of the updated PMP values in Probable Maximum Flood calculations, thus replacing the current PMP values. Such PMP revisions shall be adopted by the Board if it finds that the analysis is valid and reliable and will result in cost savings to owners for impounding structure spillway construction or rehabilitation efforts.

Ҥ 2. The development of the methodology shall be completed by December 1, 2015.

“§ 3. Owners of impounding structures with spillway design inadequacies who maintain coverage under a Conditional Operation and Maintenance Certificate in accordance with the Board’s Impounding Structure Regulations (4VAC50-20) shall not be required to rehabilitate the spillway of their impounding structure until the analysis required under § 1 has been completed and reviewed by the Virginia Soil and Water Conservation Board. Such owners shall remain subject to all other requirements of the Dam Safety Act (§ 10.1-604 et seq.) and regulations.”

Acts 2014, cc. 475 and 489, cl. 2, effective April 1, 2014, provides: “That in addition to other sums made available, the Department of Conservation and Recreation is authorized to utilize up to $500,000 in unobligated balances in the Dam Safety, Flood Prevention and Protection Assistance Fund established pursuant to § 10.1-603.17 of the Code of Virginia or the Dam Safety Administrative Fund established pursuant to § 10.1-613.5 of the Code of Virginia to contract out for the analysis required under § 1.”

The 2010 amendments.

The 2010 amendment by c. 13 designated the existing provisions of the section as subsection A and rewrote the first sentence; and added subsection B.

§ 10.1-613.6. Negotiated settlement agreements.

With the consent of any owner of an impounding structure who has allegedly violated or failed, neglected, or refused to obey any regulation or order of the Board, any condition of a permit, or any provision of this chapter, the Board may enter into a negotiated settlement agreement with such owner, so long as the impounding structure or dam is not subject to the provisions of § 10.1-609 , to correct deficiencies at the structure according to the schedule of implementation appended to the negotiated settlement agreement and for the payment of civil charges for past alleged violations in specific sums not to exceed the limit specified in § 10.1-613.2 . Such civil charges shall be suspended upon compliance with the terms and conditions of the negotiated settlement agreement as determined by the Director. Such civil charges shall be instead of any appropriate civil penalty that could be imposed under § 10.1-613.2 and shall be paid into the Dam Safety, Flood Prevention and Protection Assistance Fund established by Article 1.2 (§ 10.1-603.16 et seq.).

History. 2021, Sp. Sess. I, c. 97.

Effective date.

This section is effective July 1, 2021.

Article 3. Watershed Improvements Districts.

§ 10.1-614. Establishment within soil and water conservation district authorized.

Whenever it is found that soil and water conservation or water management within a soil and water conservation district or districts will be promoted by the construction of improvements to check erosion, provide drainage, collect sediment or stabilize the runoff of surface water, a small watershed improvement district may be established within such soil and water conservation district or districts in accordance with the provisions of this article.

History. 1956, c. 668, § 21-112.1; 1964, c. 512; 1973, c. 35; 1977, c. 40; 1988, c. 891.

§ 10.1-615. Petition for establishment; what to set forth.

  1. Any twenty-five owners of land lying within the limits of a proposed watershed improvement district, or a majority of such owners if there are fewer than fifty, may file a petition with the directors of the soil and water conservation district or districts in which the proposed watershed improvement district is situated asking that a watershed improvement district be organized to function in the territory described in the petition. The petition shall set forth:
    1. The proposed name of the watershed improvement district;
    2. That there is need, in the interest of the public health, safety, and welfare, for a watershed improvement district to function in the territory described in the petition;
    3. A description of the territory proposed to be organized as a watershed improvement district, which description shall be deemed sufficient if generally accurate;
    4. That the territory described in the petition is contiguous and is the same watershed, or is two or more contiguous watersheds;
    5. A request that the territory described in the petition be organized as a watershed improvement district;
    6. The method for financing the proposed district, whether by means of a tax on all real estate in the proposed district or a service charge on the increase in the fair market value of all real estate in the proposed district caused by the district’s project.
  2. Land lying within the limits of one watershed improvement district shall not be included in another watershed improvement district.

History. 1956, c. 668, § 21-112.2; 1964, c. 512; 1970, c. 480; 1977, c. 40; 1981, c. 156; 1988, c. 891.

§ 10.1-616. Notice and hearing on petition; determination of need for district and defining boundaries.

Within thirty days after a petition has been filed with the directors of the soil and water conservation district or districts, they shall cause due notice to be given of a hearing upon the practicability and feasibility of creating the proposed watershed improvement district. All owners of land within the proposed watershed improvement district and all other interested parties shall have the right to attend such a hearing and to be heard. If the directors determine from the hearing that there is need, in the interest of the public health, safety, and welfare, for the organization of the proposed watershed improvement district, they shall record their determination and define the boundaries of the watershed improvement district. The provisions of Article 2 (§ 10.1-502 et seq.) of Chapter 5 of this title shall apply, mutatis mutandis, to such proceedings.

History. 1956, c. 668, § 21-112.3; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-617. Determination of whether operation of proposed district is feasible; referendum.

If the district directors determine that a need for the proposed watershed improvement district exists and after they define the boundaries of the proposed district, they shall consider the administrative feasibility of operating the proposed watershed improvement district. To assist the district directors in determining such question, a referendum shall be held upon the proposition of the creation of the proposed watershed improvement district. Due notice of the referendum shall be given by the district directors. All owners of land lying within the boundaries of the proposed watershed improvement district shall be eligible to vote in the referendum. The district directors may prescribe necessary regulations governing the conduct of the hearing.

History. 1956, c. 668, § 21-112.4; 1964, c. 512; 1970, c. 480; 1988, c. 891; 1995, c. 654.

§ 10.1-618. Ballots used in such referendum.

The question shall be submitted by ballots, which shall contain the following question: “Shall a watershed improvement district be created of the lands described below and lying in the county(ies) or city(ies) of . . . . . . . . . . . . . . and . . . . . . . . . . . . .?

• Yes

• No”

The ballot shall set forth the boundaries of the proposed district determined by the Board.

The ballot shall also set forth the method or methods of real estate assessment as determined by the district directors.

History. 1956, c. 668, § 21-112.5; 1970, c. 480, § 21-112.4:1; 1977, c. 40; 1988, c. 891.

§ 10.1-619. Consideration of results of referendum; simple majority vote required.

The results of the referendum shall be considered by the district directors in determining whether the operation of the proposed watershed improvement district is administratively practicable and feasible. The district directors shall not be authorized to determine that operation of the proposed watershed improvement district is administratively practicable and feasible unless a simple majority of the votes cast in the referendum have been cast in favor of the creation of the watershed improvement district.

History. 1956, c. 668, § 21-112.5; 1970, c. 480; 1977, c. 40; 1988, c. 891; 2005, c. 128.

The 2005 amendments.

The 2005 amendments by c. 128 substituted “a simple majority” for “at least two thirds” and deleted “which two-thirds vote shall also represent ownership of at least two-thirds of the land in the proposed district” following “referendum” and made a minor punctuation change.

§ 10.1-620. Declaration of organization of district; certification to Board.

If the district directors determine that operation of the proposed watershed improvement district is administratively practicable and feasible, they shall declare the watershed improvement district to be organized and shall record the fact in their official minutes. Following such entry in their official minutes, the district directors shall certify the fact of the organization of the watershed improvement district to the Virginia Soil and Water Conservation Board, and shall furnish a copy of the certification to the clerk of each county or city in which any portion of the watershed improvement district is situated for recordation in the public land records of each such county or city. The watershed improvement district shall thereupon constitute a political subdivision of this Commonwealth.

History. 1956, c. 668, § 21-112.6; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-621. Establishment of watershed improvement district situated in more than one soil and water conservation district.

If a proposed watershed improvement district is situated in more than one soil and water conservation district, copies of the petition shall be presented to the directors of all the soil and water conservation districts in which the proposed watershed improvement district is situated, and the directors of all affected soil and water conservation districts shall act jointly as a board of directors with respect to all matters concerning the watershed improvement district, including its organization. The watershed improvement district shall be organized in the same manner and shall have the same powers and duties as a watershed improvement district situated entirely in one soil and water conservation district.

History. 1956, c. 668, § 21-112.7; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-622. Inclusion of additional territory.

Petitions for including additional territory within an existing watershed improvement district may be filed with directors of the soil and water conservation district or districts in which the watershed improvement district is situated, and in such cases the provisions hereof for petitions to organize the watershed improvement district shall be observed to the extent deemed practicable by the district directors. In referenda upon petitions for such inclusion, all owners of land situated in the proposed additional territory shall be eligible to vote. No additional territory shall be included in an existing watershed improvement district unless owners of land representing two-thirds of the acreage proposed to be included vote in favor thereof.

History. 1956, c. 668, § 21-112.8; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-623. Governing body of district; trustees.

The directors of the soil and water conservation district or districts in which the watershed improvement district is situated shall be the governing body of the watershed improvement district. They may appoint, in consultation with and subject to the approval of the Virginia Soil and Water Conservation Board, three trustees who shall be owners of land within the watershed improvement district. The trustees shall exercise the administrative duties and powers delegated to them by the directors of the soil and water conservation district or districts. The trustees shall hold office at the will of the directors of the soil and water conservation district or districts and the Virginia Soil and Water Conservation Board. The trustees shall designate a chairman and may change such designation. One of the trustees may be selected as treasurer and shall be responsible for the safekeeping of the funds of the watershed improvement district. When a watershed improvement district lies in more than one soil and water conservation district, the directors of all such districts shall act jointly as the governing body of the watershed improvement district.

History. 1956, c. 668, § 21-112.9; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-624. Officers, agents and employees; surety bonds; annual audit.

The trustees may, with the approval of the directors of the soil and water conservation district or districts, employ such officers, agents, and other employees as they require, and shall determine their qualifications, duties and compensation. The district directors shall provide for the execution of surety bonds for the treasurer and such other trustees, officers, agents, and employees as shall be entrusted with funds or property of the watershed improvement district, and shall publish an annual audit of the accounts of receipts and disbursements of the watershed improvement district.

History. 1956, c. 668, § 21-112.10; 1964, c. 512; 1970, c. 480; 1988, c. 891.

§ 10.1-625. Status and general powers of district; power to levy tax or service charge; approval of landowners required.

A watershed improvement district shall have all of the powers of the soil and water conservation district or districts in which the watershed improvement district is situated, and in addition shall have the authority to levy and collect a tax or service charge to be used for the purposes for which the watershed improvement district was created. No tax shall be levied nor service charge imposed under this article unless two-thirds of the owners of land, which two-thirds owners shall also represent ownership of at least two-thirds of the land area in such district, voting in a referendum called and held in the manner prescribed in this article, approve the levy of a tax to be expended for the purposes of the watershed improvement district.

History. 1956, c. 668, § 21-112.11; 1964, c. 512; 1981, c. 156; 1988, c. 891; 1995, c. 654.

§ 10.1-626. Levy of tax or service charge; when district in two or more counties or cities; landbooks certified to treasurers.

  1. On or before March 1 of each year, the trustees of the watershed improvement district shall make an estimate of the amount of money they deem necessary to be raised for the year in such district (i) for operating expenses and interest payments and (ii) for amortization of debt, and, after approval by the directors of the soil and water conservation district or districts, and the Virginia Soil and Water Conservation Board, shall establish the tax rate or service charge rate necessary to raise such amount of money. The tax rate or service charge rate to be applied against the amount determined under subsection C or D of this section shall be determined before the date fixed by law for the determination of the general levy by the governing body of the counties or cities in which the district is situated.
  2. The trustees of a watershed improvement district which imposes a tax on real estate or a service charge based on the increase in the fair market value of real estate caused by the district’s project shall make up a landbook of all properties subject to the watershed improvement district tax or service charge on forms similar to those used by the county or city affected.A separate landbook shall be made for each county or city if the district is located in more than one county or city. The landbook or landbooks of all properties subject to the district tax or the service charge, along with the tax rate or service charge rate fixed by the governing body of the district for that year, shall be certified to the appropriate county or city treasurer or treasurers, and filed in the clerk’s office of such locality or localities, by the governing body of the watershed improvement district on or before the day the county or city landbook is required to be so certified. Such landbook or landbooks shall be subject to the same retention requirements as the county or city landbook.
  3. For tax purposes under this article, the assessed valuation of all real estate located in a watershed improvement district shall be the same fair market valuation that appears in the most recent landbook for the county, city, or town wherein the subject property is located. However, in a watershed improvement district which is located in two or more counties or cities and in which there is a disparity of assessed valuations between the counties or cities, the governing body of the watershed improvement district may petition the judge or judges of the circuit courts in which the district is located to appoint one or more persons to assess all of the real estate in the district. The compensation of such person or persons shall be prescribed by the governing body of the district and paid out of the funds of the district.
  4. In districts authorized to impose a service charge, the service charge shall be based on the initial increase in fair market value resulting from a project. In order to determine the initial increase in fair market value, the trustees shall subtract the fair market value of each parcel without the project, as shown in the landbook for the year immediately preceding the year in which the project was begun from the fair market value of the parcel following completion of the project. The fair market value of each parcel with the project shall be determined by the district directors in a reasonable manner. The values so determined shall be the values against which the service charge rate is imposed so long as any bonds remain outstanding, and thereafter unless a change is approved by the district directors. If an additional improvement is made while any bonds are outstanding, the district directors may cause a new increase in fair market values to be computed to reflect such improvement. However, while any bonds are outstanding, such newly computed values shall not be used unless the total new increase in fair market values in the district is equal to or greater than the previously determined increase in fair market values. Within thirty days after determining the increase in fair market value for all real estate in the watershed improvement district resulting from the project, the trustees shall mail a notice of such determination to the owner of record of each parcel in the district.
  5. The assessments and determinations of increase in fair market value made under the provisions of this section may be used only for the watershed improvement district tax or service charge and shall in no way affect any county or city assessment or levies.
  6. Any person, firm, or corporation aggrieved by any determination of increased value made under any provision of this article shall apply in writing to the trustees of the watershed improvement district within sixty days after the mailing of the notice required in subsection D of this section. Such application shall specify the increased value in the opinion of the applicant and the basis for such opinion. The trustees shall rule on all such applications within 120 days after mailing the notice required in subsection D of this section. If any applicant remains aggrieved by the determination of increased value after such a ruling, he may apply to the circuit court of the county or city wherein the land is situated for a correction of such determination of increased value, within the time limits and following the procedures set out in Article 5 (§ 58.1-3980 et seq.) of Chapter 39 of Title 58.1.
  7. The provisions of this section shall not be used to change the method of real estate assessment in any watershed improvement district established prior to January 1, 1976.

History. 1981, c. 156, § 21-112.12:1; 1988, c. 891.

§ 10.1-627. Collection of tax or service charge; proceeds kept in special account; expenditures from such account.

The special tax or service charge levied shall be collected at the same time and in the same manner as county or city taxes with the proceeds therefrom to be kept in a separate account by the county or city treasurer identified by the official name of the watershed improvement district. Expenditures from such account may be made with the approval of the directors of the soil and water conservation district or districts on requisition from the chairman and the treasurer of the board of trustees of the watershed improvement district.

History. 1956, c. 668, § 21-112.13; 1964, c. 512; 1970, c. 480; 1981, c. 156; 1988, c. 891.

§ 10.1-628. Fiscal powers of governing body; may poll landowners on question of incurring indebtedness or issuing bonds.

The governing body of any watershed improvement district shall have power, subject to the conditions and limitations of this article, to incur indebtedness, borrow funds, and issue bonds of such watershed improvement district. The circuit court of the county or city in which any portion of the watershed improvement district is located, upon the petition of a majority of the members of the governing body of the watershed improvement district, shall order a referendum at any time not less than thirty days from the date of such order, which shall be designated therein, to determine whether the governing body shall incur indebtedness or issue bonds for one or more of the purposes for which the watershed improvement district was created.

The referendum shall be conducted in the manner prescribed by this article for the conduct of other referendums in the watershed improvement districts.

History. 1956, c. 668, §§ 21-112.14, 21-112.15; 1964, c. 512; 1988, c. 891; 1995, c. 654.

§ 10.1-629. Order authorizing governing body to incur indebtedness or issue bonds.

If the owners of at least two-thirds of the land area in the district vote in the election, and if at least two-thirds of the voters in the election vote in favor of incurring the indebtedness or issuing bonds, the circuit court or courts shall enter an order authorizing the governing body of the watershed improvement district to incur indebtedness or issue bonds for one or more of the purposes for which the district was created.

History. 1956, c. 668, § 21-112.16; 1988, c. 891.

§ 10.1-630. Type of indebtedness incurred or bonds issued.

The type of indebtedness incurred or bonds issued shall be that adopted by the governing body of the watershed improvement district and approved by the Virginia Soil and Water Conservation Board.

History. 1956, c. 668, § 21-112.17; 1964, c. 512; 1988, c. 891; 1996, cc. 105, 819.

§ 10.1-631. Annual tax for payment of interest or to amortize indebtedness or bonds.

The governing body of the watershed improvement district shall, if necessary to pay the interest on the indebtedness or bonds or to amortize such indebtedness or bonds, levy an annual tax or service charge in the manner prescribed by § 10.1-626 on all the real estate in the watershed improvement district subject to local taxation, to satisfy such obligations. This tax, irrespective of any approvals required pursuant to § 10.1-614 , shall be sufficient to pay interest and to amortize such indebtedness or bonds at the times required.

History. 1956, c. 668, § 21-112.18; 1973, c. 35; 1981, c. 156; 1988, c. 891; 1996, cc. 105, 819.

§ 10.1-632. Powers granted additional to powers of soil and water conservation district; soil and water conservation district to continue to exercise its powers.

The powers herein granted to watershed improvement districts shall be additional to the powers of the soil and water conservation district or districts in which the watershed improvement district is situated; and the soil and water conservation district or districts shall be authorized, notwithstanding the creation of the watershed improvement district, to continue to exercise their powers within the watershed improvement district.

History. 1956, c. 668, § 21-112.19; 1964, c. 512; 1988, c. 891.

§ 10.1-633. Power to incur debts and accept gifts, etc.; watershed improvement district to have same powers as soil and water conservation district.

A watershed improvement district shall have power, as set forth in this article, to incur debts and repay them over the period of time and at the rate or rates of interest, not exceeding eight percent, that the lender agrees to. Any watershed improvement district may accept, receive and expend gifts, grants or loans from whatever source received. In addition, they shall have the same powers, to the extent necessary, within the watershed improvement district that the soil and water conservation district or districts in which the same is located exercise or may possess.

History. 1956, c. 668, § 21-112.20; 1964, c. 512; 1977, c. 40; 1988, c. 891.

§ 10.1-634. Question to be submitted to qualified voters; approval required.

In connection with any referendum held pursuant to the provisions of this article, the directors shall also provide for the submission of the question involved to the qualified voters of the watershed improvement district and any question required to be submitted to referendum hereunder shall only be deemed to be approved, if approved both by vote of the landowners of the district as here above required and by a majority vote of the qualified voters of the district voting in such referendum.

History. 1973, c. 35, § 21-112.20:1; 1988, c. 891.

§ 10.1-634.1. Conduct of referenda.

  1. Except as provided in subsection B, the referenda authorized or required by this article shall be conducted pursuant to regulations prescribed by the Virginia Soil and Water Conservation Board and not as provided for under § 24.2-684 .
  2. Referenda authorized or required by this article prior to the regulations referred to in subsection A becoming effective shall be conducted by the district directors of the soil and water conservation district in which the watershed improvement district is situated pursuant to the provisions of this article as they were effective on January 1, 1995, and Article 5 (§ 24.2-681 et seq.) of Chapter 6 of Title 24.2. The costs of holding referenda under this subsection shall be paid by the requesting landowners.

History. 1995, c. 654; 1996, c. 983.

§ 10.1-635. Power of eminent domain.

In addition to any other powers conferred on it by law, any watershed improvement district organized under the provisions of this article shall be authorized to acquire by eminent domain any lands, property rights, franchises, rights-of-way, easements or other property deemed necessary or convenient for the efficient operation of the district. Such proceedings shall be in accordance with and subject to the provisions of the laws of the Commonwealth applicable to the exercise of the power of eminent domain in the name of a public service company and subject to the provisions of Chapter 2 (§ 25.1-200 et seq.) of Title 25.1.

History. 1958, c. 411, § 21-112.21; 1988, c. 891; 2003, c. 940.

The 2003 amendments.

The 2003 amendment by c. 940 substituted “Chapter 2 (§ 25.1-200 et seq.) of Title 25.1” for “Chapters 1.1 (§ 25-46.1 et seq.) and 5 (§ 25-232.01 et seq.) of Title 25.”

Article 4. Conservation, Small Watersheds Flood Control and Area Development Fund.

§ 10.1-636. Definitions.

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

“Board” means the Virginia Soil and Water Conservation Board.

“Facility” means any structures, foundations, appurtenances, spillways, lands, easements and rights-of-way necessary to (i) store additional water for immediate or future use in feasible flood prevention sites; (ii) create the potential to store additional water by strengthening the foundations and appurtenances of structures in feasible flood prevention sites; or (iii) store water in sites not feasible for flood prevention programs, and to properly operate and maintain such stores of water or potential stores of water.

“Fund” or “revolving fund” means the Conservation, Small Watersheds Flood Control and Area Development Fund.

“Storing additional water in feasible flood prevention sites” means storage of water for other than flood prevention purposes above the capacity of any given structure to hold water for the purpose of flood prevention in flood prevention sites within a flood prevention project having a favorable benefit-cost ratio where it is economically feasible to provide the capacity to store additional water or the potential for additional water storage capacity.

History. 1970, c. 591, § 21-11.2; 1988, c. 891.

§ 10.1-637. Fund continued; administrative control.

The “Conservation, Small Watersheds Flood Control and Area Development Fund,” is continued and shall be administered and used as hereinafter provided. The revolving fund shall also consist of any moneys appropriated by the General Assembly.

The administrative control of the fund and the responsibility for the administration of the provisions of this article are hereby vested in the Virginia Soil and Water Conservation Board. The Board is authorized to establish guidelines for the proper administration of the fund and the provisions of this article.

