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 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 approval for structures in navigable waters are also required. Beyond three miles, just Federal officials control the bottom of the ocean and issue permits.)
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 right along the Virginia shoreline. Virginia state law and the Public Trust Doctrine determine the boundary between private and state property at the water's edge.
The Public Trust Doctrine is normally interpreted to define the limit of private property to be the high water mark adjacent to a tidal waterway. Under that doctrine, public agencies retain ownership and management responsibility for the narrow strip between the high water mark and the actual water. In states that maintain 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 many Virginia rivers, and property owners can call on county sheriffs to enforce the law.
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 owned by the state, but some parcels have been leased to individuals seeking to grow clams/oysters, creating "private rocks" for aquaculture. (In addition, some colonial "King's Grants" made prior to Virginia becoming a state have been interpreted by the Virginia Supreme Court to transfer all property rights underneath an inland, non-tidal river.)
Ownership does not imply total control; state and Federal law still affect the use of private property all the way down to the Mean Low Water mark. For example, the US Army Corps of Engineers has regulatory responsibility for permitting the dredging and filling of wetlands above the water line, and responsibility for protecting navigation below the water line. The Virginia Marine Resources Commission (VMRC) oversees structures built or impacting the submerged lands, and 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 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/clans 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