Virginia and Submerged Lands

aquaculture on submerged lands leased through Virginia Marine Resources Commission at Cherrystone inlet north of Town of Cape Charles
aquaculture on submerged lands leased through Virginia Marine Resources Commission at Cherrystone inlet, north of Town of Cape Charles
Source: ESRI, ArcGIS Online

The state claims title to the bottom of rivers and tidewater areas in the state, up to the Mean Low Water line (the mean low-water mark, the line of low tide averaged over 20 years):1

All the beds of the bays, rivers, creeks and the shores of the sea within the jurisdiction of the Commonwealth, not conveyed by special grant or compact according to law, shall remain the property of the Commonwealth and may be used as a common by all the people of the Commonwealth for the purpose of fishing, fowling, hunting, and taking and catching oysters and other shellfish. No grant shall be issued by the Librarian of Virginia to pass any estate or interest of the Commonwealth in any natural oyster bed, rock, or shoal, whether or not it ebbs bare.

...the limits or bounds of the tracts of land lying on the bays, rivers, creeks and shores within the jurisdiction of the Commonwealth, and the rights and privileges of the owners of such lands, shall extend to the mean low-water mark but no farther, except where a creek or river, or some part thereof, is comprised within the limits of a lawful survey.

Congress passed the Submerged Lands Act in 1953, after a series of Supreme Court decisions in 1957-50 declared that states had no ownership rights in submerged lands. Under that law, in Virginia has clear title to the bottom of the Chesapeake Bay, plus submerged lands on the Atlantic Coast offshore up to three "geographical miles" (essentially nautical miles 6,087 feet long).

Owners of shoreline property must obtain state permits to build large piers, raise oysters/clams, dredge for sand, install phone/power lines underwater, or build offshore platforms for oil drilling/windmills within three miles of the coast. Federal authority over navigation, established in the US Constitution, is not reduced by the transfer of ownership. Federal approval for installing structures in navigable waters is still required, even if the submerged lands are state-owned, in order to protect water-based commerce.

Submerged land in the Atlantic Ocean more than three miles offshore is owned by the Federal government. More than three miles offshore, Federal officials have exclusive control over use of the bottom of the ocean, and Federal officials issue permits for mining sand, installing wind turbines, etc. In 1991, Virginia used its control over submerged lands iat Hampton Roads to block plans of US Army Corps of Engineers to expand the Craney Island dredge disposal site to the west, ultimately reaching a compromise to widen the Craney Island on the eastern side instead.

The Submerged Lands Act, passed by the US Congress, refers to the "line of ordinary low water" when establishing the boundary of the state/Federal control offshore, but that law did not determine the ownership of property rights along the Virginia shoreline. Instead, Virginia state law and the Public Trust Doctrine determine the boundary between private vs. state property at the water's edge.

In many states, the limit of private property is interpreted to be the high water mark adjacent to a tidal waterway. Where the high water mark adjacent to a tidal waterway is the limit of private property, public agencies retain ownership of the narrow strip between the high water mark and the actual water. In states that actively manage public ownership of that strip, there is public access for walking, fishing, and landing boats on the shore below the high water mark:2

Virginia controls submerged lands under the Atlantic Ocean, for three miles offshore
Virginia controls submerged lands under the Atlantic Ocean, for three miles offshore
Source: National Oceanic and Atmospheric Administration (NOAA), MarineCadastre.gov

Public trust lands, generally speaking, are those lands below navigable waters, with the upper boundary being the ordinary high water mark. Tidelands, shorelands of navigable lakes and rivers, as well as the land beneath the oceans, lakes and rivers, are usually considered public trust lands.

Virginia (like Delaware, Maine, Massachusetts, and Pennsylvania) takes a different approach. Virginia law authorizes private landowners to control land down to the Mean Low Water mark, with those rights made clear in an 1819 law passed by the General Assembly.3

Control of the shoreline down to low water allows owners of riverfront property to block the public from fishing from the riverbank in front of their homes, and blocks people from strolling along the riverbank. No Trespassing signs are legitimate on the shoreline of many Virginia rivers, and property owners can call on county sheriffs to enforce the law and block public use above the Mean Low Water mark.

Virginia has transferred some property rights that are completely submerged, below the Mean Low Water mark, by issuing leases to the beds of tidewater rivers and the Chesapeake Bay. Those submerged lands are still owned by the state, but specific parcels have been leased to individuals seeking to grow clams/oysters, creating "private rocks" in tidal waters for private aquaculture operations.