History. 1970, c. 591, §§ 21-11.1, 21-11.4; 1988, c. 891.

§ 10.1-638. Purposes for which fund to be used.

  1. The Board is authorized, with the concurrence of the State Treasurer, to order the State Comptroller to make loans from the revolving fund to any county, city, town, water authority, utility or service authority or special taxing district, hereafter referred to as the borrower, having the legal capacity and organizational arrangements necessary for obtaining, giving security for, and raising revenues for repaying authorized loans, and for operating and maintaining facilities for which the loan is made. The money loaned shall be used by the borrower for facilities to store additional water in feasible flood prevention sites or to store water in sites not feasible for flood prevention programs. The amount of any loan or the sum of any outstanding loans to any one borrower shall not exceed $500,000 without the written approval of the Governor.
  2. To promote the economic growth of the Commonwealth, the Board, after public hearing and with the written approval of the Governor, may invest funds from the revolving fund in facilities to store additional water in feasible flood prevention sites for municipal, industrial, and other beneficial uses where localities fail to do so, or in facilities to create the potential to store additional water in feasible flood prevention sites where impoundment projects are being developed to less than optimum potential, thereby allowing the enlargement of such impoundments as the need arises. Such action may be initiated by a request from the soil and water conservation district or districts encompassing such water storage sites.
  3. The Board may draw on the revolving fund to meet maintenance expenses incident to the proper management and operation of facilities resulting from the investments authorized by subsection B above. In addition, the Board may draw on the revolving fund for emergency repairs to the above facilities and facilities constituting the security for loans made by authority of subsection A above. The Board shall not provide funds for emergency repairs to facilities constituting security for loans unless it appears to the Board that funds for repairs are not available from other sources.
  4. The Board is authorized to purchase, operate and maintain necessary machinery and other equipment suitable for engineering and other operations incident to soil and water conservation and other purposes of the Board. The Board shall have the custody and control of the machinery and other equipment, and shall provide storage for it, and it shall be available to the districts upon terms the Board prescribes. In addition to other terms the Board may prescribe, it shall have authority to execute rental-purchase contracts with individual districts for the equipment, whereby the title to machinery and other equipment purchased under authority of this law may be transferred to such district when approved by the Board. The Board may, in its discretion, sell the same to any person upon terms and conditions it may deem proper. The proceeds derived from the sale or rental of machinery, provided for in this section and in § 10.1-552 , shall be paid into the revolving fund.
  5. The Board is authorized to make loans from the revolving fund to any soil and water conservation district for the purchase of necessary machinery and other equipment suitable for engineering and other operations incident to soil and water conservation and other purposes of the district. Terms for loans to districts under this section shall be prescribed by the Board, and payments of interest and principal shall be made to the State Treasurer and credited to the revolving fund.

History. 1970, c. 591, § 21-11.3; 1972, c. 821; 1982, c. 68; 1988, c. 891.

§ 10.1-639. Conditions for making loan.

The Board shall authorize the making of a loan under the provisions of § 10.1-638 A only when the following conditions exist:

  1. An application for the loan has been submitted by the borrower in the manner and form specified by the Board, setting forth in detail the need for the storage of water, the amount of the loan requested and the use to which the loan shall be applied as well as any efforts made to secure funds from any other source, and such other information required by the Board. The application shall be first submitted to the soil and water conservation district or districts encompassing the watershed wherein the proceeds of the loan would be applied. When the application is approved by the district or districts, the application shall be forwarded to the Board.
  2. The borrower agrees and furnishes assurance, satisfactory to the Board, that it will satisfactorily maintain any structure financed in whole or in part through the loans provided by this article.
  3. The purpose for which the loan is sought is to acquire land, easements and rights-of-way, or engineering or legal services necessary for a water storage facility or project, or to construct the water storage facility itself.

    If the requested loan or any part thereof is for the purpose of acquiring land, easements and rights-of-way, then the loan or part thereof designated for such purpose shall not be granted in the absence of evidence satisfactory to the Board that the borrower requesting the loan will in fact acquire the land, easements or rights-of-way if the loan is granted.

History. 1970, c. 591, § 21-11.5; 1988, c. 891.

§ 10.1-640. Political subdivisions may borrow from other sources.

Any entity eligible under § 10.1-638 A may borrow funds as provided in this article before, simultaneously, or after borrowing funds from other sources for the same purpose for which funds are borrowed under the provisions of this article.

History. 1970, c. 591, § 21-11.11; 1988, c. 891.

§ 10.1-641. Powers of Board in aid of the provisions of § 10.1-638.

The Board shall have the following powers to effectuate the provisions of § 10.1-638 B:

  1. To expend funds from the revolving fund for field surveys and investigations, notwithstanding the possibility that the Board may subsequently determine that the proposed investment is not feasible.
  2. To make and execute contracts and other instruments necessary or convenient to the construction, improvement, operation and maintenance of facilities.
  3. To make agreements with and act as agent for the United States, or any of its agencies, or for this Commonwealth or any of its agencies, or any local government in connection with the acquisition, construction, maintenance, operation, or administration of any project in which the Board has invested funds; to accept donations, gifts, and contributions in money, services, materials, or otherwise, from the United States or any of its agencies, or from this Commonwealth or any of its agencies or from any other source; and to use or expend such moneys, services, materials, or other contributions in carrying on its investment function.
  4. To obtain options upon and to acquire, by purchase, exchange, lease, gift, grant, bequest, devise, or otherwise, any property, real or personal, or rights or interests therein, and improve any properties acquired.

History. 1970, c. 591, § 21-11.13; 1988, c. 891.

§ 10.1-642. Record of applications for loans and action taken.

A record of each application for a loan pursuant to § 10.1-639 received by the Board and the action taken thereon shall be open to public inspection at the office of the Board.

History. 1970, c. 591, § 21-11.8; 1988, c. 891; 2007, c. 637.

The 2007 amendments.

The 2007 amendment by c. 637 deleted “and shall be presented to the Governor and members of the legislature prior to the budgetary sessions of the General Assembly” from the end.

§ 10.1-643. Period of loan; interest rate; loan shall constitute a lien.

Any loan made pursuant to the provisions of § 10.1-638 A may be made for any period not to exceed twenty years and shall bear interest at the rate of one percent annually for the first ten years or until such time as water stored under the provisions of this article is used by the borrower for the purpose stated in the application for the loan, if such use occurs within the first ten years. Interest on the loan for the second ten-year period plus the balance of the first ten-year period during which water was used, if any, shall bear interest at a rate set jointly by the Board and the State Treasury Board. Such interest rate shall conform as nearly as possible to the interest on bonds sold for water development or similar purposes within the Commonwealth within the last six months prior to setting such interest rate, taking into consideration any fluctuations of the money market which may have occurred subsequent to the last sale of such bonds within the six-month period. If no such bonds have been sold within the six-month period, the interest rate shall be set to conform as nearly as possible with the rate charged by the commercial money market for such or similar purposes. However, when the attendant facilities, such as but not limited to a filtration plant, pumping station, and pipelines, necessary for the use of the water stored cost the borrower more than $100,000, interest on the loan for the second ten-year period or the ten-year period plus the balance of the first ten-year period during which water was used, if any, shall be at the rate of three percent annually. Any borrower receiving a loan under the provisions of this article shall agree to repay the loan in equal annual installments of principal together with interest at the applicable rate on the unpaid balance of the loan. Payments of interest and principal shall be made to the State Treasurer and credited to the revolving fund, and evidence of debt taken for such loan shall be deposited with the State Treasurer and kept by him. Whenever a loan is made in accordance with the provisions of this article, a lien is hereby created against all of the funds and income of the borrower, as well as upon any real or personal property acquired with loan proceeds. Prepayment of the principal of any such loan, in whole or in part, may be made by the borrower without penalty; however, the borrower shall be liable for interest accrued on the principal at the time of prepayment.

History. 1970, c. 591, § 21-11.6; 1988, c. 891.

§ 10.1-644. Recovery of money due to fund.

If a borrower defaults on any payment due the State Treasurer pursuant to § 10.1-643 or on any other obligation incurred pursuant to the provisions of this article, the amounts owed to the fund by the borrower may be recovered by the State Comptroller transferring to the revolving fund the amount of the payment due to the revolving fund from the distribution of state funds to which the defaulting borrower may be entitled pursuant to any state law; or, any money which ought to be paid into the revolving fund may be recoverable with interest by the Commonwealth, in the name of the Board, on motion in the Circuit Court of the City of Richmond. The Attorney General shall institute and prosecute such proceedings after a request for such action has been made by the Board.

History. 1970, c. 591, § 21-11.7; 1988, c. 891.

§ 10.1-645. Limits on expenditures authorized under § 10.1-638 B; sale of resulting facilities; sale of stored water; renting facilities.

Expenditures by the Board for any one facility under the provisions of § 10.1-638 B shall not exceed $500,000 without the written approval of the Governor for construction and seeding, acquisition of land, easements, and rights-of-way, engineering costs, appraisal costs, legal services, and other costs related to the facility. The Board is authorized to sell any facility resulting from an expenditure authorized by § 10.1-638 B to any entity to whom a loan could be made pursuant to the provisions of § 10.1-638 A under the terms and conditions prescribed hereinafter. Conveyances of any such facilities shall be executed by the chairman of the Board acting pursuant to a resolution of the Board and shall be approved by the Governor and Attorney General as to form and substance. Upon the transfer of title of such facilities, the purchasing entity shall grant an easement or right-of-way to the appropriate soil and water conservation district to assure the continued operation, inspection and repair of the works of improvement on the land sold, and in all cases, the purchasing entity shall agree to maintain the facility in a satisfactory manner. The Board may contract with an entity eligible to borrow from the revolving fund pursuant to § 10.1-638 A, for the sale of water stored at facilities constructed by expenditures pursuant to § 10.1-638 B. However, it is not the intent of this article to provide a means whereby the Commonwealth shall store and sell water to such entities; therefore, unless extenuating circumstances prevail, such contract shall be entered into with the understanding that such entities shall acquire the rights of the Board in the water storage facility by a future date agreeable to the Board and entity. The Board may lease such facilities to any agency or entity of government, corporation, organization or individual for recreational purposes or any other uses which will not impair the facilities’ value for future water supply. Proceeds from the sale of stored water or sale or rental of such facilities shall be placed in the revolving fund.

History. 1970, c. 591, § 21-11.9; 1972, c. 821; 1988, c. 891.

§ 10.1-646. Purchase price and terms of sales authorized by § 10.1-645.

When an entity, as the term is used in § 10.1-645 , agrees to purchase a facility and the rights incident thereto resulting from the storing of additional water in feasible flood prevention sites or the strengthening of foundations and appurtenances of feasible flood prevention sites in which the Board has invested pursuant to § 10.1-638 B, the purchase price shall be the total expenditure from the revolving fund by the Board for such facility plus a surcharge of three percent annually on all funds expended for the facility, other than funds expended pursuant to § 10.1-638 C, from the date of expenditure to the date of purchase by the purchasing entity.

With the approval of the Board, the purchasing entity may finance the purchase price, or any portion thereof, of the facility under the terms and conditions of §§ 10.1-638 A and 10.1-643 , and the provisions of §§ 10.1-643 and 10.1-644 shall apply, mutatis mutandis, to such financing. If a purchasing entity finances the purchase of a facility as hereinabove provided, such purchasing entity shall not be precluded from applying for a loan authorized by § 10.1-638 A to the limit imposed by that section to complete any facility purchased to store additional water.

History. 1970, c. 591, § 21-11.10; 1972, c. 821; 1988, c. 891.

§ 10.1-647. Disposition of facilities financed under article when part of debt remains outstanding.

No facility financed from the revolving fund under the provisions of this article, in whole or in part, shall be sold by an entity when any portion of the debt owed to the revolving fund remains unpaid. However, if the purchaser is an entity having the taxing power, then such sale may be made even though all or a portion of the debt to the revolving fund remains unpaid, if the purchasing entity agrees to assume the obligation to repay the outstanding debt and all interest thereon. If such sale is approved by the Board, then the purchasing entity shall be solely liable for the obligations undertaken by the principal debtor, and the principal debtor shall be released therefrom.

History. 1970, c. 591, § 21-11.12; 1988, c. 891.

§ 10.1-648. Acquisition of lands, easements, and rights-of-way.

  1. The Board, in addition to the provisions of § 10.1-638 , may use funds from the revolving fund to pay the cost of the purchase of needed lands, easements, and rights-of-way, or to share the costs thereof with soil and water conservation districts for soil and water conservation and flood control needs when the following conditions have been met:
    1. The program of work for the project has been found by the Board to be feasible, practicable and will promote the health, safety, and general welfare of the people of the Commonwealth;
    2. The soil and water conservation district or its cosponsors of the project have obtained a minimum of seventy-five percent of the necessary lands, easements, and rights-of-way in the project, or portion of a project (subwatershed) for which funds are requested prior to the use of funds for this purpose;
    3. The district and its cosponsors, if any, have submitted a plat to the Board showing the lands, easements and rights-of-way previously acquired, as well as the remaining lands, easements and rights-of-way necessary to the project but not acquired. In addition, the Board may require any other information which it deems necessary. The district and cosponsors shall certify to the Board that funds are unobtainable from any other source to acquire the remaining land, easements, and rights-of-way necessary to the project, in whole or in part;
    4. The funds to be used for lands, easements, and rights-of-way shall be granted to the district or cosponsor of the project in whose name the land, easement, or right-of-way shall be recorded.
  2. No later than ten years from the purchase of lands and rights-of-way with the funds provided by this section for soil and water conservation and flood control needs, or upon the completion of the watershed project, or a portion of the project (subwatershed) and upon written demand of the owners, their heirs or assigns from whom such land and rights-of-way were acquired, such property shall be reconveyed by the district or cosponsor to the former owners, their heirs or assigns, upon repayment of the original purchase price, without interest, unless such lands and rights-of-way are granted or retained for public purposes as hereinafter provided. After ten years, and no later than twelve years after the purchase date of lands and rights-of-way with the funds provided by this section, unless such lands and rights-of-way are granted or retained for public purposes or reconveyed as provided above, it shall be the duty of the district or cosponsor, to sell the property purchased wholly or partially from the funds provided by this section. The Board shall specify the terms for any such sale. Upon the sale or reconveyance of such property, the district or cosponsor shall remit to the Board a pro rata share of the proceeds of such sale or repayment pursuant to a reconveyance, equal to the percentage of the total cost of the acquisition of such property from any allocation of funds made hereunder and all such remittances shall be deposited to the revolving fund. The district or cosponsor of the project in whose name the acquisition of the land or rights-of-way to be sold is recorded shall retain any easement or right-of-way to assure the continued operation, maintenance, inspection, and repair of the works of improvement constructed on the land to be sold. The district and cosponsor of a project, with the approval of the Board, may grant for public purposes fee title to lands and rights-of-way acquired under the provisions of this section to any political subdivision, including a cosponsor, an agency of the state or federal government, or a regional park authority.

History. 1970, c. 591, § 21-11.14; 1988, c. 891.

§ 10.1-649. Sale to Board of property and rights-of-way acquired by condemnation.

For the purpose of § 10.1-638 B the Board is authorized to purchase property and rights-of-way condemned for maintaining, protecting, or providing supplies of water and for water storage purposes under §§ 15.2-1904 , 15.2-1907 , 15.2-5114 , and 21-118 and the condemnor is authorized to sell any such property or rights-of-way to the Board.

History. 1970, c. 591, § 21-11.15; 1988, c. 891; 2003, c. 940.

The 2003 amendments.

The 2003 amendment by c. 940 substituted “maintaining, protecting, or providing supplies of water and for” for “watershed and,” and substituted “§§ 15.2-1904 , 15.2-1907 , 15.2-5114 , and 21-118 ” for “§§ 25-232.01, 15.2-1904 , 21-118 and 15.2-5114 .”

Article 5. Stream Restoration Assistance Program.

§ 10.1-650. Definitions.

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

“Continual accelerated erosion” means a rapid increase in the erosion rate of stream banks caused by loss of vegetation, diversion of water by constrictions, undermining, and other resultant effects of severe floods.

“Natural streams” means nontidal waterways which are part of the natural topography. They usually maintain a continuous or seasonal flow during the year and are characterized as being irregular in cross-section with a meandering course. Constructed channels such as drainage ditches or swales shall not be considered natural streams.

“Program” means the Stream Restoration Assistance Program.

“Stream restoration” means any combination of structural and vegetative measures which may be taken to restore, stabilize, and protect a natural stream which has been damaged by severe flooding and is consequently subject to continual accelerated erosion or other detrimental effects. The term shall also include measures to return stream flow to its original channel in cases where the stream course has been changed as a result of flooding.

History. 1981, c. 450, § 21-11.23; 1988, c. 891.

§ 10.1-651. Establishment and administration of Program.

The Stream Restoration Assistance Program is continued to protect the natural streams of the Commonwealth. The Program shall aid in the stabilization and protection of natural streams which have been severely damaged by naturally occurring flooding events. The Program shall be administered by the Virginia Soil and Water Conservation Board in cooperation with soil and water conservation districts and local governments throughout the Commonwealth. To assist in the development of the Program, the Board shall seek the advisory opinion of the State Water Control Board and the Department of Wildlife Resources.

History. 1981, c. 450, § 21-11.22; 1988, c. 891; 2020, c. 958.

The 2020 amendments.

The 2020 amendment by c. 958, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in the last sentence.

§ 10.1-652. Program applicability.

The Stream Restoration Assistance Program shall apply only to natural nontidal streams which have been damaged as a result of naturally occurring flooding events. Streams which have been damaged by land-disturbing activities, vehicular traffic, or other human causes shall not be eligible for assistance under the Program.

History. 1981, c. 450, § 21-11.24; 1988, c. 891.

§ 10.1-653. Application for assistance.

Landowners who wish to receive assistance under the Program shall apply to the Virginia Soil and Water Conservation Board. The Board shall provide copies of the applications to the chairmen of the soil and water districts, where applicable, and the local governing bodies having jurisdiction in the area where the damage has occurred.

History. 1981, c. 450, § 21-11.25; 1988, c. 891.

§ 10.1-654. Damage inspections and reports.

  1. Upon receipt of an application for assistance, the Board shall schedule a field inspection of the affected stream segment to determine the extent of damages. Such field inspections should be scheduled and coordinated so that affected landowners and appropriate conservation districts and local government officials can participate.
  2. Following the field inspection, the Board shall prepare an inspection report which includes a recommendation concerning the extent to which the Commonwealth should assist the applicant in restoring the stream.
  3. Draft copies of the inspection report shall be submitted to the applicant, persons who attended the field inspection, and chairmen of conservation districts and local governing bodies having jurisdiction in the area where the damage has occurred. These persons shall be given forty-five days to submit written comments and recommendations concerning the report. The final report shall contain copies of all written comments and recommendations received.

History. 1981, c. 450, § 21-11.26; 1988, c. 891.

§ 10.1-655. Types of assistance.

Upon approval of an application for assistance, the Board may provide technical and financial assistance to the applicant according to the following guidelines:

  1. The Board shall maintain a technical staff to recommend stream restoration measures, to estimate costs, and to prepare engineering plans and specifications which may be used to implement such measures. The actual preparation of plans and specifications shall not be undertaken until the applicant certifies that adequate funding is available, and that the plans will be implemented within one year after all necessary permits are obtained.
  2. Financial assistance may be provided to applicants to the extent that funds for that purpose are available to the Board. In no case shall such assistance exceed fifty percent of the total cost of construction. Funds shall not be disbursed until the Board has made a final inspection and has determined that all work is adequately completed in accordance with the plans and specifications.
  3. To receive financial assistance, applicants must certify that they have explored and exhausted all other possible funding sources. In cases where a national disaster area has been declared, no funding shall be provided under the Program until it is determined to what extent the federal government will participate in stream restoration along the segments under consideration.

    When requests for financial assistance exceed available resources, the Board shall set priorities and allocate funds as it deems appropriate to accomplish the maximum benefit.

History. 1981, c. 450, § 21-11.28; 1988, c. 891.

§ 10.1-656. Board action on assistance requests.

The Board shall consider requests for technical and financial assistance from landowners whose property borders on or contains natural streams which have been damaged by flooding. Upon consideration of the application, inspection report, and any other relevant information, the Board shall determine whether or not assistance shall be provided, and the type and extent of assistance to be provided. In making such determinations, the Board shall consider the potential for continual accelerated erosion of the stream banks in the future and other possible detrimental effects to the stream which may result if no corrective measures are undertaken. In cases where it is determined that there is not likely to be accelerated stream bank erosion or other significant detrimental effects in the future, the assistance request shall not be approved.

History. 1981, c. 450, § 21-11.27; 1988, c. 891.

§ 10.1-657. Account established.

An account designated as the Stream Restoration Account shall be established to provide grants to landowners who make requests under the Stream Restoration Assistance Programs. The Board may seek money from federal and private sources to establish and maintain the Stream Restoration Fund.

History. 1981, c. 450, § 21-11.29; 1988, c. 891.

Article 6. Comprehensive Flood Control Program.

§ 10.1-658. (Effective until July 1, 2022) State interest in flood control.

  1. The General Assembly declares that storm events and rising tidal waters cause recurrent flooding of Virginia’s land resources and result in the loss of life, damage to property, unsafe and unsanitary conditions and the disruption of commerce and government services, placing at risk the health, safety and welfare of those citizens living in flood-prone areas of the Commonwealth. Flood waters disregard jurisdictional boundaries, and the public interest requires the management of flood-prone areas in a manner which prevents injuries to persons, damage to property and pollution of state waters.
  2. The General Assembly, therefore, supports and encourages those measures which prevent, mitigate and alleviate the effects of stormwater surges and flooding, and declares that the expenditure of public funds and any obligations incurred in the development of flood control and other civil works projects, the benefits of which may accrue to any county, municipality or region in the Commonwealth, are necessary expenses of local and state government.

History. 1989, cc. 468, 497; 2020, c. 493.

The 2020 amendments.

The 2020 amendment by c. 493, added “and rising tidal waters” in subsection A in the first sentence.

The 2022 amendments.

