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
Through the Submerged Lands Act passed by Congress in 1953, Virginia has clear title to the bottom of the Chesapeake Bay, plus submerged lands on the Atlantic Coast up to three miles offshore.
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.
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 (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 Commissionalso 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 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
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
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
Source: Newport News Daily Press (September 12, 1907, provided by Library of Congress)
lease for private oyster bed in York River
Source: York County
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 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." 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."10
Navigability can be contested. When land ownership disputes could not be resolved by negotiation, judges in courts have had to determine whether a stream was navigable (roughly, if the stream was suitable for commercial traffic using boats/canoes in the colonial era).
Virginia also claims ownership of the land underneath navigable rivers - and non-navigable rivers:11
Some landowners have objected to state claims, most notably along the Jackson River. Mitigation for environmental damage by construction of the Gathright Dam included creation of a new trout fishery on the Jackson River downstream of the dam. Lake Moomaw behind the dam was so deep, the Corps of Engineers could draw from different water depths and discharge a steady colder-than-normal water into the Jackson River.
However, some local landowners did not welcome the prospect of additional anglers and boaters on the stream, and sued to block public use.
In 1996 the Virginia State Supreme Court decided in Kraft v. Burr that colonial deeds isssued in 1750 and 1769 by King George II enabled four riparian property owners to block public use on the river banks, essentially creating private fishing rights from .75 mile below the dam down to Johnson Springs.
The Jackson River had been ruled to be legally navigable, but navigability does not always guarantee public ownership of the submerged lands underneath the river. Property owners along the river claimed ownership of the river bed, as well as the banks above the low water mark. They claimed the "crown grants" that preceded independence in 1776 conveyed all ownership, since the grants were made before application of the American common law concept that the rivers are a public trust and Virginia owns the submerged lands underneath inland rivers as well as underneath tidal waters.
After the Kraft v. Burr decision in 1996, the Department of Game and Inland Fisheries stopped stocking trout below Gathright Dam. However, the legal disputes regarding ownership and public access rights continue, on the Jackson River as well as on other rivers in Virginia.12
The River's Edge development on the Jackson River claims privileged access to four miles of river frontage, and advertises the 33 homesites on 46 acres as:13
No one contests the rights of boaters to float the stretch of river, but the right to walk on the riverbed and fly-fish has been debated. When the developer and a property owner charged an angler for trespassing, the local District Court judge dismissed the case - so the developer and property owner filed a civil lawsuit, claiming damages to their private property rights based on a 1743 grant from Charles I. The Attorney General of Virginia declined to intervene, saying the civil lawsuit was a private dispute and no "interest of the Commonwealth" was involved.14
In 2012, a lawsuit to clarify ownership of the Jackson River in Alleghany County ended without a decision on the key issue of ownership. An angler, Dargan Coggeshall, sought to establish state ownership of the riverbed, which would allow him to set foot on the bottom of the river while fly-fishing. Costs of the litigation exceeded the angler's resources, despite creation of the Virginia Rivers Defense Fund to generate contributions, so the case was settled. As Coggeshall noted:15
In addition to the Jackson River, colonial grants may limit public access to the Hazel, Jackson, York, Elizabeth, Cowpasture, James and Shenandoah rivers, plus Johns Creek. Legal disputes such as North South Development v. Crawford continue regarding the rights of landowners, citing colonial grants from the king, to block what they describe as trespassing by anglers and boaters. As noted in one report:16
In the Tidewater portion of Henrico County, public access to Curles Creek was blocked in 1969 when a leveee was built across the mouth of the creek, where it flowed into the James River. By adjusting gates in the levee, water levels could be changed behind the levee, converting the creek into a controlled marsh. Productivity of wetland plants were maximized in order to improve waterfowl hunting potential at the site. (At Chincoteague National Wildlife Refuge and other similar sites, the US Fish and Wildlife Service has created similar "moist soil management areas," using funds from hunters to improve wildlife habitat and increase the population of ducks and geese.)
