Does Virginia's Scenic Rivers Act stop a landowner from damming tributaries of a scenic river, or from grading or timbering land that drains into one?

Plain-English summary

Tazewell County's attorney asked two questions about the Virginia Scenic Rivers Act. First, can a riparian landowner build a dam, dock, or other structure that might impede the natural flow of a tributary feeding into a designated scenic river? Second, can a riparian landowner along a scenic river engage in grading, plowing, timbering, or other development that might alter the flow of surface water across the land into the scenic river?

The Attorney General said yes on both. The Act's restriction in Code § 10.1-407 forbids construction or operation of dams or other structures impeding the natural flow only in the designated "river or section of river." Tributaries are outside that scope unless the General Assembly specifically included them in the designation (as it did, for example, for Big Cedar Creek as a tributary of the Clinch River, and for tributaries of the North Landing river). The legislature knew how to include tributaries when it wanted to, and the omission has to be presumed intentional.

As for surface water, Virginia common law treats surface water as a "common enemy" that a landowner can fight off as best he may. The Scenic Rivers Act says nothing about altering the common law rule, and the General Assembly's signals point the other way: Code § 10.1-408 expressly preserves riparian uses permitted by law. The AG concluded the Scenic Rivers Act does not restrict a riparian landowner's management of surface water on his land. The opinion notes the landowner still has to comply with other restrictions, including the State Water Control Law, the Stormwater Management Act, local ordinances, and other regulatory programs.

Currency note

This opinion was issued in 2017. 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.

Background and statutory framework

Virginia passed its Scenic Rivers Act in 1970. The Act sets up a study, recommendation, and designation framework: the Department of Conservation and Recreation studies a river, holds public input, and recommends to the General Assembly whether to designate it as a scenic river. Once the General Assembly designates a river or a section of a river, the Act protects it: "no dam or other structure impeding the natural flow thereof shall be constructed, operated, or maintained in such river or section of river unless specifically authorized by an act of the General Assembly" (Code § 10.1-407).

Designations have varied over the years. The Staunton River and the Rivanna River were first in 1975. Goose Creek followed in 1976, with the first explicit protection for riparian rights. In 1988, the General Assembly codified that protection generally in Code § 10.1-408, providing that all riparian land and water uses along or in the designated section, "which are permitted by law shall not be restricted by this chapter" (with the exception of the § 10.1-407 prohibition itself). The current law also explicitly protects surface mining of coal or minerals on adjacent riparian properties and forbids using a Scenic Rivers designation as a basis for water-quality standards under federal law.

The opinion's core moves are statutory construction. First, the textual point: § 10.1-407 says "such river or section of river," and "such" refers to what was designated. Tributaries are different waterways unless the designation says otherwise. Second, the expressio unius rule: when the General Assembly has wanted to extend a designation to tributaries (Big Cedar Creek for the Clinch, the tributaries of the North Landing), it has said so explicitly. The absence of similar language for other designations is intentional. Third, on surface water: the common law rule is that surface water is a common enemy and a landowner may fight it off. To change the common law, the General Assembly has to "plainly manifest an intent to do so." The Scenic Rivers Act does not show such an intent, so the common law rule survives.

Common questions

What does it mean for a river to be "designated" under the Scenic Rivers Act?
The General Assembly, by Act, declares a specific river or section of river to be part of the Virginia Scenic Rivers System. The designation comes after study by the Department of Conservation and Recreation and a recommendation. The designation triggers § 10.1-407's restriction on dams and other obstructions.

Does the restriction in § 10.1-407 cover the entire watershed of the designated river?
No, according to this opinion. It covers only the river or section of river the General Assembly designated. Tributaries are not covered unless the designation specifically includes them.

What if a landowner's dam on a tributary destroys the scenic character of the designated river?
The AG flagged this as a potential edge case. A 1984-1985 AG opinion noted that "actions taken 'outside the designated section could have an impact so substantial as to frustrate the legislative purpose of scenic designation and effectively destroy the river as a scenic resource,'" but the outcome would depend on the specific facts. The general rule still controls, but extreme cases might fall under the common-law rule of reasonable use among upstream and downstream riparian owners.

