1. Elizabeth Andrews Water Policy Manager Virginia Department of Environmental Quality

2.  Who Controls the Water?  Who Can Use the Water?  Some Policy Challenges

3. Some history – English Common Law The English crown originally held title to all lands and waters in the Virginia colony. “Under the common law of England, the sovereign Crown held title to and exercised dominion over all tidal waters and tidal bottomland below the high water line located within England’s geographic jurisdiction. …The geographic scope of this authority expanded as English colonists began to claim land on the North American continent, so that the Crown’s title and dominion extended to the tidal waters and tidal bottomland in America. …” Virginia Marine Resources Comm’n v. Chincoteague Inn, 287 Va. 371, 381, 757 S.E.2d 1, 6 (2014) [citations omitted].

4. With the American Revolution, that changed: the people “When the revolution took place, the people of each state became themselves sovereign; and in that character, held the absolute right to all their navigable waters, and the soil under them; for their own common use, subject only to the rights since surrendered by the constitution to the general government.” Martin v. Waddell, 41 U.S. 367 (1842). “The navigable waters and the soil under them are the property of the state, to be controlled by the state in its discretion for the benefit of the people.” Taylor v. Commonwealth, 102 Va. 759, 47 S.E. 875 (1904).

5. “We have long understood that as sovereign entities in our federal system, the States possess an ‘absolute right to all their navigable waters and the soils under them for their own common use.’... Drawing on this principle, we have held that ownership of submerged lands, and the accompanying power to control navigation, fishing, and other public uses of water, ‘is an essential attribute of sovereignty,’...” Tarrant Regional Water Dist. V. Herrmann, 133 S.Ct. 2120, 2132 (2013) (citations omitted).

6. By statute, the Commonwealth established this shift from the King owning everything to the state controlling its waters for the good of the people.  Statute of 1780 – reserved for the Commonwealth the beds of eastern rivers and creeks that had been “used as a common” and remained ungranted.  Statute of 1802 – reserved for the Commonwealth the beds of all western rivers and creeks which remained ungranted.

7. And that concept is reflected in our statutes today: Title 28.2. Fisheries and Habitat of the Tidal Waters Chapter 12, Submerged Lands. § 28.2-1200. Ungranted beds of bays, rivers, creeks and shores of the sea to remain in common. All the beds of the bays, rivers, creeks and the shores of the sea within the jurisdiction of the Commonwealth, not conveyed by special grant or compact according to law, shall remain the property of the Commonwealth and may be used as a common by all the people of the Commonwealth for the purpose of fishing, fowling, hunting, and taking and catching oysters and other shellfish. …

8. Title 62.1, Waters of the State, Ports & Harbors Chapter 2, State Policy As To Waters. § 62.1-11. Waters declared natural resource; state regulation and conservation; limitations upon right to use. A. Such waters are a natural resource which should be regulated by the Commonwealth. B. The regulation, control, development and use of waters for all purposes beneficial to the public are within the jurisdiction of the Commonwealth which in the exercise of its police powers may establish measures to effectuate the proper and comprehensive utilization and protection of such waters. § 62.1-10. Definitions. (a) "Water" includes all waters, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction and which affect the public welfare.

9. Title 62.1, Waters of the State, Ports & Harbors Chapter 3.1 –State Water Control Law. §62.1-44.4. Control by Commonwealth as to water quality. (1) No right to continue existing quality degradation in any state water shall exist nor shall such right be or be deemed to have been acquired by virtue of past or future discharge of sewage, industrial wastes or other wastes or other action by any owner. The right and control of the Commonwealth in and over all state waters is hereby expressly reserved and reaffirmed. §62.1-44.3. Definitions. "State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

10. Title 62.1, Chapter 3.2. Conservation of Water Resources; State Water Control Board Va. Code § 62.1-44.36, Responsibility of State Water Control Board; formulation of policy. Being cognizant of the crucial importance of the Commonwealth's water resources to the health and welfare of the people of Virginia, and of the need of a water supply to assure further industrial growth and economic prosperity for the Commonwealth, and recognizing the necessity for continuous cooperative planning and effective state-level guidance in the use of water resources, the State Water Control Board is assigned the responsibility for planning the development, conservation and utilization of Virginia's water resources. …

11. Title 62.1, Chapter 3.2. Conservation of Water Resources; State Water Control Board § 62.1-44.38. Plans and programs; registration of certain data by water users; advisory committees; committee membership for federal, state, and local agencies; water supply planning assistance. A. The Board shall prepare plans and programs for the management of the water resources of this Commonwealth in such a manner as to encourage, promote and secure the maximum beneficial use and control thereof.