Twenty years later in 1989, the Virginia Marine Resources Commission granted an after-the-fact permit legalizing the Curles Creek barrier, noting that the landowner (Curles Neck Farm and Dairy) claimed to own the creek bottom through a crown grant. In 2013, the new owners of the 5,400 acre Curles Neck Farm requested a Virginia Marine Resources Commission permit to build a half-mile long steel sheet pile wall. The wall, with riprap scour protection, would reinforce the barrier against rising sea levels and ensure the wetlands would not become open water. Dredging for the construction would require a state permit for use of State-owned bottomlands. Two neighbors objected, proposing instead that the levee should be breached and public access restored to Curles Creek.17
Public access to the creek would not guarantee that the public could hunt the waterfowl in the marsh. Under the Waterfowl Blind Laws enforced by Virginia's Department of Game and Inland Fisheries (DGIF), the riparian landowner gets priority for obtaining a license for fixed waterfowl blinds, such blinds can be located each 500 yards, and people in boats may not hunt within 500 yards of any licensed blind - whether it is occupied or not.18
Submerged lands can grow through natural processes, with sediments being deposited gradually by stream currents or quickly in a storm. Owners of shoreline property can see their parcels enlarge slowly by the process of accretion, or rapidly by the process of avulsion, as once-submerged land is exposed to the surface.
The mechanics of how a parcel grows can determine the ownership of the new land. Is a parcel expands through slow accretion, the adjacent property owner acquires property rights to the newly-created surface. For example, a gravel bar on the inside of a river bend may increase in acreage, as a river deposits sand and plants ultimately grow on the new land. The riparian landowner, who owned the gravel bar adjacent to the river, ends up owning a larger gravel bar.
The doctrine of accretion, granting ownership of a shifting sandbar to the riparian landowner, simplifies the process of determining who owns new land created as river currents adjust shorelines. If local tax assessors are paying attention during re-appraisals, the size of the taxable parcel is increased and riparian property owners with accreted parcels get a bigger real estate tax bill.
When a gravel bar expands on the inside of a river's bend, typically the river erodes away the land on the outside of the bend. The process of reliction literally erodes property ownership, as a river naturally reshapes the land. Smart property owners highlight such changes to tax assessors, in order to reduce their local real estate taxes. (The same process of accretion and reliction occurs on ocean/Chesapeake Bay shorelines, especiaaly on barrier islands, as well as on river shorelines.)
If a river changes course quickly, cutting a new channel, then a landowner with property on just one side of a river suddenly may end up owning property on both sides. The rapid change of the river's location, known as avulsion, does not alter ownership boundaries; old surveyed parcel boundaries continue to define ownership after an avulsion event. Coastal shoreline landowners can acquire ownership of a new, broader beach by avulsion, such as Willoughby Spit in Norfolk.
Submerged lands also can become dry surface through intentional dumping of rocks and fill dirt. The Rip-Raps off Old Point Comfort were converted into Fort Calhoun after the War of 1812, when the British sailed unimpeded through the Chesapeake Bay. The shoal was enlarged with fill between 1819-1834, so Fort Calhoun could be constructed on top and the cannon of that time could control various shipping channels.
To expand Fort Monroe on Old Point Comfort, the Commonwealth of Virginia sold submerged lands underneath Mill Creek to the Federal Government, recognizing that the owners of oyster leases would have to be compensated. When Fort Monroe was closed, some land conveyed by the state to the Federal government reverted back to the state, according to the original conditions for the Federal government to use the land for military purposes.
since 1861, submerged lands underneath Mill Creek to the north and portions of Hampton Roads west of the historic fort were filled in
Source: Library of Congress, The Union army encampment at Hampton, Virginia Showing picket lines and Fortress Munroe
Fort Monroe, showing filled lands and accreted lands west of the historic fort, in 2011
Source: US Geological Survey (USGS), Norfolk North 7.5 minute topographic quad (2011)
The Federal government claimed full ownership of the accreted land, land that had been below the original mean low water line in 1908. Four structures located on both sides of the 1908 mean low water (MLW) boundary line ("bifurcated buildings") were appraised based upon the percentage located on acquired-in-1908 vs. accreted-since-1908 land.19
When Fort Monroe was closed in 2011 as part of the Base Realignment and Closure (BRAC) process, the state and Federal government disagreed on ownership of accreted land at Fort Monroe. When the Federal government directed appraisers to determine the value of the land at Fort Monroe, it drew a boundary between the land to be reverted back to Virginia (based on a 1908 purchase) and the land accreted since 1908.