Can a landowner clear-cut timber on a hillside that drains into a scenic river?
Under the Scenic Rivers Act alone, yes. The Act does not restrict a landowner's management of surface water on his own land. But the AG flagged that the landowner still has to comply with other regulatory programs: the State Water Control Law (Code §§ 62.1-44.2 to -44.34:28), the Stormwater Management Act (Code §§ 62.1-44.15:24 to -44.15:50), local zoning and erosion-control ordinances, and any state forestry rules.

What is the "common enemy" rule for surface water?
The Virginia Supreme Court has long held that surface water (rain or snowmelt running over the land surface) is a common enemy, and a landowner can fight it off "as best he may." There are limits: a landowner cannot use his property "to injure the right of another" by collecting the water into an artificial channel and pouring it onto a neighbor's land, for example. But within those limits, the landowner can grade, plow, ditch, and otherwise alter surface water flow.

Does this opinion reach surface water generally, or just water that ends up in a scenic river?
The opinion's reasoning applies specifically to riparian landowners whose land drains into a scenic river. It concludes the Scenic Rivers Act does not impose extra restrictions on surface water management for those landowners. The common-law rule (and other state/local regulatory rules) govern just as they would for any other Virginia landowner.

Citations

• Va. Code §§ 10.1-400 to -418.9 (Scenic Rivers Act)
• Va. Code § 10.1-407 (prohibition on dams in designated river or section)
• Va. Code § 10.1-408 (preserving riparian uses)
• Va. Code §§ 62.1-44.2 to -44.34:28 (State Water Control Law)
• Va. Code §§ 62.1-44.15:24 to -44.15:50 (Stormwater Management Act)
• Hodges Manor Corp. v. Mayflower Park Corp., 197 Va. 344 (1955) (surface water as common enemy)
• Bailey v. Spangler, 289 Va. 353 (2015) (plain meaning of unambiguous statute)
• Halifax Corp. v. Wachovia Bank, 268 Va. 641 (2004) (expressio unius)
• Tvardek v. Powhatan Vill. Homeowner's Ass'n, 291 Va. 269 (2016) (common law preserved absent clear contrary intent)
• 1991 Op. Va. Att'y Gen. 39 (underground pipeline does not impede natural flow)
• 1984-1985 Op. Va. Att'y Gen. 442 (substantial impacts outside designated section)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/17-037-Young-Scenic-Rivers-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

December 7, 2017

C. Eric Young, Esquire
Tazewell County Attorney
197 Main Street
Tazewell, Virginia 24651

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

Issues Presented
You have asked about the impact of the Virginia Scenic Rivers Act[1] upon certain possible
activities of landowners within Tazewell County. Specifically, you have asked (i) whether riparian
landowners may construct dams, docks, or other structures which might impede the natural flow of a
tributary to a designated scenic river; and (ii) whether a riparian landowner may engage in grading,
plowing, timbering, or otherwise develop his property in such a manner that might impede the flow of
surface water across his property into a designated scenic river.

Applicable Law and Discussion

1. Statutory Background
   The General Assembly passed the Virginia Scenic Rivers Act in 1970.[2] As enacted, the statute
   created a framework to study waterways within the Commonwealth by the Commission of Outdoor
   Recreation (now the Department of Conservation and Recreation) for "designation as wild, scenic, or
   recreational rivers."[3] After such study, consultation with other enumerated state agencies and, if
   requested, a public hearing, the Commission could recommend to the General Assembly that a "river or
   section of river" be designated as a scenic river.[4] Once so designated by action of the legislature, the
   statute provided that "no dam or other structure impeding the natural flow thereof shall be constructed,
   operated, or maintained in such river or section of river unless specifically authorized by an act of the
   General Assembly."[5]

