Virginia Research Center Virginia Polytechnic Institute and State University 617 North Main Street Blacksburg, Virginia 24060

Introduction Water law in the Commonwealth of Virginia has be- come a subject of increasing concern during the last decade. The basic doctrines and con- cepts that traditionally have governed activities af- fecting water have been supplemented in several areas by statutory enactments and new administra- tive management programs. The two primary forces responsible for this development have been the de- sire for more efficient utilization of what has be- come a scarce in some areas and concern over destruction of natural environmental values as- sociated with the water resource . These forces are still at work, and additional changes in the legal framework are likely in the near future .

Modifications in water law generally have consisted of supplemental controls over specific types of wa- ter and water-related use rather than a compre- hensive revision of applicable law. The traditional common law control measures have been substan- tially superseded in certain limited areas, but pre- viously existing law generally remains in force . Thus the body of law currently applicable to water spans a broad range of relatively independent common law doctrines and legislative enactments . These various components of the legal framework can best be an- alyzed within the context of individual water re- source management issues.

Basic Allocation Mechanisms Virginia law for allocation of water among with- drawal uses is based on the common practice of classifying water as to its location within the hy- drologic cycle, with separate allocation principles applied to different sources of water. The primary legal classifications consist of natural watercourses, , and diffused . Natural Watercourses "Riparian land" is land which is contiguous to Allocation of streamflow continues to be accom- and touches a watercourse . It does not include plished through application of the riparian doctrine, land outside the watershed of the watercourse. the common law doctrine of water tradition- Real under common and ally accepted in the eastern United States. This doc- which is not separated from riparian land by trine is simply a collection of principles for resolving land of any other ownership shall likewise be water use conflicts that have been established in the deemed riparian land, notwithstanding that accumulated decisions of the courts. Water alloca- such is divided into tracts and tion under the doctrine is a function of the courts parcels which may not bound upon the water- of the state, and the primary mechanism of enforce- course.3 ment is the private lawsuit between parties to a spe- cific controversy over water use. The concept of reasonableness is the central ele- ment in quantifying the extent of a water right under The basic premise of the riparian doctrine is that the riparian doctrine. Reasonableness is relative, de- water rights arise as an. incidence to the ownership pending on the individual circumstances of the par- of land bordering or traversed by a natural water- ticular case.4 A fundamental guideline isthata given course. Under the current Virginia interpretation water use must be compatible with other uses relying of the doctrine, each riparian landowner has the right on the same source . Thus, a concept of sharing the to make a reasonable use of the water in connection available supply is a basic aspect of the riparian doc- with the use and enjoyment of the riparian property. trine. However, not all uses are of equal standing in The Virginia Supreme Court has described the right the sharing process. Domestic use is granted a higher of the riparian owner as follows: priority than other uses. Satisfaction of domestic needs appears to be the sole purpose for which the A proprietor may make any use of the water entire flow of a stream may be taken.5 of the stream in connection with his riparian and for lawful purposes within the wa- Although the reasonableness concept establishes a tershed, provided he leaves the current dimin- limit on the amount of adverse impact one water ished by no more than is reasonable, having user can inflict on others, it does not necessarily regard for the like right to enjoy the common prohibit all adverse effects-only those exceeding property by other riparian owners. 1 some reasonable level . This factor is the primary distinction between the reasonable use and natural This statement of the riparian right establishes two flow theories of the riparian doctrine. Under the fundamental limitations on water use : (1) the use natural flow theory, a reduction in streamflow con- must be on riparian land, and (2) the use must be stitutes infringement of a property right ; legal action reasonable. can be initiated at the time of streamflow reduction and is not dependent on the existence of actual Due to the restriction of use to riparian land, the injury arising from a reduced water supply . Con- definition of such land establishes limits for the versely, the right of action under the reasonable transport of water. The basic requirement for theory does not arise until actual injury occurs; to be considered riparian is physical contact with therefore, the riparian owner not using water or one the stream in question . The maximum extent of ri- whose use is not adversely affected by a reduction parian land generally is considered to consist of the in streamflow has no basis for a legal action . boundary of a stream's watershed. Of course, sub- division of land within the watershed into multiple The courts sometimes fail to distinguish between ownership destroys the riparian status of those tracts the theories, with the result that certain decisions no longer in contact with the stream . In some juris- may contain language indicating acceptance of both dictions, riparian status cannot be restored to once- theories. In Virginia, certain court decisions appear separated tracts even by merger under common to endorse the natural flow theory,6 and the Vir- ownership with land that remained riparian . ginia Supreme Court apparently has never expressly repudiated this concept in favor of reasonable use. The Virginia Supreme Court has never decided this However, statements of the court such as the pre- particular issue,2 but the following statutory defini- vious quotation from Virginia Hot Springs Co. v. tion from a Virginia statute providing for impound- Hoover and pronouncements regarding the neces- ment of water indicates that all land under sity for actual physical injury as a prerequisite for within a particular watershed legal action$ suggest acceptance of the reasonable is riparian at least for purposes of that act: use concept. Water rights under the riparian doctrine normally tion is whether the reasonable use theory's require- are not fixed in magnitude but may vary over time ment of injury will be imposed with regard to all due to changes in water availability or other condi- other water users. This approach limits the value of tions. One potentially significant source of changed the prescriptive right since unused rights would be conditions is the initiation of new water uses based excluded from its application . Where the riparian on previously unused riparian rights. Such rights doctrine in a particular state still contains elements generally are not lost because of non-use but con- of the natural flow concept, it is possible that the tinue to attach to riparian property . These unused physical injury requirement may not be strictly im- rights constitute a major source of uncertainty for posed. I n Town of Gordonsville v. Zinn, 11 for exam- water users in riparian jurisdictions since no record ple, the Virginia court indicated the existence of the of such rights exists. municipality's prescriptive right against lower ripar- ian owners in general without reference to specific Although riparian rights are not lost by simple non- injury in particular situations, at least suggesting use, they can be lost through the process of pre- that the interruption of natural flow for the pre- scription . The basic requirement for the acquisition scribed period