Can the Virginia Department of Conservation and Recreation prohibit swimming in waters next to state parks if it doesn't own those waters?

Plain-English summary

A delegate asked whether the Virginia Department of Conservation and Recreation could enforce a "no swim" policy in waters adjacent to Virginia state parks, especially in waters the Department did not own. The Department's published policy at the time barred swimming in waters it did not own and allowed only state park visitors to wade in public waters adjacent to certain parks.

The AG drew a clear line. DCR has broad statutory authority over parks, natural area preserves, and other lands it manages. The Department can restrict who enters land it manages and what they do there, including the power to restrict swimming or wading on land for which it is responsible. But the Department's authority does not reach waters and lands it does not manage.

So a "no swim" rule on a state park beach, or in waters within a park's boundaries, is within DCR's authority. A "no swim" rule applied to adjacent public waters that the Department does not own or supervise would exceed DCR's authority. The opinion does not require courts to second-guess whether the rule is wise. Flory v. Smith, 145 Va. 164 (1926). Under rational basis review (Advanced Towing Co. v. Fairfax Cty. Bd. of Supervisors, 280 Va. 187 (2010)), regulating swimming on park lands without lifeguards is plainly rational.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

DCR's organizational structure and statutory authority have been amended over time. State park signage and policies have evolved. The basic principle (regulate what you own, not what you don't) is durable, but a current swimming ban needs to be evaluated against current statutory authority.

Common questions

Can DCR ban swimming at a state park beach?
Yes. The Department's regulation provides: "No person shall bathe, wade or swim in any waters in any park except at such times, and in such places as the department may designate as bathing areas." DCR's natural area preserve management guidelines also generally prohibit swimming on DCR-owned natural area preserves because of safety concerns.

Can DCR ban swimming in the river next to the park?
Only to the extent the river is within property DCR manages. If the swimmer is in waters DCR does not own or supervise, DCR has no authority to issue a ban there.

Is the "no lifeguard, no swim" reasoning solid?
Under rational basis review, yes. The court will defer "if there is any reasonably conceivable set of facts that could provide a rational basis" for the rule (Advanced Towing). Liability and safety concerns easily satisfy that test for waters DCR is responsible for.

Background and statutory framework

DCR's authority comes from Title 10.1. The opinion describes the relevant powers without numbering each one:

• The General Assembly authorized DCR to take title to "state parks, state recreational areas, state trails, greenways, natural areas and natural area preserves."
• Section 10.1-212 charges DCR with managing, developing, and using "any lands purchased, leased or otherwise acquired" by the Department.
• DCR also has responsibility for facilitating public use of parks and recreational areas.
• To carry out these responsibilities, DCR is empowered to prescribe rules and regulations necessary or incidental to its duties, to perform acts necessary or convenient to carry them out, and, under the Administrative Process Act, to promulgate regulations necessary to carry out the purposes of the subtitle.

On swimming, DCR's regulation provides that "[n]o person shall bathe, wade or swim in any waters in any park except at such times, and in such places as the department may designate as bathing areas." DCR also publishes management guidelines for natural area preserves stating that swimming is not an authorized activity on DCR-owned preserves, primarily because of public safety.

Agency power principles: an agency's authority is not strictly limited to "the narrow confines of the express language of the statute," but extends to powers expressly granted, fairly implied from the language used, or necessary to exercise the powers expressly granted. Muse v. Virginia Alcohol Bev. Control Bd., 9 Va. App. 74 (1989); Portsmouth v. Virginia Ry. & Power Co., 141 Va. 54 (1925).

Judicial review of agency regulation: "the courts are not concerned with the wisdom or unwisdom of the act done. The only concern of the court is the reasonableness of the regulation promulgated." Flory v. Smith, 145 Va. 164 (1926). When no suspect class or fundamental right is at issue, the standard is deferential. Advanced Towing, 280 Va. 187 (2010).