The 2022 amendments by cc. 494 and 495 are identical, and in subsection B, deleted “therefore” following the first occurrence of “The General Assembly” and inserted “sea level rise,” “all causes of recurrent,” and the last sentence; added subsections C through E; and made stylistic changes.

§ 10.1-658. (Effective July 1, 2022) State interest in resilience and flood control.

  1. The General Assembly declares that storm events and rising tidal waters cause recurrent flooding of Virginia’s land resources and result in the loss of life, damage to property, unsafe and unsanitary conditions and the disruption of commerce and government services, placing at risk the health, safety and welfare of those citizens living in flood-prone areas of the Commonwealth. Flood waters disregard jurisdictional boundaries, and the public interest requires the management of flood-prone areas in a manner which prevents injuries to persons, damage to property and pollution of state waters.
  2. The General Assembly supports and encourages those measures which prevent, mitigate, and alleviate the effects of sea level rise, stormwater surges, and all causes of recurrent flooding and declares that the expenditure of public funds and any obligations incurred in the development of flood control and other civil works projects, the benefits of which may accrue to any county, municipality, or region in the Commonwealth, are necessary expenses of local and state government. The General Assembly shall prioritize measures that use community-scale and regional-scale planning, protect and enhance natural and nature-based approaches, address socioeconomic inequities, and enhance equity through flood resilience and preparedness.
  3. The General Assembly supports and encourages flood resilience through implementation of the Virginia Coastal Resilience Master Plan and implementation of the Virginia Flood Protection Master Plan developed pursuant to § 10.1-602 .
  4. The Department shall be responsible for the implementation of the Virginia Coastal Resilience Master Plan and Virginia Flood Protection Master Plan and shall serve as the lead administrator.
  5. The Virginia Coastal Resilience Master Plan shall be updated at least every five years; shall, at a minimum, be a place-specific plan for mitigating severe and repetitive flooding; and shall, at a minimum, (i) base decision making on the best-available science; (ii) identify and address socioeconomic inequities and strive to enhance equity through the adaptation and protection measures by considering all areas of recurrent flooding; (iii) recognize the importance of protecting and enhancing natural infrastructure and nature-based approaches to flood mitigation, when possible; (iv) utilize community and regional scale planning to the maximum extent possible, seeking region-specific approaches tailored to the needs of individual communities; and (v) include an understanding of fiscal realities and focus on cost-effective solutions for the protection and adaptation of communities, businesses, and critical infrastructure.

History. 1989, cc. 468, 497; 2020, c. 493; 2022, cc. 494, 495.

§ 10.1-659. (Effective until July 1, 2022) Flood protection programs; coordination.

The provisions of this chapter shall be coordinated with the Virginia Coastal Resilience Master Plan and federal, state, and local flood prevention and water quality programs to minimize loss of life, property damage, and negative impacts on the environment. This program coordination shall include but not be limited to the following: flood prevention, flood plain management, small watershed protection, dam safety, shoreline erosion and public beach preservation, and soil conservation programs of the Department of Conservation and Recreation; the construction activities of the Department of Transportation, including projects that result in hydrologic modification of rivers, streams, and flood plains; the nontidal wetlands, water quality, Chesapeake Bay Preservation Area criteria, stormwater management, erosion and sediment control, and other water management programs of the State Water Control Board; the Virginia Coastal Zone Management Program at the Department of Environmental Quality; forested watershed management programs of the Department of Forestry; the agricultural stewardship, farmland preservation, and disaster assistance programs of the Department of Agriculture and Consumer Services; the statewide building code and other land use control programs of the Department of Housing and Community Development; the habitat management programs of the Virginia Marine Resources Commission; the hazard mitigation planning and disaster response programs of the Department of Emergency Management; the fish habitat protection programs of the Department of Wildlife Resources; the mineral extraction regulatory program of the Department of Energy; the flood plain restrictions of the Virginia Waste Management Board; flooding-related research programs of the state universities; local government assistance programs of the Virginia Soil and Water Conservation Board; the Virginia Antiquities Act program of the Department of Historic Resources; and any other state agency programs deemed necessary by the Director, the Chief Resilience Officer of the Commonwealth, and the Special Assistant to the Governor for Coastal Adaptation and Protection. The Department shall also coordinate with soil and water conservation districts, Virginia Cooperative Extension agents, and planning district commissions, and shall coordinate and cooperate with localities in rendering assistance to such localities in their efforts to comply with the planning, subdivision of land, and zoning provisions of Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2. The Director and either the Special Assistant to the Governor for Coastal Adaptation and Protection or the Chief Resilience Officer shall jointly hold meetings of representatives of these programs, entities, and localities in order to determine, coordinate, and prioritize the Commonwealth’s efforts and expenditures to increase flooding resilience. The Department shall cooperate with other public and private agencies having flood plain management programs and shall coordinate its responsibilities under this article and any other law. These activities shall constitute the Commonwealth’s flood prevention and protection program.

History. 1989, cc. 468, 497; 2012, cc. 785, 819; 2013, cc. 756, 793; 2020, cc. 493, 958; 2021, Sp. Sess. I, c. 532.

Editor’s note.

Acts 2012, cc. 785 and 819, cl. 3 provides: “That the Chesapeake Bay Preservation Area Designation and Management Regulations (9 VAC 10-20) shall be transferred from the Chesapeake Bay Local Assistance Board to the Virginia Soil and Water Conservation Board on July 1, 2012, and the Virginia Soil and Water Conservation Board may amend, modify, or delete provisions in these regulations in order to implement this Act. Current regulations that are in effect shall remain in full force and effect until altered, amended, or rescinded by the Virginia Soil and Water Conservation Board.”

Acts 2012, cc. 785 and 819, cl. 4 provides: “That any program determinations of, or enforcement actions initiated by, the Chesapeake Bay Local Assistance Board shall be assumed by the Virginia Soil and Water Conservation Board and shall remain in effect until altered, amended, or rescinded by the Virginia Soil and Water Conservation Board.”

Acts 2021, Sp. Sess. I, c. 532, cl. 2 provides: “That the provisions of this act shall become effective on October 1, 2021.”

The 2012 amendments.

The 2012 amendments by cc. 785 and 819 are identical, and in the second sentence deleted “local planning assistance programs of the Council on the Environment;” preceding “the habitat management programs,” and substituted “Virginia Soil and Water Conservation Board” for “Chesapeake Bay Local Assistance Board.”

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and in the second sentence, substituted “dam safety, and soil conservation programs” for “dam safety, soil conservation, stormwater management and erosion and sediment control programs,” inserted “Chesapeake Bay Preservation Area criteria, stormwater management, erosion and sediment control,” and substituted “the Virginia Waste Management Board; and local” for “the Department of Waste Management; the Chesapeake Bay Preservation Area criteria and local.”

The 2020 amendments.

The 2020 amendment by c. 493, rewrote the section, which had read, “The provisions of this chapter shall be coordinated with federal, state and local flood prevention and water quality programs to minimize loss of life, property damage and negative impacts on the environment. This program coordination shall include but not be limited to the following: flood prevention, flood plain management, small watershed protection, dam safety, and soil conservation programs of the Department of Conservation and Recreation; the construction activities of the Department of Transportation which result in hydrologic modification of rivers, streams and flood plains; the water quality, Chesapeake Bay Preservation Area criteria, stormwater management, erosion and sediment control, and other water management programs of the State Water Control Board; forested watershed management programs of the Department of Forestry; the statewide building code and other land use control programs of the Department of Housing and Community Development; the habitat management programs of the Virginia Marine Resources Commission; the hazard mitigation planning and disaster response programs of the Department of Emergency Management; the fish habitat protection programs of the Department of Game and Inland Fisheries; the mineral extraction regulatory program of the Department of Mines, Minerals and Energy; the flood plain restrictions of the Virginia Waste Management Board; and local government assistance programs of the Virginia Soil and Water Conservation Board. The Department shall also coordinate and cooperate with localities in rendering assistance to such localities in their efforts to comply with the planning, subdivision of land and zoning provisions of Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2. The Department shall cooperate with other public and private agencies having flood plain management programs, and shall coordinate its responsibilities under this article and any other law. These activities shall constitute the Commonwealth’s flood prevention and protection program.”

The 2020 amendment by c. 958, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in the second sentence.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 532, effective October 1, 2021, substituted “Department of Energy” for “Department of Mines, Minerals and Energy.”

The 2022 amendments.

The 2022 amendments by cc. 494 and 495 are identical, and inserted the subsection A and B designations; in subsection A, inserted “the Virginia Flood Protection Master Plan,” “and wildlife,” and “the public health and preparedness programs of the Virginia Department of Health; the State Council of Higher Education for Virginia; the State Corporation Commission”; in subsection B, rewrote the first sentence, which read: “The Director and either the Special Assistant to the Governor for Coastal Adaptation and Protection or the Chief Resilience Officer, shall jointly hold meetings of representatives of these programs, entities, and localities in order to determine, coordinate, and prioritize the Commonwealth’s efforts and expenditures to increase flooding resilience,” and added the second sentence; and added subsection C.

§ 10.1-659. (Effective July 1, 2022) Flood protection programs; coordination.

  1. The provisions of this chapter shall be coordinated with the Virginia Coastal Resilience Master Plan, the Virginia Flood Protection Master Plan, and federal, state, and local flood prevention and water quality programs to minimize loss of life, property damage, and negative impacts on the environment. This program coordination shall include but not be limited to the following: flood prevention, flood plain management, small watershed protection, dam safety, shoreline erosion and public beach preservation, and soil conservation programs of the Department of Conservation and Recreation; the construction activities of the Department of Transportation, including projects that result in hydrologic modification of rivers, streams, and flood plains; the nontidal wetlands, water quality, Chesapeake Bay Preservation Area criteria, stormwater management, erosion and sediment control, and other water management programs of the State Water Control Board; the Virginia Coastal Zone Management Program at the Department of Environmental Quality; forested watershed management programs of the Department of Forestry; the agricultural stewardship, farmland preservation, and disaster assistance programs of the Department of Agriculture and Consumer Services; the statewide building code and other land use control programs of the Department of Housing and Community Development; the habitat management programs of the Virginia Marine Resources Commission; the hazard mitigation planning and disaster response programs of the Department of Emergency Management; the fish and wildlife habitat protection programs of the Department of Wildlife Resources; the mineral extraction regulatory program of the Department of Energy; the flood plain restrictions of the Virginia Waste Management Board; flooding-related research programs of the state universities; local government assistance programs of the Virginia Soil and Water Conservation Board; the Virginia Antiquities Act program of the Department of Historic Resources; the public health and preparedness programs of the Virginia Department of Health; the State Council of Higher Education for Virginia; the State Corporation Commission; and any other state agency programs deemed necessary by the Director, the Chief Resilience Officer of the Commonwealth, and the Special Assistant to the Governor for Coastal Adaptation and Protection. The Department shall also coordinate with soil and water conservation districts, Virginia Cooperative Extension agents, and planning district commissions, and shall coordinate and cooperate with localities in rendering assistance to such localities in their efforts to comply with the planning, subdivision of land, and zoning provisions of Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2.
  2. The Director, in coordination with the Special Assistant to the Governor for Coastal Adaptation and Protection and the Chief Resilience Officer, shall hold meetings of representatives of the programs, entities, and localities described in subsection A at least annually in order to determine, coordinate, and prioritize the Commonwealth’s efforts and expenditures to increase flooding resilience and flood preparedness and to implement the Virginia Coastal Resilience Master Plan and the Virginia Flood Protection Master Plan. The Department shall review any revisions to the Virginia Flood Protection Master Plan and provide an update on the progress of the implementation of the Virginia Coastal Resilience Master Plan at any such meetings. The Department shall cooperate with other public and private agencies having flood plain management programs and shall coordinate its responsibilities under this article and any other law. These activities shall constitute the Commonwealth’s flood resilience, preparedness, prevention, and protection program.
    1. The Chief Resilience Officer, in coordination with the Special Assistant to the Governor for Coastal Adaptation and Protection and the Director, shall establish the Virginia Coastal Resilience Technical Advisory Committee (the Committee) to assist with developing, updating, and implementing the Virginia Coastal Resilience Master Plan. C. 1. The Chief Resilience Officer, in coordination with the Special Assistant to the Governor for Coastal Adaptation and Protection and the Director, shall establish the Virginia Coastal Resilience Technical Advisory Committee (the Committee) to assist with developing, updating, and implementing the Virginia Coastal Resilience Master Plan.
    2. The Committee shall be comprised of representatives of state agencies, coastal planning district commissions, regional commissions, academic advisors, and any other representatives as needed. Members shall serve at the pleasure of the Governor and shall include the following individuals or their designees: the executive directors of coastal planning district commissions and regional commissions; the Special Assistant to the Governor for Coastal Adaptation and Protection; the Director; the Director of the Virginia Department of Emergency Management; the Director of the Virginia Department of Housing and Community Development; the Executive Director of the Virginia Resources Authority; the Director of the Department of Environmental Quality; the Commissioner of the Virginia Department of Transportation; the Director of the Virginia Transportation Research Council; the Commissioner of the Virginia Marine Resources Commission; the Director of the Institute for Coastal Adaptation and Resilience; the Associate Dean for Research and Advisory Services at the Virginia Institute of Marine Science; the Director of the William and Mary School of Law Coastal Policy Center; the Director of the Virginia Tech Center for Coastal Studies; the Director of the Environmental Resilience Institute at the University of Virginia; the Director of Virginia Sea Grant; the Director of Diversity, Equity, and Inclusion; and the Chief Data Officer of the Commonwealth. The Chief Resilience Officer shall serve as chairman of the Committee.
    3. The Chief Resilience Officer shall invite participation by the Commander of the U.S. Army Corps of Engineers, Norfolk District; the Commander of the Navy Region Mid-Atlantic; and representatives of the seven federally recognized Tribal Nations indigenous to the Commonwealth of Virginia.
    4. Appointed members shall serve in an advisory role without compensation.
    5. The Committee shall meet at least quarterly.
    6. The Department, the Special Assistant to the Governor for Coastal Adaptation and Protection, and the Coastal Zone Management Program shall provide staff support to the Committee.
    7. The Committee shall ensure that (i) risk evaluations and project prioritization protocols are regularly updated and are informed by the best applicable scientific and technical data; (ii) statewide and regional needs are addressed using the best applicable science and long-term resilience approaches; and (iii) the Virginia Coastal Resilience Master Planning Framework is adhered to in the development and updating of the Virginia Coastal Resilience Master Plan. The Committee shall also review updates to the Virginia Coastal Resilience Master Plan and receive updates about the progress of the Virginia Flood Protection Master Plan at each meeting. Additionally, the Committee may be called upon to assist the Department with the development and updating of the Virginia Flood Protection Master Plan.

History. 1989, cc. 468, 497; 2012, cc. 785, 819; 2013, cc. 756, 793; 2020, cc. 493, 958; 2021, Sp. Sess. I, c. 532; 2022, cc. 494, 495.

Chapter 7. Shoreline Erosion and Public Beach Preservation.

Article 1. Shore Erosion Control.

§ 10.1-700. Definition.

As used in this article, the term “shore erosion” means the process of destruction by the action of water, wind, or ice of the land bordering any body of water including all rivers and the tidal waters of the Commonwealth.

History. 1972, c. 855, § 21-11.17; 1988, c. 891.

§ 10.1-701. Duties of Department.

The Department shall have the duty to:

  1. Coordinate shore erosion control programs of all state agencies and institutions to implement practical solutions to shoreline erosion problems; however, such coordination shall not restrict the statutory authority of the individual agencies having responsibilities relating to shore erosion control;
  2. Secure the cooperation and assistance of the United States and any of its agencies to protect waterfront property from destructive shore erosion;
  3. Evaluate the effectiveness and practicability of current shore erosion control programs; and
  4. Explore all facets of the problems and alternative solutions to determine if other practical and economical methods and practices may be devised to control shore erosion.

History. 1972, c. 855, § 21-11.18; 1980, c. 368; 1988, c. 891.

§ 10.1-702. Shore Erosion Advisory Service.

The Department is authorized to assist in carrying out the coordination responsibility of shore erosion control programs as herein assigned, and to establish a Shoreline Erosion Advisory Service.

History. 1972, c. 855, § 21-11.19; 1980, c. 368; 1988, c. 891.

§ 10.1-703. Cooperation and coordination with Virginia Institute of Marine Science.

The Department shall cooperate and coordinate with the Virginia Institute of Marine Science of The College of William and Mary in Virginia for research, training and technical advice on erosion-related problems.

History. 1980, c. 368, § 21-11.20; 1988, c. 891.

Editor’s note.

At the direction of the Virginia Code Commission, “The College of William and Mary in Virginia” was substituted for “The College of William and Mary” in this section to conform to Acts 2016, c. 588.

§ 10.1-704. Use of dredged material for beach nourishment; priority.

The beaches of the Commonwealth shall be given priority consideration as sites for the disposal of that portion of dredged material determined to be suitable for beach nourishment. The Secretary of Natural and Historic Resources shall have the responsibility of determining whether the dredged material is suitable for beach nourishment.

History. 1987, cc. 220, 231, § 21-11.16:1; 1988, c. 891; 2021, Sp. Sess. I, c. 401.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 401, effective July 1, 2021, inserted “and Historic.”

Article 2. Public Beach Conservation and Development Act.

§ 10.1-705. Definitions.

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

“Agency of this Commonwealth” includes the government of this Commonwealth and any subdivision, agency, or instrumentality, corporate or otherwise, of the government of this Commonwealth.

“Board” means the Board of Conservation and Recreation.

“Develop” or “development” means the replenishment and restoration of existing public beaches.

“Erosion” means the process of destruction by the action of wind, water, or ice of the land bordering the tidal waters of the Commonwealth.

“Government” or “governmental” includes the government of this Commonwealth, the government of the United States, and any subdivision, agency, or instrumentality, corporate or otherwise, of either of them.

“Locality” means a county, city or town.

“Program” means the provisions of the Public Beach Conservation and Development Act.

“Public beach” means a sandy beach located on a tidal shoreline suitable for bathing in a county, city or town and open to indefinite public use.

“Reach” means a shoreline segment wherein there is mutual interaction of the forces of erosion, sediment transport and accretion.

“United States” or “agencies of the United States” includes the United States of America, the United States Department of Agriculture, and any other agency or instrumentality, corporate or otherwise, of the United States of America.

History. 1980, c. 428, § 10-217; 1984, c. 750; 1985, c. 448; 1988, c. 891; 2003, cc. 79, 89.

Editor’s note.

Acts 2003, cc. 79 and 89, cl. 3, provide: “That all rules and regulations adopted by the Board on Conservation and Development of Public Beaches that are in effect as of the effective date of this act shall remain in full force and effect until amended or rescinded by the Board of Conservation and Recreation. The Board of Conservation and Recreation shall promulgate as soon as practicable any necessary changes to the regulations to complete the consolidation of the Boards.”

Acts 2003, cc. 79 and 89, cl. 4, provide: “That of the members currently serving on the Board of Conservation and Recreation, the Virginia State Parks Foundation, and the Board on Conservation and Development of Public Beaches, a minimum of two members of each shall be appointed by the Governor to new first-term appointments to the reconstituted Board of Conservation and Recreation.”

The 2003 amendments.

Acts 2003, cc. 79 and 89 are identical, and substituted “of Conservation and Recreation” for “on Conservation and Development of Public Beaches” in the definition of “Board.”

§ 10.1-706. Duties of the Department.

The Department shall:

  1. Promote understanding of the value of public beaches and the causes and effects of erosion;
  2. Make available information concerning erosion of public beaches;
  3. Encourage research and development of new erosion control techniques and new sources of sand for public beach enhancement.

History. 1980, c. 428, § 10-216; 1984, c. 235; 1988, c. 891.

§ 10.1-707. Board duties; allocation of funds.

  1. The Board shall (i) review the financial needs of localities for implementation of this article; (ii) determine successful applicants; (iii) determine the equitable allocation of funds among participating localities except for allocations provided for in the current general appropriations act; and (iv) oversee local implementation of approved projects.
  2. The Department shall provide the Board with staff assistance and shall maintain necessary financial records.

History. 1980, c. 428, § 10-218; 1984, cc. 739, 750; 1985, c. 448; 1986, c. 152; 1988, c. 891; 1989, cc. 656, 660; 2003, cc. 79, 89.

Editor’s note.

Acts 2003, cc. 79 and 89, cl. 3, provide: “That all rules and regulations adopted by the Board on Conservation and Development of Public Beaches that are in effect as of the effective date of this act shall remain in full force and effect until amended or rescinded by the Board of Conservation and Recreation. The Board of Conservation and Recreation shall promulgate as soon as practicable any necessary changes to the regulations to complete the consolidation of the Boards.”

Acts 2003, cc. 79 and 89, cl. 4, provide: “That of the members currently serving on the Board of Conservation and Recreation, the Virginia State Parks Foundation, and the Board on Conservation and Development of Public Beaches, a minimum of two members of each shall be appointed by the Governor to new first-term appointments to the reconstituted Board of Conservation and Recreation.”

The 2003 amendments.

The 2003 amendments by cc. 79 and 89 are identical, and deleted former subsection A, concerning composition of the Board on Conservation and Development of Public Beaches; redesignated former subsection B as present subsection A; deleted former subsection C, concerning times and purposes of meetings; redesignated former subsection D as present subsection B; and deleted former subsection E, concerning compensation of board members.

§ 10.1-708. Relationship of Board and Director; guidelines.

The Board shall be responsible for the allocation of the grant fund established in § 10.1-709 . The Board shall submit the names of recipient localities to the Director and the Director shall disburse funds to designated localities. The Board may establish guidelines governing application procedures, allocations or implementation standards.

History. 1980, c. 428, § 10-219; 1984, c. 750; 1988, c. 891.

§ 10.1-709. Establishment of fund; unexpended money.

