Virginia has roughly 2.14 million acres of land covered by water. Such lands include coastal bottomlands in the Atlantic Ocean, the bottom of the Chesapeake Bay, tidal rivers and creeks, and upland rivers and their tributaries. For purposes of underwater archaeology, we will use the term “state-owned bottomlands”. Two distinctions should be made, public land within tidally-influenced waters and submerged land above the fall-line not affected by the tide.
Waters of the Commonwealth are defined in §62.1-81 of the Code of Virginia as: “(a) Any stream or that portion of any stream in this Commonwealth which prior to June 21, 1932, has been declared navigable by any unrepealed statute of this Commonwealth, or (b) any stream or that portion of any stream in this Commonwealth, the bed of which is owned by the Commonwealth, or (c) those parts of streams or other bodies of water in this Commonwealth which either in their natural or improved condition, notwithstanding interruptions between the navigable parts of such streams or waters by falls, shallows, or rapids, compelling land carriage, are used or suitable for use for the transportation of persons or property in interstate or foreign commerce, including therein all such interrupting falls, shallows or rapids, and also any stream or part thereof in this Commonwealth other than those above mentioned in this subdivision in which the construction of any dam or works as authorized by this chapter would affect the interests of interstate or foreign commerce, or (d) that portion of any river or stream flowing between the high-water mark on the Virginia shore and the low-water mark when such low-water mark constitutes the boundary line between Virginia and another state.”
In tidal waters, generally recognized as those waters eastward of the fall line, the Commonwealth asserts ownership of those lands below the low water mark. That mark is the average of the low water boundaries for the past 20 years.
For nontidal waters, the Commonwealth asserts that subaqueous bottomlands extend up rivers and streams with a drainage basin of greater than 5 square miles, or with a mean annual flow of greater than 5 cubic feet per second.
Not all submerged bottomlands are owned by the Commonwealth. If subaqueous land was granted to an individual prior to 1792 in the part of Virginia draining to the Atlantic Ocean and that deed description has remained intact to the present, the owner of that parcel may claim such lands as private property. The same is true for lands granted prior to 1802 in the portion of the state draining to the Gulf of Mexico.
To read the full Virginia Subaqueous Guidelines, visit here.