12. Riparian Rights – An Inheritance from English Common Law  Riparian rights are the rights of an owner of real property that adjoins a body of water.  They are property rights, not easements.  Although riparian owners have a right to access & use the waters adjacent to their lands, the water itself and the individual fish in it are not considered owned by a person since they flow by.

13. The Extent of Riparian Owners’ Title in Tidal Waters- the MLW: The Extent of Riparian Owners’ Title in Tidal Waters- the MLW: “At common law the title of the owner of land bounded by a tidal stream extended to high water mark and no farther. By an act of the Legislative Assembly of Virginia, passed in 1679…, it was declared that ‘’every man’s right by virtue of his patent extends into the rivers or creeks so far as low- water mark…’” Taylor, 102 Va. at 880. § 28.2-1202. Rights of owners to extend to MLW mark. A. Subject to the provisions of § 28.2-1200, the limits or bounds of the tracts of land lying on the bays, rivers, creeks, and shores within the jurisdiction of the Commonwealth, and the rights and privileges of the owners of such lands, shall extend to the mean low-water mark but no farther, except where a creek or river, or some part thereof, is comprised within the limits of a lawful survey.

14. Navigable waters are treated differently than non- navigable. The former are public waters on which the public has a right to travel, with the land beneath owned by the state. Absent a king’s grant of specific bottomlands, riparian owners of uplands adjacent to non- navigable streams are presumed to own to the middle line of the stream: “Riparian owners (on non-navigable streams) are presumed to own to the middle thread of the stream; and when they do own to the middle and convey by a deed calling for the stream as a boundary, they are conclusively presumed in law to convey to the middle, unless they expressly exclude that presumption by words in the conveyance.” Jennings v. Marston, 121 Va. 79, 85, 92 S.E. 821, 823-4 (1917). But they still don’t own the water itself.

15. What are Riparian Owners’ Rights? We can look again to the Taylor case: “We have reached the conclusion that the title to the bed of the river in question is held by the commonwealth for the benefit of all of its citizens, and that the riparian owner has certain rights with respect to it. These rights are enumerated... as follows: ‘First. The right to be and remain a riparian proprietor and to enjoy the natural advantages thereby conferred upon the land by its adjacency to the water. Second. The right of access to the water, including a right of way to and from the navigable part.

16. Third. The right to build a pier or wharf out to navigable water, subject to any regulations of the state. Fourth. The right to accretions or alluvium. Fifth. The right to make a reasonable use of the water as it flows past or laves the land.’ These rights of the riparian owner and the commonwealth must be exercised, if possible, so that the one shall not unnecessarily disturb or impair the enjoyment of the other.” Taylor, 102 Va. 880-81. So riparian rights and the Commonwealth’s regulatory requirements must co-exist to the extent possible.

17. What is a reasonable use of water? Each riparian owner has an equal right to make reasonable use of water running in a natural course through or by his or her land for all useful purposes on his or her own riparian land (not on non-contiguous parcels away from the water), whether domestic, agricultural or manufacturing, as long as the water continues to run without material diminution or alteration and without pollution.

18. A riparian owner cannot diminish or exhaust the water or affect its quality to the point where it impacts lower riparian owners, unless he or she has acquired a right to do so by grant, prescription or license. See Gordonsville v. Zinn, 129 Va. 542 (1921); Virginia Hot Springs Co. v. Hoover, 143 Va. 460 (1925); Hite v. Town of Luray, 175 Va. 218 (1940); Town of Purcellville v. Potts, 179 Va. 514 (1942).

19. Riparian rights are recognized in the water supply planning statute: Title 62.1, Ch. 3.2, Conservation of Water Resources; State Water Control Board § 62.1-44.38:1. Comprehensive water supply planning process; state, regional and local water supply plans. A. The Board…shall establish a comprehensive water supply planning process for the development of local, regional and state water supply plans consistent with the provisions of this chapter. … § 62.1-44.44. Construction of chapter. Nothing in this chapter shall be construed as altering, or as authorizing any alteration of, any existing riparian rights or other vested rights in water or water use.