was in itself sufficient to establish the of a prescriptive right is adverse use for a certain right. period of time, which in Virginia is 20 years.9 Under the reasonable use theory, a prescriptive right can- A third manner in which public suppliers may cir- not be established against an unexercised riparian cumvent legal problems arising from the lack of right since the injury requirement cannot be satis- recognition of public supply as a riparian right is the fied. Neither can a prescriptive right be obtained use of surplus water not being used by riparian land- against an upstream riparian since such owners can- owners. This approach is possible because of the not be adversely affected by a downstream water requirement of the doctrine that injury occur before diversion. the right of legal action arises. Therefore, withdrawal of surplus water may be allowed for public supply The Virginia court follows the majority view that or other purposes not recognized by the riparian municipal withdrawal is not a riparian right on non- doctrine. navigable streams; however, certain mechanisms exist by which such withdrawal may be permitted However, such use is subject to several limitations. in spite of the lack of recognition as a riparian right. Without the sanctity of legal recognition, withdrawal The availability of the powers of would be limited to a magnitude that caused no ad- condemnation to many public water suppliers is one verse effects on other users. This standard is stricter important factor since it establishes a procedure for than the normal limitation of withdrawal which acquisition of the water rights of parties who would allows some adverse impact, provided the effect is be injured and therefore have recourse to legal ac- not unreasonable. A use dependent on surplus water tion. The availability of the powers of eminent do- has an inherent uncertainty with regard to its contin- main, coupled with the reluctance of the courts to uance due to the possible future exercise of previous- grant injunctions against municipal withdrawals, ly unused riparian rights or an increase in existing creates the option for the municipality to construct uses. A further limitation of use without an estab- water works and initiate withdrawals prior to reso- lished legal right is the lack of enforceable protection lution of the water rights issues. If such withdrawal against excessive or otherwise unlawful water use is later found to violate the water rights of others, by others. condemnation proceedings can generally be insti- tuted at that time . For example, the municipality A special category of surplus flow that hasconsider- involved in Town of Purcellville v. Pottsi ° was held able potential for exploitation by public supplies to be in violation of the water rights of others, but without established water rights consists of flood the Virginia Supreme Court delayed application of . As in the case of the use of other surplus the requested injunction to allow initiation of con- water, the right to use flood waters may be limited demnation proceedings to acquire the rights in ques- where such flows confer some benefit on riparian tion. owners. The right to continuance of seasonal over- flows has been recognized in a number of western Another mechanism by which a public water sup- cases because of benefits and sediment en- ply can achieve legal recognition is the process of richment of land bordering streams. Overflow irri- prescription ; however, a basic uncertainty regarding gation was recognized by the U .S. Supreme Court the establishment of a prescriptive right concerns in the case of United States v. Gerlach Live Stock the beginning of the prescriptive period . The ques-- Co. 12 Most of the situations where rights to contin- uance of have been recognized are more likely protection of water recreation facilities against pol- to occur in the West, but some possibility exists that lution . 1s such rights could be recognized in an eastern state 17 such as Virginia . The policy statement subsequently developed by SWCB is a broad formulation encompassing all as- Water rights in a particular natural watercourse may pects of water resource management; however, the be affected by the stream's capacity for navigation . enabling legislation does not convey authority for The primary distinction in water rights that exist effecting the resulting policy provisions, and imple- in navigable waters as compared to those in non- mentation must be accomplished within the scope navigable waters is that such rights are held subject of existing agency authority. Consequently, the re- to the power of governmental authorities to exercise sulting policy statement adopted by the Board en- control over the navigable water. All other uses are compasses programs that are under the jurisdiction subordinate to the exercise of public rights and may of a number of agencies. The Board's direct imple- 13 be destroyed without compensation . Public con- mentation powers are limited to areas within its trol generally has been limited to such purposes as jurisdiction pursuant to other Iegislation .The agency navigation, flood control, and power production . has stated that the policy will also be utilized ". . . in However, a few states have included public water the preparation of Water Resource Management supply in this superior class of uses. Plans, advising on the adequacy/desirability of water resource projects, and authorizing specific water re- In the State of Virginia, municipal water uses have source projects or in commenting on projects which not been determined to be encompassed by the affect ." "navigation servitude," but special cases have been developed wherein municipal water rights may exist Authority19 for water resource planning is alsovested independently of the riparian doctrine. A primary in SWCB as a resu It of a transfer of agency functions .2o example consists of the water rights of the City of in 1972 Comprehensive basin plans have essen- Richmond in the James River. The initial action by tially been completed . SWCB planning traditionally the state legislature leading to the development of has placed emphasis on rather than Richmond's current rights occurred in 1784 when quantity. This focus has been due to the existence the James River Company was created . 14 The pri- of extensive federal regulatory requirements and mary purpose of the action was construction of a funding programs relating to water quality and also canal along the James to improve navigation, but to the historical water quality mission of SWCB. It substantial water rights for other purposes were is significant that planning authority does not vest conveyed, including provision of water supply. implementation power in SWCB or any other agen- cy ; thus, implementation must be achieved through Although Virginia has not established direct ad- existing agency authorities . ministrative controls for allocation of streamflow, several administrative programs have an impact on Several regulatory measures exist in Virginia law use and development of watercourses. These pro- that constrain certain types of water use and devel- grams can be classified into three general categories : opment. Included in this category are such programs (1) water resources policy formulation, (2) water re- as controls over public water supplies, construction sources planning, and (3) regulation affecting water of certain dams, and controls over fishing and hunt- use and development. ing.21 These controls generally impose additional constraints on the potential water user but do not With regard to water policy, the State Water Con- modify basic water rights defined by the common trol Board (SWCB) is under legislative mandate to law. " . . . formulate a coordinated policy fortheuseand control of all the water resources of the State. . . ."is Groundwater Legislative guidelines for the formulation process Allocation of groundwater among competing users include protection of existing water rights, provision is an administrative function of state government for protecting and giving preference to adequate sup- in specially designated geographic areas and a func- plies for human