  1. A special fund to be known as the Public Beach Maintenance and Development Fund shall be established to provide grants to local governments covering up to one-half of the costs of erosion abatement measures designed to conserve, protect, improve, maintain and develop public beaches. No grants to any locality shall exceed 30 percent of the money appropriated to such fund for the biennium unless otherwise provided for in the current general appropriations act. Money appropriated from such fund shall be matched equally by local funds. Federal funds shall not be used by localities to match money given from the fund. Localities may, however, combine state and local funds to match federal funds for purposes of securing federal grants. Interest earned or moneys received by the Fund shall remain in the Fund and be credited to it. Any money remaining in the Fund at the close of the first fiscal year of a biennium shall not revert to the general fund and shall be reappropriated and allotted.
  2. Up to $250,000 per year of the money deposited to the Fund including interest accrued may be used for the Board’s administrative and operating expenses including but not limited to expenses of the Board and its members, and expenses related to duties outlined in §§ 10.1-701 , 10.1-702 , 10.1-703 , 10.1-706 , and 10.1-707 . All such expenditures shall be subject to approval by the Board.
  3. Money that remains unobligated by the Board from the fund at the end of the biennium for which it was appropriated shall be retained and shall become a Special Emergency Assistance Fund to be used at the discretion of the Governor for the emergency conservation and development of public beaches damaged or destroyed by an unusually severe storm, hurricane or other natural disaster.

History. 1980, c. 428, § 10-220; 1982, c. 329; 1986, c. 152; 1988, c. 891; 2003, cc. 79, 89.

Editor’s note.

Acts 2003, cc. 79 and 89, cl. 3, provide: “That all rules and regulations adopted by the Board on Conservation and Development of Public Beaches that are in effect as of the effective date of this act shall remain in full force and effect until amended or rescinded by the Board of Conservation and Recreation. The Board of Conservation and Recreation shall promulgate as soon as practicable any necessary changes to the regulations to complete the consolidation of the Boards.”

Acts 2003, cc. 79 and 89, cl. 4, provide: “That of the members currently serving on the Board of Conservation and Recreation, the Virginia State Parks Foundation, and the Board on Conservation and Development of Public Beaches, a minimum of two members of each shall be appointed by the Governor to new first-term appointments to the reconstituted Board of Conservation and Recreation.”

The 2003 amendments.

The 2003 amendments by cc. 79 and 89 are identical, and in subsection A, substituted “special fund to be known as the Public Beach Maintenance and Development Fund” for “fund” in the first sentence, substituted “30” for “thirty” in the second sentence, and added the last two sentences; added present subsection B; redesignated former subsection B as present subsection C; and in present subsection C, substituted “that remains unobligated by the Board” for “which remains unexpended.”

§ 10.1-710. Guidelines for allocation of grant funds.

The Board shall consider the following when selecting localities for program participation and in determining grant allocations:

  1. Present and future beach ownership;
  2. Erosion caused by public navigational works;
  3. Intensity of use;
  4. Availability of public beaches in the vicinity;
  5. Evidence of a locality’s ability and willingness to develop a long-term capacity to combat erosion;
  6. Rate of erosion;
  7. Actions of a locality which lead to, or may result in, the erosion of beaches; and
  8. Such other matters as the Board shall deem sufficient for consideration.

History. 1980, c. 428, § 10-221; 1984, c. 235; 1988, c. 891.

§ 10.1-711. Local erosion advisory commissions.

In order to qualify for the program, localities shall establish local erosion advisory commissions which shall determine local erosion problems, review the locality’s erosion control projects, suggest strategies for the future, and assess program implementation.

History. 1980, c. 428, § 10-222; 1984, c. 235; 1988, c. 891.

Chapter 8. Historic Landmarks and Monuments.

§§ 10.1-800 through 10.1-817.

Repealed by Acts 1989, c. 656.

Cross references.

For new chapters relating to historic resources, antiquities, and historic preservation, see Chapters 22 and 24.1 of Title 10.1.

Editor’s note.

Repealed Chapter 8 of Title 10.1, relating to historic landmarks and monuments, was enacted as part of Title 10.1 by Acts 1988, c. 891.

Repealed §§ 10.1-812, 10.1-813 and 10.1-814 were amended by Acts 1989, c. 711. Effect has been given in §§ 10.1-2211 , 10.1-2212 and 10.1-2213 , respectively, to these amendments.

Chapter 9. Virginia Antiquities Act.

§§ 10.1-900 through 10.1-906.

Repealed by Acts 1989, c. 656.

Cross references.

For present provisions as to the Virginia Antiquities Act, see Chapter 23 of Title 10.1. For new chapters relating to historic resources and historic preservation, see Chapters 22 and 24.1 of Title 10.1.

Editor’s note.

Repealed Chapter 9 of Title 10.1, the Virginia Antiquities Act, was enacted as part of Title 10.1 by Acts 1988, c. 891.

Chapter 10. Cave Protection Act.

§ 10.1-1000. Definitions.

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

“Board” means the Cave Board.

“Cave” means any naturally occurring void, cavity, recess, or system of interconnecting passages beneath the surface of the earth or within a cliff or ledge including natural subsurface water and drainage systems, but not including any mine, tunnel, aqueduct, or other man-made excavation, which is large enough to permit a person to enter. The word “cave” includes or is synonymous with cavern, sinkhole, natural pit, grotto, and rock shelter.

“Cave life” means any rare or endangered animal or other life form which normally occurs in, uses, visits, or inhabits any cave or subterranean water system.

“Commercial cave” means any cave utilized by the owner for the purposes of exhibition to the general public as a profit or nonprofit enterprise, wherein a fee is collected for entry.

“Gate” means any structure or device located to limit or prohibit access or entry to any cave.

“Material” means all or any part of any archaeological, paleontological, biological, or historical item including, but not limited to, any petroglyph, pictograph, basketry, human remains, tool, beads, pottery, projectile point, remains of historical mining activity or any other occupation found in any cave.

“Owner” means a person who owns title to land where a cave is located, including a person who owns title to a leasehold estate in such land, and including the Commonwealth and any of its agencies, departments, boards, bureaus, commissions, or authorities, as well as counties, municipalities, and other political subdivisions of the Commonwealth.

“Person” means any individual, partnership, firm, association, trust, or corporation or other legal entity.

“Sinkhole” means a closed topographic depression or basin, generally draining underground, including, but not restricted to, a doline, uvala, blind valley, or sink.

“Speleogen” means an erosional feature of the cave boundary and includes or is synonymous with anastomoses, scallops, rills, flutes, spongework, and pendants.

“Speleothem” means a natural mineral formation or deposit occurring in a cave. This includes or is synonymous with stalagmite, stalactite, helectite, shield, anthodite, gypsum flower and needle, angel’s hair, soda straw, drapery, bacon, cave pearl, popcorn (coral), rimstone dam, column, palette, flowstone, et cetera. Speleothems are commonly composed of calcite, epsomite, gypsum, aragonite, celestite, and other similar minerals.

History. 1979, c. 252, § 10-150.12; 1988, c. 891.

§ 10.1-1001. Cave Board; qualifications; officers.

  1. The Cave Board is continued within the Department of Conservation and Recreation and shall consist of the Director of the Department of Historic Resources, or his designee, serving in an ex officio capacity and eleven citizens of Virginia appointed by the Governor for four-year terms. Appointments shall be made on the basis of activity and knowledge in the conservation, exploration, study and management of caves.
  2. The Cave Board shall meet at least three times a year. Six members shall constitute a quorum for the transaction of business. The Board shall annually elect a chairman, vice-chairman and recording secretary and such other officers as the Board deems necessary.

History. 1979, c. 433, §§ 9-152.1, 9-152.2; 1980, c. 745; 1984, c. 750; 1985, c. 448; 1988, c. 891; 1989, c. 656.

§ 10.1-1002. Powers and duties of Cave Board.

  1. The Cave Board may perform all tasks necessary to carry out the purposes of this chapter, including the following:
    1. Accept any gift, money, security or other source of funding and expend such funds to effectuate the purposes of this chapter.
    2. Serve as an advisory board to any requesting state agency on matters relating to caves and karst.
    3. Conduct and maintain an inventory of publicly owned caves in Virginia.
    4. Provide cave management expertise and service to requesting public agencies and cave owners.
    5. Maintain a current list of all significant caves in Virginia and report any real and present danger to such caves.
    6. Provide cave data for use by state and other governmental agencies.
    7. Publish or assist in publishing articles, pamphlets, brochures or books on caves and cave-related concerns.
    8. Facilitate data gathering and research efforts on caves.
    9. Advise civil defense authorities on the present and future use of Virginia caves in civil defense.
    10. Advise on the need for and desirability of a state cave recreation plan.
    11. Inform the public about the value of cave resources and the importance of preserving them for the citizens of the Commonwealth.
  2. The Cave Board shall have the duty to:
    1. Protect the rare, unique and irreplaceable minerals and archaeological resources found in caves.
    2. Protect and maintain cave life.
    3. Protect the ground water flow which naturally occurs in caves from water pollution.
    4. Protect the integrity of caves that have unique characteristics or are exemplary natural community types.
    5. Make recommendations to interested state agencies concerning any proposed rule, regulation or administrative policy which directly affects the use and conservation of caves in this Commonwealth.
    6. Study any matters of special concern relating to caves and karst.

History. 1979, c. 252, § 10-150.11; 1979, c. 433, §§ 9-152.1, 9-152.3 to 9-152.5; 1980, c. 745; 1984, cc. 734, 750; 1985, c. 448; 1988, c. 891.

§ 10.1-1003. Permits for excavation and scientific investigation; how obtained; penalties.

  1. In addition to the written permission of the owner required by § 10.1-1004 a permit shall be obtained from the Department of Conservation and Recreation prior to excavating or removing any archaeological, paleontological, prehistoric, or historic feature of any cave. The Department shall issue a permit to excavate or remove such a feature if it finds with the concurrence of the Director of the Department of Historic Resources that it is in the best interest of the Commonwealth and that the applicant meets the criteria of this section. The permit shall be issued for a period of two years and may be renewed upon expiration.  Such permit shall not be transferable; however, the provisions of this section shall not preclude any person from working under the direct supervision of the permittee.
  2. All field investigations, explorations, or recovery operations undertaken under this section shall be carried out under the general supervision of the Department and in a manner to ensure that the maximum amount of historic, scientific, archaeologic, and educational information may be recovered and preserved in addition to the physical recovery of objects.
  3. A person applying for a permit pursuant to this section shall:
    1. Be a historic, scientific, or educational institution, or a professional or amateur historian, biologist, archaeologist or paleontologist, who is qualified and recognized in these areas of field investigations.
    2. Provide a detailed statement to the Department giving the reasons and objectives for excavation or removal and the benefits expected to be obtained from the contemplated work.
    3. Provide data and results of any completed excavation, study, or collection at the first of each calendar year.
    4. Obtain the prior written permission of the owner if the site of the proposed excavation is on privately owned land.
    5. Carry the permit while exercising the privileges granted.
  4. Any person who fails to obtain a permit required by subsection A hereof shall be guilty of a Class 1 misdemeanor. Any violation of subsection C hereof shall be punished as a Class 3 misdemeanor, and the permit shall be revoked.
  5. The provisions of this section shall not apply to any person in any cave located on his own property.

History. 1979, c. 252, § 10-150.16; 1982, c. 81; 1984, c. 750; 1988, c. 891; 1989, c. 656.

Cross references.

As to punishment for Class 1 and 3 misdemeanors, see § 18.2-11 .

Michie’s Jurisprudence.

For related discussion, see 18 M.J. Trespass, § 1.

§ 10.1-1004. Vandalism; penalties.

  1. It shall be unlawful for any person, without express, prior, written permission of the owner, to:
    1. Break, break off, crack, carve upon, write, burn, or otherwise mark upon, remove, or in any manner destroy, disturb, deface, mar, or harm the surfaces of any cave or any natural material which may be found therein, whether attached or broken, including speleothems, speleogens, and sedimentary deposits. The provisions of this section shall not prohibit minimal disturbance for scientific exploration.
    2. Break, force, tamper with, or otherwise disturb a lock, gate, door, or other obstruction designed to control or prevent access to any cave, even though entrance thereto may not be gained.
    3. Remove, deface, or tamper with a sign stating that a cave is posted or citing provisions of this chapter.
    4. Excavate, remove, destroy, injure, deface, or in any manner disturb any burial grounds, historic or prehistoric resources, archaeological or paleontological site or any part thereof, including relics, inscriptions, saltpeter workings, fossils, bones, remains of historical human activity, or any other such features which may be found in any cave, except those caves owned by the Commonwealth or designated as Commonwealth archaeological sites or zones, and which are subject to the provisions of the Virginia Antiquities Act (§ 10.1-2300 et seq.).
  2. Entering or remaining in a cave which has not been posted by the owner shall not by itself constitute a violation of this section.
  3. Any violation of this section shall be punished as a Class 1 misdemeanor.
  4. The provisions of this section shall not apply to an owner of a cave on his own property.

History. 1979, c. 252, § 10-150.13; 1982, c. 81; 1988, c. 891.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 10.1-1005. Pollution; penalties.

  1. It shall be unlawful for any person, without express, prior, written permission of the owner, to store, dump, litter, dispose of or otherwise place any refuse, garbage, dead animals, sewage, or toxic substances harmful to cave life or humans, in any cave or sinkhole. It shall also be unlawful to burn within a cave or sinkhole any material which produces any smoke or gas which is harmful to any naturally occurring organism in any cave.
  2. Any violation of this section shall be punished as a Class 1 misdemeanor.

History. 1979, c. 252, § 10-150.14; 1982, c. 81; 1988, c. 891.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 10.1-1006. Disturbance of naturally occurring organisms; scientific collecting permits; penalties.

  1. It shall be unlawful to remove, kill, harm, or otherwise disturb any naturally occurring organisms within any cave, except for safety or health reasons; however, scientific collecting permits may be obtained from the Department.
  2. Any violation of this section shall be punished as a Class 3 misdemeanor.

History. 1979, c. 252, § 10-150.15; 1988, c. 891.

Cross references.

As to punishment for Class 3 misdemeanors, see § 18.2-11 .

§ 10.1-1007. Sale of speleothems; penalties.

It shall be unlawful for any person to sell or offer for sale any speleothems in this Commonwealth, or to export them for sale outside the Commonwealth. Any violation of this section shall be punished as a Class 1 misdemeanor.

History. 1979, c. 252, § 10-150.17; 1982, c. 81; 1988, c. 891.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Michie’s Jurisprudence.

For related discussion, see 18 M.J. Trespass, § 1.

§ 10.1-1008. Liability of owners and agents limited; sovereign immunity of Commonwealth not waived.

Neither the owner of a cave nor his authorized agents acting within the scope of their authority are liable for injuries sustained by any person using the cave for recreational or scientific purposes if no charge has been made for the use of the cave, notwithstanding that an inquiry as to the experience or expertise of the individual seeking consent may have been made.

Nothing in this section shall be construed to constitute a waiver of the sovereign immunity of the Commonwealth or any of its boards, departments, bureaus, or agencies.

History. 1979, c. 252, § 10-150.18; 1988, c. 891.

Research References.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 35 Limitation of Actions: Statutes of Limitations; Immunities; Res Judicata and Collateral Estoppel. § 35.02 Immunities. Friend.

Chapter 10.1. Virginia Conservation Easement Act.

Research References.

Virginia Forms (Matthew Bender). No. 16-576. Deed of Gift of Conservation Easement; No. 16-577. Deed of Easement for Open-Space Land — Riparian Zone; No. 16-579. Deeds of Easement to Local Government for Natural Open Space, Conservation or Rural Preservation; No. 16-580. Deed of Conservation Easement for Forest Lands.

§ 10.1-1009. Definitions.

As used in this chapter, unless the context otherwise requires:

“Conservation easement” means a nonpossessory interest of a holder in real property, whether easement appurtenant or in gross, acquired through gift, purchase, devise, or bequest imposing limitations or affirmative obligations, the purposes of which include retaining or protecting natural or open-space values of real property, assuring its availability for agricultural, forestal, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural or archaeological aspects of real property.

“Holder” means a charitable corporation, charitable association, or charitable trust which has been declared exempt from taxation pursuant to 26 U.S.C. § 501(c)(3) and the primary purposes or powers of which include: (i) retaining or protecting the natural or open-space values of real property; (ii) assuring the availability of real property for agricultural, forestal, recreational, or open-space use; (iii) protecting natural resources; (iv) maintaining or enhancing air or water quality; or (v) preserving the historic, architectural or archaeological aspects of real property.

“Public body” means any entity defined in § 10.1-1700 .

“Third party right of enforcement” means a right provided in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association or charitable trust which, although eligible to be a holder, is not a holder.

History. 1988, cc. 720, 891.

Cross references.

As to requests for conservation easement dispute mediation, see § 10.1-1021.2 .

As to land preservation tax credits for individuals and corporations, see § 58.1-512 . As to loans for land conservation, see § 62.1-229.3.

Editor’s note.

This chapter was enacted by Acts 1988, c. 720, as §§ 10-158.21 through 10-158.28. Pursuant to Acts 1988, c. 891, cl. 5, these sections have been incorporated into Title 10.1 as §§ 10.1-1009 through 10.1-1016 .

Law Review.

For survey article on judicial decisions in real estate law from June 1, 2002 through June 1, 2003, see 38 U. Rich. L. Rev. 223 (2003).

For 2007 annual survey article, “Environmental Law,” see 42 U. Rich. L. Rev. 383 (2007).

For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

For article, “Taxation,” see 45 U. Rich. L. Rev. 377 (2010).

Michie’s Jurisprudence.

For related discussion, see 6B M.J. Easements, § 2.

CASE NOTES

Legislative intent. —

Virginia Conservation Easement Act did not create a new right to burden land by a negative easement in gross for the purpose of land conservation and historic preservation, but facilitated the continued creation of such easements by providing a clear statutory framework under which tax exemptions are made available to charitable organizations devoted to those purposes and tax benefits and incentives are provided to the grantors of such easements, contrary to the common law; moreover, the easement at issue was not of a novel character and is consistent with the statutory recognition of negative easements in gross for conservation and historic purposes. United States v. Blackman, 270 Va. 68 , 613 S.E.2d 442, 2005 Va. LEXIS 69 (2005).

No abrogation of strict construction principle. —

In certain significant respects, the Virginia Conservation Easement Act is in derogation of the common law, but this does not necessarily mean that the common-law strict construction principle applied to restrictive covenants is abrogated by the Act; the Act does not abrogate the common-law strict construction principle as the Act is not directly and irreconcilably opposed to it, and thus the restrictive covenants in the easement that were ambiguous had to be strictly construed against restriction and in favor of the business. Wetlands Am. Trust, Inc. v. White Cloud Nine Ventures, L.P., 291 Va. 153 , 782 S.E.2d 131, 2016 Va. LEXIS 12 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Conservation easements. —

A conservation easement obtained under the Virginia Conservation Easement Act (§ 10.1-1009 et seq.) or the Open-Space Land Act (§ 10.1-1700 et seq.) is not extinguished by application of the common-law doctrine of merger of estates when the easement holder acquires fee simple title to the encumbered land. See opinion of Attorney General to The Honorable Thomas Davis Rust, Member, House of Delegates, 11-140, 2012 Va. AG LEXIS 31 (8/31/2012).

§ 10.1-1010. Creation, acceptance and duration.

  1. A holder may acquire a conservation easement by gift, purchase, devise or bequest.
  2. No right or duty in favor of or against a holder and no right in favor of a person having a third-party right of enforcement arises under a conservation easement before its acceptance by the holder and a recordation of the acceptance.
  3. A conservation easement shall be perpetual in duration unless the instrument creating it otherwise provides a specific time. For all easements, the holder shall (i) meet the criteria in § 10.1-1009 and (ii) either have had a principal office in the Commonwealth for at least five years, or be a national organization in existence for at least five years which has an office in the Commonwealth and has registered and is in good standing with the State Corporation Commission. Until a holder has met these requirements, the holder may co-hold a conservation easement with another holder that meets the requirements.
  4. An interest in real property in existence at the time a conservation easement is created is not impaired by it unless the owner of the interest is a party to the conservation easement or consents to it in writing.
  5. No conservation easement shall be valid and enforceable unless the limitations or obligations created thereby conform in all respects to the comprehensive plan at the time the easement is granted for the area in which the real property is located.
  6. This chapter does not affect the power of the court to modify or terminate a conservation easement in accordance with the principles of law and equity, or in any way limit the power of eminent domain as possessed by any public body. In any such proceeding the holder of the conservation easement shall be compensated for the value of the easement.

History. 1988, cc. 720, 891; 2000, c. 182; 2003, c. 1014; 2004, c. 364.

Cross references.

As to land preservation tax credits for individuals and corporations, see § 58.1-512 . As to loans for conservation or open-space easements, see § 62.1-229.3.

Editor’s note.

Acts 2004, c. 364, which amended subsection C by substituting “four years” for “five years,” in cl. 2 provided: “That the provisions of this act shall expire on July 1, 2005.” The section is set out above without the amendment by Acts 2004, c. 364.

The 2000 amendments.

The 2000 amendment by c. 182, in subsection C, substituted “For all easements” for “Where an easement is perpetual,” in the second sentence, and added the third sentence.

The 2003 amendments.

The 2003 amendment by c. 1014, in clause (ii) of subsection C, inserted “either” at the beginning, and inserted “or be a national organization in existence for at least five years which has an office in the Commonwealth and has registered and is in good standing with the State Corporation Commission” at the end.

Law Review.

For 2003/2004 survey of environmental law, see 39 U. Rich. L. Rev. 203 (2004).

§ 10.1-1011. Taxation.

  1. Where an easement held pursuant to this chapter or the Open-Space Land Act (§ 10.1-1700 et seq.) by its terms is perpetual, neither the interest of the holder of a conservation easement nor a third-party right of enforcement of such an easement shall be subject to state or local taxation nor shall the owner of the fee be taxed for the interest of the holder of the easement.
  2. Assessments of the fee interest in land that is subject to a perpetual conservation easement held pursuant to this chapter or the Open-Space Land Act (§ 10.1-1700 et seq.) shall reflect the reduction in the fair market value of the land that results from the inability of the owner of the fee to use such property for uses terminated by the easement. To ensure that the owner of the fee is not taxed on the value of the interest of the holder of the easement, the fair market value of such land (i) shall be based only on uses of the land that are permitted under the terms of the easement and (ii) shall not include any value attributable to the uses or potential uses of the land that have been terminated by the easement.
  3. Notwithstanding the provisions of subsection B, land which is (i) subject to a perpetual conservation easement held pursuant to this chapter or the Open-Space Land Act (§ 10.1-1700 et seq.), (ii) devoted to open-space use as defined in § 58.1-3230 , and (iii) in any county, city or town which has provided for land use assessment and taxation of any class of land within its jurisdiction pursuant to § 58.1-3231 or § 58.1-3232 , shall be assessed and taxed at the use value for open space, if the land otherwise qualifies for such assessment at the time the easement is dedicated. If an easement is in existence at the time the locality enacts land use assessment, the easement shall qualify for such assessment. Once the land with the easement qualifies for land use assessment, it shall continue to qualify so long as the locality has land use assessment.