Citations

• Va. Code Ann. § 10.1-212
• Muse v. Virginia Alcohol Bev. Control Bd., 9 Va. App. 74, 78, 384 S.E.2d 110, 112 (1989)
• Portsmouth v. Virginia Ry. & Power Co., 141 Va. 54, 61, 126 S.E. 362, 364 (1925)
• Flory v. Smith, 145 Va. 164, 168, 134 S.E. 360, 362 (1926)
• Advanced Towing Co. v. Fairfax Cty. Bd. of Supervisors, 280 Va. 187, 191, 694 S.E.2d 621, 623 (2010)
• Department of Conservation and Recreation, Natural Area Preserve Management Guidelines (Dec. 2000)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-074-Pollard.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

August 23, 2010

The Honorable Albert C. Pollard, Jr.
Member, House of Delegates
Post Office Box 508
Lively, Virginia 22507

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Delegate Pollard:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the Department of Conservation and Recreation has the authority to establish a "no swim" policy in waters that are adjacent to Virginia parks.

Response

It is my opinion that the Department may regulate swimming in public parks, natural preserves, and other areas over which the Department exercises supervisory authority, but lacks the authority to regulate swimming in other waters.

Background

You relate that the Department of Conservation and Recreation ("the Department") has adopted a policy governing waters adjacent to certain Virginia parks. You state that the Department prohibits swimming in waters it does not own and allows only state park visitors to wade into public waters that are adjacent to certain Virginia parks.

Applicable Law and Discussion

The Department is a creature of statute, and its powers derive from statute. The power of an agency of state government "is not strictly limited, however, to the narrow confines of the express language of the statute. '[E]very power expressly granted, or fairly implied from the language used, or which is necessary to enable [the Agency] to exercise the powers expressly granted, should and must be accorded.'"

The General Assembly has authorized the Department to take title to "state parks, state recreational areas, state trails, greenways, natural areas and natural area preserves." Section 10.1-212 charges the Department with the responsibility of managing, developing and using "any lands purchased, leased or otherwise acquired" by the Department. The Department also has the responsibility of facilitating public use of parks and recreational areas.

To carry out these responsibilities, the Department is empowered "to prescribe rules and regulations necessary or incidental to the performance of duties or execution of powers conferred by law," to perform "acts necessary or convenient to carry out the duties conferred by law" and, finally, under the Administrative Process Act, to "promulgate regulations necessary to carry out the purposes and provisions of this subtitle."

Pursuant to this statutory authority, the Department has promulgated a regulation governing swimming in state parks. It provides that "[n]o person shall bathe, wade or swim in any waters in any park except at such times, and in such places as the department may designate as bathing areas, and unless so covered with a bathing suit as to prevent any indecent exposure of the person." The Department also has published "management guidelines" for natural area preserves. Those guidelines provide that

[s]wimming is not an authorized activity on DCR-owned natural area preserves, due primarily to the issue of public safety. With no lifeguards or patrols in place on public beaches or waterways, responsible landowning public agencies cannot officially sanction swimming. Rather, in nearly all cases, they must prohibit or actively discourage it. On privately-owned natural area preserve, decisions to allow swimming or to prohibit it are the responsibility of the landowner.

The Department has been provided broad authority to regulate the areas, including parks and natural area preserves, that fall within the purview of the Department. The Department can restrict who enters land managed by the Department and what they do once they are on the Department's land. That Department's authority includes the power to promulgate and enforce restrictions on swimming or wading on land for which the Department is responsible. There is no authority, however, that would permit the Department to regulate swimming in areas that are not managed by the Department. In the absence of such authority, the Department cannot regulate swimming in such areas.

Whether it is wise or not for the Department to strictly regulate swimming does not render such regulations legally suspect. In considering the exercise of an agency's regulatory power, "the courts are not concerned with the wisdom or unwisdom of the act done. The only concern of the court is the reasonableness of the regulation promulgated. To hold otherwise would be to substitute judicial opinion for the legislative Will." When a policy or regulation does not infringe upon a suspect class or a fundamental right, the standard of review is highly deferential. The courts must defer "if there is any reasonably conceivable set of facts that could provide a rational basis for the" measure under review. Under this standard, the Department rationally could conclude that the absence of lifeguards exposes the public to danger and would justify a prohibition on swimming that is limited to the land for which the Department is responsible. In other words, that policy may or may not be wise, but it does not lack a legal foundation.

Conclusion

Accordingly, it is my opinion that the Department may regulate swimming in public parks, natural preserves, and other areas over which the Department exercises supervisory authority, but lacks the authority to regulate swimming in other waters.

With warmest regards, I am

Kenneth T. Cuccinelli, II
Attorney General