consumption, maximization of tion of the courts under common law groundwater economic development through water use and de- doctrines in non-designated areas. velopment, consideration of the harmful effects of drainage projects, maintenance of low flows to Designated Areas: The Groundwater Act of 1973 22 protect instream uses, watershed development for declares that control of groundwater resources is balanced multiple uses, and provision of adequate essential to ensure the preservation of the public welfare, safety, and health and constitutes an appli- Existing uses must be registered with SWCB and are cation of the police power of the state for regulation acknowledged by issuance of a certificate of ground- of groundwater use . A fundamental aspect of the water right. Such rights are limited by the extent Act is that its principal regulatory measures do not of application to beneficial use. This provision theo- apply statewide butare intended to be restricted geo- retically gives SWCB authority to review existing graphically to those areas having identified ground- uses to some extent rather than to issue requested water management problems. Implementing the reg- certificates automatically . Full utilization of this pro- ulatory provisions of the Act in such an area requires vision has the potential to overcome the weakness that it first be designated as a "groundwater manage- in the management program created by exempting ment area" by the State Water Control Board ac- existing uses from the permit requirement . Since cording to procedures in the Act. existing uses may constitute the principal source of the groundwater problems in a given area, some The Act specifies four conditions 23 which, indi- control over such uses appears essential to effective vidually or in combination, justify the initiation of groundwater management . groundwater management area proceedings . These include : Another group of special uses will remain exempt even if not in existence at the time of area designa- 1 . Excessive decline in groundwater levels or tion . This group includes "the use or supplying of artesian pressures; groundwater for agricultural and livestock watering 2 . Interference between the wells of two or purposes, for human consumption or domestic pur- more groundwater users ; poses, or for any single industrial or commercial pur- pose in an amount not exceeding fifty thousand 3 . Actual or imminent overdrawing of the avail- gallons a day."27 able groundwater supply ; and 4. Actual or expected pollution of ground Although the exemption provisions do not make water. specific reference to municipal use or public water supply, the Virginia Attorney Genera 128 has deter- Two groundwater management areas have been des- mined that municipal withdrawal for human con- ignated to date . At its meeting in January 1975, sumption and other domestic purposes is exempt SWCB designated a major portion of the state's without regard to quantity as in the case of individ- southeastern corner as a groundwater management ual use for these purposes. Municipal withdrawals area .24 The designated area is that section of the for single industrial and commercial purposes ex- coastal plain lying south of theJamesRiver andeast ceeding the 50,000-gallon-per-day limitation theo- of the fall line; it includes the counties of Prince retically are subject to the permitting requirement . George, Southampton, Surry, Sussex, and Isle of However, regulation of municipal withdrawals on a Wight and the cities of Chesapeake, Franklin, Hope- selective basis poses problems of administrative fea- well, Norfolk, Portsmouth, Suffolk, and Virginia sibility since individual withdrawals are likely to Beach . A second management area was established serve a variety of types and sizes of users. Thus it is by an order adopted September 27, 1976 .25 This doubtful as to whether municipal withdrawal of area consists of the Eastern Shore of Virginia, in- groundwater can be effectively regulated under the cluding the counties of Northampton and Accomack existing Groundwater Act. and all towns within these counties. For new or enlarged groundwater uses within a des- The primary effect of designating a groundwater ignated area not exempt because of their special management area is to implement a special manage- nature, no inherent right of the landowner is recog- ment program which includes regulation of new nized . The right to initiate a new use must be ac- groundwater uses in the area. The principal control quired from SWCB .29 SWCB may grant the right as provision in the Groundwater Act is the require- requested, but it is authorized to impose conditions ment that certain uses within designated areas can- and limitations in the permit, approve the permit not be initiated without a permit from SWCB . for less water than requested, or reject the applica- tion . The basic legislative criteria to guide SWCB's One category of exemptions from the permit re- decisions with regard to a proposed well are that new quirement includes uses in existence on the date an uses are to be limited by the requirement of bene- area is designated, intended uses where wells are ficial use and that undue interference with existing under construction, or any use in existence within wells will not be allowed. The Act provides that 26 two years prior to the date of area designation . [n]o application shall be approved when the same will deprive those having prior rights of beneficial use, is under essentially no constraints with regard use of the amount of groundwater to which they to the impact of his use on others and can legally are lawfully entitled . -30 This statutory provision in- destroy his neighbor's supply . troduces the concept of priority in time as a basic element of water rights and expresses the fundamen- Although the reasonable use doctrine is similar to tal concept of the doctrine of prior appropriation, the absolute ownership doctrine with regard to a doctrine that has not been applied previously in groundwater use on the overlying land, the doctrines Virginia . do produce different results with regard to export of groundwater for use on other land from which Non-Designated Areas : The Virginia Supreme Court the water is pumped . The absolute ownership doc- has decided a limited number of cases arising out trine places no restriction on place of water use, but of disputes between different groundwater users and one of the general principles of the reasonable use between water users and other resource developers, doctrine as it has been developed in other jurisdic- but common law groundwater rights have been in- tions is that use is limited to the land from which completely defined . In fact, the Virginia court has the water is taken . This principle has seen the great- never explicitly accepted any particular ground- est application in situations where municipal water water doctrine because of its position that its deci- supplies are pumped from parcels of outlying land sions to date would have been the same under either and piped into urbanized areas. of the two doctrines generally accepted in the east- ern United States-absolute ownership and reason- Most of the groundwater decisions of the Virginia able use. Supreme Court have involved coal opera- tions that interfere with groundwater supplies avail- Although the position taken by the court indicates able to other parties, either on overlying or adjacent a similarity between the absolute ownership doc- land .31 The principle has been well-established that trine and the reasonable use doctrine, certain dis- such interference does not produce liability where tinguishing characteristics do exist. The underlying the mining is accomplished by traditional, non-negli- concept of the absolute ownership doctrine is that gent methods.The primary exception to this position each landowner has complete ownership and control of no liability consists of the situation where injury over water underneath his Iand .Therefore,each land- to a water supply is associated with the collapse of owner has an unlimited right to use groundwater or the land surface as a result of inadequate subsurface 32 to interfere with its