2014 VFBF Critical Legislative Issue #4: Private Property and Navigable Waters

Earlier this month, the Virginia Farm Bureau Federation announced its critical legislative issues for 2014. These are the issues Governmental Relations staff believe will be at the forefront during the next year's General Assembly.  These issues are also discussed at Senatorial District meetings, regional legislative briefings for legislators held across the state during November and December. Each critical issue will be highlighted on Plows and Politics every day this week. If you are a producer member and would like to attend your region's Senatorial District Meeting, please contact your Field Services Director for dates and locations. 

Virginia Farm Bureau is urging legislators to:

• Protect the private property rights of landowners by resisting expansion of the term “navigable” to include all waters of the Commonwealth or the United States
• Maintain a minimal burden of proof of “Crown Grant” properties and their associated rights

 The complex issue of the bottoms of rivers and streams has been debated since the American Revolution.  Prior to that time, the King of England (The Crown) was considered to be the owner of all the land of the colony and its associated rights.  The Crown granted property, the right to use the property, or both.  Following the Revolution, all un-granted and navigable waters were designated waters of the Commonwealth and thereby open to use of the public for commerce and other uses.  Litigation and heated debates have occurred ever since.

The term “navigability” is central to the debate.  It has taken on several meanings especially when used by regulatory agencies to determine the scope of their authority.  To most people, the term means:  “a body of water sufficiently deep or wide to provide passage for vessels.”  Legal definitions extend the definition a bit further to include … “for interstate commerce.”  This definition of navigability brings to mind the types of boats and ships utilized in the deep tidal waters east of the “Fall Line.”  It is the western headwaters of those bodies of water where the disagreement regarding the term causes issues.  The United States Corps of Engineers has designated certain streams “navigable.”  They, too, are considered open for public use unless they were “Crown Grants.” The Granted property retains the private property rights granted to its owner.  With these properties the dispute generally arises regarding proof of the grant and the ability of the public to be aware of its existence. 

The primary source of litigation is a short stretch of the Jackson River.  The construction of Gathwright Dam changed the flow and characteristics of the river.  It became desirable for fishing and recreational canoeing and kayaking.  At the same time technological upgrades to these vessels allowed them to float in minimal water levels which expanded the numbers of desirable streams and rivers for this activity and expanded the conflict.

In recent General Assembly sessions, several bills were introduced to address the conflicts associated with Crown Grants and potentially expand the definition of “navigability.”  Each affected the rights of property owners significantly.  Farm Bureau opposed all the proposed legislation.

One legislative approach was to require a higher level of proof of property owners claiming a “Crown Grant.” It may or may not be a simple process to find and interpret documents that may be up to 400 years old.  An expensive title search will be the likely outcome.  This change increases the cost for proof and the likelihood that a complete link to the original grant will be harder to establish.  Many courthouse fires and other catastrophes have destroyed records. Regardless, this will effect a limited number of property owners since not everyone holds a full “Crown Grant.” 

The 2013 General Assembly requested a study be conducted.  The recommendations of the study included doing nothing, create incentives for landowners to register or open their grant to recreation, increasing the proof level of a grant, required posting, and designating all waters open for recreational use under the common law “Public Use Doctrine.”  Each will have their own consequences, however, it is definite that the longstanding debate will continue.

The second approach was to attempt to declare all “waters of the Commonwealth” navigable for recreational floating and boating.  As you can see this may seem harmless but actually sets the stage for expansion of state and federal authority.  Most landowners consider the creeks and streams that cross their property to be theirs, especially if they only flow certain parts of the year.  Such a designation could be precedent setting for future federally-designated “navigable” streams, which will lead to expanded regulation and loss of private property.

The Clean Water Act (CWA), enacted in 1972, limits federal jurisdiction to “navigable” waters of the United States. The U.S. Supreme Court, in 2001 and 2007, reaffirmed that “navigable waters” under the CWA does not extend to all waters. The Environmental Protection Agency (EPA), through regulations, guidance, and other means, is seeking to expand its authority beyond the limits approved by Congress. We oppose proposals to fundamentally change the CWA by expanding jurisdiction of the federal government to intrastate waters, including groundwater, ditches, culverts, pipes, desert washes, sheet flow, erosional features, farm and stock ponds, and prior converted cropland.

Not matter how it is justified or what level of government executes the policy, an expanded definition of “navigability” will lead to further intrusion by the public and government in to our private property.