Virginia Riparian Rights Explained By An Experienced Lawyer
Riparian property rights are the reason that people pay extra to live “on the water” in Virginia. Companies in Virginia also pay extra to operate “on the water” because riparian property rights are valuable to the business. Let’s take a closer look at what your Waterfront Property Rights are in Virginia and the benefits that can come along with them.
What Are Riparian Rights? (Riparian Rights Definition)
Riparian water rights (or simply riparian rights) is a system for allocating water among those who possess land along its path. An owner of waterfront property (land that touches a river, bay, creek, or the ocean) normally owns riparian property rights. Riparian property rights under Virginia law consists of five specific benefits, which we will cover later in more detail, but before we do here’s the basics.
Five Specific Benefits Of Riparian Property Rights Under Virginia Law
- The right to enjoy the natural advantages conferred upon the land by its adjacency to the water.
- The right of access to the water
- The right to build a pier out to the navigable part of the water
- The right for the size of your property to expand (or contract)
- The right to make a reasonable use of the water as it flows past or washes up on the land.
Another key piece to remember in Virginia is that riparian rights can be withheld by a prior owners.
Can Riparian Rights Be Withheld?
An owner of waterfront property (land that touches a river, bay, creek, or the ocean) normally owns riparian property rights, except where the riparian rights were withheld by a prior owner as documented in the chain of title for the property (a process called “severing” the riparian property rights from the land). Because riparian property rights can be severed from the land and because title insurance companies may draft a riparian rights title exception, a person thinking about purchasing waterfront property should check with a riparian property rights attorney before making the purchase.
The Benefits of Owning Waterfront Property
Riparian property rights under Virginia law consist of five specific benefits:
1. The Right to Enjoy The Natural Advantages Conferred Upon The Land By Its Adjacency to The Water
One example of this is found in the part of the Virginia Code that allows people or businesses to lease state-owned land submerged under the water (called “bottomland”) to grow oysters. A riparian property owner gets head of the line privileges for these leases in a process that is controlled by specific parts of the Virginia Code and is managed by the Virginia Marine Resources Commission (VMRC). Waterfront property owners attach a great deal of value to the scenic view available to them when they look out over the water. It is at times somewhat challenging to obtain legal protection that preserves this vista.
2. The Right Of Access to The Water
This right of access includes a right of way to and from the navigable part (the navigable part of the waterway begins at the “line of navigation”). The riparian area is designed to protect navigation from the shoreline out to the navigable part of the waterway . Having access from the shore to the line of navigation is an important part of riparian property rights.
3. The Right to Build a Pier Out to The Navigable Part of The Water
The right to build a pier under Virginia law is controlled by specific parts of the Virginia Code and is managed by the Virginia Marine Resources Commission (VMRC).
4. The Right For the Size of Your Property to Expand (or Contract)
The right for the size of your property to expand if the water places additional soil along the shoreline. However, be aware that erosion can cause the size of waterfront property to shrink. The property boundary of a waterfront property changes over time as the shoreline changes. This is controlled by specific parts of the Virginia Code.
5. The Right to Make a Reasonable Use of The Water as It Flows Past or Washes Up on the Land
For example, during earlier times in Virginia a riparian owner would use flowing water in a river as an energy source to drive a water wheel that operated a sawmill or a gristmill. Today water might be withdrawn from a river or stream to irrigate crops or to water cattle. Another modern example is an electric power generating plant, built next to a river, that withdraws river water to cool equipment inside the plant and returns the water (after it has been heated) to the river. The withdrawal of surface water may require a Virginia Water Protection permit from the Virginia Department of Environmental Quality.
What is a Riparian Area? (Riparian Area Definition)
Riparian property rights apply only within a defined footprint called the “riparian area”. The riparian area is unique to each waterfront property. It is formed by the shore of the waterfront property on one side and by the line of navigation on the other side. Riparian boundary lines extend out from the shoreline to the line of navigation to complete the formation of the riparian area. Just as every waterfront property is unique, the size and shape of the riparian area is unique to the particular property as well. Establishing the riparian area for a waterfront property in Virginia is a complex job requiring help from a riparian property rights attorney and a hydrographic surveyor working under the supervision of the riparian property rights attorney.
Riparian Property Law and the Bottomland
Riparian property rights may or may not include ownership of the bottomland (the land submerged under the water). This depends on factors such as whether the waterfront property is located on a body of water that is navigable, whether the bottomland was conveyed into private ownership by the British Crown in the time prior to the American Revolution (under a so-called “King’s Grant”), or whether the bottomland was conveyed into private ownership at some point after the American Revolution. However, the vast majority of waterfront properties in Virginia that adjoin a navigable body of water does not include ownership of the bottomland.
Owning waterfront property is a dream-come-true for many, but it can also be complicated. If you are thinking of buying waterfront property, or if you have any other concerns about riparian property rights, contact Jim Lang and his team of waterfront lawyers. We’re standing by and ready to help navigate your unique situation - Click here to Schedule Your Consultation.