movement through land devel- support. opment, subject only to the qualification that and malicious injury to others generally is unlawful . The Virginia court has never decided a case involving Thus, the doctrine constitutes a rule of capture and interference between wells, but the issue has been creates essentially no enforceable water rights since discussed in cases involving mining interference with no right of legal action exists for injury produced groundwater supplies. These cases indicate that the by the activities of others. landowner is free to pump water for use on his own land without regard to the impact on others and In the case of the reasonable use doctrine, the land- that the injured groundwater user has no recourse owner is viewed as having the right to make any rea- but to sink his own well deeper.33 Should the pump- sonable use of groundwater on the overlying land, or ing involve export of water for use at another loca- the right to reasonably develop property, although tion, it appears probable that the prohibition of the interference with the water supplies of others may reasonable use rule would be imposed. The language result. Although use of the term "reasonable use" in Clinch field Coal Corp. v. Compton34 suggests that to identify this doctrine of groundwater law suggests the Virginia court views thiswidely accepted qualifi- similarity with the riparian doctrine, a fundamental cation of the groundwater right as a basic feature distinction can be made between the two doctrines. of the reasonable use doctrine . The Virginia court In the case of the riparian doctrine, reasonableness has not explicitly accepted the reasonable use doc- is a relative concept and the rights of each party are trine, but the court has indicated that the trend of determined with regard to the needs of the other modern opinion is in favor of this rule . users. The determination of reasonableness under the groundwater doctrine as developed in the de- Although pumping of groundwater for export and cisions of several states does not depend on com- use at another location has never been considered parison with other uses of the source of supply. A by the Virginia court, the issue was the subject of a landowner engaged in a "reasonable use," generally suit in the Circuit Court of Nansemond County (now interpreted to mean any traditional water or land the City of Suffolk) in 1966 . The suit was brought by the Board of Supervisors of Nansemond County reasonable use restricts the amount of permissible for the purpose of obtaining an injunction to pro- water use on the basis of adverse impact on others hibit construction and use of municipal water sup- sharing a common source of supply, the groundwater ply wells by the City of Norfolk on property located concept of reasonable use contains no such restric- within the county. The circuit court declined to en- tions for traditional on-site uses. This fundamental join construction of the wells but did temporarily difference in surface and groundwater rights poses enjoin Norfolk from pumping water from the wells a substantial impediment to conjunctive manage- for the purpose of using it in the water supply sys- ment. tem of the city . Prior to the expiration of the injunc- tion in 1967, the county and city resolved the issue The obstacles to joint management have been com- by means of mutual agreement .35 pounded by a perpetuation of separate legal treat- ment in statutory enactments. The only water allo- Diffused Surface Water cation statute enacted in Virginia to date applies Diffused surface water law traditionally has focused solely to groundwater and makes no provisions on rights of disposal and prevention of property for possible interrelationships with surface waters. damage. It places considerable emphasis on defining Thus, the existing institutional framework does not liability for injury associated with modifications of appear conducive to conjunctive management. natural drainage patterns.Virginia purports to follow the common enemy doctrine in determining such liability .36 This doctrine theoretically allows each Although Virginia generally is considered to be a landowner to protect his property without liability water-abundant state, disparities in geographic pat- for adverse impact on others, but the doctrine has terns of water availability and population distribu- been modified in Virginia and most other states tion have created water supply shortages, especially where it isgiven nominal acceptance to substantially in the populous northern and southeastern sections limit the right to interfere with runoff. of the state . These shortages have given rise to pro- posals for major transfers of water from areas of With regard to allocation, the following statutory relative surplus to areas of projected deficit. provision is applicable : Consideration of interbasin water transfers gives rise Diffused surface waters may be captured and to several unresolved institutional issues. The ab- impounded by the owner of the land on which sence of an administrative water allocation program they are present and, when so impounded, in Virginia means that no agency has authority to [they] become the property of that owner. determine the legal status of a proposed diversion. Such impoundment shall not cause damage Several federal, state, and local governmental entities to others. . . . 37 exercise controls over various aspects of such a diver- sion project, but none of these required approvals Such impounding structures are subject to rulesand constitute final authorization for a transfer. Never- regulations pertaining to safety developed by SWCB. theless, several approvals are mandatory, creating the potential for prohibition of project construction . Management Issues Related to Withdrawal In addition to traditional federal and state controls relative to structural aspects of water transfer proj- Conjunctive Management ects, local controls may apply. The principal local of Surface and Groundwater constraint is the requirement for consent of the po- Virginia water law traditionally has not recognized litical subdivision in which extra-territorial water the interrelationships among the various phases of supply projects owned by other political subdivi- the hydrologic cycle but instead has consisted of sions are to be located. The potential impact of separate legal theories based on a categorization of this requirement is tempered by a provision for water as to source. Thus, common law allocation appeals where consent is denied to a special three- doctrines for surface and groundwater are substan- judge court. tially independent . Of course, the ultimate determination of the legality The fact that the leading theory for both stream and of interbasin transfer in Virginia must be determined groundwater allocation is identified as the "reason- by application of the riparian doctrine. Of primary able use" concept suggests similarity in water rights interest with regard to the validity of interbasin in the two sources. However, this similarity is more transfer is the requirement of the doctrine that the apparent than real . While the riparian concept of water be used on riparian land. Since riparian land in the broadest sense does not extend beyond the Sanitary Commission, and the Fairfax County Water watershed of the stream in question,4° interbasin Authority.The formula for dividing the flow is based transfers in general are not given legal recognition on the ratio of the average daily winter use of each under the riparian doctrine. The Attorney General user to the-average daily winter use of all users. This of the Commonwealth has recognized this conflict ratio is applied to the amount of water available in with the doctrine and has indicated the possible un- the Potomac (after deduction of a minimum flow 41 lawful nature of interbasin transfers . requirement). This calculated value, less the amount available to each user by use of the maximum capac- The riparian doctrine has been pragmatically ap- ity practicable from all other sources, represents the plied, however, and the principle that water must allocated share of Potomac water for such user.46 be used on