20. And in the Surface Water Management Areas statute: Title 62.1, Ch. 24, Surface Water Management Areas: § 62.1-253. Riparian rights. Nothing in this chapter shall be construed as altering, or authorizing any alteration of, any existing riparian rights except as set forth in permits issued pursuant to this chapter. The conditions in such permits shall be in force only in those times when low stream flows, or the potential therefor, result in a declaration as provided for in subsection A of § 62.1-249. 1989, c. 721.

21.  The Groundwater Act of 1973 (§§ 62.1-44.45 - 62.1-44.69; repealed) § 62.1-44.55 (a): “There is hereby recognized and preserved the right of persons within critical groundwater areas to continue to apply ground water to beneficial uses to the extent of their beneficial uses thereof on the date such area is declared a critical groundwater area or on any date within two years prior to such date.” § 62.1-44.55 (c): “The rights recognized and preserved by this section are expressly subject to the right and authority of the General Assembly or the Board... to hereafter limit such rights should the General Assembly determine that the continued, unrestricted uses of groundwater contribute or will contribute to pollution or shortage of groundwater thereby jeopardizing the public health, safety or welfare.”  The Ground Water Management Act of 1992, § 62.1-254 et seq. ◦ Permits required in GWMAs for withdrawals of 300,000 gallons/month or more. Based on historic usage. Permits have 10-year terms.

22.  The Virginia Water Resources and Wetlands Protection Program of 2007 (i.e., VWP permits for surface water withdrawals), § 62.1- 44.15:20 et seq. ◦ Not required for water withdrawals in existence on 7/1/89 unless new §401 CWA certification is required to increase a withdrawal. Permits have terms of up to 15 years. ◦ When issuing a permit, Board must give full consideration to relevant information in state water supply plan.

23. The Constitution of Virginia - Article XI. Conservation. Section 1. Natural resources and historical sites of the Commonwealth To the end that the people have clean air, pure water, and the use and enjoyment for recreation of adequate public lands, waters, and other natural resources, it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings. Further, it shall be the Commonwealth's policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.

24. Title 62.1, Chapter 2, State Policy As To Waters § 62.1-11. Waters declared natural resource; state regulation and conservation; limitations upon right to use. C. The changing wants and needs of the people of the Commonwealth may require the water resources of the Commonwealth to be put to uses beneficial to the public to the extent of which they are reasonably capable; the waste or unreasonable use or unreasonable method of use of water should be prevented; and the conservation of such water is to be exercised with a view to the welfare of the people of the Common- wealth and their interest in the reasonable and beneficial use thereof. … E. The right to the use of water or to the flow of water in or from any natural stream, lake or other watercourses in this Commonwealth is and shall be limited to such water as may reasonably be required for the beneficial use of the public to be served; such right shall not extend to the waste or unreasonable use or unreasonable method of use of such water. F. The quality of state waters is affected by the quantity of water and it is the intent of the Commonwealth, to the extent practicable, to main- tain flow conditions to protect instream beneficial uses and public water supplies for human consumption.

25. Title 62.1, Chapter 2, State Policy As To Waters § 62.1-10. Definitions. (b) "Beneficial use" means both instream and offstream uses. Instream beneficial uses include, but are not limited to, the protection of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. Offstream beneficial uses include, but are not limited to, domestic (including public water supply), agricultural, electric power generation, commercial and industrial uses. Public water supply uses for human consumption shall be considered the highest priority.

26. Title 62.1, Chapter 3.2. Conservation of Water Resources; State Water Control Board § 62.1-44.36, Responsibility of SWCB; formulation of policy. …In formulating the Commonwealth's water resources policy, the Board shall, among other things, take into consideration but not be limited to the following principles and policies: (1) Existing water rights are to be protected and preserved subject to the principle that all of the state waters belong to the public for use by the people for beneficial purposes without waste; (2) Adequate and safe supplies should be preserved and protected for human consumption, while conserving maximum supplies for other beneficial uses. When proposed uses of water are in mutually exclusive conflict or when available supplies of water are insufficient for all who desire to use them, preference shall be given to human consumption purposes over all other uses; … (5) The maintenance of stream flows sufficient to support aquatic life and to minimize pollution shall be fostered and encouraged…

27. § 62.1-263. Criteria for issuance of permits [to withdraw ground water]. When proposed uses of ground water are in conflict or when available supplies of ground water are insufficient for all who desire to use them, preference shall be given to uses for human consumption, over all others. In evaluating permit applications, the Board shall ensure that the maximum possible safe supply of ground water will be preserved and protected for all other beneficial uses.