History. 1988, cc. 720, 891; 1993, c. 390; 1998, c. 487.

Cross references.

As to assessment of real property where interest less than fee is held by public body, see § 58.1-3205 .

The 1998 amendment, added the subsection A designation, in subsection A, substituted “Where an easement” for “Where the easement,” and inserted “held pursuant to this chapter or the Open-Space Land Act (§ 10.1-1700 et seq.)”; added subsection B; added the subsection C designation, and in subsection C, added “Notwithstanding the provisions of subsection B.”

OPINIONS OF THE ATTORNEY GENERAL

Conservation easements. —

A conservation easement obtained under the Virginia Conservation Easement Act (§ 10.1-1009 et seq.) or the Open-Space Land Act (§ 10.1-1700 et seq.) is not extinguished by application of the common-law doctrine of merger of estates when the easement holder acquires fee simple title to the encumbered land. See opinion of Attorney General to The Honorable Thomas Davis Rust, Member, House of Delegates, 11-140, 2012 Va. AG LEXIS 31 (8/31/2012).

Subsequent changes to land approved for conservation easement. —

Under § 10.1-1011 , conservation easement land covered by the provisions of the statute must meet the minimum acreage requirement of § 58.1-3233 at the time the easement is dedicated, unless the easement was placed on the property before the local land use assessment ordinance was adopted. Subsequent changes in acreage or use that are permitted under the conservation easement would not affect the continuing eligibility of the land for use assessment under subsection C of § 10.1-1011 . No back taxes, including the roll-back tax, may be imposed when conservation easement land, through apparent unpermitted use or development, no longer appears to qualify for use assessment under subsection C of § 10.1-1011. However, upon the initiation of appropriate proceedings and the making of factual findings respecting the land and easement in question, such subsequent violations of the conservation easement could render the land ineligible for use assessment under § 10.1-1011. See opinion of Attorney General to Larry W. Davis, Esquire, County Attorney for the County of Albemarle, 12-099, 2013 Va. AG LEXIS 76 (9/20/13).

§ 10.1-1012. Notification.

Whenever any instrument conveying a conservation easement is recorded after July 1, 1988, the party responsible for recording it or his agent shall mail certified copies thereof, together with any attached plats and a notice specifying the date and place of recordation, to the commissioner of revenue for the local jurisdiction in which the real property subject thereto is located, the Director of the Department of Conservation and Recreation, the Virginia Outdoors Foundation, and to any other public body named in such instrument. Whenever any conservation easement is on lands that are part of or contain a historic place or landmark listed on either the National Register of Historic Places or the Virginia Landmarks Register, any notice required by this section shall also be given to the Director of the Department of Historic Resources.

History. 1988, cc. 720, 891; 2011, c. 207.

The 2011 amendments.

The 2011 amendment by c. 207 rewrote the section, which read: “Whenever any instrument conveying a conservation easement is recorded after July 1, 1988, the party responsible for recording it or his agent shall mail certified copies thereof, together with notice as to the date and place of recordation, to the local jurisdiction in which the real property subject thereto is located, the Attorney General of the Commonwealth, the Virginia Outdoors Foundation and to any public body named in such instrument. Certified copies of the instrument creating such easement, together with information specifying the date and place of its recordation, shall be mailed to the local jurisdiction in which the real property subject thereto is located, the Attorney General of the Commonwealth, the Virginia Outdoors Foundation and to any public body named in such instrument. Whenever any conservation easement is on lands that are part of a historic landmark as certified, either by the United States or the Virginia Historic Landmarks Board, any notice required above shall also be given to the Virginia Historic Landmarks Board.”

§ 10.1-1013. Standing.

An action affecting a conservation easement may be brought by:

  1. An owner of an interest in real property burdened by the easement;
  2. A holder of the easement;
  3. A person having an express third-party right of enforcement;
  4. The Attorney General of the Commonwealth;
  5. The Virginia Outdoors Foundation;
  6. The Virginia Historic Landmarks Board;
  7. The local government in which the real property is located; or
  8. Any other governmental agency or person with standing under other statutes or common law.

History. 1988, cc. 720, 891.

OPINIONS OF THE ATTORNEY GENERAL

Merger of estates. —

A conservation easement obtained under the Virginia Conservation Easement Act (§ 10.1-1009 et seq.) or the Open-Space Land Act (§ 10.1-1700 et seq.) is not extinguished by application of the common-law doctrine of merger of estates when the easement holder acquires fee simple title to the encumbered land. See opinion of Attorney General to The Honorable Thomas Davis Rust, Member, House of Delegates, 11-140, 2012 Va. AG LEXIS 31 (8/31/2012).

§ 10.1-1014. Validity.

A conservation easement is valid even though:

  1. It is not appurtenant to an interest in real property;
  2. It can be or has been assigned to another holder;
  3. It is not of a character that has been recognized traditionally at common law;
  4. It imposes a negative burden;
  5. It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder;
  6. The benefit does not touch or concern real property; or
  7. There is no privity of estate or of contract.

    Except as otherwise provided in this chapter, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements.

History. 1988, cc. 720, 891.

CASE NOTES

Conservation easement interpretation. —

By leaving the strict construction principle in force with the passage of the Virginia Conservation Easement Act, the legislature must have viewed this principle as an appropriate additional incentive for those who draft the conservation easements to achieve clarity in light of the fact that they are subject to enforcement in perpetuity, and this is equally true of the constitutional policy to protect the environment, the Open Space Land Act, the Virginia Outdoors Foundation, and the Virginia Land Conservation Incentives Act of 1999; like the Virginia Conservation Easement Act, none of these provisions address in any way the interpretive principles to be applied to a conservation easement. Wetlands Am. Trust, Inc. v. White Cloud Nine Ventures, L.P., 291 Va. 153 , 782 S.E.2d 131, 2016 Va. LEXIS 12 (2016).

§ 10.1-1015. Conveyance to the Commonwealth.

Whenever any holder as defined in this chapter, or the successors or assigns thereof, shall cease to exist, any conservation easement and any right of enforcement held by it shall vest in the Virginia Outdoors Foundation, unless the instrument creating the easement otherwise provides for its transfer to some other holder or public body. In an easement vested in the Virginia Outdoors Foundation by operation of the preceding sentence, the Foundation may retain it or thereafter convey it to any other public body or any holder the Foundation deems most appropriate to hold and enforce such interest in accordance with the purpose of the original conveyance of the easement.

History. 1988, cc. 720, 891.

§ 10.1-1016. Savings clause.

Nothing herein shall in any way affect the power of a public body under any other statute, including without limitation the Virginia Outdoors Foundation and the Virginia Historic Landmarks Board, to acquire and hold conservation easements or affect the terms of any such easement held by any public body.

History. 1988, cc. 720, 891.

§ 10.1-1016.1. Construction.

Notwithstanding any provision of law to the contrary, an easement held pursuant to this chapter shall be construed in favor of achieving the conservation purposes for which it was created.

History. 2021, Sp. Sess. I, cc. 274, 317.

Effective date.

This section is effective July 1, 2021.

Chapter 10.2. Virginia Land Conservation Foundation.

§ 10.1-1017. Foundation created.

There is hereby created the Virginia Land Conservation Foundation, hereinafter referred to as the Foundation, a body politic and corporate to have such powers and duties as hereinafter provided.

History. 1992, c. 426; 1999, cc. 900, 906.

The 1999 amendments.

The 1999 amendments by cc. 900 and 906 are identical, rewrote the former chapter head, which read: “Virginia Conservation and Recreation Foundation,” and substituted “Land Conservation” for “Conservation and Recreation.”

Law Review.

For an article, “The Rhetoric and Reality of Nature Protection: Toward a New Discourse,” see 57 Wash. & Lee L. Rev. 11 (2000).

Research References.

Virginia Forms (Matthew Bender). No. 16-580. Deed of Conservation Easement for Forest Lands.

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. —

Contracts with nonprofits that provide for land conservation and stewardship do not offend Va. Const., Art. IV, § 16. See opinion of Attorney General to The Honorable Douglas W. Domenech, Secretary of Natural Resources, 11-089, 2011 Va. AG LEXIS 40 (9/13/11).

§ 10.1-1018. (Effective until July 1, 2022) Virginia Land Conservation Board of Trustees; membership; terms; vacancies; compensation and expenses.

  1. The Foundation shall be governed and administered by a Board of Trustees. The Board shall have a total membership of 19 members that shall consist of 17 citizen members and two ex officio voting members as follows: four citizen members, who may be members of the House of Delegates, to be appointed by the Speaker of the House of Delegates and, if such members are members of the House of Delegates, in accordance with the principles of proportional representation contained in the Rules of the House of Delegates; two citizen members, who may be members of the Senate, to be appointed by the Senate Committee on Rules; 11 nonlegislative citizen members, one from each congressional district, to be appointed by the Governor; and the Secretary of Natural and Historic Resources, or his designee, and the Secretary of Agriculture and Forestry, or his designee, to serve ex officio with voting privileges. Nonlegislative citizen members shall be appointed for four-year terms, except that initial appointments shall be made for terms of one to four years in a manner whereby no more than six members shall have terms that expire in the same year. Legislative members and the ex officio member shall serve terms coincident with their terms of office. Appointments to fill vacancies, other than by expiration of a term, shall be made for the unexpired terms. Vacancies shall be filled in the same manner as the original appointments. All members may be reappointed. However, no Senate member shall serve more than two consecutive four-year terms, no House member shall serve more than four consecutive two-year terms and no nonlegislative citizen member shall serve more than two consecutive four-year terms. The remainder of any term to which a member is appointed to fill a vacancy shall not constitute a term in determining the member’s eligibility for reappointment. Nonlegislative citizen members shall have experience or expertise, professional or personal, in one or more of the following areas: natural resource protection and conservation, construction and real estate development, natural habitat protection, environmental resource inventory and identification, forestry management, farming, farmland preservation, fish and wildlife management, historic preservation, and outdoor recreation. At least one of the nonlegislative citizen members shall be a farmer. Members of the Board shall post bond in the penalty of $5,000 with the State Comptroller prior to entering upon the functions of office.
  2. The Secretary of Natural and Historic Resources shall serve as the chairman of the Board of Trustees. The chairman shall serve until his successor is appointed. The members appointed as provided in subsection A shall elect a vice-chairman annually from among the members of the Board. A majority of the members of the Board serving at any one time shall constitute a quorum for the transaction of business. The board shall meet at the call of the chairman or whenever a majority of the members so request.
  3. Trustees of the Foundation shall receive no compensation for their services. All members shall be reimbursed for all reasonable and necessary expenses incurred in the performance of their duties on behalf of the Foundation as provided in §§ 2.2-2813 and 2.2-2825. Funding for the costs of expenses of the members shall be provided by the Department of Conservation and Recreation.
  4. The chairman of the Board and any other person designated by the Board to handle the funds of the Foundation shall give bond, with corporate surety, in such penalty as is fixed by the Governor, conditioned upon the faithful discharge of his duties. The premium on the bonds shall be paid from funds available to the Foundation for such purpose.
  5. The Board shall seek assistance in developing grant criteria and advice on grant priorities and any other appropriate issues from a task force consisting of the following agency heads or their designees: the Director of the Department of Conservation and Recreation, the Commissioner of Agriculture and Consumer Services, the State Forester, the Director of the Department of Historic Resources, the Director of the Department of Wildlife Resources and the Executive Director of the Virginia Outdoors Foundation. The Board may request any other agency head to serve on or appoint a designee to serve on the task force.

History. 1992, c. 426; 1999, cc. 900, 906; 2000, cc. 21, 294, 494, 1053; 2003, c. 885; 2005, cc. 633, 758; 2006, c. 45; 2020, c. 958; 2021, Sp. Sess. I, c. 401.

Editor’s note.

Acts 2000, c. 1053, cl. 2, provides: “That the provisions of this act shall not affect current members of the Virginia Land Conservation Board of Trustees whose terms have not expired as of July 1, 2000.”

Acts 2003, c. 885, cl. 7, provides: “That all current members of the collegial bodies whose terms have been modified by this act shall be eligible, if reappointed, to the full number of terms provided by this act regardless of prior service.”

Acts 2005, c. 758, cl. 2, provides: “That this act shall not be construed to affect existing appointments, made by the Senate Committee on Privileges and Elections, for which the terms have not expired. However, any new appointments made after July 1, 2005 shall be made in accordance with the provisions of this act.”

The 1999 amendments.

The 1999 amendments by cc. 900 and 906 are identical, and in subsection A, in the third sentence, substituted “conservation” for “conservancy” and inserted “farming, farmland preservation,” and in the seventh sentence, substituted “their designees” for “his designee.”

The 2000 amendments.

The 2000 amendments by cc. 21 and 294 are identical, and in subsection A, in the first sentence, deleted the “State Treasurer, or his designee” following “Secretary of Natural Resources,” and substituted “eight” for “seven,” substituted “Four” for “Three” in the second sentence, and in the next-to-last sentence, substituted “terms” for “term,” deleted “and the State Treasurer,” following “Secretry of Natural Resources,” and substituted “his designee” for “their designees”; and in subsection D, deleted “the State Treasurer or his designee and” following “composed of,” and substituted “seven” for “six.”

The 2000 amendment by c. 494 inserted the present fifth sentence in subsection A.

The 2000 amendment by c. 1053 rewrote the section. See Editor’s note.

The 2003 amendments.

The 2003 amendment by c. 885 rewrote subsection A, deleted the former first and second sentences of subsection B, which read: “The Secretary of Natural Resources or his designee shall also serve on the Board of Trustees. The term of the Secretary of Natural Resources or his designee shall be coincident with that of the Governor,” and added “or whenever a majority of the members so request” at the end of the last sentence of subsection B; rewrote subsection C; and added subsection F.

The 2005 amendments.

The 2005 amendment by c. 633 deleted former subsection F, which read: “The chairman of the Board shall submit to the Governor and the General Assembly a biennial executive summary of the interim activity and work of the Board no later than the first day of each even-numbered year regular session of the General Assembly. The executive summary shall be submitted as provided in the procedures of the Division of Legislature Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly’s website.”

The 2005 amendment by c. 758, in subsection A, substituted “have a total membership of 18 members that shall consist of” for “consist of 18 members that include” and “Rules” for “Privileges and Elections” in the second sentence.

The 2006 amendments.

The 2006 amendment by c. 45, in the second sentence of subsection A, substituted “19” for “18,” “two ex officio voting members” for “one ex officio voting member” and inserted “and the Secretary of Agriculture and Forestry, or his designee.”

The 2020 amendments.

The 2020 amendment by c. 958, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in subsection E, first sentence.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 401, effective July 1, 2021, inserted “and Historic” in subsections A and B.

The 2022 amendments.

The 2022 amendment by c. 705, added “and at least one shall be a member of a state-recognized or federally recognized Virginia Indian Tribe.” in the next-to-last sentence of subsection A.

§ 10.1-1018. (Effective July 1, 2022) Virginia Land Conservation Board of Trustees; membership; terms; vacancies; compensation and expenses.

  1. The Foundation shall be governed and administered by a Board of Trustees. The Board shall have a total membership of 19 members that shall consist of 17 citizen members and two ex officio voting members as follows: four citizen members, who may be members of the House of Delegates, to be appointed by the Speaker of the House of Delegates and, if such members are members of the House of Delegates, in accordance with the principles of proportional representation contained in the Rules of the House of Delegates; two citizen members, who may be members of the Senate, to be appointed by the Senate Committee on Rules; 11 nonlegislative citizen members, one from each congressional district, to be appointed by the Governor; and the Secretary of Natural and Historic Resources, or his designee, and the Secretary of Agriculture and Forestry, or his designee, to serve ex officio with voting privileges. Nonlegislative citizen members shall be appointed for four-year terms, except that initial appointments shall be made for terms of one to four years in a manner whereby no more than six members shall have terms that expire in the same year. Legislative members and the ex officio member shall serve terms coincident with their terms of office. Appointments to fill vacancies, other than by expiration of a term, shall be made for the unexpired terms. Vacancies shall be filled in the same manner as the original appointments. All members may be reappointed. However, no Senate member shall serve more than two consecutive four-year terms, no House member shall serve more than four consecutive two-year terms and no nonlegislative citizen member shall serve more than two consecutive four-year terms. The remainder of any term to which a member is appointed to fill a vacancy shall not constitute a term in determining the member’s eligibility for reappointment. Nonlegislative citizen members shall have experience or expertise, professional or personal, in one or more of the following areas: natural resource protection and conservation, construction and real estate development, natural habitat protection, environmental resource inventory and identification, forestry management, farming, farmland preservation, fish and wildlife management, historic preservation, and outdoor recreation. At least one of the nonlegislative citizen members shall be a farmer, and at least one shall be a member of a state-recognized or federally recognized Virginia Indian Tribe. Members of the Board shall post bond in the penalty of $5,000 with the State Comptroller prior to entering upon the functions of office.
  2. The Secretary of Natural and Historic Resources shall serve as the chairman of the Board of Trustees. The chairman shall serve until his successor is appointed. The members appointed as provided in subsection A shall elect a vice-chairman annually from among the members of the Board. A majority of the members of the Board serving at any one time shall constitute a quorum for the transaction of business. The board shall meet at the call of the chairman or whenever a majority of the members so request.
  3. Trustees of the Foundation shall receive no compensation for their services. All members shall be reimbursed for all reasonable and necessary expenses incurred in the performance of their duties on behalf of the Foundation as provided in §§ 2.2-2813 and 2.2-2825. Funding for the costs of expenses of the members shall be provided by the Department of Conservation and Recreation.
  4. The chairman of the Board and any other person designated by the Board to handle the funds of the Foundation shall give bond, with corporate surety, in such penalty as is fixed by the Governor, conditioned upon the faithful discharge of his duties. The premium on the bonds shall be paid from funds available to the Foundation for such purpose.
  5. The Board shall seek assistance in developing grant criteria and advice on grant priorities and any other appropriate issues from a task force consisting of the following agency heads or their designees: the Director of the Department of Conservation and Recreation, the Commissioner of Agriculture and Consumer Services, the State Forester, the Director of the Department of Historic Resources, the Director of the Department of Wildlife Resources and the Executive Director of the Virginia Outdoors Foundation. The Board may request any other agency head to serve on or appoint a designee to serve on the task force.

History. 1992, c. 426; 1999, cc. 900, 906; 2000, cc. 21, 294, 494, 1053; 2003, c. 885; 2005, cc. 633, 758; 2006, c. 45; 2020, c. 958; 2021, Sp. Sess. I, c. 401; 2022, c. 705.

§ 10.1-1018.1. (Effective until July 1, 2022) Reporting.

The chairman of the Board shall submit to the Governor and the General Assembly, including the Chairmen of the House Committee on Appropriations, the House Committee on Agriculture, Chesapeake and Natural Resources, the Senate Committee on Finance and Appropriations, and the Senate Committee on Agriculture, Conservation and Natural Resources, and to the Director of the Department of Planning and Budget an executive summary and report of the interim activity and work of the Board on or before December 15 of each even-numbered year. The document shall report on the status of the Foundation and its Fund, including (i) land conservation targeting tools developed for the Foundation; (ii) descriptions of projects that received funding; (iii) a description of the geographic distribution of land protected as provided in § 10.1-1021.1 ; (iv) expenditures from, interest earned by, and financial obligations of the Fund; and (v) progress made toward recognized state and regional land conservation goals, including what percentage of properties conserved were identified by ConserveVirginia, pursuant to § 10.1-104.6:1 , and whether the identified conservation values were protected. The executive summary and report shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly’s website.

History. 2005, c. 633; 2021, Sp. Sess. I, c. 99.

Editor’s note.

The Virginia Code Commission authorized the substitution of “Senate Committee on Finance and Appropriations” for “Senate Committee on Finance.” March 10, 2021.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 99, effective July 1, 2021, deleted “but not limited to” preceding clause (i); deleted former clause (i), which read “implementation of its strategic plan” and redesignated remaining clauses accordingly; and in clause (v), inserted “including what percentage of properties conserved were identified by ConserveVirginia, pursuant to § 10.1-104.6:1 , and whether the identified conservation values were protected.”

The 2022 amendments.

The 2022 amendment by c. 705, in the first sentence, deleted “interim” preceding “activity” and deleted “even-numbered” preceding “year”; substituted “and a summary of the conservation values that were protected.” for “and whether the identified conservation values were protected.”; and added the next-to-last sentence.

§ 10.1-1018.1. (Effective July 1, 2022) Reporting.

The chairman of the Board shall submit to the Governor and the General Assembly, including the Chairmen of the House Committee on Appropriations, the House Committee on Agriculture, Chesapeake and Natural Resources, the Senate Committee on Finance and Appropriations, and the Senate Committee on Agriculture, Conservation and Natural Resources, and to the Director of the Department of Planning and Budget an executive summary and report of the activity and work of the Board on or before December 15 of each year. The document shall report on the status of the Foundation and its Fund, including (i) land conservation targeting tools developed for the Foundation; (ii) descriptions of projects that received funding; (iii) a description of the geographic distribution of land protected as provided in § 10.1-1021.1 ; (iv) expenditures from, interest earned by, and financial obligations of the Fund; and (v) progress made toward recognized state and regional land conservation goals, including what percentage of properties conserved were identified by ConserveVirginia, pursuant to § 10.1-104.6:1 , and a summary of the conservation values that were protected. The report shall also estimate the funds needed to achieve goals established by the Board for (a) natural area protection, (b) open spaces and parks, (c) farmland preservation, (d) forest land preservation, (e) historical and cultural sites, (f) meeting the needs of under-resourced communities, and (g) any other goal determined by the Board. The executive summary and report shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly’s website.