riparian land has been modified to allow use on non-riparian land in the absence of injury to With regard to Virginia's capability to enforce the riparian owners.42 The question of injury, therefore, provisions of the agreement against users of water becomes a key issue in considering the legal status from the Potomac, the State Attorney General has of any interbasin water transfer proposal. Such in- indicated a potential problem due to the lack of state juries could include the impact of the proposed di- controls over withdrawals .47 To make the agreement version on lake drawdowns or on the availability of enforceable, new legislation may be required . water for other uses, such as power generation or downstream use. The legal right of riparian owners Several water management issues have involved Vir- to have natural lake levels maintained above some ginia and North Carolina jointly. Prominent exam- established minimum has been recognized, and ples have included groundwater withdrawals from diversions that substantially reduce levels so that common coastal plain ; the now-defunct property values are adversely affected have been Blue Ridge project on the New River ; and more re- held to be unlawful .43 However, this right may not cently, proposals developed by the Corps of Engi- :e equally recognized with respect to artificial im- neers for increasing the water supply of Virginia's poundments. I n some states, the courts have given Tidewater area that originally included alternatives reservoir owners considerable freedom to fluctuate involving interstate diversions from North Carolina. water levels.44 The Virginia court has never con- Due to North Carolina objections, two alternatives sidered this issue. involving diversions from within North Carolina boundaries have been dropped from further consid- The legal determination of whether the detrimental eration by the Corps.48 One of these alternatives, effects associated with any proposed diversion con- the proposed Chowan River withdrawal, represented stitute injury in a legal sense may be influenced by the least cost solution in terms of needed investment the fact that the proposed use is non-riparian . I n the in facilities.49 Most of the alternatives remaining un- case of riparian use, determinations of legal injury der consideration, although consisting of proposed are guided by the flexible concept of "reasonable- diversions from inside Virginia, involve streamsthat ness," and a certain amount of detrimental impact flow into North Carolina, creating the potential for may be recognized as lawful. I n the case of non- additional conflict. riparian use, there must be no injury in order for the use to be lawful. This two-measure standard may The existence of common water resource problems serve as a significant constraint on non-riparian wa- led the governors of Virginia and North Carolina to ter use. enter into a agreement s° in 1974. Activi- ties encompassed in the agreement include water Interstate Effects resource planning, reservoir development in river Interstate effects of water use and development have basins common to both states, and groundwater increasingly played an important role in water re- withdrawal in adjoining coastal areas. Provision is sources management in Virginia . Interstate problems made for formulation of " . . . suitable institutional primarily have involved the states of Maryland and arrangements for interstate and federal cooperation North Carolina and the District of Columbia . on water resources matters that are of mutual inter- est to the two states."5i Although the committee Apportionment of low flows in the Potomac River formed to implement the agreement has been rela- has constituted a major interstate issue. An agree- tively inactive in recent years, new bi-state activity ment45 establishing a procedure for apportionment was initiated in 1978. was signed in early 1978 by the U.S. Army Corps of Engineers, the states of Maryland and Virginia, Saline Water Intrusion the District of Columbia, the Suburban Intrusion of saline water is a potential problem both with regard to coastal streams and coastal plain aqui- SRA provides for identification of potential scenic fers. In the case of streams, interbasin transfers or rivers by the Virginia Commission of Outdoor Rec- other large-scale modification of flow conceivably reation (COR) . COR is responsible for making studies could result in increased salinity in lower reaches of streams and recommending to the governor and of the stream with reduced flow. With regard to the General Assembly those which qualify for desig- groundwater, concern exists that pumping will in- nation. The original scenic rivers study was accom- duce saline water into freshwater portions of coastal plished with the aid of a consultant. From the more plain aquifers. than 70 streams given consideration, 26 were rec- ommended by the consultant for inclusion in the Since movement of saline water is the result of modi- system. Subsequent review by the Commission in- fication of natural hydrologic systems, control con- creased the number to 29 . The streams included in sists of application of allocation measures. Thus, the original study were compared and evaluated protection of natural salinity patterns in streams is through consideration of six factors : canoeing, fish- primarily a function of the riparian doctrine and ing, notable natural features, notable historical and other controls on development such as specification archaeological features, water quality, and natural of flow releases from reservoirs. Control of sub- conditions of banks and shoreland .56 surface saline intrusion is within the scope of the Groundwater Act of 1973. Both designated man- The primary effect of scenic river designation for a agement areas are in regions of potential intrusion particular stream is that future project planning in problems. Effective utilization of existing controls connection with the stream must give full considera- is restricted, however, by data limitations. tion to scenic resources before a plan for use and development is approved . One general prohibition Emergency Use applies to the construction of dams or other struc- Virginia has limited formal mechanisms specifically tures which impede the natural flow, unless the ob- designed for emergency allocation of water. I n the struction is specifically authorized by the General case of streamflow, this situation arises from the Assembly. This provision does not affect the sover- lack of allocation controls beyond the riparian doc- eign power of the federal government to exercise trine. Groundwater allocation controls applicable control over navigable waters of the United States. in designated management areas do not contain pro- visions applicable to emergency situations. To date, COR has conducted detailed studies and recommended designation of several potential sce- The Virginia Emergency Services and Disaster Law nic rivers, but reaction to COR proposals has been of 197352 includes general provisions applicable to mixed. Legislative approval has been given to sec- resource shortages. The governor is authorized to de- tions of five streams: a 26-mile segment of the R ivan- clare a "local emergency" as the result of a resource na River in Fluvanna County; a 27 .5-mile section shortage upon petition of the local governing body of Goose Creek and a 16-mile section of Catoctin when a sufficient threat of disaster exists.53 Once Creek, both in Loudoun County; a 5-mile segment such a declaration is made, local governing bodies of the Appomattox River in Dinwiddie and Chester- assume special powers to combat the disaster and field counties and the City of Petersburg;57 and a to protect health and safety. A recent enactment 10 .8-mile reach of the Staunton River in Campbell authorizes restrictive ordinances during water supply and Halifax counties.58 Some of the COR proposals emergencies and establishes a procedure for interjur- were never officially considered by the legislature isdictional allocation of water during emergencies in due to lack of formal introduction as proposed legis- cases where system interconnections already exist. 54 lation.

