Question 1

What are my Riparian Rights?

Accepted Answer

Riparian rights provide landowners with legal access and reasonable use of water adjacent to their property while balancing the interests of other landowners along the same watercourse. These rights do not confer ownership of the water itself but allow landowners to make reasonable use of it for various purposes including domestic agricultural and recreational activities such as swimming, boating or fishing. The Core principle of riparian rights is reasonable use, which ensures that one landowner's use of water does not unfairly interfere with the rights of the other riparian owners along the same watercourse. For Example, a landowner cannot divert the entire flow of a river for personal use if it deprived downstream neighbors of water. The rights and privileges associated with riparian rights include access to the water for personal and recreational use, construction of structures such as docks, piers, or boat lifts, subject to local regulations. Accretion and reliction rights, which allow landowners to gain land formed by natural water deposits. Protection from flooding and erosion, including limited rights to build protective structures. Duties and Limitations of riparian landowners include maintaining the banks and bed of the watercourse. Allowing the natural flow of water without obstruction or pollution and ensuring free passage of fish and other aquatic sea life. Owners are subject to state laws and contractual limitations such as built-in deed restrictions (be sure to watch out for this), which can modify or limit the scope of these rights. Always be sure to check with you realtor before buying a waterfront home that the riparian rights are fully included and in no way have been severed down the line.

Reference: Riparian Rights: Your Ultimate Guide to Land, Water, and the Law [US Law Explained]

Question 2

If I buy a new waterfront property, do I automatically inherit the permits associated with it?

Accepted Answer

No. In Virginia, a permit does not automatically transfer to a new homeowner. The transfer of a permit is a separate process that requires the current permittee to notify the VMRC and DEQ department in writing at least 30 days in advance of the proposed transfer date. The notice must include a written and signed agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them. If you purchase a new waterfront property you are responsible for all existing structures that have not been properly permitted so, make your realtor check to be sure everything is properly permitted before you buy. As the new owner, you are responsible for rectifying any unpermitted construction on your property and if it doesn't meet regulation, you will be liable for the removal and possible replacement (based on review) of the structure. If you discover unpermitted work, such as a pier, lift, bulkhead or rip rap it is crucial to take immediate action to verify the status of the work and to seek legal advice if necessary.

Maries Permit Service LLC does not handle the transfers of permits from one owner to another. Consulting with a real estate attorney or a professional surveyor can help you understand your responsibilities and the best course of action to address the issue.

Question 3

Do I need a permit to build a pier on my property? Even if it's a short?

Accepted Answer

Yes. Even if it's a short, pier permits for navigable waterways are a requirement by law. The U.S. Army Corps of Engineers has jurisdiction over all navigable waters in the United States. Navigable waters are quite broadly defined and include all waters that ebb and flow with the tide.

Only ONE pier is allowed per property parcel in Virginia. You may add onto your existing pier and/or make enhancements, but you cannot build a second pier on your property even if it's a short.

Lastly, a new permit will need to be obtained for anything other than routine maintenance on any existing permitted structure.

Please be advised that building a pier or any other structure without the proper permits may lead to severe civil penalties, hefty fines and even criminal prosecution.

Question 4

What is considered pier maintenance?

Accepted Answer

If you have a permitted pier structure on your property you may make the necessary repairs as needed in the existing footprint to maintain it. A complete redecking of the pier IS considered maintenance, BUT if the pilings must be pulled from the subaqueous bottom, and/or any new extensions or additions will be made to the original design plan, then a new JPA must be submitted for review of approval. Once you have installed new pilings it is considered a new structure even if it's in the existing footprint!

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Question 5

If someone privately owns land with a pond on it (not navigable or tidal), do they still need to go through the permit process to build a short pier on it?

Accepted Answer

Yes. The State has jurisdiction over all waters of the Commonwealth. Unless the Attorney General's Office has opined otherwise, they ask that you submit a new JPA application for all new proposed marine construction projects. You will also need to obtain a zoning and building permit from the local land use office.

Question 6

What is the Public Trust Doctrine?

Accepted Answer

The Public Trust Doctrine is a legal principle establishing that certain natural and cultural resources are preserved for public use. Natural resources held in trust can include navigable waters, wildlife, or land. The public is considered the owner of the resources, and the government protects and maintains these resources for the public's use. The doctrine is most frequently used in the context of water bodies. Throughout the United States, most lakes and streams are maintained under the public trust doctrine, typically for the purposes of drinking and recreational activities. The public trust doctrine also prevents private property from extending to the ocean. The doctrine has roots in ancient Roman law, which recognized certain resources as res communes omnium—things held in common by all, such as air, flowing water, and the sea. Roman law distinguished between resources that could not be privately owned and those that were public property, including harbors, marketplaces, and public lands. When the United States adopted English legal principles, the doctrine was applied to ensure public access to waterways and natural resources. The Supreme Court first accepted the public trust doctrine in Martin v. Waddell’s Lessee in 1842, confirming it several decades later in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). The public trust applies to both waters influenced by the tides and waters that are navigable in fact.

References: public trust doctrine | Wex | US Law | LII / Legal Information Institute, Public trust doctrine - Wikipedia

Question 7

Who has jurisdictions on the shoreline?

Accepted Answer

Reference: Homeowner's Guide — WETLANDS WATCH

Question 8

Can I build a pier over the wetlands on my property?

Accepted Answer

Yes. A wetland is an area where water either covers the soil or is present at or near the surface of the soil for at least part of the year. Wetlands are highly protected by law. In Virginia, piers which are constructed on pilings that permit the “reasonably unobstructed flow of the tide and preserve the natural contour of the wetlands” do not require wetlands permits.  Va. Code §1302(3)(1).

However, piers which do not meet these specific requirements will require a wetlands permit. All applications for projects that will impact any type of wetland in the Commonwealth must contain a plan to compensate for any loss of wetlands that will occur. This plan may be compensation on site, compensation within the watershed, or compensation through the use of a mitigation bank as authorized by Section 28.2-1308 of the Code of Virginia.

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