Since the passage of the Scenic Rivers Act in 1970, the General Assembly has recognized a
number of rivers, or sections of rivers, as part of the Virginia Scenic Rivers System. The first such
recognition occurred in 1975 for the Staunton River[6] and the Rivanna River.[7] While the terms of the
designations varied slightly,[8] neither of these Acts spoke to the rights of riparian landowners. Beginning
in 1976, however, with the recognition of Goose Creek in Loudoun County, the General Assembly began
noting that designation as part of the Scenic Rivers System did not impact the rights of riparian
landowners beyond the restrictions otherwise imposed by the designation.[9] During a recodification of the
Scenic Rivers Act in 1988, the General Assembly made this protection of riparian uses applicable to all
designated waterways with the enactment of § 10.1-408 of the Code of Virginia.[10] Certain enumerated
riparian uses[11] now appear in the Code as specifically not subject to restriction by the Scenic Rivers Act,
as well as a prohibition against using the Scenic Rivers Act to establish water quality standards under
federal law.[12]

2. Tributaries
   You first ask whether the restriction contained in § 10.1-407 of the Code on constructing dams or
   other structures that would impede the "natural flow"[13] of a designated waterway extends to tributaries of
   designated rivers. The plain language of the Code, together with the designations made by the General
   Assembly, answer this question generally in the negative. First, the restrictive language contained in the
   Code states that following designation of a "river or section of river," dams or other structures impeding
   the natural flow may not be "constructed, operated, or maintained in such river or section of river."[14] The
   plain meaning of this language directs that the restriction only apply to "such river or section of river"[15]
   rather than any tributary of the same. Where the General Assembly sought to extend the prohibition to
   tributaries of a certain river, it made the same clear in the scope of the designation.[16] The fact that it does
   not mention tributaries in other enactments must be presumed intentional,[17] and it must be assumed that
   the legislature does not intend the Scenic Rivers Act to extend to tributaries of a designated waterway
   unless those tributaries are specifically identified in the designation. While this general rule may be
   subject to limitations in certain circumstances,[18] absent the General Assembly specifically identifying a
   tributary within the scope of the designation, the restrictions imposed by § 10.1-407 do not extend beyond
   the bounds of the river or section of river so designated.

3. Surface Water
   You next ask whether riparian landowners along a designated river may engage in grading,
   plowing, timbering, or other development work that would impede or alter the flow of surface water into
   the river. In Virginia, at the common law, "surface water is considered a common enemy" and a
   landowner is entitled to "fight it off as best he may."[19] Because any change in this rule would be a
   derogation of the common law, the legislature must "plainly manifest an intent to do so"; otherwise, the
   common law "will be read into the statute."[20]

Here, nothing in the Scenic Rivers Act suggests the General Assembly intended to abrogate the
common law rules on management of surface water. The only restrictions on riparian use are those found
in § 10.1-407, which relate to obstructions of the "natural flow" of the waterway itself. If anything, the
legislature indicated its intent to preserve the common law rights of riparian landowners to manage
surface water through the language in § 10.1-408, protecting all "riparian ... water uses along or in the
designated section of a river which are permitted by law." Therefore, I conclude that the Scenic Rivers
Act[21] does not impose restrictions on a riparian landowner's management of surface water on his land.

Conclusion
For the foregoing reasons, it is my opinion that, absent unusual circumstances, the provisions of
the Virginia Scenic Rivers Act do not apply to riparian landowners constructing dams, docks, or other
structures that could impede water flow along tributaries of designated waterways unless those tributaries
are included within the scope of the designation. It is my further opinion that the Scenic Rivers Act does
not impose any restrictions on a riparian landowner's management of surface water on his land abutting a
designated waterway, and accordingly that a riparian landowner may engage in grading, plowing,
timbering, or otherwise develop his property in a manner that might impede the flow of surface water
across his property into a designated scenic river.
With kindest regards, I am
Very truly yours,