Instream Management Issues Implementation of the scenic rivers program has proven to be controversial due to the basic confron- Scenic River Protection tation between preservation and development inter- A primary manifestation of concern for instream ests. Opposition to scenic river proposals has often water use in Virginia's institutional structure for been voiced within the area of the stream under con- water management consists of the Scenic R ivers Act sideration due to concern over possible economic (SRA),55 which declares that preservation of certain loss resulting from constraints on property develop- rivers or sections of rivers for their scenic values is ment. Local support has been greatest in those situa- a beneficial purpose of . The tions where scenic river designation has been cast Act provides mechanisms for identification of these in the role of the lesser of two evils, for example, streams. where an impoundment project has been proposed . Maintenance of Low Flows as mitigating the loss of upstream andwild - Another fundamental aspect of water law relative to values due to construction of the reservoir. The instream use is the maintenance of minimum flows. losses from reservoir construction have been con- Concern for protection of low flows is expressed in sidered particularly severe by fishermen and hunters previously discussed legislative guidelines for devel- due to the fact that most of the area to be inundated opment of state water policy. consists of a state management area noted for its exceptional trout and population of One mechanism for implementation of these policy deer and turkey. Therefore, the public access con- provisions consists of state control over reservoir flict with regard to the downstream fisheries en- operation . Two independent provisions for approval hancement aspects of the Gathright project promises of reservoir releases exist : to become a highly controversial issue.

1 . State Water Control Board authority to cer- It is an interesting coincidence that the Jackson tify that discharges will comply with water River is also the subject of the only Virginia court quality requirements ;59 and case to date concerning public recreation rights in 2. State Corporation Commission authority to streams. This 1955 case, Boerner v. McCallister, 62 regulate hydroelectric dams and other dams in arose as a suit by a landowner to enjoin another certain types of waters.so party from fishing in the portion of the Jackson River flowing through his property. The fisherman The potential for conflict between these provisions had fished in the stream at the location in question was realized when the two agencies attempted to on numerous occasions and maintained that the prescribe different minimum releases from a pro- public possessed this right of use. On the basis of its posed Virginia Electric and Power Company reser- analysis of the stream's navigability and the owner- voir on the North Anna River. The Attorney General ship of the streambed, the court disagreed with this of the Commonwealth resolved the conflict by de- position and prohibited further fishing expeditions. termining that SCC authority is superior to that of SWCB in situations of concurrent jurisdiction . 61 With regard to the navigability issue, an important question in need of consideration is the matter of With the exception of control over reservoir releases, what criteria to use for classifying a given stream as there is no direct administrative mechanism for pres- navigable or non-navigable . An additional concern ervation of minimum flows due to the non-existence is whether recreational pursuits such as canoeing and in Virginia of an administrative program for stream- fishing come within the accepted meaning of the flow allocation . Of course, the riparian doctrine does term "navigation ." This latter concern is of primary provide a degree of protection through its require- significance in any situation where the bed of a navi- ment for sharing of available water among riparian gable stream is privately owned. landowners. The question of what constitutes a navigable stream Public Access has been subjected to two different developments- Interest in the legal aspects of the public access ques- one for the purpose of defining the extent of federal tion in Virginia has increased substantially in recent jurisdiction and another primarily at the state level years. One significant reason for greater interest is of government for purposes of determining public the establishment of the previously discussed state rights and questions of bed ownership . Some of the scenic rivers system intended to protect certain states have accepted a very broad definition of navi- streams from development, particularly dam con- gability that includes all streams that are susceptible struction . Implementation of this program hasbeen to recreational boating such as canoeing.63 By defin- controversial with riparian landowners concerned ing navigability itself in terms of potential for rec- with restrictions on property use. reational use, these states have removed many of the restraints on public access. However, the Virginia A second development responsible for increased in- Supreme Court has not adopted this position, but terest in the issue of public versus private rights is to date has defined navigability solely in terms of the construction on the Jackson River of the Gath- a stream's capacity for commercial use.64 Appli- right Dam, a Corps of Engineers project that is ex- cation of this criterion obviously results in fewer pected to create a downstream cold water fishery in streams being declared navigable than would appli- a stream traditionally considered to be private in cation of the recreation standard . nature. The downstream fisheries effect is an inter- esting aspect of the project since it has been viewed In addition to this narrow view of what constitutes a navigable stream, the Virginia court in the Boerner underwent modification that changed the English case leaned toward acceptance of the position that rule of private ownership of all beds of non-tidal navigation itself is limited to commercial activity, at waters. Due to the greater occurrence and signifi- least where the bed of a stream is in private owner- cance of non-tidal navigable rivers in the colonies, ship. It should be emphasized that the Virginia court their beds came to be viewed as public in nature, has never specifically held that navigation does not as were the beds of tidal waters. include recreation, and it therefore could adopt at some future date the position that recreation is in- The ownership of the beds of navigable streams that cluded without having to overturn established pre- are non-tidal is an important issue regarding public cedent. But to date, the decisions of the court have recreation rights in Virginia . One reason for this sig- not used the navigability issue in support of public nificance is the existence of a substantial number access for recreation . Therefore, the question of bed of such streams. Secondly, the Virginia court has in- ownership takes on added significance. dicated that the right of navigation may not include the right of fishing where beds are privately owned. Evaluation of the bed ownership issue requires con- The possibility of this position's being adopted has sideration of legislative pronouncements on the increased the potential importance of the ownership subject, the system of land grants in effect during issue. colonial times and after independence, and judicial interpretations of these grants. With regard to legis- In