Riparian Survey: Do I need one?

Do you need to complete a riparian survey to protect your waterfront property rights? Is this the same thing as a hydrographic survey? This article dives into the differences and the factors you need to consider. Getting this wrong could negatively impact your legal rights.

Here's what waterfront property owners need to know:

Riparian Survey Definition

Most of Google’s definitions are decades old. Here’s a more current legal definition that is Virginia-specific: 

For waterfront properties located along state-owned bottomland (the bottom surface of a body of water), a riparian survey / hydrographic survey can be submitted as evidence to the Virginia Circuit Court in an effort to establish your riparian property rights.

When do I need to consider getting a Riparian Survey?

You may need a riparian survey / hydrographic survey in order to answer the following:

• Can the waterfront property owner alter the land that touches the water in front of their property? This could include constructing or modifying a dock, mooring area or pier. 

• What rights do I have related to the land underneath the water? 

• Do other individuals or the public have a right to access these spaces?

A significant percentage of the phone calls we receive from Virginians is related to the construction of a pier or dock. This could be something they intend to build, or a structure they want to halt the construction of, or remove from their property’s sightline.

Estimating riparian rights lines for docks:

Estimating riparian rights lines—especially for building docks—is one of the most common uses of a riparian survey. While the term “riparian rights lines for docks” might come up in casual conversation, Virginia court filings should instead use the legal term: Riparian Area or Zone.

While we’re on the subject of definitions…

• Pier: Fixed structure built out from the shoreline, usually supported by pilings.

• Dock: The water area or structure where boats are secured. A pier can be a type of dock, but not all docks are piers.

A licensed surveyor uses a mix of legal principles and geometry to propose where a property owner’s rights extend into the water (outlined in detail below) - which must be proven in a court of law. In Virginia, these cases initially go before the Circuit Court with jurisdiction over the property in question.

Riparian lines are not fixed by statute. They can be open to interpretation, which can even rely on legal documents dating back to the colonial era. Our firm has relied on deeds drafted in London, known as a King’s Grant or a Royal Grant, in order to ascertain accurate historical property records to defend the rights of our clients.

Understanding the difference is important because the type of structure in dispute can be treated differently by courts and regulatory bodies.

Whether you’re dealing with suspected trespassers, or attempting to construct / modify property along the water adjacent to your land, your best bet is to reach out to an experienced waterfront riparian property lawyer in Virginia.

How much does a Riparian Survey cost?

Fighting these types of battles in court is not cheap. A qualified riparian surveyor will charge between $3,000 and $7,000. The size and complexity of the property involved has a direct impact on the cost.

Why is it so expensive? Contrary to popular belief, riparian zones do not simply mirror your shoreline. The “line of navigability” needs to be established. This runs roughly parallel to the shoreline, forming an outer riparian boundary, but does not perfectly mirror it. It is based on the relative depths of the land covered by water. 

This can be open to interpretation, so the quality of the survey and the experience of the surveyor play a significant role - along with the attorney making the arguments on your behalf.

For further reference, you can view curated excerpts below, on the right side, from the landmark Virginia Supreme Court case which explains how to set the boundaries for a Riparian Area or Zone. 

(Groner v. Foster - 1897)   

The parties stipulated that the applicable rule for apportioning riparian rights is the rule set forth in Groner v. Foster, 94 Va. 650, 27 S.E. 493 (1897). 

There, the Court stated:

A just rule of division is to measure the length of the shore and ascertain the portion thereof to which each riparian proprietor is entitled; next measure the length of the line of navigability, and give to each proprietor the same proportion of it that he is entitled to of the shore line; and then draw straight lines from the points of division so marked for each proprietor on the line of navigability to the extremities of his lines on the shore. 

Each proprietor will be entitled to the portion of the line of navigability thus apportioned to him, and also to the portion of the flats, or land under the water, within the lines so drawn from the extremities of his portion of the said line to the extremities of his part of the shore.

Id. at 652-53, 27 S.E. at 494

Our decision in Groner further indicates that the "shore line" for purposes of applying the above rule is what today is referred to as the mean low water (MLW) line. 