Even after the governor of Virginia accepted the quitclaim deed from the Army for Fort Monroe, ownership of 70 acres of accreted land (including the 332-slip Old Comfort Point Marina and the The Marina Cafe built on that land) remained in dispute. The local US Representative proposed Congressional action, using the 2014 National Defense Authorization Act to declare that Virginia owned the 70 acres but the state's the Fort Monroe Authority would have to split any revenue from future land sale/leases with the US Army.20
Fort Monroe, showing lands to be reverted to Virginia (in green) and accreted lands (in blue)
Source: Fort Monroe Restoration Advisory Board, Orientation Briefing (September 19, 2006)
References1. 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://media.coastalstates.org/Public%20Trust%20Doctrine%202nd%20Ed%20%201997%20CSO.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); "Putting The Public Trust Doctrine To Work," p.52, p.73
4. 9. 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 Environmenta; Managenent,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. Virginia Marine Resources Commission, "Subaqueous Guidelines"
11. Virginia Marine Resources Commission, "Subaqueous Guidelines"
12. "Inland Recreational Fishing Rights In Virginia: Implications Of The Virginia Supreme Court Case Kraft V. Burr," Virginia Water Resources Research Center, March 1999, http://vwrrc.vt.edu/pdfs/specialreports/sr131999.pdf (last checked August 17, 2012)
13. "The Rivers Edge on the Jackson River," http://fishntheedge.com/ (last checked August 24, 2012)
14. "Foggy bottom: River rights case could impact Virginia economy," The Hook, http://www.readthehook.com/106985/foggy-bottom-river-rights-case-could-impact-virginia-economy, August 24, 2012, (last checked August 24, 2012) 15. Dargan Coggeshall, "After All of This, What Have We Learned?," Virginia Rivers Defense Fund blog, October 16, 2012, http://www.virginiariversdefensefund.org/blog (last checked October 31, 2012)
16. "Anglers across nation watching VA Crown Grant case," Bay Journal, July-August 2012 , http://www.bayjournal.com/article/anglers_across_nation_watching_va_crown_grant_case (last checked August 17, 2012)
17. "Owners, neighbors split on plan to preserve marsh,", Richmond Times-Dispatch, May 19, 2013, http://www.timesdispatch.com/news/state-regional/article_eaf79a82-4c42-5536-b86a-50fadb37d538.html; PCN, LLC #12-1534 (Item #7 on the May 28, 2013 agenda), Virginia Marine Resources Commission, http://mrc.virginia.gov/Commission_Agendas/ca0513.shtm (last checked May 27, 2013)
18. "Waterfowl Blind Laws," Virginia Department of Game and Inland Fisheries, http://www.dgif.virginia.gov/hunting/regulations/waterfowl/waterfowl-blind-laws.asp (last checked May 27, 2013)
19. "Communication From the Governor of Virginia in Reference to Conveying to the United States Government Additional Lands for the Enlargement of the Military Reservation at Fort Monroe," Journal of the Senate of the Commonwealth of Virginia, Senate Doc No. 2, January 8, 1980, http://books.google.com/books?id=JKY0AQAAMAAJ&pg=PA1049#v=onepage&q&f=false; "Scope of Work for Appraisal Services, Fort Monroe Hampton County, Virginia Parcel A-3 (Marina Area)," Fort Monroe Parcel A-3 Appraisal Services Solicitation Package, p.2, https://www.fbo.gov/utils/view?id=fe74852e92ca52ffa55600eab1ff018b (last checked June 7, 2013)
20. "Army, Fort Monroe Authority are at odds over 70 acres," Hampton Roads Business Journal, June 14, 2013, http://insidebiz.com/news/army-fort-monroe-authority-are-odds-over-70-acres; "Governor McDonnell Signs Fort Monroe Quitclaim Deed," Commonwealth of Virginia news release, June 6, 2013, http://www.governor.virginia.gov/news/viewRelease.cfm?id=1834 (last checked July 8, 2013)
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