History. 2005, c. 633; 2021, Sp. Sess. I, c. 99; 2022, c. 705.

§ 10.1-1019. Executive secretary; land management.

  1. The Director of the Department of Conservation and Recreation shall serve as executive secretary to the Foundation and shall be responsible for providing technical assistance and performing any administrative duties that the Foundation may direct.
  2. The Department of Conservation and Recreation shall administer the Foundation’s lands as if such lands were departmental lands, and the regulations established by the Director for the management and protection of departmental lands shall apply to real estate held by the Foundation. The Department’s conservation officers commissioned under § 10.1-115 shall have jurisdiction on all of the Foundation’s lands and waters.

History. 1992, c. 426; 2000, c. 1053.

Editor’s note.

Acts 2000, c. 1053, cl. 2, provides: “That the provisions of this act shall not affect current members of the Virginia Land Conservation Board of Trustees whose terms have not expired as of July 1, 2000.”

The 2000 amendments.

The 2000 amendment by c. 1053 designated the first paragraph as subsection A, substituted “providing technical assistance and performing any” for “the performance of the” in subsection A, and added subsection B.

§ 10.1-1020. (Effective until July 1, 2022) Virginia Land Conservation Fund; purposes of Foundation.

  1. The Foundation shall establish, administer, manage, including the creation of reserves, and make expenditures and allocations from a special, nonreverting fund in the state treasury to be known as the Virginia Land Conservation Fund, hereinafter referred to as the Fund. The Foundation shall establish and administer the Fund solely for the purposes of:
    1. Acquiring fee simple title or other rights, including the purchase of development rights, to interests or privileges in property for the protection or preservation of ecological, cultural or historical resources, lands for recreational purposes, state forest lands, and lands for threatened or endangered species, fish and wildlife habitat, natural areas, agricultural and forestal lands and open space; and
    2. Providing grants to state agencies, including the Virginia Outdoors Foundation, and matching grants to other public bodies and holders for acquiring fee simple title or other rights, including the purchase of development rights, to interests or privileges in real property for the protection or preservation of ecological, cultural or historical resources, lands for recreational purposes, and lands for threatened or endangered species, fish and wildlife habitat, natural areas, agricultural and forestal lands and open space. The Board shall establish criteria for making grants from the Fund, including procedures for determining the amount of each grant and the required match. The criteria shall include provisions for grants to localities for purchase of development rights programs.Interests in land acquired as provided in subdivision 1 of this subsection may be held by the Foundation or transferred to state agencies or other appropriate holders. Whenever a holder acquires any interest in land other than a fee simple interest as a result of a grant or transfer from the Foundation, such interest shall be held jointly by the holder and a public body. Whenever a holder acquires a fee simple interest in land as a result of a grant or transfer from the Foundation, a public body shall hold an open space easement in such land.
  2. The Fund shall consist of general fund moneys and gifts, endowments or grants from the United States government, its agencies and instrumentalities, and funds from any other available sources, public or private. Such moneys, gifts, endowments, grants or funds from other sources may be either restricted or unrestricted. For the purposes of this chapter, “restricted funds” shall mean those funds received by the Board to which specific conditions apply; “restricted funds” shall include, but not be limited to, general obligation bond moneys and conditional gifts. “Unrestricted funds” shall mean those received by the Foundation to which no specific conditions apply; “unrestricted funds” shall include, but not be limited to, moneys appropriated to the Fund by the General Assembly to which no specific conditions are attached and unconditional gifts.Beginning July 1, 2019, the Foundation shall conduct a grant round each year to identify and rank projects for the subsequent fiscal year. Biennially in the odd-numbered years, the Foundation shall assume an amount of funding of the grant program as provided in the general appropriation act. Biennially in the even-numbered years, the Foundation shall assume the most recent amount of funding of the grant program as specified in the most recently enacted general appropriation act. On or before December 15 of each year, the chairman of the Board of Trustees shall provide copies of such project rankings to the Chairmen of the House Committee on Appropriations and the Senate Committee on Finance and Appropriations. At the beginning of each fiscal year, the Foundation shall finalize grant awards based on the funded level appropriated for that year, as provided in subsections C and D. Any ranked project that does not receive a proposed grant as a result of an insufficiency in appropriated funds shall be eligible to participate in a subsequent grant round.
  3. In any fiscal year for which the Fund is appropriated less than $10 million, and after an allocation for administrative expenses has been made as provided in subsection G, the remaining unrestricted funds in the Fund shall be allocated as follows:
    1. Twenty-five percent shall be transferred to the Virginia Outdoors Foundation’s Open-Space Lands Preservation Trust Fund to be used as provided in § 10.1-1801.1 ; and
    2. Seventy-five percent shall be divided equally among the following four grant uses: (i) natural area protection; (ii) open spaces and parks, including but not limited to, land for public hunting, fishing or wildlife watching; (iii) farmlands and forest preservation; and (iv) historic area preservation. Of the amount allocated as provided in this subdivision, at least one third shall be used to secure easements to be held or co-held by a public body.
  4. In any fiscal year for which the Fund is appropriated $10 million or more, and after an allocation for administrative expenses has been made as provided in subsection G, the remaining unrestricted funds in the Fund shall be allocated as follows:
    1. Twenty-five percent shall be transferred to the Virginia Outdoors Foundation’s Open-Space Lands Preservation Trust Fund to be used as provided in § 10.1-1801.1 ; and
    2. The remaining funds shall be divided equally among the following five grant uses: (i) natural area protection; (ii) open spaces and parks, including but not limited to, land for public hunting, fishing, or wildlife watching; (iii) farmland preservation; (iv) forestland conservation; and (v) historic area preservation.
  5. Any moneys remaining in the Fund at the end of a biennium shall remain in the Fund, and shall not revert to the general fund. Interest earned on moneys received by the Fund other than bond proceeds shall remain in the Fund and be credited to it. Any funds transferred to the Open-Space Lands Preservation Trust Fund pursuant to this section and not disbursed or committed to a project by the end of the fiscal year in which the funds were transferred shall be returned to the Virginia Land Conservation Fund and shall be redistributed among the authorized grant uses during the next grant cycle.
  6. A portion of the Fund, not to exceed twenty percent of the annual balance of unrestricted funds, may be used to develop properties purchased in fee simple, or through the purchase of development rights, with the assets of the Fund for public use including, but not limited to, development of trails, parking areas, infrastructure, and interpretive projects or to conduct environmental assessments or other preliminary evaluations of properties prior to the acquisition of any property interest.
  7. Up to $250,000 per year of the interest generated by the Fund may be used for the Foundation’s administrative expenses, including, but not limited to, the expenses of the Board and its members, development of the Foundation’s strategic plan, development and maintenance of an inventory of properties as provided in subdivision 1 b of § 10.1-1021 , development of a needs assessment for future expenditures as provided in subdivision 1 c of § 10.1-1021 , and fulfillment of reporting requirements. All such expenditures shall be subject to approval by the Board of Trustees.
  8. The Comptroller shall maintain the restricted funds and the unrestricted funds in separate accounts.
  9. For the purposes of this section, “public body” shall have the meaning ascribed to it in § 10.1-1700 , and “holder” shall have the meaning ascribed to it in § 10.1-1009 .

History. 1992, c. 426; 1999, cc. 900, 906; 2000, cc. 494, 1053; 2006, c. 227; 2007, cc. 77, 673; 2019, c. 539.

Editor’s note.

Acts 2000, c. 1053, cl. 2, provides: “That the provisions of this act shall not affect current members of the Virginia Land Conservation Board of Trustees whose terms have not expired as of July 1, 2000.”

Acts 2018, Sp. Sess. I, c. 2, as amended by Acts 2019, c. 854, Item 363 A 1, effective for the biennium ending June 30, 2020, provides: “Included in the amounts for Preservation of Open Space Lands is $4,500,000 the second year from the general fund to be deposited into the Virginia Land Conservation Fund, § 10.1-1020 , Code of Virginia. No less than 50 percent of the appropriations remaining after the transfer to the Virginia Outdoors Foundation’s Open-Space Lands Preservation Trust fund has been satisfied are to be used for grants for fee simple acquisitions with public access or acquisitions of easements with public access. This appropriation shall be deemed sufficient to meet the provisions of § 2.2-1509.4, Code of Virginia.”

The Virginia Code Commission authorized the substitution of “Senate Committee on Finance and Appropriations” for “Senate Committee on Finance” in the second paragraph of subsection B. March 10, 2021.

The 1999 amendments.

The 1999 amendments by cc. 900 and 906 are identical, and redesignated former subsection A as present subsection A and subdivision 1; in subsection A, substituted “Land Conservation” for “Conservation and Recreation,” and substituted “purposes of” for “purpose of purchasing” at the end of said subsection, in subdivision 1, added “Purchasing” at the beginning of the subdivision, and substituted “agricultural and forestal lands and open space; and” for “and open space” at the end of said subdivision, added subdivision 2, added present subsection C, and redesignated former subsections C, D, and E as present D, E, and F, respectively.

The 2000 amendments.

The 2000 amendment by c. 494 added the last two sentences to the end of subdivision A 2.

The 2000 amendment by c. 1053 substituted “Acquiring” for “Purchasing” in subdivision A 1; in subdivision A 2, substituted “Providing grants to state agencies, including the Virginia Outdoors Foundation, and matching grants to other public bodies and holders for acquiring fee simple title” for “Providing matching grants to holders as defined in § 10.1-1009 and public bodies as defined in § 10.1-1700 for purchasing fee simple title”; added the second paragraph of subsection A; rewrote subsection C, which read: “All unrestricted funds in the Fund shall be allocated as follows: (i) twenty-five percent to natural area protection; (ii) twenty-five percent to open spaces and parks; (iii) twenty-five percent to farmlands and forest preservation; and (iv) twenty-five percent to historic area preservation”; added present subsection F; redesignated former subsection F as subsection G, and in subsection G, substituted “Comptroller” for “State treasurer”; and added present subsection H.

The 2006 amendments.

The 2006 amendment by c. 227, in subdivisions A 1 and A 2, deleted “to” following “title” and inserted “including the purchase of development rights, to”; and inserted “or through the purchase of development rights” in subsection E.

The 2007 amendments.

The 2007 amendments by cc. 77 and 673 are identical, and in the introductory paragraph of subsection C, inserted “In any year in which the Fund contains less than $10 million in new deposits on September 1, and” and substituted “subsection G” for “subsection F”; inserted “Virginia Outdoors Foundation’s” in subdivision C 1; in the first sentence of subdivision C 2, inserted “grant” preceding “uses” and inserted “including but not limited to” at the end of clause (ii); added subsection D; redesignated former subsections D through H as present subsections E through I; and added the last sentence in subsection E.

The 2019 amendments.

The 2019 amendment by c. 539 added the second paragraph in subsection B; in subsection C, substituted “In any fiscal year for which the Fund is appropriated less than $10 million, and” for “In any year in which the Fund contains less than $10 million in new deposits on September 1, and”; and in subsection D, substituted “In any fiscal year for which the Fund is appropriated $10 million or more, and” for “In any year in which the Fund contains $10 million or more in new deposits on September 1, and.”

The 2022 amendments.

The 2022 amendment by c. 705, inserted “and for conservation and restoration of homelands for state-recognized and federal recognized Virginia Indian Tribes” in subdivision A 1; inserted “and state-recognized and federally recognized Virginia Indian Tribes” in the first paragraph of subdivision A 2; in the second paragraph of subdivision A 2, in the first sentence, deleted “of this subsection” following “subdivision 1”, deleted “or transferred to” following “Foundation”, and substituted “state agencies, state-recognized or federally recognized Virginia Indian Tribes, other public bodies, and appropriate holders.” for “state agencies or, other appropriate holders.”; deleted the second paragraph of subsection B, which read: “Beginning July 1, 2019, the Foundation shall conduct a grant round each year to identify and rank projects for the subsequent fiscal year. Biennially in the odd-numbered years, the Foundation shall assume an amount of funding of the grant program as provided in the general appropriation act. Biennially in the even-numbered years, the Foundation shall assume the most recent amount of funding of the grant program as specified in the most recently enacted general appropriation act. On or before December 15 of each year, the chairman of the Board of Trustees shall provide copies of such project rankings to the Chairmen of the House Committee on Appropriations and the Senate Committee on Finance and Appropriations. At the beginning of each fiscal year, the Foundation shall finalize grant awards based on the funded level appropriated for that year, as provided in subsections C and D. Any ranked project that does not receive a proposed grant as a result of an insufficiency in appropriated funds shall be eligible to participate in a subsequent grant round.”; substituted “20 percent” for “twenty percent” in subsection F; and made stylistic changes.

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. —

Virginia Const., Art. IV, § 16, which prohibits appropriations to charitable institutions not owned or controlled by the Commonwealth, applies to nonprofits that are devoted to land conservation. See opinion of Attorney General to The Honorable Douglas W. Domenech, Secretary of Natural Resources, 11-089, 2011 Va. AG LEXIS 40 (9/13/11).

While the General Assembly cannot make appropriations in the nature of gifts to nonprofits engaged in land conservation, it can sign contracts or leases with such entities. A contract involves a bargained for exchange and mutual accountability. A grant that is in the nature of a gift does not satisfy constitutional requirements under Va. Const., Art. IV, § 16. See opinion of Attorney General to The Honorable Douglas W. Domenech, Secretary of Natural Resources, 11-089, 2011 Va. AG LEXIS 40 (9/13/11).

Contracts with nonprofits that provide for land conservation and stewardship do not offend Va. Const., Art. IV, § 16. See opinion of Attorney General to The Honorable Douglas W. Domenech, Secretary of Natural Resources, 11-089, 2011 Va. AG LEXIS 40 (9/13/11).

Conservation easements. —

A conservation easement obtained under the Virginia Conservation Easement Act (§ 10.1-1009 et seq.) or the Open-Space Land Act (§ 10.1-1700 et seq.) is not extinguished by application of the common-law doctrine of merger of estates when the easement holder acquires fee simple title to the encumbered land. See opinion of Attorney General to The Honorable Thomas Davis Rust, Member, House of Delegates, 11-140, 2012 Va. AG LEXIS 31 (8/31/2012).

§ 10.1-1020. (Effective July 1, 2022) Virginia Land Conservation Fund; purposes of Foundation.

  1. The Foundation shall establish, administer, manage, including the creation of reserves, and make expenditures and allocations from a special, nonreverting fund in the state treasury to be known as the Virginia Land Conservation Fund, hereinafter referred to as the Fund. The Foundation shall establish and administer the Fund solely for the purposes of:
    1. Acquiring fee simple title or other rights, including the purchase of development rights, to interests or privileges in property for the protection or preservation of ecological, cultural or historical resources, lands for recreational purposes, state forest lands, and lands for threatened or endangered species, fish and wildlife habitat, natural areas, agricultural and forestal lands and open space, and for conservation and restoration of homelands for state-recognized and federally recognized Virginia Indian Tribes; and
    2. Providing grants to state agencies, including the Virginia Outdoors Foundation and state-recognized and federally recognized Virginia Indian Tribes, and matching grants to other public bodies and holders for acquiring fee simple title or other rights, including the purchase of development rights, to interests or privileges in real property for the protection or preservation of ecological, cultural or historical resources, lands for recreational purposes, and lands for threatened or endangered species, fish and wildlife habitat, natural areas, agricultural and forestal lands and open space. The Board shall establish criteria for making grants from the Fund, including procedures for determining the amount of each grant and the required match. The criteria shall include provisions for grants to localities for purchase of development rights programs.

      Interests in land acquired as provided in subdivision 1 may be held by the Foundation, state agencies, state-recognized or federally recognized Virginia Indian Tribes, other public bodies, and appropriate holders. Whenever a holder acquires any interest in land other than a fee simple interest as a result of a grant or transfer from the Foundation, such interest shall be held jointly by the holder and a public body. Whenever a holder acquires a fee simple interest in land as a result of a grant or transfer from the Foundation, a public body shall hold an open space easement in such land.

  2. The Fund shall consist of general fund moneys and gifts, endowments or grants from the United States government, its agencies and instrumentalities, and funds from any other available sources, public or private. Such moneys, gifts, endowments, grants or funds from other sources may be either restricted or unrestricted. For the purposes of this chapter, “restricted funds” shall mean those funds received by the Board to which specific conditions apply; “restricted funds” shall include, but not be limited to, general obligation bond moneys and conditional gifts. “Unrestricted funds” shall mean those received by the Foundation to which no specific conditions apply; “unrestricted funds” shall include, but not be limited to, moneys appropriated to the Fund by the General Assembly to which no specific conditions are attached and unconditional gifts.
  3. In any fiscal year for which the Fund is appropriated less than $10 million, and after an allocation for administrative expenses has been made as provided in subsection G, the remaining unrestricted funds in the Fund shall be allocated as follows:
    1. Twenty-five percent shall be transferred to the Virginia Outdoors Foundation’s Open-Space Lands Preservation Trust Fund to be used as provided in § 10.1-1801.1 ; and
    2. Seventy-five percent shall be divided equally among the following four grant uses: (i) natural area protection; (ii) open spaces and parks, including but not limited to, land for public hunting, fishing or wildlife watching; (iii) farmlands and forest preservation; and (iv) historic area preservation. Of the amount allocated as provided in this subdivision, at least one third shall be used to secure easements to be held or co-held by a public body.
  4. In any fiscal year for which the Fund is appropriated $10 million or more, and after an allocation for administrative expenses has been made as provided in subsection G, the remaining unrestricted funds in the Fund shall be allocated as follows:
    1. Twenty-five percent shall be transferred to the Virginia Outdoors Foundation’s Open-Space Lands Preservation Trust Fund to be used as provided in § 10.1-1801.1 ; and
    2. The remaining funds shall be divided equally among the following five grant uses: (i) natural area protection; (ii) open spaces and parks, including but not limited to, land for public hunting, fishing, or wildlife watching; (iii) farmland preservation; (iv) forestland conservation; and (v) historic area preservation.
  5. Any moneys remaining in the Fund at the end of a biennium shall remain in the Fund, and shall not revert to the general fund. Interest earned on moneys received by the Fund other than bond proceeds shall remain in the Fund and be credited to it. Any funds transferred to the Open-Space Lands Preservation Trust Fund pursuant to this section and not disbursed or committed to a project by the end of the fiscal year in which the funds were transferred shall be returned to the Virginia Land Conservation Fund and shall be redistributed among the authorized grant uses during the next grant cycle.
  6. A portion of the Fund, not to exceed 20 percent of the annual balance of unrestricted funds, may be used to develop properties purchased in fee simple, or through the purchase of development rights, with the assets of the Fund for public use including, but not limited to, development of trails, parking areas, infrastructure, and interpretive projects or to conduct environmental assessments or other preliminary evaluations of properties prior to the acquisition of any property interest.
  7. Up to $250,000 per year of the interest generated by the Fund may be used for the Foundation’s administrative expenses, including, but not limited to, the expenses of the Board and its members, development of the Foundation’s strategic plan, development and maintenance of an inventory of properties as provided in subdivision 1 b of § 10.1-1021 , development of a needs assessment for future expenditures as provided in subdivision 1 c of § 10.1-1021 , and fulfillment of reporting requirements. All such expenditures shall be subject to approval by the Board of Trustees.
  8. The Comptroller shall maintain the restricted funds and the unrestricted funds in separate accounts.
  9. For the purposes of this section, “public body” shall have the meaning ascribed to it in § 10.1-1700 , and “holder” shall have the meaning ascribed to it in § 10.1-1009 .

History. 1992, c. 426; 1999, cc. 900, 906; 2000, cc. 494, 1053; 2006, c. 227; 2007, cc. 77, 673; 2019, c. 539; 2022, c. 705.

§ 10.1-1021. (Effective until July 1, 2022) Powers of the Foundation.

In order to carry out its purposes, the Foundation shall have the following powers and duties:

  1. To prepare a comprehensive plan that recognizes and seeks to implement all of the purposes for which the Foundation is created. In preparing this plan, the Foundation shall:
    1. Establish criteria for the expenditure of unrestricted moneys received by the Fund. In making grants for the expenditure of such unrestricted moneys, the Board of Trustees shall consider the following criteria, not all of which need to be met in order for a grant to be awarded:
      1. The ecological, outdoor recreational, historic, agricultural, and forestal value of the property;
      2. An assessment of market values;
      3. Consistency with local comprehensive plans;
      4. Geographical balance of properties and interests in properties to be purchased;
      5. Availability of public and private matching funds to assist in the purchase;
      6. Imminent danger of loss of natural, outdoor, recreational, or historic attributes of a significant portion of the land;
      7. Economic value to the locality and region attributable to the purchase;
      8. Advisory opinions from local governments, state agencies, or others; and
      9. Whether the property has been identified by ConserveVirginia and whether the proposal seeks to preserve the conservation values identified by ConserveVirginia;
    2. Develop an inventory of those properties in which the Commonwealth holds a legal interest for the purpose set forth in subsection A of § 10.1-1020 ;
    3. Develop a needs assessment for future expenditures from the Fund. In developing the needs assessment, the Board of Trustees shall consider among others the properties identified in the following: (i) ConserveVirginia, (ii) Virginia Outdoors Plan, (iii) Virginia Natural Heritage Plan, (iv) Virginia Institute of Marine Science Inventory, (v) Virginia Joint Venture Board of the North American Waterfowl Management Plan, and (vi) Virginia Board of Historic Resources Inventory. In addition, the Board shall consider any information submitted by the Department of Agriculture and Consumer Services on farmland preservation priorities and any information submitted by the Department of Forestry on forest land initiatives and inventories; and
    4. Maintain the inventory and needs assessment on an annual basis.

2. To expend directly or allocate the funds received by the Foundation to the appropriate state agencies for the purpose of acquiring those properties or property interests selected by the Board of Trustees. In the case of restricted funds the Board’s powers shall be limited by the provisions of § 10.1-1022 .

3. To enter into contracts and agreements, as approved by the Attorney General, to accomplish the purposes of the Foundation.

4. To receive and expend gifts, grants and donations from whatever source to further the purposes set forth in subsection B of § 10.1-1020 .