94 Va. at 656-58, 27 S.E. at 496

Is a Hydrographic Survey the same thing?

Yes. The terms “Hydrographic Survey” and “Riparian Survey” are interchangeable.

In many circles you’ll find the term Hydrographic Survey to be more prevalent. 

Another term you’ll come across is “headland”.

This is the legal term used in Virginia Circuit Courts to describe the place along the shoreline where your property rights terminate. It’s a critical anchor point for determining the ratio for establishing the boundaries between your riparian zone and your neighbor’s. 

You don’t have to find a surveyor on your own. We’d be happy to provide a referral to a qualified provider in your area.

We know what the courts are looking for. Getting a substandard hydrographic survey can torpedo your case in Virginia Circuit Court. 

What other costs are involved in establishing a Riparian Zone?

Remember, the survey is just one piece of evidence you’ll need to present to the Circuit Court to help establish your claim. You should also hire an experienced riparian property rights litigator to file your petition, properly identify and serve the other parties, and handle the court proceedings for your best chance at a favorable outcome.

The cost to take your claim to court and successfully pursue it can be $20,000 or more. This process is not inexpensive. The value is in the knowledge that your rights are legally established and protected. Plus, if you’re concerned about trespassing, unwanted objects in your sightline, or you wish to add a valuable pier to your property, you can enhance the value of your property by legally defining your waterfront property rights.

When is a riparian survey irrelevant?

Please note that property located next to privately owned bottomland (i.e. a man-made lake) is handled differently. This article focuses on the ownership rights of bodies of water with state-owned bottomland - like an ocean, river or stream that could be used for the transport of commercial goods by vessel.

If you’re concerned about activity occurring on a lake, it’s unlikely that a riparian survey is relevant. That’s because the bottomland of a man-made lake is privately owned. The private land owner controls who gets access to that bottomland and riparian property rights do not apply to private bottomland.

These boundaries are set out in the land records, which are maintained at the courthouse. A riparian survey is not needed to uncover these well-established, private land boundaries. However, the deeds may have been poorly drawn - failing to clearly layout the property boundaries of the bottomland. 

In these unique circumstances, you should engage a waterfront property attorney to defend your property rights in this complex area of the law. 

It’s worth pointing out that there are only two natural lakes in Virginia - the rest are manmade. Here are just a few examples of why man-made lakes may exist in or along your property:

The power company may have a plant nearby that needs a large source of water to regulate and cool their equipment. A great example of this is Lake Anna in Louisa County, Virginia. The construction of the North Anna Nuclear Generating Station in Louisa County necessitated alterations to the North Anna River to form Lake Anna.

Oftentimes the government or another condemning authority, like a power company, will acquire the necessary property through eminent domain.

This same process and outcome is often associated with hydroelectric dams, flood control efforts or a million other things leading to the formation of a man-made lake - like the historical prevalence of mills, which required the damming of creeks to power them.

Again, in these instances, a riparian survey will not help you. Instead, you’ll need to refer to the legally defined property lines on record with the county or city where the man-made lake is located. If a public utility company is involved, you’ll need to deal directly with them.

How is a Virginia riparian survey performed?

A riparian survey should be completed by a licensed hydrographer / land surveyor who is familiar with Virginia's waterfront regulations and riparian rights. Property owners should not do this themselves, as the process requires technical expertise and legal accuracy to be of use in court.

Here’s what the process typically involves:

1. Surveyor Review: The surveyor reviews your deed, plat, and local zoning maps to understand how your property is already legally defined on record.

2. Site Inspection: They visit the property to identify shoreline features, existing structures (like piers or bulkheads), and adjacent property lines.

3. Hydrographic Analysis: To determine how much of the land goes into the survey, every dip and extension of the shoreline must be precisely measured.
   
   The “line of navigation” must also be established. This is the line opposite and somewhat parallel to your shoreline. This is not a linear process - despite some of the wrong answers you’ll find online.
   
   This jagged or curved line is selected based on how the waterway is used, and the measurements of depth taken by the surveyor.
   