spite of this significance, however, Virginia does lative provisions, of primary interest is a statute not appear to have established a well-defined posi- adopted in 17806' with respect to the eastern part tion with regard to the ownership of the beds of 72 of the state and extended to the western portion in non-navigable streams. Several Virginia decisions 180266 providing that all ungranted streambeds indicate that the beds of non-tidal navigable waters would remain the property of the Commonwealth are publicly owned, but the issue has not been de- to be used by the public. Thus, the beds of both finitively resolved . This aspect of the public rights navigable and non-navigable streams on trans- issue is one of the most troublesome . ferred from public to private ownership after these dates would not have been transferred but would Land-Use Management Issues have remained public. Land-Use Constraints Under the English common law, held Authority for land-use planning and control in Vir- to the beds of all tidal waters while the beds of all ginia traditionally has been delegated to local politi- non-tidal waters were owned by adjoining land- cal subdivisions. Prior to 1975, state law authorized 67 owners. The English common law in large part was the governing body of each county and municipality 68 adopted in Virginia upon independence and con- to create a planning commission, but creation of tinues to apply in a variety of areas. With regard to such commissions was not specifically required . The ownership of land under water, the English rule is 1975 session of the General Assembly amended the still in effect where tidal waters and non-navigable existing legislation to require theircreation byJuly 1, freshwater streams are involved . 1976 .3 A local planning commission is to consist of at least five but not more than 15 members appoin- It is well-established in the law of the state that ted by the governing body of the county or munici- riparian property includes the beds of non-navigable pality. streams69 provided, of course, that the land was granted prior to the 1780 and 1802 statutory dates. The principal duty of each local planning commis- Where the stream forms a property boundary, each sion is the preparation of a comprehensive plan for owner takes to the center of the stream . I f one owner the physical development of land within itsjurisdic- holds title to land on both sides of a non-navigable tion . Statutory guidelines for such plans provide for stream, he owns the entire streambed at that point. a survey of natural resources during plan preparation In the case of tidal waters, it is well-established that and specify that the plan may include the ". . . des- subaqueous lands are publicly owned, with the ignation of areas for various types of public and pri- limits of riparian property established by stature vate development and use, such as different kinds at low water mark. of residential, business, industrial, agricultural, con- servation, recreation, public service, flood plain and ."74 However, ownership of the beds of non-tidal navi- drainage, and other areas. . . This provision ap- gable streams is not as well-defined. Upon indepen- pears to authorize incorporation of water and other dence from England, the law in some of the colonies considerations into the planning process but leaves such matters largely to the dis- Legal controls over individual activities increasing cretion of the local commissions. damage from floodwater or surface runoff have been developed in the common law. I n the case of streams, Land-use planning and implementation of controls structures that impede the flow and result in flood- has been delegated to counties and municipalities, ing generally are unlawful, 7s except where damage creating a significant role for local governmentwith results from unprecedented floods that could not respect to water resource management. Regulation reasonably have been anticipated . This restriction of land use is an essential element of management on obstructing stream flow applies to flood protec- since effective alternative mechanisms to accomplish tion works, and the landowner who constructs such certain program objectives do not exist. works may be liable for resulting injury to others. 78 Common law doctrines applicable to surface water Belated recognition has been given to the fact that injury have been discussed previously. flood damage abatement programs must encompass controls over floodplain utilization as well as struc- Shoreline Protection tural measures to control stream flow. Current in- The General Assembly has recognized shore erosion terest in non-point sources of attests as a problem that affects all the citizens of the state to the importance of land-use practices to water and has declared a state policy of effecting solutions quality protection. These and other relationships to the problem.79 Property encompassed within the between water and indicate the policy declaration includes all land bordering a large potential significance of local authority concerning , with specific application to ". . . all land use. tidal rivers in Virginia, the Virginia portion of the Chesapeake Bay shoreline, and the Virginia portion Protection of Recharge Areas of the Atlantic Ocean shoreline ."$° Specific legal mechanisms for protection of ground- water recharge areas do not exist. It would appear In addition to this specific program, other general that such control measures could be incorporated erosion control programs have potential application into local land-use measures, but state government to shoreline protection . Of primary interest in this has no direct authority in this area. Problems indi- regard are the and district cating the need for increased protection of recharge programs8l and the erosion and sediment control areas have not arisen in Virginia. programs of local government. 82

Reservation of Reservoir Sites Wetlands Protection As in the case of protection of Noting the consequences of continuing wetlands de- areas, reservation of reservoir sites must be accom- struction, the Virginia General Assembly in the 1972 plished within the general legal framework of local Wetlands Act83 declared their preservation to be the land-use controls as supplemented by land acquisi- public policy of the Commonwealth, with provision tion as needed. Acquisition of land for future use for accommodation of necessary economic develop- as a reservoir site would generally not be undertaken ment in a manner consistent with such preservation. by state government under existing institutional The Wetlands Act specifies that development in arrangements since the state is not involved in the "Tidewater Virginia," defined to include 31 coun- direct ownership and management of major reser- ties and 16 cities, " . . . shall be concentrated in wet- voir facilities. lands of lesser ecological significance, in wetlands which have been irreversibly disturbed before July 1, Property Damage 1972, and in areas of Tidewater Virginia apart from Several elements of Virginia's water law reflect con- wetlands."84 As used in the act, the term "wetlands" cern for reduction in property damages from flood generally includes all land contiguous to mean low waters and surface runoff. The state legislature has water and bounded by an upper elevation 1 .5 times declared a policy to reduce flood damage through the applicable mean tide range above mean low wa- management of floodplain use.75 Authority for im- ter and upon which certain specified vegetation is plementing controls applicable to floodplain use is growing on or