The state owns the bottom of the Outer Continental Shelf for the first three miles offshore, and 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
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.
In 2015, after the Virginia Electric and Power Company (a subsidiary of Dominion) obtained a lease from the Federal government to build test wind turbines 24 miles offshore for the Virginia Offshore Wind Technology Advancement Project, the utility company planned for its 34.5 kV submarine power cable to come ashore at the Camp Pendleton State Military Reservation in Virginia Beach. That required crossing 21 miles of Federally-owned Outer Continental Shelf plus three miles of the Commonwealth’s territorial sea under the jurisdiction of the Virginia Marine Resources Commission. The cost to lease 18,228 feet of State-owned submerged bottomlands was $54,684 (plus a $100 permit fee), at the standard rate of $3.00 per linear foot.2
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. Federal officials have exclusive control over use of the bottom of the ocean more than three miles offshore to issue permits for mining sand, installing wind turbines, etc. In 1991, Virginia used its control over submerged lands at 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.
Virginia controls submerged lands under the Atlantic Ocean, for three miles offshore
Source: National Oceanic and Atmospheric Administration (NOAA), MarineCadastre.gov
the Virginia Offshore Wind Technology Advancement Project included bringing electricity generated by offshore wind turbines to the onshore grid via submarine cables, and in 2015 the Virginia Marine Resources Commission leased submerged land under state control for the buried powerline (green line) at $3.00 per linear foot
Source: Dominion, "Virginia Offshore Wind Technology Advancement Project," Project Overview
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:3
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.4
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.
In 2015, a property owner in Norfolk erected a fence down to the high water mark, excluding people from his private property. A set of large rocks placed below the high water line, outside the fence, made it very difficult to walk around the fence in the Chesapeake Bay water. Tourists and neighbors were blocked from their traditional walks along the shoreline of Willoughby Spit, and even city police patrolling the beach had to detour around the fenced-off parcel.
Nearby waterfront homeowners complained, saying "It's not being neighborly" and "It's made everybody mad." The landowner who fenced the property responded bluntly:5
The fence was legal. The rocks remained a matter of dispute; their placement may have violated Virginia's Coastal Primary Sand Dunes and Beaches Act. A 2016 beach replenishment project was expected to end the problem by widening the beach. Norfolk was required to acquire an easement guaranteeing public access to the additional land created by the beach replenishment project. Regulations of the Virginia Marine Resources Commission for "Placement of Sandy Dredged Material along Beaches in the Commonwealth" state:6
before authorizing beach replenishment projects, the Virginia Marine Resources Commission requires that the existing land located below Mean Low Water will remain public after the shoreline is altered
Source: ESRI, ArcGIS Online
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:7
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."8
On submerged land claimed by Virginia, the state commission approves structures such as boat docks, piers, and seawalls. The Virginia Marine Resources Commission also approves "encroachments" by utility companies for power lines and pipelines buried underwater.
Use of the state-owned submerged land requires a royalty payment to Virginia. In 2015, the rate was $3.00 per linear foot. When Columbia Gas Transmission proposed to build a new natural gas pipeline across the South Fork of the Shenandoah River in Page County, it was charged $729 (plus a $100 permit fee) for its use of 243 linear feet of the river bottom.9
When the Virginia Electric and Power Company (a subsidiary of Dominion) planned to install a 34.5kV submarine electrical transmission cable from offshore wind turbine generators, the last three miles to reach the shoreline at Camp Pendleton would cross state-owned submerged bottomlands. The Virginia Marine Resources Commission staff determined the utility should pay a royalty of $3.00 per linear foot. Since the transmission line would affect 18,228 feet of bottomland, the total royalty was $54,684 (plus the $100 permit fee).10
The bottom of the Chesapeake Bay is especially valuable real estate for clams and oysters. After determining the boundary between Maryland/Virginia in 1877, Virginia arranged for James Baylor from the US Coast and Geodetic Survey to identify the location of shellfish beds in 1892-94. State officials used the surveys to determinewhere submerged lands without natural oyster beds could be leased. By protecting existing shellfish beds, individuals would have an incentive to restock the barren sites for private use without closing productive sites that watermen could continue to harvest.
