Tom Berkley Working in the Water

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Water & Riparian Rights Law Experience with Virginia Waterway Laws

We work in one of the longest and most diverse coastlines in the world - 7,213 miles – over three times the distance between Virginia Beach and San Diego. Virginia is also home to numerous rivers and tributaries, and a great variety of wetlands. These waterways include:

Although no two cases are alike, click on the links above to see examples of our work helping Virginians in the waterways of Virginia.

Atlantic Ocean:

Virginia Beach Shore Line
Atlantic Ocean
Shutterstock.com

The Atlantic is the second largest of the world’s oceans. It connects North America to Europe and Africa, and is a vital pathway for international shipping and commerce. It is also an abundant source of food which supports Virginia’s multi-million dollar aquaculture industry, and a recreation area for beachgoers and oceanfront property owners . Our team’s extensive knowledge of waterfront (riparian) property rights law, maritime and admiralty law, and environmental law helped clients in matters such as:

  • Representing homeowners in Sandbridge Beach whose properties were being swallowed by encroaching sand dunes. Our efforts convinced local authorities to make commonsense changes in the law, resulting in revised environmental regulations which protect the rights of beachfront homeowners while still preserving the natural beauty of the dunes and defusing prosecutions brought under the Coastal Primary Sand Dunes and Beaches Act (this statute prohibits any disturbance of a primary sand dune without a permit; violation is a Class 1 misdemeanor, and can result in a civil penalty up to $25,000 for each day of violation)
  • Salvage proceedings involving the RMS TITANIC, the ship that went down after hitting an iceberg in 1912 on its maiden voyage from Southampton, England to New York, New York
  • Assisting commercial fishing entities in multiple commercial fishing quota actions against the National Marine Fisheries Service resulting in increased catch limits
  • Successfully assisted a commercial fishing fleet owner in retaining a federal scallop permit, valued in excess of $500,000.00, against challenge brought by a commercial competitor
  • Contract negotiations for shipyards, including a long-haul towage contract for a large dry dock traversing the Mississippi River, Gulf of Mexico, and the Atlantic Ocean off the eastern seaboard
  • Represented several commercial fishing fleet owners defending Jones Act claims for personal injuries brought by vessel crew members

Chesapeake Bay:

Dock on the Chesapeake BayChesapeake Bay
Shutterstock.com

Covering an area of over 200 square miles, the Chesapeake Bay is the largest estuary in the United States and one of the largest in the world. Most of the rivers and tributaries in the Commonwealth flow into the Chesapeake Bay. Although it is still a rich source of fish, clams, and oysters, these fisheries have experienced great harm from the pollution created by the 17 million people who live along the Bay. Thankfully, water quality in the Bay has improved of late, and the shellfish harvest is once again on the rise. Some examples of our work on the Bay include:

  • Assisted a waterfront property owner who demolished a residence located within the Resource Protection Area (RPA) of the Chesapeake Bay Preservation Act.Penalties for violating the Act can be severe, with fines up to $5,000 for each day of violation. We assisted the owner in tailoring a design that resulted in approval for re-building without moving entirely outside the RPA.
  • Oyster lease permit hearings at the Virginia Marine Resources Commission (VMRC), including representing riparian property owners protesting the installation of an industrial-sized floating oyster aquaculture farm in Hungars Creek, which flows into the Bay from the Eastern Shore
  • Helping a commercial client resolve an environmental enforcement action brought by the Virginia Department of Environmental Quality after the inadvertent release of 1,700 gallons of toxic chemicals into the Bay during a construction project, in violation of the Virginia State Water Control Law
  • Provided an expert legal opinion to help resolve a waterfront property ownership dispute relating to Old Point Comfort near historic Fort Monroe
  • Represented several commercial fishing fleet owners defending Jones Act claims for personal injuries brought by vessel crew members

Chincoteague Bay:

horses walking in the waterChincoteague Bay
Shutterstock.com

Chincoteague Bay is located on the Atlantic Ocean side of the Eastern Shore, between Accomack County and the barrier islands of Assateague and Chincoteague. Chincoteague Island is famous for its picturesque beauty and its annual wild pony roundup. Our cases around Chincoteague Bay include:

  • Defending a waterfront property owner on Chincoteague Island against a trespass accusation, and assisting him in obtaining a permit to build a pier
  • Represented builder of the Chincoteague bridge in Federal Court after local watermen claimed that oyster and clam beds were buried in silt and thereby destroyed during bridge construction.