28. For permits for surface water withdrawals: § 62.1-44.15:22. Water withdrawals and preservation of instream flow. A. Conditions contained in a Virginia Water Protection Permit may include but are not limited to the volume of water which may be withdrawn as a part of the permitted activity and conditions necessary to protect beneficial uses. Domestic and other existing beneficial uses shall be considered the highest priority.

29. § 62.1-248. Permits [in surface water management areas]. D. In developing regulations governing the issuance of permits, the Board shall prioritize among types of users. Domestic and existing uses shall be given the highest priority in the issuance of permits for other beneficial uses. …

30. 1) What does giving preference to uses of ground water for “human consumption” mean? (§ 62.1-263 ) How should that be implemented in a permitting program? Groundwater Withdrawal Regulations: 9VAC25-610-10. Definitions. "Human consumption" means the use of water to support human survival and health, including drinking, bathing, showering, cooking, dishwashing, and maintaining hygiene.

31. 2) In the VWP Permit program for surface water withdrawals, what does this phrase mean?: § 62.1-44.15:22. Water withdrawals and preservation of instream flow. A. …Domestic and other existing beneficial uses shall be considered the highest priority uses. Existing riparian rights? Other than this, the VWP statutes do not expressly recognize and preserve riparian rights like the water supply planning statute and the Surface Water Management Areas Act do.

32. “[The appellants] assert that under Code § 62.1-44.15:5(B) and (C), the Board must absolutely protect existing uses, and that the Board erred by balancing existing uses against proposed uses. They further contend that under this statute, an application for a project that will detrimentally alter any existing use of State waters, even for the purpose of providing a future beneficial use of those waters, must be denied. We reject this analysis because it effectively would prohibit the approval of most projects under the Water Control Law. … These definitions and statutory directives [in the Water Control Law] reflect the General Assembly’s recognition that the many uses of water may at times be conflicting. The Commonwealth’s water policy, as set forth in the Water Control Law, requires the Board to balance existing and proposed uses, with the directive that ‘[d]omestic and other existing beneficial uses shall be considered the highest priority uses.’ Code § 62.1- 44.15:5(C).... ”

33. “Therefore, in considering the City’s application for a water protection permit, the Board was required to balance the various uses, and the statutory directive that the Board ‘protect’ existing instream beneficial uses must be viewed in this context. That directive required the Board to exercise its judgment to ensure that such uses be protected, not in an absolute sense and at the cost of rejecting any proposed future uses, but within a reasoned perspective in view of competing statutory considerations. Such exercise of discretion and judgment is a matter plainly contemplated by the Water Control Law and the Board’s special level of competency in these matters.” Alliance to Save the Mattaponi v. Commonwealth, Dept. of Envt’l Quality ex rel. State Water Control Board, 270 Va. 423, 442-43, 621 S.E.2d 78, 88-89 (2005).

34. 3) Non-permitted riparian users are not required to maintain minimum instream flow or conserve during a drought, like VWP permittees. And a “reasonable use” of water with no “material” effect downstream may be defined differently by one riparian owner versus another, or by the Commonwealth, or at different times. This could lead to conflicts between riparian owners or challenges to the Commonwealth’s permits. And in court, the facts of each case would have to be examined.

35. 4) Withdrawals of ground and surface water are free, other than permit fees. That does not incentivize conservation. 5) Current law does not differentiate between, or prioritize, uses of ground or surface water. Drinking-quality water can be used to water lawns and golf courses, flush toilets, etc.

36. 6) Some users of surface water are “grandfathered” so no permit is required. This could make resource management more difficult. 7) There is a one-size-fits-all ground water permitting threshold of 300,000 gallons/month – that may be appropriate for certain uses but not for others.

37. Questions? Elizabeth Andrews Water Policy Manager, VA DEQ Elizabeth.andrews@deq.virginia.gov