5. To sell, exchange or otherwise dispose of or invest as it deems proper the moneys, securities, or other real or personal property or any interest therein given or bequeathed to it, unless such action is restricted by the terms of a gift or bequest. However, the provisions of § 10.1-1704 shall apply to any diversion from open-space use of any land given or bequeathed to the Foundation.

6. To conduct fund-raising events as deemed appropriate by the Board of Trustees.

7. To do any and all lawful acts necessary or appropriate to carry out the purposes for which the Foundation and Fund are established.

History. 1992, c. 426; 1999, cc. 900, 906; 2000, c. 1053; 2005, c. 633; 2021, Sp. Sess. I, c. 99.

Editor’s note.

Acts 2000, c. 1053, cl. 2, provides: “That the provisions of this act shall not affect current members of the Virginia Land Conservation Board of Trustees whose terms have not expired as of July 1, 2000.”

The 1999 amendments.

The 1999 amendments by cc. 900 and 906 are identical, and substituted “historic, agricultural and forestal” for “and historic” in subdivision 1 a (i), and deleted “1989” following “(i)” in subdivision 1 c.

The 2000 amendments.

The 2000 amendment by c. 1053 added the second sentence of subdivision 1 c, added “including a description of the extent to which such expenditures have achieved a fair geographic distribution of land protected as provided in § 10.1-1021.1 ” at the end of subdivision 3, inserted subdivisions 6 and 7, and renumbered former subdivision 6 as present subdivision 8.

The 2005 amendments.

The 2005 amendment by c. 633 renumbered subdivisions 1 a (i) through 1 a (viii) as 1 a 1 through 1 a 8; deleted former subdivision 3 which read: “To submit a report biennially on the status of the Fund to the Governor and the General Assembly including, but not limited to, (i) implementation of its strategic plan, (ii) projects under consideration for acquisition with Fund moneys, and (iii) expenditures from the Fund, including a description of the extent to which such expenditures have achieved a fair geographic distribution of land protected as provided in § 10.1-1021.1 ” and redesignated former subdivisions 4 through 8 as subdivisions 3 through 7.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 99, effective July 1, 2021, rewrote the introductory paragraph of subdivision 1 a, which read “Develop a strategic plan for the expenditure of unrestricted moneys received by the Fund. In developing a strategic plan for expending unrestricted moneys from the Fund, the Board of Trustees shall establish criteria for the expenditure of such moneys. The plan shall take into account the purposes for which restricted funds have been expended or earmarked. Such criteria may include:”; added subdivision 1 a 9 and made related changes; and in subdivision 1 c, inserted clause (i) and redesignated remaining clauses accordingly.

The 2022 amendments.

The 2022 amendment by c. 705, added subdivision 1 a (10); and made stylistic changes.

§ 10.1-1021. (Effective July 1, 2022) Powers of the Foundation.

In order to carry out its purposes, the Foundation shall have the following powers and duties:

  1. To prepare a comprehensive plan that recognizes and seeks to implement all of the purposes for which the Foundation is created. In preparing this plan, the Foundation shall:
    1. Establish criteria for the expenditure of unrestricted moneys received by the Fund. In making grants for the expenditure of such unrestricted moneys, the Board of Trustees shall consider the following criteria, not all of which need to be met in order for a grant to be awarded:
      1. The ecological, outdoor recreational, historic, agricultural, and forestal value of the property;
      2. An assessment of market values;
      3. Consistency with local comprehensive plans;
      4. Geographical balance of properties and interests in properties to be purchased;
      5. Availability of public and private matching funds to assist in the purchase;
      6. Imminent danger of loss of natural, outdoor, recreational, or historic attributes of a significant portion of the land;
      7. Economic value to the locality and region attributable to the purchase;
      8. Advisory opinions from local governments, state agencies, or others;
      9. Whether the property has been identified by ConserveVirginia and whether the proposal seeks to preserve the conservation values identified by ConserveVirginia; and
      10. Whether the property is in an area lacking outdoor recreation facilities;
    2. Develop an inventory of those properties in which the Commonwealth holds a legal interest for the purpose set forth in subsection A of § 10.1-1020 ;
    3. Develop a needs assessment for future expenditures from the Fund. In developing the needs assessment, the Board of Trustees shall consider among others the properties identified in the following: (i) ConserveVirginia, (ii) Virginia Outdoors Plan, (iii) Virginia Natural Heritage Plan, (iv) Virginia Institute of Marine Science Inventory, (v) Virginia Joint Venture Board of the North American Waterfowl Management Plan, and (vi) Virginia Board of Historic Resources Inventory. In addition, the Board shall consider any information submitted by the Department of Agriculture and Consumer Services on farmland preservation priorities and any information submitted by the Department of Forestry on forest land initiatives and inventories; and
    4. Maintain the inventory and needs assessment on an annual basis.

2. To expend directly or allocate the funds received by the Foundation to the appropriate state agencies for the purpose of acquiring those properties or property interests selected by the Board of Trustees. In the case of restricted funds the Board’s powers shall be limited by the provisions of § 10.1-1022 .

3. To enter into contracts and agreements, as approved by the Attorney General, to accomplish the purposes of the Foundation.

4. To receive and expend gifts, grants and donations from whatever source to further the purposes set forth in subsection B of § 10.1-1020 .

5. To sell, exchange or otherwise dispose of or invest as it deems proper the moneys, securities, or other real or personal property or any interest therein given or bequeathed to it, unless such action is restricted by the terms of a gift or bequest. However, the provisions of § 10.1-1704 shall apply to any diversion from open-space use of any land given or bequeathed to the Foundation.

6. To conduct fund-raising events as deemed appropriate by the Board of Trustees.

7. To do any and all lawful acts necessary or appropriate to carry out the purposes for which the Foundation and Fund are established.

History. 1992, c. 426; 1999, cc. 900, 906; 2000, c. 1053; 2005, c. 633; 2021, Sp. Sess. I, c. 99; 2022, c. 705.

§ 10.1-1021.1. Geographic distribution of land protected.

The Foundation shall seek to achieve a fair distribution of land protected throughout the Commonwealth, based upon the following:

  1. The importance of conserving land in all regions of the Commonwealth;
  2. The importance of protecting specific properties that can benefit all Virginia citizens; and
  3. The importance of addressing the particular land conservation needs of areas of the state where Fund moneys are generated.

History. 2000, c. 1053.

Editor’s note.

Acts 2000, c. 1053, cl. 2, provides: “That the provisions of this act shall not affect current members of the Virginia Land Conservation Board of Trustees whose terms have not expired as of July 1, 2000.”

§ 10.1-1021.2. Additional powers of the Foundation; requests for conservation easement dispute mediation.

Any private owner of the fee interest in land that is subject to a perpetual conservation easement pursuant to Chapter 10.1 (§ 10.1-1009 et seq.), any holder of such an easement, or any holder of a third-party right of enforcement of such an easement may submit a request, pursuant to guidelines adopted by the Foundation, that the Foundation utilize the process set forth in the Administrative Dispute Resolution Act, Chapter 41.1 (§ 2.2-4115 et seq.) of Title 2.2, to resolve a dispute that is not part of a dispute already in litigation and arises out of or relates to the interpretation or administration of a conservation easement made or entered into pursuant to Chapter 10.1 (§ 10.1-1009 et seq.).

History. 2015, c. 44.

§ 10.1-1022. Expenditure of restricted funds.

The Foundation shall expend restricted funds only in accordance with the applicable restrictions, or allocate such funds to the designated or otherwise appropriate state agency subject to such restrictions. The state agency receiving restricted funds shall expend such funds only in accordance with the applicable restrictions. The Board of Trustees may make such recommendations as are appropriate to the agencies responsible for spending any restricted funds, and the agencies shall consider such recommendations prior to the expenditure of restricted funds received from the Foundation. State agencies and departments receiving funds directly for expenditure for a purpose for which the Foundation is created shall solicit and consider the advice of the Board with respect to the expenditure of such funds prior thereto. This section shall not affect the authority of the Foundation to exercise its discretion with regard to the expenditure or allocation of unrestricted funds received by the Foundation.

History. 1992, c. 426.

§ 10.1-1022.1. Expenditure of funds for natural area protection.

  1. No matching grant shall be made from the Fund to any holder or public body for purchasing an interest in land for the protection of a natural area unless:
    1. The holder or public body has demonstrated the necessary commitment and financial capability to manage the property; and
    2. The Department has, after reviewing the grant application as provided in subsection B, recommended that the grant be made.
  2. Natural area grant applications shall be submitted to the Foundation, which shall forward the application to the Department. The application shall include a budget for the proposed purchase and for the management of the property. The Department shall consider the following in making its recommendation on whether the grant should be made:
    1. Whether the project will make a significant contribution to the protection of habitats for rare, threatened, or endangered plant or animal species, rare or state-significant natural communities, other ecological resources, or natural areas of Virginia;
    2. Whether the area addresses a protection need identified in the Virginia Natural Heritage Plan;
    3. The rarity of the elements targeted for conservation;
    4. The size and viability of the site; and
    5. Whether the holder or public body has the capability to protect the site from short-term and long-term stresses to the area.
  3. Matching grant funds provided pursuant to this section shall be expended by the holder or public body within two years of receiving the funds, except that the Department may grant an extension of up to one year.
  4. All property for which a matching grant is made pursuant to this section shall be dedicated as a natural area preserve as provided in § 10.1-213 . Any such preserve that was purchased in fee simple by the holder or public body shall be open for public access for a reasonable amount of time each year, except as is necessary to protect sensitive resources or for management purposes, as determined by the holder or public body pursuant to an agreement with the Department.

History. 1999, cc. 900, 906; 2001, cc. 164, 168.

The 2001 amendments.

The 2001 amendments by cc. 164 and 168 are identical, and in subsection A, deleted former subdivision 1, which read: “The holder or public body has been in existence and operating in Virginia for more than five years,” and redesignated former subdivisions 2 and 3 as present subdivisions 1 and 2.

§ 10.1-1023. Certain expenditures prohibited.

Moneys from the Fund shall not be expended for the acquisition of any property interest through eminent domain.

History. 1992, c. 426.

§ 10.1-1024. Gifts and bequests to Foundation.

Gifts, devises and bequests of money, securities and other assets accepted by the Foundation, whether personal or real property, shall be deemed to be gifts to the Commonwealth, which shall be exempt from all state and local taxes and shall be regarded as property of the Commonwealth for the purposes of all tax laws.

History. 1992, c. 426; 2000, c. 1053.

Editor’s note.

Acts 2000, c. 1053, cl. 2, provides: “That the provisions of this act shall not affect current members of the Virginia Land Conservation Board of Trustees whose terms have not expired as of July 1, 2000.”

The 2000 amendments.

The 2000 amendment by c. 1053 rewrote the section, which formerly read: “Gifts and bequests of money, securities and other assets to the Fund shall be deemed to be gifts for the Commonwealth, and the Fund shall be exempt from all state and local taxes.”

§ 10.1-1025. Forms of accounts and records; audit of same.

The accounts and records of the Foundation showing the receipt and disbursement of funds from whatever source derived shall be in such form as the Auditor of Public Accounts prescribes, provided that such accounts shall correspond as nearly as possible to the accounts and records for such matters maintained by similar enterprises. The accounts and records of the Foundation shall be subject to audit by the Auditor of Public Accounts or his legal representative as determined necessary by the Auditor of Public Accounts, and the costs of such audit services shall be borne by the Foundation. The Foundation’s fiscal year shall be the same as the Commonwealth’s.

History. 1992, c. 426; 2018, cc. 57, 307.

The 2018 amendments.

The 2018 amendments by cc. 57 and 307 are identical, and substituted “as determined necessary by the Auditor of Public Accounts” for “on an annual basis” in the second sentence.

§ 10.1-1026. Cooperation of state agencies.

All state officers, agencies, commissions, boards, departments, institutions and foundations shall cooperate with and assist the Foundation in carrying out its purpose and, to that end, may accept any gift or conveyance of real property or interest therein or other property in the name of the Commonwealth from the Foundation. Such property shall be held in possession or used as provided in the terms of the trust, contract or instrumentality by which it was conveyed.

History. 2000, c. 1053.

Editor’s note.

Acts 2000, c. 1053, cl. 2, provides: “That the provisions of this act shall not affect current members of the Virginia Land Conservation Board of Trustees whose terms have not expired as of July 1, 2000.”

Chapter 10.3. Wild Spanish Mustangs Fund.

§ 10.1-1027. Wild Spanish Mustangs Fund established; administration; purpose.

There is hereby established in the state treasury a special nonreverting fund to be known as the Wild Spanish Mustangs Fund, hereafter referred to as the Fund. The Fund shall consist of such moneys as may be appropriated by the General Assembly and such other moneys as may be made available from any other source, public or private. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund, but shall remain in the Fund. The Fund shall be administered by the Department of Conservation and Recreation. Any expenditure from the Fund shall be subject to the recommendations of the Park Manager at False Cape State Park, with advice and consultation from the City of Virginia Beach, local legislators, and interested community members. The Fund shall be used for the general purpose of protecting the herd of wild Spanish mustangs on the barrier islands of Virginia. Allocations may include, but are not limited to, the erection and maintenance of fences to restrict the entrance of wild horses into Virginia, the transporting of any wild horses that do reach Virginia back to North Carolina, and other measures to protect these horses and promote their retention in North Carolina, as determined by the Department of Conservation and Recreation.

History. 2007, c. 37.

Subtitle II. Activities Administered by Other Entities.

Chapter 11. Forest Resources and the Department of Forestry.

Article 1. Department of Forestry.

§ 10.1-1100. Department of Forestry; appointment of the State Forester.

The Department of Forestry, hereinafter referred to in this chapter as the Department, is continued as an agency under the supervision of the Secretary of Agriculture and Forestry. The Department shall be headed by the State Forester, who shall be appointed by the Governor to serve at his pleasure for a term coincident with his own.

Any vacancy in the office of the State Forester shall be filled by appointment by the Governor pursuant to the provisions of Article V, Section 10 of the Constitution of Virginia.

The State Forester shall be a technically trained forester and shall have both a practical and theoretical knowledge of forestry.

History. 1986, c. 567, § 10-31.1; 1988, c. 891; 1993, c. 699.

Editor’s note.

At the direction of the Virginia Code Commission, “Secretary of Agriculture and Forestry” has been substituted for “Secretary of Commerce and Trade” in the first sentence of the first paragraph.

Law Review.

For article addressing significant developments in Virginia law pertaining to air quality, water quality and solid and hazardous waste, between 1990 and 1992, see “Environmental Law,” 26 U. Rich. L. Rev. 729 (1992).

Michie’s Jurisprudence.

For related discussion, see 18 M.J. Trees and Timber, § 3.

§ 10.1-1100.1. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this chapter the State Forester or the Department is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the State Forester or the Department may be sent by regular mail.

History. 2011, c. 566.

§ 10.1-1101. General powers of Department.

The Department shall have the following general powers, all of which, with the approval of the State Forester, may be exercised by a unit of the Department with respect to matters assigned to that organizational entity:

  1. Employ personnel required to carry out the purposes of this chapter;
  2. Make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under this chapter, including, but not limited to contracts with private nonprofit organizations, the United States, other state agencies and governmental subdivisions of the Commonwealth;
  3. Accept bequests and gifts of real and personal property as well as endowments, funds, and grants from the United States government and any other source. To these ends, the Department shall have the power to comply with conditions and execute agreements as necessary, convenient or desirable;
  4. Promulgate regulations necessary or incidental to the performance of duties or execution of powers conferred under this chapter;
  5. Receive, hold in trust and administer any donation made to it for the advancement of forest resources of the Commonwealth;
  6. Undertake evaluation and testing of products and technologies relating to replacement of petroleum-based lubricants and hydraulic fluids with lubricants and hydraulic fluids made or derived from vegetables or vegetable oil, and promote the use of such products and technologies found to be beneficial in preserving and enhancing environmental quality; and
  7. Do all acts necessary or convenient to carry out the purposes of this chapter.

History. 1986, c. 567, § 10-31.2; 1988, c. 891; 1995, c. 111.

Editor’s note.

Acts 2005, c. 324, cl. 1, provides: “1. That the Virginia State Forest Regulations, 4 VAC 5-40-10 et seq., and the Virginia Reforestation of Timberlands Regulations, 4 VAC 5-60-10 et seq., are hereby transferred from the Department of Conservation and Recreation to the Department of Forestry, effective July 1, 2005, and shall remain in full force and effect until amended, modified, or repealed. The Department of Forestry shall update the terminology and references to the Code of Virginia pursuant to the authority to promulgate regulations provided in subdivision 4 of § 10.1-1101 . This update shall be exempt from the provisions of the Administrative Process Act. Any future amendments shall be promulgated in accordance with the provisions of the Administrative Process Act. The Administrative Code numbers shall be changed under that exempt action to conform to the Department of Forestry’s regulatory numbering system as assigned by the Virginia Code Commission.”

§ 10.1-1102. Board of Forestry.

The Board of Forestry within the Department of Forestry, referred to in this chapter as the Board, shall be composed of 13 members appointed by the Governor. At least two members shall be representatives of the pine pulpwood industry; two members shall be representatives of the pine lumber industry; two members shall be representatives of the hardwood lumber industry; one member shall be a representative of the timber harvesting industry; and two members shall be small forest landowners. In making appointments to the Board, the Governor shall take into account the geographic diversity of board membership as it relates to Virginia’s forest resources. Beginning July 1, 2012, the Governor’s appointments shall be staggered as follows: four members for a term of one year, three members for a term of two years, three members for a term of three years, and three members for a term of four years. After the initial staggering of terms, appointments shall be for four-year terms. The State Forester shall serve as executive officer of the Board.

No member of the Board, except the executive officer, shall be eligible for more than two successive terms; however, persons subsequently appointed to fill vacancies may serve two additional successive terms after the terms of the vacancies they were appointed to fill have expired. All vacancies in the membership of the Board shall be filled by the Governor for the unexpired term.

The Board shall meet at least three times a year for the transaction of business. Special meetings may be held at any time upon the call of the executive officer of the Board, or a majority of the members of the Board.

Members of the Board shall be reimbursed for all reasonable and necessary expenses incurred as a result of their membership on the Board.

History. Code 1950, § 10-84; 1986, c. 539; 1986, c. 567, § 10-84.1; 1988, c. 891; 1990, c. 127; 1992, c. 145; 2011, cc. 691, 714; 2012, cc. 803, 835.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

Acts 2012, cc. 803 and 835, cl. 20 provides: “That the terms of the persons currently serving as members of the Reforestation Board and the Board of Forestry shall expire on July 1, 2012.”

Acts 2012, cc. 803 and 835, cl. 21 provides: “That the new appointments to the Board of Forestry made after July 1, 2012, shall be made in accordance with the provisions the 18th enactment of this act.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and rewrote the first paragraph.

The 2012 amendments.

The 2012 amendment by cc. 803 and 835, cl. 18, are identical, and rewrote the first paragraph, which formerly read: “The Board of Forestry within the Department of Forestry, referred to in this chapter as the Board, shall be composed of one member from each congressional district appointed by the Governor. Beginning July 1, 2011, the Governor’s appointments shall be staggered as follows: four members for a term of one year, three members for a term of two years, and four members for a term of three years. Thereafter, appointments shall be for four-year terms. The State Forester shall serve as executive officer of the Board.”

§ 10.1-1103. Powers of the Board.

  1. The Board shall be charged with matters relating to the management of forest resources in the Commonwealth.
  2. The Board shall advise the Governor and the Department on the state of forest resources within the Commonwealth and the management of forest resources. The Board shall encourage persons, agencies, organizations and industries to implement development programs for forest resource management and counsel them in such development. In addition, the Board shall recommend plans for improving the state system of forest protection, management and replacement, and shall prepare an annual report on the progress and conditions of state forest work.
  3. The Board shall formulate recommendations to the State Forester concerning regulations and other matters applicable to Article 10 (§ 10.1-1170 et seq.), including types of equipment to be purchased, rental rates for equipment, and reforestation practices.

History. 1986, c. 567, § 10-84.2; 1988, c. 891; 2012, cc. 803, 835.

Editor’s note.

Acts 2012, cc. 803 and 835, cl. 20 provides: “That the terms of the persons currently serving as members of the Reforestation Board and the Board of Forestry shall expire on July 1, 2012.”

Acts 2012, cc. 803 and 835, cl. 21 provides: “That the new appointments to the Board of Forestry made after July 1, 2012, shall be made in accordance with the provisions the 18th enactment of this act.”

The 2012 amendments.

The 2012 amendment by cc. 803 and 835, cl. 18, are identical, and inserted the A and B designations at the beginning of the first and second paragraphs, respectively; and added subsection C.

Article 2. Duties of the State Forester and General Provisions.

§ 10.1-1104. General powers and duties of State Forester.

The State Forester, under the direction and control of the Governor, shall exercise the powers and perform the duties conferred or imposed upon him by law and shall perform other duties required of him by the Governor or the appropriate citizen boards.

History. 1986, c. 567, § 10-31.3; 1988, c. 891.

Michie’s Jurisprudence.

For related discussion, see 18 M.J. Trees and Timber, § 3.

§ 10.1-1105. Additional powers and duties of State Forester.