Elizabeth River:

Elizabeth River Arial Shot

US Army Corps of Engineers
Draft Integrated City of Norfolk Coastal Storm Risk Management Feasibility Study / Environmental Impact Statement (Figure 10-36)

Although only 6 miles long, the Elizabeth River is one of the most important waterways in the world. Located at the southern end of the Chesapeake Bay, it lies between the port cities of Portsmouth and Norfolk and forms the core of the Hampton Roads Harbor. It is also a gateway to the Atlantic Intracoastal Waterway, which runs up and down the east coast from Boston to the southern tip of Florida. The Elizabeth River is badly damaged from centuries of industrial pollution and stormwater runoff. The health of the river is improving due, in significant part, to the work of The Elizabeth River Project. Examples of our team’s work on the Elizabeth include:

  • Assisted a waterfront commercial property owner in complying with the Virginia Tidal Wetlands Act, which governs coastal areas between mean low water and mean high water, after he received a Notice of Violation issued by the City of Norfolk
  • Appeared before the Virginia Marine Resources Commission in a successful effort to block installation of a large mooring facility that would have devalued our client's riparian property rights
  • Numerous litigation actions representing marine terminals and shipyards in personal injuries to longshoremen and harbor workers, and cargo damage actions
  • Defense of multiple federal and state workers compensation claims brought against marine terminals, intermodal operators, and marine construction companies
  • Multiple suits involving vessel allisions with marine terminals and bridges
  • Defense of Jones Act claim brought by crew member after vessel sank in the river
  • Successful prosecution of a wake damage claim after a USCG Cutter generated a large wake causing property damage on a derrick barge that was in the midst of a heavy lift
  • Commercial property disputes, such as filing a citizen's environmental lawsuit in Federal Court under the federal Clean Water Act to force the removal of a “floating junkyard” of hulking vessels which were blocking access to a client’s waterfront business
  • Advocating for the rights of property owners to construct private piers at their residence
  • Environmental clean-up. For example, in 2016, Jim led a team of over 50 “Restore the Shore” volunteers from the Virginia law firm Pender & Coward, P.C. the Elizabeth River Project, the City of Norfolk, and the Boy Scouts in a successful effort to bring a battered section of shoreline of the Elizabeth River back to life.

James River:

kayaking in james river rapidsJames River
Shutterstock.com

The James River is the largest watershed in Virginia. It begins in the Appalachian Mountains and flows nearly 350 miles to the Chesapeake Bay, where it joins with the Elizabeth and Nansemond Rivers to form Hampton Roads Harbor. Richmond, the state capital, is located on the James, and Jamestown, America’s first permanent English colony, was settled on its banks. The James is a well-known fishing hotspot. It was the site of several Bass Master Classics and the 2003 FLW Tour Championship. The James also offers excitement and adventure to boaters, swimmers and white water rafters. A two-mile stretch through downtown Richmond is the only place in the country where class III and IV whitewater rapids exist within sight of skyscrapers. Our work on the James includes:

  • Helped riparian property owners resolve a Chesapeake Bay Preservation Act enforcement action brought by the City of Richmond after the owners re-landscaped their yard. The enforcement authority was demanding a restoration plan that would have cost $150,000 and civil penalties. The case was resolved with the enforcement authority agreeing to accept the common sense restoration proposed by the homeowners and agreeing to forego civil penalties.
  • Drafted marine construction contract governing use of derrick barges during construction of electrical transmission towers spanning the James River
  • Represented several commercial fishing fleet owners defending Jones Act claims for personal injuries brought by vessel crew members

Lynnhaven River:

Lynhaven riverLynhaven River
LNRNow, Virginia Beach

The Lynnhaven River is a tidal estuary located in Virginia Beach. It flows into the Chesapeake Bay at Lynnhaven Inlet. The river is known for the world-famous Lynnhaven oyster, considered by many to be the best oyster in the world. In past decades the Lynnhaven oyster population has declined dramatically, primarily due to man-made pollution. However, thanks to restoration efforts such as the “Lynnhaven River Now” project, the water quality is improving and the oyster population is once again on the rise. Examples of our work on the Lynnhaven include:

  • Advocating for the rights of property owners to construct piers on the Lynnhaven River and in the Lynnhaven Bay
  • Assisting waterfront residential homeowners who want to restore navigation channels at their property through the City of Virginia Beach's Navigational Channel Dredging Program
  • Representing waterfront property owners who object to oyster farming in residential areas that are incompatible with this type of operation

Piankatank River:

Piankatank RiverPiankatank River
Janice Vogel, Mathews, Virginia

The Piankatank River is located on the Middle Peninsula, between the Rappahannock and York rivers. History buffs know the river as the site of numerous Civil War battles. More recently, the Piankatank has been named one of several Chesapeake Bay tributaries to be targeted by state and federal authorities for large-scale efforts to restore the once-bountiful oyster population. Our cases on the Piankatank include:

  • Environmental litigation, including advocating for a shipyard owner in a dispute involving the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”). Under CERCLA, multi-million dollar clean up costs may be retroactively imposed for hazardous substances disposed of years ago, even if the disposal was done by a previous owner at a time when it was perfectly legal
  • Property disputes, including the defense of a claim for a maritime equitable easement asserted against a shipyard
  • Appearing before the Virginia Marine Resources Commission and asserting claims at the U.S. Army Corps of Engineers on behalf of waterfront residential property owners who oppose construction of an industrial sized-oyster operation in scenic Milford Haven, the site of a Revolutionary War naval battle and a highly popular tourist destination

Potomac River:

Jefferson Memorial in Washington DCLincoln memorial and Washington Monument reflecting on the water of the Potomac River
Cvandyke/Shutterstock.com

Although the Potomac is over 400 miles long, it is probably best-known as the river that flows through our nation’s capital, separating Maryland from Washington, D.C. Some of our most iconic monuments, including the Jefferson Memorial and Mount Vernon, sit along its banks. Some examples of our work in the Potomac include:

  • Representing riparian property owners in disputes ranging from easements to trespass, to the construction of private piers
  • Assisted a client in protecting property rights at a privately owned island in the river used for duck hunting

Rappahannock River:

Rappahannock River at Fredericksburg, VirginiaRappahannock River at Fredericksburg, Virginia
Photosbyandy/Shutterstock.com

The Rappahannock is 195 miles long. It begins in the Blue ridge mountains in the western part of the Commonwealth, and traverses the entire state until it ends in the Chesapeake Bay. Some of the earliest colonial settlements were formed along the Rappahannock, and it was the site of a major battle in the American Civil War. Our team’s work on the Rappahannock includes:

  • Representing waterfront property owners in proceedings at the Virginia Marine Resources Commission to stop an 11 acre industrial oyster farming projects in a location not suited for this type of aquaculture

York River:

York RiverSailboat on York River below the George P. Coleman bridge
V-ron/Shutterstock.com

The York River begins at West Point, approximately 35 miles east of Richmond. The river is 34 miles long, ending in the Chesapeake Bay near Yorktown, which sits along the river’s southern shore. Some of our work on the York River includes:

  • Represented a bridge owner after a tugboat allided with the Coleman Bridge, causing extensive damage to the bridge and a million dollar plus recovery for our client

Northwest River:

Northwest RiverGreat Blue Heron With Fish
LorraineHudgins/Shutterstock.com

Located in Chesapeake, Virginia, the Northwest River is one of the few rivers in the Tidewater area that does not flow directly into the Chesapeake Bay. The Northwest River is a ”blackwater” river that drains eastward from the Great Dismal Swamp. Our cases on the Northwest River include

  • Assisted a property owner in complying with the wetlands provision in the federal Clean Water Act after he received an Administrative Compliance Order issued by the EPA

Atlantic Intracoastal Waterway("AICW" or "The Ditch"):

Inter Coastal WaterwayBoats exiting the Great Bridge Locks in Chesapeake, Virginia on the Inter-Coastal Waterway heading south to North Carolina
JoMo333/Shutterstock.com

Norfolk, Virginia is mile marker zero for the Atlantic Intracoastal Waterway, a 3,000-mile waterway along the Atlantic and Gulf coasts of the United States running from Norfolk to Miami. The AICW provides a navigable route for commercial and recreational vessels that avoids the hazards of the open sea. The Albemarle and Chesapeake Canal is part of that system and holds the distinction of being one of the earliest American canals.

  • Assisted a marina owner on the Albemarle and Chesapeake Canal with an easement issue that was threatening his business.

These represent just a few of the many instances in which Jim and his team have assisted clients on or near Virginia’s waterways. If you have a legal issue pertaining to any Virginia waterway, call Jim Lang and his team at (757) 502-7326 or email him at: jlang@pendercoward.com.

 

How can we help you?

Fill in the information (to the right) to reach Jim Lang and his team. If you prefer you can email Jim at jlang@pendercoward.com or call (757) 502-7326.

If this is a maritime emergency, call or text Tom Berkley 24 hours a day at (757) 572-2657