   For example, smaller recreational vessels may only require 2-8ft of depth while something larger, like a naval destroyer, will require 30ft. The size of vessels utilizing the waterway help identify the determining depth.
   
   To establish the depth and contours of the bottomland (i.e. lake or river bottom), the surveyor uses hydrographic survey equipment, including a sounding device to measure the depth at specific intervals, in a pattern loosely resembling a grid.

4. Drafting the Riparian Area with Hydrographic Survey Equipment: Once the line of navigation is established, the surveyor will overlay it with an outline generated from both established legal documentation (zoning, property records, etc.) and the survey of the waterfront (this includes your neighbor’s land).
   
   Straight lines are drawn between the navigation line and the waterfront. These represent the boundaries between different riparian zones - yours, your neighbors and any other interested party.
   
   These lines almost never form a perfect 90 degree angle with the shoreline, and rarely match the established boundary lines of your property above the waterline.
   
   The surveyor looks at how much of the shoreline you control, versus other parties. This generates a ratio of the involved shoreline - with the percentage you control. Then the total zone is divided according to this ratio between the interested parties.
   
   These things are open to negotiation and interpretation in court - especially if the other parties have the financial means to challenge your survey with a competing one in court.

5. Final Survey Drawing: You’ll receive a sealed survey plat with clear demarcations of your proposed riparian rights. If you decide to formally establish your riparian area, your attorney will need this document for use in court.

Tip: Always hire a surveyor with significant waterfront experience. A poorly drawn riparian survey can delay your project or create future legal issues with neighbors. It is common for competing riparian surveys to be submitted to the court - which then has to determine which is more valid. 

Your best bet is to seek a recommendation from the attorney who will handle your case in Circuit Court.

Will the VMRC require me to ascertain a riparian survey?

The Virginia Marine Resources Commission (VMRC) is one of the agencies that issues permits to allow construction or modification of structures that impact our waterways. This definitely includes projects where state-owned, submerged lands are impacted - in addition to projects where neighboring private property may be impacted.

However, the VMRC plays zero role in establishing riparian zones. This is the sole domain of the Virginia Circuit Court in the city or county where you wish to establish your riparian zone.

One way to stop a neighbor from building a pier in Virginia…

We can petition the VMRC to require a riparian survey be completed prior to approving your neighbor’s permit. It’s a 50/50 shot whether the bureaucrat handling the matter sides with us on this. 

If they do find in our favor, your neighbor may potentially abandon the project because a riparian survey, and the court process to establish the riparian area, are not cheap - making the entire endeavor far less affordable.

Does establishing a riparian zone mean I can build a pier in Virginia?

Successfully establishing a riparian zone in Circuit Court does not guarantee you’ll legally be able to construct the new dock or pier you have in mind. For example the length, width and style must meet the parameters defined in the statute. 

If your design complies with these statutes - something an experienced attorney should assist you with - you’ll find it a significantly easier process to receive final approval from the VMRC.

Four permits are required to build a pier in Virginia:

1. Army Corps of Engineers

2. City or County Building Permit

3. VMRC

4. Wetland Permit from Local Wetlands Board or VMRC (property dependent)

Again, this is why it’s crucial to work with an experienced waterfront attorney to determine the most cost-effective path, with the highest chance for success, from start to finish.

How do I protect my riparian rights?

Your riparian rights in real estate are not a given. They have to be proven and advocated for. 

If you’ve suddenly noticed that a contractor has started laying stakes in the water that you believe invades your riparian area, it’s likely your neighbor has hired them to start the process of putting in a structure. Time is of the essence. One of the best ways to push back is with a well-founded riparian survey, which can be taken to court as evidence.

In some instances, even if a structure has already been built by someone else, you can legally force its removal by going to court and establishing your riparian area. By showing that the structure impedes on your property, the court may issue an order for its removal. This gets expensive and messy.

The time tested saying stands: An ounce of prevention is worth a pound of repair.

Contact our experienced Virginia waterfront law team to ensure your rights are well defined and enforced. If you miss a filing deadline or engage with the wrong entity, your riparian rights could be legally defined in a way that inhibits your ability to enjoy your property on your terms.