  1. The State Forester shall supervise and direct all forest interests and all matters pertaining to forestry within the Commonwealth. He shall have charge of all forest wardens and shall appoint, direct and supervise persons he employs to perform labor in the forest reservations or the nurseries provided for herein, and he is authorized to employ temporary forest wardens to extinguish forest fires in the Commonwealth. He shall take such action as is authorized by law to prevent and extinguish forest fires; develop a program to promote the use of prescribed burning for community protection and ecological, silvicultural, and wildlife management; enforce all laws pertaining to forest and woodlands; prosecute any violation of such laws; develop silvicultural best management practices, including reforestation, prevention of erosion and sedimentation, and maintenance of buffers for water quality, pursuant to Article 12 (§ 10.1-1181.1 et seq.); collect information relative to forest destruction and conditions; direct the protection and improvement of all forest reservations; and, as far as his duties as State Forester will permit, conduct an educational course on forestry at the University of Virginia for credit toward a degree, at farmers’ institutes and at similar meetings within the Commonwealth. He shall provide for the protection of state waters from pollution by sediment deposition resulting from silvicultural activities as provided in Article 12 (§ 10.1-1181.1 et seq.). In addition, the State Forester shall cooperate with counties, municipalities, corporations and individuals in preparing plans and providing technical assistance, based on generally accepted scientific forestry principles, for the protection, management and replacement of trees, wood lots and timber tracts and the establishment and preservation of urban forests, under an agreement that the parties obtaining such assistance shall pay the field and traveling expenses of the person employed in preparing such plans. The State Forester also shall assist landowners and law-enforcement agencies with regard to reported cases of timber theft. The State Forester shall develop and implement forest conservation and management strategies to improve wildlife habitat and corridors, incorporating applicable elements of any wildlife action plan developed by the Department of Wildlife Resources and the Wildlife Corridor Action Plan developed pursuant to § 29.1-579.
  2. Records of the Department composed of confidential commercial or financial information supplied by individuals or business entities to the Department in the course of an investigation of timber theft are excluded from the mandatory disclosure provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

History. 1986, c. 567, § 10-31.4; 1988, c. 891; 1989, c. 215; 1993, c. 948; 1997, c. 7; 1998, c. 156; 1999, c. 220; 2000, c. 997; 2019, cc. 348, 353; 2021, Sp. Sess. I, c. 498.

Editor’s note.

Acts 2019, cc. 348 and 353, cl. 2 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.”

The 1997 amendment inserted “develop silvicultural best management practices, including reforestation, prevention of erosion and sedimentation, and maintenance of buffers for water quality, pursuant to Article 12 (§ 10.1-1181.1 et seq.) of this chapter” following “violation of such laws” near the beginning of the third sentence.

The 1998 amendment inserted “develop a program to promote the use of prescribed burning for community protection and ecological, silvicultural, and wildlife management” in the third sentence.

The 1999 amendment inserted “based on generally accepted scientific forestry principles” in the last sentence.

The 2000 amendments.

The 2000 amendment by c. 997 added “and he is authorized to employ temporary forest wardens to extinguish forest fires in the Commonwealth” in the second sentence.

The 2019 amendments.

The 2019 amendments by cc. 348 and 353 are identical, and designated the existing provisions as subsection A and added the last sentence therein; and added subsection B.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 498, effective July 1, 2021, added the last sentence in subsection A.

CASE NOTES

Best management practices do not preempt local ordinances. —

A local ordinance may be invalid because it conflicts with a state regulation if the state regulation has the force and effect of law but the best management practices promulgated pursuant to this section are only guidelines for use in forestry activities and do not have the force and effect of law. Dail v. York County, 259 Va. 577 , 528 S.E.2d 447, 2000 Va. LEXIS 66 (2000).

§ 10.1-1105.1. Century forest program.

The State Forester shall establish and administer a century forest program to honor families in the Commonwealth whose property has been in the same family for 100 years or more and includes at least 20 contiguous acres of managed forest. In order to be eligible for recognition under the program, a property shall (i) have been owned by the same family for at least 100 consecutive years; (ii) be lived on, or actually managed by, a descendant of the original owners; and (iii) have a documented history of timber harvests or forest management activities.

History. 2016, c. 6.

§ 10.1-1106. State Forester to control forest reserves and funds; reforesting; preservation of timber, etc.

The care, management and preservation of the forest reserves of the Commonwealth and the forests thereon, and all moneys appropriated in that behalf, or collected therefrom in any way, and all personal and real property acquired to carry out the objects of this chapter, shall be subject to the control of the State Forester.

The State Forester shall observe, ascertain, follow and put into effect the best methods of reforesting cutover and denuded lands, foresting wastelands, preventing the destruction of forests by fire, the administering of forests on forestry principles, the instruction and encouragement of private owners in preserving and growing timber for commercial and manufacturing purposes, and the general conservation of forest tracts around the headwaters and on the watersheds of the watercourses of the Commonwealth.

History. Code 1950, § 10-32; 1984, c. 750; 1986, c. 567; 1988, c. 891.

§ 10.1-1107. Purchase of lands and acceptance of gifts for forestry purposes by the State Forester; management; definition of state forests.

  1. The State Forester shall have authority to purchase in the name of the Commonwealth lands suitable for state forests. He may accept for state forest purposes gifts, devises and bequests of real and personal property as well as endowments, funds, and grants from any source. Unless otherwise restricted by the terms of the gift, devise or bequest, the State Forester is authorized, in the name of the Commonwealth, to convey or lease any such real property given to it, with the consent and approval of the Governor and the General Assembly and the approval of the instrument as to form by the Attorney General. Mineral and mining rights over and under land donated may be reserved by the donors.
  2. The State Forester shall have the power and authority to accept gifts, donations and contributions of land, and to enter into agreements for the acquisition by purchase, lease or otherwise with, the United States, or any agency or agent thereof, of lands for state forests.
  3. The State Forester shall have authority to provide for the management, development and utilization of any lands purchased, leased or otherwise acquired, to sell or otherwise dispose of products on or derived from the land, and to enforce regulations governing state forests, the care and maintenance thereof, and the prevention of trespassing thereon, and such other regulations deemed necessary to carry out the provisions of this section. Approval by the Governor or General Assembly shall not be required for the sale or harvesting of timber on state forest lands or other lands over which the Department has supervision and control.
  4. In exercising the powers conferred by this section, the State Forester shall not obligate the Commonwealth for any expenditure in excess of any funds either donated or appropriated to the Department for such purpose.
  5. One-fourth of the gross proceeds derived from timber sales on any state forest lands so acquired by the State Forester shall be paid annually by the State Forester to the counties in which such lands are respectively located, and shall become a part of the general funds of such counties, except for Appomattox, Buckingham and Cumberland Counties. For the Counties of Appomattox, Buckingham and Cumberland, one-eighth of the gross proceeds derived from timber sales on any state forest lands acquired in these counties shall become part of the general funds of these counties and one-eighth shall be expended annually by the Department, upon consultation with each county, for the enhancement of recreational opportunities on those state forest lands located in the county. This subsection shall not apply to properties acquired or managed for nonstate forest purposes.
  6. As used in this chapter unless the context requires a different meaning, “state forest” means lands acquired for the Commonwealth by purchase, gift or lease pursuant to this section. These lands shall be managed and protected for scientific, recreational and educational purposes. Uses of the state forests shall include, but not be limited to, research, demonstrations, tours, soil and water management and protection, hunting, fishing and other recreational activities.
  7. All acquisitions of real property under this section shall be subject to the provisions of § 2.2-1149. The Attorney General shall approve the form of the instruments prior to execution.

History. Code 1950, § 10-33; 1984, c. 750; 1986, c. 567; 1988, c. 891; 1999, c. 201; 2007, c. 689; 2009, c. 43; 2012, cc. 197, 248.

The 1999 amendment, in subsection A, inserted “for state forest purposes” following “he may accept,” substituted “devises and bequests of real and personal property as well as endowments, funds and grants from any source” for “of land and money to the Commonwealth for forestry purposes, which gifts shall be absolute, except that,” inserted the third sentence, and deleted “and the land shall be administered as state forests” from the end of the last sentence; inserted the last sentence in subsection C; and added subsection G.

The 2007 amendments.

The 2007 amendment by c. 689, in subsection E, added the exception to the end of the first sentence and added the last sentence.

The 2009 amendments.

The 2009 amendment by c. 43 in subsection E, twice inserted “state forest” preceding “lands” and added the last sentence.

The 2012 amendments.

The 2012 amendments by cc. 197 and 248 are identical, and substituted “proceeds derived from timber sales on any state forest lands” for “proceeds derived from any state forest lands” in the first and second sentences of subsection E.

§ 10.1-1108. Waste and unappropriated lands.

Any waste and unappropriated land, other than ungranted shores of the sea, marsh or meadowlands exempted from grant by the provisions of § 41.1-3 , may be set apart permanently for use as state forest land, by a grant and proclamation signed by the Governor upon the receipt from the State Forester of an application requesting that a certain piece, tract or parcel of waste and unappropriated land be so set apart. The State Forester shall submit with the application a copy of a report describing fully the location of the land, its character and suitability for forestry purposes together with a complete metes and bounds description of the boundary of the tract. The Department of General Services shall review the application and recommend either approval or disapproval of the transaction to the Governor. If the Governor determines that the land is more valuable for forestry purposes than for agricultural or any other purposes, he may authorize the preparation of a grant which shall be reviewed for legal sufficiency by the Attorney General for the Governor’s signature and the lesser seal of the Commonwealth.

All lands so granted shall be subject to statutes and regulations relating to the regulation, management, protection and administration of state forests.

History. Code 1950, § 10-34.2; 1950, p. 225; 1984, c. 750; 1986, c. 567; 1988, c. 891; 1995, c. 850.

§ 10.1-1109. State forests not subject to warrant, survey or patent.

Lands acquired by the Commonwealth for forestry purposes shall not be subject to warrant, survey or patent.

History. Code 1950, § 10-42; 1988, c. 891.

§ 10.1-1110. Violation of regulations for supervision of state forests, etc.

Violators of any regulation for the supervision or use of any state forest, park, road, street or highway traversing the same, shall be guilty of a Class 4 misdemeanor.

History. Code 1950, § 10-43; 1988, c. 891.

Cross references.

As to punishment for Class 4 misdemeanors, see § 18.2-11 .

§ 10.1-1111. Kindling fires on state forests; cutting and removing timber; damaging land or timber.

Any person who kindles fire upon any of the state forests of this Commonwealth, except in accordance with regulations prescribed by the State Forester, or who cuts and removes any timber, or who damages or causes the damage of forestland or timber belonging to the Commonwealth, shall be guilty of a Class 3 misdemeanor for each offense committed.

History. Code 1950, § 10-44; 1986, c. 539; 1988, c. 891.

Cross references.

As to punishment for Class 3 misdemeanors, see § 18.2-11 .

§ 10.1-1112. Notices relating to forest fires and trespasses.

The State Forester shall distribute notices, printed in large letters on cloth or other suitable material, calling attention to the danger of forest fires, to the forest fire laws, and to trespass laws and their penalties, to forest wardens, and to owners of timberland to be posted by them in conspicuous places. Any person other than a forest warden or the owner of the land on which notices are posted, who tears down, mutilates or defaces any such notice shall be guilty of a Class 4 misdemeanor.

History. 1986, c. 567, § 10-31.5; 1988, c. 891.

Cross references.

As to punishment for Class 4 misdemeanors, see § 18.2-11 .

§ 10.1-1113. Not liable for trespass in performance of duties.

No action for trespass shall lie against the State Forester, or any agent or employee of the State Forester for lawful acts done in performance of his duties.

History. 1986, c. 567, § 10-31.7; 1988, c. 891.

Michie’s Jurisprudence.

For related discussion, see 18 M.J. Trespass, § 1.

§ 10.1-1114. Establishment of nurseries; distribution of seeds and seedlings.

  1. The State Forester may establish and maintain a nursery or nurseries, for the propagation of forest tree seedlings, either upon one or more of the forest reservations of the Commonwealth, or upon such other land as he may and which he is empowered to acquire for that purpose. Seedlings from this nursery may be furnished to the Commonwealth without expense for use upon its state forests or other public grounds or parks. Seeds and seedlings may also be distributed to private individuals pursuant to terms and conditions and at prices approved by the State Forester.
  2. To the extent permitted by federal law and regulations, the preferred method of treatment shall be fumigation using methyl bromide in seedling plant beds prior to seeding.
  3. The Commissioner of Agriculture and Consumer Services or his designee may issue an inspection certificate for intrastate and interstate shipments of conifer and hardwood seedlings to certify that they are apparently free of pests and diseases.

History. Code 1950, § 10-36; 1968, c. 40; 1986, c. 567; 1988, c. 891; 2012, cc. 101, 621; 2013, c. 124.

The 2012 amendments.

The 2012 amendments by cc. 101 and 621 are identical, and designated the existing provisions of the section as subsection A; and added subsections B and C.

The 2013 amendments.

The 2013 amendment by c. 124 substituted “distributed to private individuals pursuant to terms and conditions and at prices approved by the State Forester” for “distributed to landowners and citizens of the Commonwealth pursuant to Department regulations” at the end of subsection A.

§ 10.1-1115. Sale of trees.

For the purpose of maintaining in perpetuity the production of forest products on state forests, the State Forester may designate and appraise the trees which should be cut under the principles of scientific forest management, and may sell these trees for not less than the appraised value. When the appraised value of the trees to be sold is more than $50,000, the State Forester, before making such sale, shall receive bids therefor, after notice by publication once a week for two weeks in two newspapers of general circulation. The State Forester shall have the right to reject any and all bids and to readvertise for bids. The proceeds arising from the sale of the timber and trees so sold, except as provided in subsection E of § 10.1-1107 , shall be paid into the state treasury as provided in § 10.1-1116 , and shall be held in the Reforestation Operations Fund for the improvement or protection of state forests or for the purchase of additional lands.

History. Code 1950, § 10-37; 1970, c. 31; 1986, cc. 539, 567; 1988, c. 891; 2008, c. 19.

The 2008 amendments.

The 2008 amendment by c. 19 substituted “$50,000” for “$10,000” in the second sentence.

§ 10.1-1116. Reforestation Operations Fund.

All money obtained from the state forests, except as provided in subsection E of § 10.1-1107 , shall be paid into a special nonreverting fund in the state treasury, to the credit of the Reforestation Operations Fund (the Fund). Interest earned on the moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund, but shall remain in the Fund. The moneys in the Fund are to be utilized for state forest protection, management, replacement, and extension, under the direction of the State Forester.

History. Code 1950, § 10-39; 1986, c. 567; 1988, c. 891; 2014, c. 263.

The 2014 amendments.

The 2014 amendment by c. 263 inserted “a special nonreverting fund in” and “(the Fund). Interest earned on the moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund, but shall remain in the Fund,” and substituted “the Fund” for “such fund.”

§ 10.1-1117. Specialized services or rentals of equipment to landowners, localities and state agencies; fees; disposition of proceeds.

The State Forester may cooperate with landowners, counties, municipalities and state agencies, by making available forestry services consisting of specialized or technical forestry equipment and an operator, or rent to them such specialized equipment. For such services or rentals, a reasonable fee, representing the State Forester’s estimate of the cost of such services or rentals, shall be charged.

All moneys paid to the State Forester for such services or rentals shall be deposited in the state treasury to the credit of the Forestry Operations Fund, to be used in the further protection and development of the forest resources of this Commonwealth. Upon presentation of a statement, the landowner, county, municipality or state agency receiving such services or rentals shall pay to the State Forester, within thirty days, the amount of charge shown on the statement.

History. 1964, c. 513, § 10-54.1; 1986, c. 567; 1988, c. 891.

§ 10.1-1118. Account of receipts and expenditures.

The State Forester shall keep a full and accurate account of the receipts and expenditures of the Department.

History. Code 1950, § 10-40; 1986, c. 567; 1988, c. 891; 2004, c. 58.

The 2004 amendments.

The 2004 amendment by c. 58 deleted “and shall make a full, accurate and complete report to each session of the General Assembly, showing in detail the receipts from all sources and the expenditures and the purposes for which expenditures have been made” at the end of the section.

§ 10.1-1119. Preservation of evidence as to conserving forest supply; reports to General Assembly; publications.

The State Forester shall preserve all evidence taken by him with reference to conserving the forests of the Commonwealth and the methods best adapted to accomplish such object. He shall report his actions, conclusions and recommendations to each session of the General Assembly and from time to time publish for public distribution, in bulletin or other form, such conclusions and recommendations as may be of immediate public interest.

History. Code 1950, § 10-41; 1984, c. 750; 1986, c. 567; 1988, c. 891.

§ 10.1-1119.1. State Forests System Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the State Forests System Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All contributions from income tax refunds and any other source shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of developing and implementing conservation and education initiatives in the state forests system. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the State Forester.

History. 1999, c. 998.

Cross references.

As to entities entitled to voluntary contributions of tax refunds, see § 58.1-344.3 .

Article 3. Forest Management of State-Owned Lands Fund.

§ 10.1-1120. Forest Management of State-Owned Lands Fund.

The Forest Management of State-Owned Lands Fund established by the legislature in 1980 is continued.

History. 1980, c. 525, § 10-45.1; 1988, c. 891.

Cross references.

As to the management, harvesting and sale of timber on lands under control of the Division of Engineering and Buildings, see § 2.2-1158.

§ 10.1-1121. Definitions.

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

“Fund” means the Forest Management of State-Owned Lands Fund.

“State-owned lands” means forest land owned or managed by the various departments, agencies and institutions of the Commonwealth and designated by the Department in cooperation with the Division of Engineering and Buildings of the Department of General Services as being of sufficient size and value to benefit from a forest management plan. State-owned land shall not include properties held or managed by the Department of Wildlife Resources, the Department of Forestry, or the Department of Conservation and Recreation.

History. 1980, c. 525, § 10-45.2; 1981, c. 219; 1984, c. 750; 1986, c. 567; 1988, c. 891; 1989, c. 656; 2020, c. 958.

The 2020 amendments.

The 2020 amendment by c. 958, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in the definition of “State-owned lands” in the last sentence.

§ 10.1-1122. (Effective until July 1, 2022) Management, harvesting, sale of timber on state-owned land.

  1. The Department in cooperation with the Division of Engineering and Buildings shall develop a forest management plan for state-owned lands with the assistance of affected state agencies, departments and institutions.
  2. Prior to the sale of timber from state-owned lands, the proposed sale shall be first approved by the Department and by the Division of Engineering and Buildings. The Department shall make or arrange for all sales so approved and shall deposit all proceeds to the credit of the Fund, except that when sales are made from timber on land held by special fund agencies or the Department of Military Affairs, or from timber on land that is gift property specified in subsection J of § 2.2-1156, the Department shall deposit in the Fund only so much of the proceeds as are needed to defray the cost of the sale and to implement the forestry management plan on that particular tract of land. The remainder of the proceeds from such a sale shall then be paid over to the special fund agency concerned, the Department of Military Affairs, or the agency or institution holding the gift properties, to be used for the purposes of that agency, department, or institution.

History. 1980, c. 525, § 10-45.3; 1981, c. 219; 1986, c. 567; 1988, c. 891; 2009, c. 612; 2019, cc. 659, 660.

The 2009 amendments.

The 2009 amendment by c. 612 substituted “subsection H” for “subsection D” in the next-to-last sentence of subsection B.

The 2019 amendments.

The 2019 amendments by cc. 659 and 660 are identical, and in subsection B, substituted “subsection J of § 2.2-1156” for “subsection H of § 2.2-1156”; and made a stylistic change.

The 2022 amendments.

The 2022 amendment by c. 761, in subsection B, substituted “subsection I of § 2.2-1156” for “subsection J of § 2.2-1156”.

§ 10.1-1122. (Effective July 1, 2022) Management, harvesting, sale of timber on state-owned land.

  1. The Department in cooperation with the Division of Engineering and Buildings shall develop a forest management plan for state-owned lands with the assistance of affected state agencies, departments and institutions.
  2. Prior to the sale of timber from state-owned lands, the proposed sale shall be first approved by the Department and by the Division of Engineering and Buildings. The Department shall make or arrange for all sales so approved and shall deposit all proceeds to the credit of the Fund, except that when sales are made from timber on land held by special fund agencies or the Department of Military Affairs, or from timber on land that is gift property specified in subsection i of § 2.2-1156, the Department shall deposit in the Fund only so much of the proceeds as are needed to defray the cost of the sale and to implement the forestry management plan on that particular tract of land. The remainder of the proceeds from such a sale shall then be paid over to the special fund agency concerned, the Department of Military Affairs, or the agency or institution holding the gift properties, to be used for the purposes of that agency, department, or institution.

History. 1980, c. 525, § 10-45.3; 1981, c. 219; 1986, c. 567; 1988, c. 891; 2009, c. 612; 2019, cc. 659, 660; 2022, c. 761.

§ 10.1-1123. Use of Fund; management, receipt and expenditure of moneys.

The Fund shall be used to defray the costs of timber sales, to develop forest management plans for state-owned lands pursuant to § 10.1-1124 , and to implement those plans. The Department shall have the authority to manage, receive and expend moneys for and from the Fund for these purposes.

History. 1980, c. 525, § 10-45.4; 1981, c. 219; 1986, c. 567; 1988, c. 891.

Article 4. Forest Protection for Cities and Counties.

§ 10.1-1124. Counties and certain cities to pay annual sums for forest protection, etc.

  1. Upon presentation to its governing body of an itemized statement duly certified by the State Forester, each county in this Commonwealth, or city which enters into a contract with the State Forester under § 10.1-1125 to provide forest fire prevention, shall repay into the state treasury annually any amounts expended in the preceding year by the State Forester in such county or city for forest protection, forest fire detection, forest fire prevention and forest fire suppression, not to exceed in any one year an amount measured by the acreage, computed, beginning July 1, 2008, upon the basis of seven cents per acre of privately owned forests in the county or city and beginning July 1, 2009, nine cents per acre, according to the most recent United States Forest Survey. In any additions or deductions of acreage from that given by this survey, any land, other than commercial orchards, sustaining as its principal cover a growth of trees or woody shrubs shall be considered forest land, irrespective of the merchantability of the growth, and cutover land shall be considered as forest land unless it has been cleared or improved for other use. Open land shall be considered as forest land when it bears at least 80 well-distributed seedlings or sprouts of woody species per acre. The amounts so repaid by the counties or cities into the state treasury shall be credited to the Forestry Operations Fund for forest protection, forest fire detection, forest fire prevention and forest fire suppression in the Commonwealth and, with such other funds as may be appropriated by the General Assembly or contributed by the United States or any governmental or private agency for these purposes, shall be used and disbursed by the State Forester for such purposes. In cities this subsection shall be subject to § 10.1-1125 .
  2. In any case in which the State Forester and the governing body of any county or city cannot agree upon the additions or deductions to privately owned forest acreage in a particular county or city, or to changes in forest acreage from year to year, the question shall be submitted to the judge of the circuit court of the county or city by a summary proceeding, and the decision of the judge certified to the governing body and to the State Forester, respectively, shall be conclusive and final.