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In our latest webinar, environmentally trained attorney Jim Lang, with the Waterfront Law Team discusses what waterfront property owners can do about bad actors causing trouble on the water.

You can download the slides from this webinar here.

Waterfront Property Owners’ Typical Complaints

Virginia Is fortunate to have thousands of square miles of water and thousands of miles of coastline. However, waterfront property is limited. And, Virginians who own waterfront property paid a premium for their riparian property rights, which include waterfront access rights and the pristine views that come with it.

Unfortunately, these waterways can become crowded with what we endearingly refer to as “bad actors.” These “bad actors” can become troublesome when they trespass on private waterbody’s (whether it’s for fishing, boating, or swimming), they recklessly operate a boat or jet ski, they cause wake damage, they boat under the influence, they create unwanted noise, they dump garbage or pollution in the water, and they abandon their boats or vessels.

Trespassers on Private Waterbody

As we said in our earlier article published a couple of months ago in this blog, bottomland ownership plays a key role in the ability to prohibit outsiders from fishing, boating or swimming on your property. By “bottomland”, we mean the land underneath the water. 

The starting place is Virginia Code §28.2-1200 which, with some exceptions, gives the Commonwealth of Virginia ownership of all the bottomland in the bays, rivers, creeks, and the shores of the sea. But notably, this statute does not apply to lakes and ponds. Instead, the bottomland at lakes and ponds is privately owned. In most situations the waterfront property owners are the same people who own the bottomland at lakes and ponds.

Therefore, if you own the bottom, you can prohibit outsiders from fishing, boating, or swimming. A lake or pond is equivalent to a privately owned bottomland. Read more here.

To learn more about waterfront property owner’s liability for persons injured on the water, please read our blog on this topic here.

Civil and criminal remedies are available to address trespassing on private property. The Waterfront Property Law team at Pender & Coward can assist with civil trespassing.  Criminal trespass, Va. Code 18.2-119, is a Class 1 misdemeanor (fine of 12 months/$2500). A police officer can issue summons, or the waterfront property owner can obtain a summons from the magistrate which is then served on the trespasser. Bottomland owners must warn the violators orally or in writing (a “No Trespassing” sign will suffice). If the issue escalates into a confrontation, owners are encouraged to call 911. Otherwise, if police assistance is needed, owners are encouraged to use the non-emergency number and have their plat readily available to show the officers the extent of their bottomland ownership. History shows that, when the trespasser is brought to court, many of these cases are dismissed with a warning.  Although the decision not to “punish” the trespasser may be unsatisfying for the waterfront property owner, experience shows that the trespasser typically does not re-offend after having been brought into court and forced to answer for his or her misconduct.  Not all cases are dismissed, especially those where the offender was disrespectful to the police office and/or the waterfront property owner, or the offender does not have a clean record.

Reckless Operation of Boat or Jet Ski

Va. Code 29.1-738 - “No person shall operate any motorboat or vessel . . . in a reckless manner so as to endanger the life, limb, or property of any person”

  • Class 1 misdemeanor (12 months / $2500)

Va. Code 29.1-738.03 - Personal watercraft operator is reckless if weaving through vessels, following another vessel or jumping the wake of another vessel or turning sharply to spray an object or person

  • Class 1 misdemeanor (12 months / $2500)

Inland Navigation Rules apply to every vessel on the navigable waters of the U.S. shoreward of navigational demarcation lines that separate the high seas from the inland waters (33 C.F.R. pt. 83). Of note, inland rule 5: look-out, inland rule 6: safe speed, inland rule 7: risk of collision and inland rule 8: action to avoid collision.

33 U.S.C. 2072 - Whoever operates a vessel in violation of this chapter is liable to a civil penalty of not more than $5,000

  • USCG responsible for enforcing

Va. Code 29.1-744.3 - Unlawful to operate motorboat (except personal watercraft) at speed greater than slowest possible when within 50’ of structure or person in the water.

  • Class 4 misdemeanor ($250)

Va. Code 29.1-739 - Must stop and render assistance if involved in a collision and must give name, address and ID of vessel.

Va. Code 29.1-740: - Penalty if fail to stop and render assistance.

  • Class 6 felony if serious injury/death (1 to 5 years/$2500)
  • Class 1 misdemeanor if property damage only (12 months/$2500)

Wake Damage, Boating Under the Influence and Noise

Va. Code 29.1-744(D) & (E) - Placement and removal of “No Wake” buoys and misdemeanor to violate “No Wake” zone

Va. Code 29.1-738(B) - Called “BUI” or “boating under the influence.”  A “BUI” uses the same blood alcohol levels as used for DUI (motor vehicles), narcotic drug and prohibition applies to motorboat which is “underway” and “not at anchor, or made fast to the shore, or aground.”

  • Class 1 misdemeanor (12 months / $2500)

Va. Code 29.1-737 - The exhaust shall be muffled in a reasonable manner so as to mitigate engine noise.

Loud music or VB ordinance (section 23-69) - Between 10pm and 7am, prohibits sound >55dB received inside residential dwelling and between 7am and 10pm, prohibits sound >65dB received inside residential dwelling

  • Class 1 misdemeanor (12 months / $2500)

Dump Garbage/Discharge Pollution in Water and Abandoned Boats

Va. Code 62.1-44.5(A)(1) - Unlawful to discharge any waste into state waters and the discharger must notify authorities within 24 hours. Stiff penalties (Va. Code 62.1-44.32).

VB ordinance (section 6-32) - Unlawful to dump any garbage into water (30 days / $1,000).

Virginia Discharge of Oil into Waters Law

Va. Code 62.1-44.34:18 - Discharger liable for cleanup cost and damages suffered by third parties.

Va. Code 62.1-44.34:19 - Discharger must “immediately” notify authorities of the discharge.

Abandoned Boats

Va. Code 29.1-733.25:  Acquiring title to an abandoned watercraft, City of Hampton retrieves and disposes of vessels, VB ordinance (section 6-26), class 2 misdemeanor to sink or abandon a vessel.