Under the Public Trust Doctrine, the transfer of submerged land from initial government ownership to private ownership did not transfer 100% of the property rights. The public interest in that land must be protected forever, so a grant of submerged lands was revocable (in contrast to grants of lands above the waterline).

State and Federal law still affect the use of private property in Virginia all the way down to the Mean Low Water mark. For example, local zoning constrains development, the US Army Corps of Engineers has regulatory responsibility for permitting the dredging and filling of wetlands above the water line, and the Virginia Marine Resources Commission (VMRC) oversees structures built or impacting the submerged lands. The Virginia Marine Resources Commission also oversees local wetlands boards that regulate alteration of tidal wetlands from "low tide inland to a point 1.5 times the mean tide range."

The Code of Virginia states defines the area over which the Virginia Marine Resources Commission has responsibility:4

The jurisdiction of the Commission shall include the Commonwealth's territorial sea and extend to the fall line of all tidal rivers and streams except in the case of state-owned bottomlands where jurisdiction extends throughout the Commonwealth.

responsibility of different government agencies at the water's edge in Virginia
responsibility of different government agencies at the water's edge in Virginia
(VMRC jurisdiction is limited to Virginia's portion of the Territorial Sea, 3 miles offshore)
Source: Virginia Institute of Marine Science, Living Shorelines: Development of a General Permit & Integrated Guidance

The Virginia Marine Resources Commission manages the 2,300 square miles (approximately 1,472,000 acres) of tidally-influenced submerged lands claimed by the state. The agency notes that this "is an area larger than the entire State of Delaware."5

The bottom of the Chesapeake Bay is valuable real estate. After determining the boundary between Maryland/Virginia in 1877, Virginia surveyed its shellfish beds in the 1890's and committed to maintaining public access to those locations where watermen might harvest naturally-growing shellfish. Today, Article XI, Section 3 in the state constitution says:6

Natural oyster beds
The natural oyster beds, rocks, and shoals in the waters of the Commonwealth shall not be leased, rented, or sold but shall be held in trust for the benefit of the people of the Commonwealth, subject to such regulations and restriction as the General Assembly may prescribe, but the General Assembly may, from time to time, define and determine such natural beds, rocks, or shoals by surveys or otherwise.

By the end of the 19th Century, it was obvious that the Virginia oyster population had been reduced dramatically by overhavesting and habitat destruction. Maryland tried restoring oyster reefs and immediately allowing public harvest. Watermen would quickly scoop up whatever new oysters were grown on Maryland's restoration sites, forcing the state to restore/restock again.7

In contrast, Virginia began to lease submerged lands to individuals who would create new reefs and stock them with oysters. Those "private rocks" were barren of shellfish, separate from the "public rocks" where oysters/clams were still surviving (as defined by the Baylor Survey in the 1890's).

The private leases issued by the state are still intended to incentivize individuals to restore former oyster beds in Tidewater creeks. Anyone with a lease from the state can place old oyster shells on the bottom (or suspended above the bottom in bags/cages) and restock oysters to create a new oyster reef. Those with a lease for private rocks have exclusive authority to harvest whatever grows on their restored site; aquaculture investment is rewarded.

In 1876, the Supreme Court clarified in the McCready v. Virginia lawsuit that Virginia's property right to its submerged lands allowed the state to ban Marylanders and other non-Virginians from planting or harvesting oysters on the bed of tidal rivers:8

[E]ach State owns the beds of all tide-waters within its jurisdiction, unless they have been granted away... [T]he States own the tide-waters themselves, and the fish in them... [T]he fisheries... remain under the exclusive control of the State, which has consequently the right, in its discretion, to appropriate its tide-waters and their beds to be used by its people as a common for taking and cultivating fish, so far as it may be done without obstructing navigation.

Such an appropriation is in effect nothing more than a regulation of the use by the people of their common property. The right which the people of the State thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship.

Of course, trespassing and poaching of oysters occurred. "Oyster wars" between watermen spurred both Virginia and Maryland to establish an Oyster Navy to enforce state regulations. The history of oyster mis-management through the 1950's, until disease nearly exterminated the commercial value of oyster harvesting, is just as colorful as the tales of cattle rustling in the Wild West.9

1907 newspaper report on expectations of oyster harvest on public rocks
1907 newspaper report on expectations of oyster harvest on public rocks
Source: Newport News Daily Press (September 12, 1907, provided by Library of Congress)

lease for private oyster bed in York River
lease for private oyster bed in York River
Source: York County
boundaries of public/private oyster beds in Nomini Creek
boundaries of public/private oyster beds in Nomini Creek
Source: Virginia Marine Resources Commission

The Baylor Survey of the 1890's is still a guide to locating new public oyster restoration projects. To protect new oyster reefs, Virginia has established oyster sanctuaries where harvesting is prohibited. The definition of property rights, based on state ownership of the bay bottom, has been essential to Virginia's approach to restoring the species.

