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
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
Source: National Oceanic and Atmospheric Administration (NOAA), MarineCadastre.gov
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 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 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
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
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
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
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://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
Source: National Oceanic and Atmospheric Administration, NOS Responds to November 2009 Nor'easter