Mark R. Herring
Attorney General

1. VA. CODE ANN. §§ 10.1-400 through -418.9 (2012 & Supp. 2017).
2. 1970 Va. Acts ch. 468.
3. Id. (former § 10-170, currently codified at § 10.1-401).
4. Id. (former §§ 10-171, -172, currently codified at §§ 10.1-403, -404).
5. Id. (former § 10-174, currently codified at § 10.1-407).
6. 1975 Va. Acts ch. 391.
7. 1975 Va. Acts ch. 592.
8. This Office has previously noted that "each legislative designation of a scenic river varies slightly from the others," 1984-1985 Op. Va. Att'y Gen. 442, 442, a fact confirmed by review of §§ 10.1-409 through -418.9 of the Code, the current codifications of the various designations made by the General Assembly.
9. 1976 Va. Acts ch. 195, § 6 ("All existing riparian land and water uses which are currently permitted along or in the designated section of Goose Creek and expansion of such uses as authorized by law shall be permitted and shall not be restricted by this act.").
10. 1988 Va. Acts ch. 891 ("Except as provided in § 10.1-407, all riparian land and water uses along or in the designated section of a river which are permitted by law shall not be restricted by this chapter.").
11. See § 10.1-408(B)(1) (Supp. 2017) (barring a Scenic Rivers System designation from serving as the basis for prohibiting surface mining of coal or minerals on adjacent riparian properties).
12. Section 10.1-408(B)(2).
13. A prior opinion from this Office noted that an underground pipeline would not violate § 10.1-407 as it would not result in an obstruction "impeding the natural flow" of a river within the "plain meaning of the phrase 'impeding the natural flow,'" as the pipeline would not be located within the watercourse channel itself. 1991 Op. Va. Att'y Gen. 39, 41. "Natural flow" appears in numerous cases evaluating claims based on artificial constriction of such flow, with a general reference to the amount of water within a watercourse absent man-made influences, including during "seasons of either low or usual high water," but excluding "times of unprecedented and extraordinary freshets." American Locomotive Co. v. Hoffman, 105 Va. 343, 350 (1906) (quoting 30 AM. & ENG. ENCY. L. 374-76 (2d ed.)). This comports with definitions appearing in various publications on water rights, which generally refer to "natural flow" as the stream flow "in its natural condition, not perceptibly retarded, diminished or polluted by others." Richard Ausness, Water Rights Legislation in the East: A Program for Reform, 24 WM. & MARY L. REV. 547, 549 (1983).
14. Section 10.1-407 (2012).
15. See, e.g., Bailey v. Spangler, 289 Va. 353, 358 (2015) (noting Virginia courts "apply the plain meaning of unambiguous statutory language") (citing Newberry Station Homeowners Ass'n v. Bd. of Supvrs., 285 Va. 604, 614 (2013)).
16. See, e.g., 1992 Va. Acts ch. 308 (designating segments of the Clinch River "including its tributary, Big Cedar Creek from the confluence to mile 5.8 near Lebanon"); 1988 Va. Acts ch. 490 (designating the North Landing river and "Tributaries" as part of the Virginia Scenic Rivers System).
17. See Halifax Corp. v. Wachovia Bank, 268 Va. 641, 654 (2004) ("'[W]hen the General Assembly includes specific language in one section of a statute, but omits that language from another section of the statute, we must presume that the exclusion of the language was intentional.'") (quoting Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 100 (2001)).
18. This Office previously noted that actions taken "outside the designated section could have an impact so substantial as to frustrate the legislative purpose of scenic designation and effectively destroy the river as a scenic resource," but that the "outcome of such a case would necessarily depend on its particular facts." 1984-1985 Op. Va. Att'y Gen. 442, 443. This would likely find analogy in the common law rule of reasonable use, which affords an upstream riparian landowner the "reasonable and necessary use" of waters, including the right of "developing power from the flow," without depriving downstream owners of the same. See Hite v. Luray, 175 Va. 218, 225-26 (1940).
19. Hodges Manor Corp. v. Mayflower Park Corp., 197 Va. 344, 347 (1955) (citation omitted). Like most general rules at common law, this one is subject to some limitations. See Third Buckingham Cmty., Inc. v. Anderson, 178 Va. 478, 486 (1941) (noting a riparian landowner cannot use his property "to injure the right of another" such as by "collect[ing] the [surface] water into an artificial channel or volume and pour it upon the land of another, to his injury").
20. Tvardek v. Powhatan Vill. Homeowner's Ass'n, 291 Va. 269, 276 n.4 (2016) (citations omitted).
21. A riparian landowner would still need to comply with other legal restrictions, including the common law rule noted above, as well as provisions of the State Water Control Law (§§ 62.1-44.2 through -44.34:28), which includes the Stormwater Management Act (§§ 62.1-44.15:24 through -44.15:50)), local ordinances, and other statutory or regulatory programs which might apply given the location of a particular waterway.