In 2012, a report to the General Assembly concluded that management of the bottomlands on the Atlantic Ocean side of the Eastern Shore should be modified. In contrast to the Chesapeake Bay, most remaining oyster beds on the seaside of the Eastern Shore were located between the high and low tide levels, as small "fringing reefs along the edge of marshes or as patch reefs on intertidal mud and sand flats" and not within the boundaries of the Baylor Grounds. As a result, the existing oyster beds could be leased and controlled by private parties, while the Baylor Grounds - supposed the valuable locations where most oysters would be kept accessible for public harvest - were not suitable for restoration.

Key findings of the report included:10

(i) that the current boundaries of the public shellfish beds, defined largely by a survey in 1894, no longer accurately reflect the extent of the oyster beds on the seaside;
(ii) that the majority of current natural oyster beds on the seaside lie outside of the public shellfish bed boundaries, largely on unassigned state-owned bottomlands; and
(iii) that maximizing the benefits to public fisheries and private aquaculture, while enhancing habitat restoration and protecting natural resources will require some modifications to the current de facto zoning of state-owned bottomlands on the seaside of the Eastern Shore.

In addition to claiming tidal waters, the Virginia Marine Resources Commission is responsible for non-tidal river beds. Based on the Martin v. Waddell decision by the Supreme Court in 1842, codified by Congress in the Submerged Lands Act in 1953, Virginia asserts title to the land beneath navigable rivers "unless the landowner could show clear title to the riparian land acquired by grant prior to July 4, 1776."

Navigability is normally based on whether the stream was suitable for commercial traffic using boats/canoes in the colonial era. The state assumes "all perennial streams with a drainage basin of greater than 5 square miles, or a mean annual flow greater than 5 cubic feet per second, are navigable-in-fact until evidence is presented proving non-navigability." By that claim, the land underneath major rivers is owned by the state, but land underneath small streams (including all intermittent streams) belongs to adjoining property owners.11

navigable river sections in Virginia, as claimed by the Department of Game and Inland Fisheries
navigable river sections in Virginia, as claimed by the Department of Game and Inland Fisheries
Source: Department of Game and Inland Fisheries, Inland - Navigable Waters (displayed in Google Earth)

The state's claim to both tidal and non-tidal river beds has been challenged by property owners who can trace their title back to 1802 (in Gulf of Mexico watersheds) or 1792 (in Atlantic Ocean watersheds). Landowners claim that grants issued by the kings and queens of England (King's Grants/Crown Grants) conveyed complete title, including submerged lands, until the Virginia General Assembly limited land grants to just the land above mean low water lines.

When land ownership disputes are not resolved by negotiation, judges may determine whether a stream was navigable.

In 1955, the Virginia Supreme Court determined in Boerner v. McCallister that the Jackson River upstream of Covington was not navigable, in part because the floating of logs downstream to a mill at Covington had been abandoned. That decision blocked an effort by an angler to overcome the adjacent property owner's claim to the bed of the river, in the hope that a navigability determination would establish state ownership of the submerged land.

However, in 1978 the US Army Corps of Engineers ruled the Jackson River was navigable between Back Creek and Covington, including the same stretch considered by the Virginia Supreme Court. The ruling was based on past use of the stream for floating logs, though that use occurred only in 1902 and 1903 for the last 11 miles between Kincaid and Covington.12

A key part of the Federal test of navigability, used to trigger jurisdiction based on the Commerce Clause in the US Constitution, was articulated in the 1940 United States v. Appalachian Electric Power Co. US Supreme Court decision that determined the New River was navigable up to Allisonia:13

A waterway which by reasonable improvement can be made available for navigation in interstate commerce is a navigable water of the United States, provided there be a balance between cost and need at a time when the improvement would be useful.

George Washington claimed lands along the Kanawha River before 1792 - but submerged lansd under navigable waters is clearly owned by the state
George Washington claimed lands along the Kanawha River before 1792 - but submerged land under navigable waters is clearly owned by the state
Source: Library of Congress, Eight survey tracts along the Kanawha River, W.Va. showing land granted to George Washington and others

King's Grants/Crown Grants

Who Owns Submerged Lands After They Emerge Through Accretion and Landfilling?