after July 1, 1972. In the case of Back vested in local government, but the state provides Bay, the North Landing River, and their tributaries, coordination and assistance through SWCB to en- the definition applies to all marshes subject to regu- courage appropriate local action . A goal of this effort lar or occasional tidal flooding and upon which cer- is to enable all local governmental units subject to tain vegetation is growing . recurrent flooding to qualify for participation in the National Flood Insurance Program . Control over wetlands has been formulated as a zon- ing ordinance because the land involved lies above 6. Public access. mean low water and therefore is in private owner- ship.85 Any attempt to regulate use must give con- With regard to waterallocation mechanisms, creation sideration to property rights as protected by the of an administrative program for analysis and eval- Constitution . Zoning responsibilities havetradition- uation of proposals for major water resource devel- ally been delegated to the localities in the Common- opments is an urgent need . At present, there is no wealth, and this trend has been followed in this effective mechanism for review of such proposals situation . However, provision is made for state ad- from a statewide perspective . The absence of this ministration of the wetlands zoning ordinance in the machinery makes rational evaluation prior to deci- event that a particular political subdivision does not sions on water projects impossible and creates much assume this responsibility . confusion on the part of both proponents and op- ponents of proposals . Guidelines86 have been developed by the Commis- sion on the basis of studies conducted by the Vir- Integration of the law of watercourses with that ap- ginia Institute of Marine Science to assist localities plicable to ground water is essential to comprehen- in regulation of wetlands use . In addition to con- sive management of the resource. Although separate tinuing responsibilities with regard to guidelines for treatment may be feasible and even desirable under wetlands use, a principal role of the Marine Resour- certain conditions, the absence of mechanisms for ces Commission involves review of decisions by the coordination ignores basic physical relationships and wetlands board in the situation where the wetlands constitutes a serious flaw in the legal framework . zoning ordinance is adopted by a county, city, or The trend to apply separate law that was initiated town. The Commission may affirm, modify, or re- in the common law and perpetuated in statutory verse the decision of the wetlands board, with an enactments should be reversed and conjunctive man- appeal to the courts available . agement established .

Parties who are authorized to request review of the Recent events with regard to water resource develop- actions of a local wetlands board are limited to ap- ment proposals within Virginia emphasize the need plicants, governing bodies of political subdivisions for institutional mechanisms for consideration of where the wetlands are located, and property own- water management issues having interstate aspects. ers within the governmental subdivision where the Several sources of both surface and ground water wetlands are located. No provision is made for the are of mutual concern to Virginia and a neighboring intervention of interested individuals or organiza- state. North Carolina has been involved in the great- tions from the state as a whole. est number of recent interstate management ques- tions. Since one state should not expect to exercise The Commission is directly responsible for the ad- total control over the water of an interstate source, ministration of wetlands zoning ordinances in any institutional mechanisms for evaluation of alterna- county, city, or town until the ordinance is adopted. tives and resolution of conflicts are essential . A first A person who proposes to conduct an activity re- step should consist of re-activation of the Virginia- quiring a permit must make application directly to North Carolina water management agreement. the Commission in this situation. 87 Protection of instream values must be a fundamen- Conclusion tal component of the state's water management The foregoing analysis has identified several areas of program. The existing scenic rivers program is an deficiency in the institutional framework for water appropriate first step, but the policy enunciated by resources management in Virginia . These deficien- the enabling legislation that streams possessing ex- cies vary in form and significance. Some of the more ceptional natural values constitute a statewide value urgent areas in need of attention include : has not been fully recognized in the implementation of the program to date. In addition, there is need 1 . Basic water allocation mechanisms; for protection of minimum flows adequate to pre- 2. Conjunctive management of surface and serve instream values. Such protection must be an ground water; element of the state's water allocation program and 3. Interstate water management; should be based on a thorough assessment of mini- mum flow requirements for biological resources and 4. Protection of instream values; other instream uses. 5. Interrelationships between water and land management; and Closelv related to the need for orotectin4 instream The Time To Act is NOW

The next several months will be critical ones in the State Water Study Commission evolution of water law in Virginia . Possible deficien- The Hon . J . Lewis Rawls, Jr . (Chairman) cies in the present system have led to the creation of Suffolk, Virginia a State Water Study Commission to review existing The Hon. Gerald L. Baliles institutional law, and substantial changes in the Richmond, Virginia framework for quantity management may result. The possibility exists that the long-standing judicial The Hon . Charles J. Colgan allocation measures may be largely replaced by an Manassas, Virginia administrative allocation system placing greater Mr . George M. Cornell (Ex-Officio Member) weight on economic analysis of water use. Whether Suffolk, Virginia the current study results in retention or alteration The Hon . J . Paul Councill, Jr. of existing law, the decisions reached are likely to Franklin, Virginia establish the course for water allocation in Virginia for a substantial period into the future . Mr. James H . Dillard, I I Fairfax, Virginia The modification of water allocation principles is a Mr. Louis L. Guy, Jr . fundamental change potentially affecting all Vir- Fairfax, Virginia ginians. Many basic issues are involved . Provisions relative to inter-regional transfers of water will have The Hon . Glenn B . McClanan an effect on state development patterns, and pro- Richmond, Virginia cedures for balancing the interests of the affecting The Hon . Wiley F . Mitchell, Jr. regions must be developed . Water allocation pro- Alexandria, Virginia cedures must give consideration to all sectors of the economy in order to avoid undesirable shifts and The Hon . Gary R . Myers dislocations, and environmental factors must be Alexandria, Virginia weighed with economic needs. These and other is- The Hon. Lewis W. Parker, Jr . sues must be incorporated into the Commission's South Hill, Virginia deliberations prior to completion of its final report Mr. Robert R . Peters due at the end of 1979. Your concerns are important Norfolk, Virginia and should be expressed to the Commission . It is your water and your future that are at stake. Names Mr . George W. Williams of Commission members are provided . Charlottesville, Virginia