Virginia committed to maintain public access to the 232,016 acres where the Baylor surveys identified oysters were still reproducing naturally in 1894. On those "public rocks," watermen would retain the opportunity to harvest naturally-growing shellfish. Today, Article XI, Section 3 in the state constitution draws the key distinction between barren submerged land vs. natural oyster beds:11
By the end of the 19th Century, it was obvious that the Virginia oyster population had been reduced dramatically by overharvesting 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.12
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:13
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.14
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.
Private aquaculture leases for growing oysters and clams require approval by the Virginia Marine Resources Commission. Boaters, adjacent "highland" property owners, and even members of the general public may object to the placement of cages, pumps, pipes, and other infrastructure for aquaculture operations. Construction of docks and piers, especially those with vista-blocking roofs, and seawalls that alter the shoreline also may draw objections. The commission has refused to approve or renew some applications.
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:15
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 submerged river bottoms on major rivers and streams that were suitable for commercial traffic using boats/canoes in the colonial era.
Actual commercial use does not have to be documented prior to 1776, so streams in the western part of the state where settlement occurred late still qualify as "navigable." Based on an Attorney General's opinion issued in 1982, the state claims ownership of stream bottoms that were "'navigable-in-fact' unless the landowner could show clear title to the riparian land acquired by grant prior to July 4, 1776."16
The Virginia Marine Resources Commission asserts authority to regulate streams west of the Fall Line as well as within Tidewater. It uses a definition of navigability based on watershed size and streamflow volume, rather than documented historical use:
In addition, the Virginia Marine Resources Commission claims authority to regulate activities in other streams that are "non-navigable-in-fact:"
It is common for utilities to place pipes across small streams, and for riparian landowners to drill a support below the Mean Low Water line in small perennial streams to support a boat dock. Even in western Virginia, those utilities and riparian landowners must obtain a permit from the Virginia Marine Resources Commission to encroach on state-owned submerged lands. No distinction is made between lands east or west of the Fall Line. The commission's jurisdiction over state-owned bottomlands includes streams within all river basins, and extends from the eastern edge of the territorial sea in the Atlantic Ocean to Cumberland Gap.
Not every stream bottom is regulated as state-owned submerged land. The land underneath ephemeral and intermittent (as opposed to perennial) streams is assumed to belong to adjoining property owners. The bottom of small streams - those with a watershed less than five square miles, or with a mean annual flow less than five cubic feet per second - also belongs to adjoining property owners.
Such streams may still be affected by local land use controls, and the Chesapeake Bay Regulations issued by the Virginia Department of Environmental Quality (DEQ) will still require streamside buffers along perennial streams in Tidewater jurisdictions, but there is no oversight from the Virginia Marine Resources Commission for the smallest perennial streams or for intermittent and ephemeral streams.
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 claiming King's Grants/Crown Grants assert that grants issued by the kings and queens of England conveyed complete title, including submerged lands, until the Virginia General Assembly limited land grants to just the land above mean low water lines.
Johns Creek in Craig County was closed to recreational boating after a landowner made such a claim in 1999. He owned land on both sides of the stream, claimed the right to block boaters from floating down Johns Creek through his property, and a kayaker was fined $50 for trespassing.
In 2015, the Virginia Marine Resources Commission reassessed 14 streams and declared them to be navigable. Because Johns Creek had a drainage basin of greater than 5 square miles, it was determined to be "navigable-in-fact" by the Virginia Marine Resources Commission. The Craig County Commonwealth's Attorney decided that the state's regulatory decision re-opened Johns Creek to recreational kayaking and canoeing, and announced he would not prosecute for trespass.
That declaration of navigability by the state agency, and the associated claim of state ownership of the bottom of Johns Creek, could still be overturned. If the landowner went to the expense of filing a court case and successfully establishing a King's Grant/Crown Grant issued prior to 1802, then a judge could rule that the submerged bottom had been transferred out of colonial/state ownership.17
Another option is legislative action. The 2015 declaration by the Virginia Marine Resources Commission spurred landowners along Potts Creek in Alleghany County to contact their House of Delegate member, in hopes of retaining the ability to block recreational use and potential trespass onto the shoreline without having to prove private ownership of the creekbed through a King's Grant/Crown Grant. The General Assembly always has the option to pass legislation modifying the state's claims to bottomlands, or to constrain the funding or authority of the Virginia Marine Resources Commission.18
When land ownership disputes are not resolved by negotiation or regulation, judges typically determine whether a stream is 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.19
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:20
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
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