Virginia-Maryland Boundary

Virginia and the Outer Continental Shelf

Links

two sites for disposal of materials dredged to maintain depth of shipping channels at Hampton Roads are outside the 3-mile boundary and thus controlled by the Federal government, the Dam Neck Ocean Disposal Site and the Norfolk Ocean Dredged Material Disposal Site
two sites for disposal of materials dredged to maintain depth of shipping channels at Hampton Roads are outside the 3-mile boundary and thus controlled by the Federal government, the Dam Neck Ocean Disposal Site and the Norfolk Ocean Dredged Material Disposal Site
Source: National Marine Fisheries Service, Maintenance of Chesapeake Bay Entrance Channels and use of sand borrow areas for beach nourishment

References

1. Code of Virginia, Title 28.2 - Fisheries And Habitat Of The Tidal Waters, Chapter 12 - Submerged Lands, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+28.2-1200; "Habitat Management Frequently Asked Questions," Virginia Marine Resources Commission, http://www.mrc.virginia.gov/hmac/hmoverview.shtm (last checked August 17, 2012)
2. "Putting The Public Trust Doctrine To Work," Coastal States Organization, p.xv, p.5, http://www.shoreline.noaa.gov/docs/8d5885.pdf (last checked August 15, 2012)
3. Code of Virginia, Title 28.2, Chapter 12, Section 1202, "Rights of owners to extend to mean low-water mark," http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+28.2-1202 (last checked August 17, 2012); 4. Virginia Department of Environmental Quality, "VRMC Permit," http://www.deq.state.va.us/permits/marine.html; Code of Virginia, Title 28.2 - Fisheries and Habitat of the Tidal Waters, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC28020000001000000000000 (last checked August 15, 2012)
5. Virginia Marine Resources Commission, "Subaqueous Guidelines," http://www.mrc.state.va.us/regulations/subaqueous_guidelines.shtm (last checked August 17, 2012)
6. Article XI, Constitution of Virginia, http://legis.state.va.us/laws/search/constitution.htm (last checked November 17, 2010)
7. Merrill Leffler, "A Century of Conflict: Oyster Farming Vs. Oyster Hunting," Maryland Sea Grant Magazine, Volume 8, No. 2 (Fall 1987), http://www.mdsg.umd.edu/issues/chesapeake/oysters/history/conflict/ (last checked November 17, 2010)
8. McCready v. State of Virginia, 94 U.S. 391 (1876), FindLaw, http://laws.findlaw.com/us/94/391.html (last checked August 16, 2012)
9. Victor S. Kennedy and Linda L. Breisch, "Sixteen Decades of Political Management of the Oyster Fishery in Maryland's Chesapeake Bay," Journal of Environmental Management,Vol 164, 1983, pp.153-171, http://www.mdsg.umd.edu/images/uploads/siteimages/Living_Chesapeake/oysters/16_Decades.pdf (last checked August 17, 2012)
10. "Management of State-owned Bottomlands on the Seaside of the Eastern Shore," Report Of The Virginia Institute Of Marine Science And The Virginia Marine Resource Commission (SJR 330, 2011), Senate Document No. 7, 2012, http://leg2.state.va.us/dls/h&sdocs.nsf/fc86c2b17a1cf388852570f9006f1299/7f399ba557cc48de8525794f006867e3/$FILE/SD7.pdf (last checked August 16, 2013)
11. "Management of State-owned Bottomlands on the Seaside of the Eastern Shore," Report Of The Virginia Institute Of Marine Science And The Virginia Marine Resource Commission (SJR 330, 2011), Senate Document No. 7, 2012, http://leg2.state.va.us/dls/h&sdocs.nsf/fc86c2b17a1cf388852570f9006f1299/7f399ba557cc48de8525794f006867e3/$FILE/SD7.pdf (last checked August 16, 2013)
12. William E. Cox, "Public Recreational Rights on Virginia's Inland Streams," Virginia Water Resources Research Center, Special Report No. 10 (January 1980), http://www.vwrrc.vt.edu/pdfs/specialreports/sr101980.pdf (last checked March 19, 2014)
13. "United States v. Appalachian Electric Power Co. - 311 U.S. 377," US Supreme Court, 1940, http://supreme.justia.com/cases/federal/us/311/377/case.html (last checked March 19, 2014)
submerged riprap on bottom of Chesapeake Bay, protecting Chesapeake Bay Bridge Tunnel
submerged riprap on bottom of Chesapeake Bay, protecting Chesapeake Bay Bridge Tunnel
Source: National Oceanic and Atmospheric Administration, NOS Responds to November 2009 Nor'easter


Boundaries and Charters of Virginia
Chesapeake Bay
Virginia Places