How to Build a Pier in Virginia: Five Things Waterfront Property Owners Need to Know

Why Build a Pier?

With spring in the air and summer fast approaching, many waterfront property owners have contacted our waterfront law team asking about the legal hurdles involved in constructing or expanding a pier or dock in Virginia.  Having a pier attached to your waterfront property is highly desirable. Not only does it increase the property value of your home, but it also allows you to make the most of your waterfront location.  A high-quality pier will allow access to deeper water in order to dock a small boat, fish or crab, or even swim.  However, building a pier in Virginia is not as easy as it seems, and disputes over piers make up a large part of our waterfront law practice.  There is a lot to know about building piers, but here are five things that all potential buyers should take into consideration when buying waterfront real estate.

Five Things to Consider When Building a Pier in Virginia

1. You must get permits to build a pier or dock.
2. You can be liable for an unpermitted pier - even if it already existed when you bought your home.
3. You may construct a pier only in your “riparian area”.
4. Your property line must legally be connected to the water.
5. Riparian rights can be severed.

1.  You Must Get Permits to Build a Pier

In order to construct or expand a pier or dock in the Commonwealth you must first get permission from several different agencies. Each agency’s role is distinct, but there is some jurisdictional overlap between them. The main agencies that are involved with a request to construct a pier are Local Wetlands Boards, the Army Corps of Engineers, and the Virginia Marine Resources Commission (VMRC). Each agency has its own guidelines and regulations which must be followed correctly. Building a pier without the proper permits may lead to severe civil penalties and even criminal prosecution.

The Public Trust Doctrine

The Code of Virginia vests ownership of "all the beds of the bays, rivers, creeks, and shores of the sea in the Commonwealth to be used as a common by all the people of Virginia.”  Va. Code §28.2-1200.  The “Public Trust Doctrine” is the principle that the state acts as a trustee in holding the land lying beneath public waters for the benefit of all citizens.  These submerged public areas are known as “state-owned bottomlands.”  State-owned bottomlands begin at the mean low water mark, which is defined as the average low water mark over the last twenty years.

The VMRC is the state agency responsible for upholding the Public Trust Doctrine by properly managing state-owned bottomlands on behalf of the public.  The VMRC Habitat Division handles permit applications for projects that use, encroach on, or disturb the water bottoms owned by the Commonwealth, including piers and docks.  This is accomplished by submitting a Joint Permit Application (JPA) to the VMRC.  Some portions of the JPA must be prepared and certified by a professional engineer, land surveyor, or other appropriate person duly licensed by the Commonwealth  

When it receives a JPA application, the VMRC acts as a clearinghouse for the application.  It solicits public comments, coordinates with other state and federal agencies, and then weighs factors both for and against granting the permit.  These factors include hazards to navigation and potential environmental impacts, and whether nearby property owners are opposed to the project.  After it has finished its review of the application, the Habitat Division will make a recommendation to the Commission.  If the VMRC Staff recommends denial, and/or if your neighbors oppose your proposed pier, the VMRC will conduct a public hearing.  They have the power to grant the permit; deny the permit; or grant the permit with conditions.  Our waterfront law team is highly experienced in representing property owners at VMRC public hearings.

Permits for Building Piers in Wetlands

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.  In some localities an applicant can also choose to pay into a special account dedicated to wetlands creation and restoration. 

Pier Permits for Navigable Waterways

The U.S. Army Corps of Engineers has jurisdiction over all navigable waters in the United States, and you must obtain a permit from the Corps if you desire to build a pier in navigable waters. Navigable waters are quite broadly defined and include all waters that ebb and flow with the tide. Navigable waters also include those inland waters which have been, or may be, used for interstate commerce. Practically speaking, unless you are buying a property on a pond or a very small lake, it is almost certain that any waterfront property that you are interested in purchasing will be considered navigable. Accordingly, in order to be allowed to build pier, you will need a permit from the Army Corps of Engineers.  This is separate and apart from the wetlands permit explained above.

Local Regulations

In addition to the state regulation, localities can impose their own restrictions.   Local regulations can vary widely from place to place, with some localities having more stringent requirements than others.  For example, in Virginia Beach piers in larger bodies of water may not extend into the waterway more than 25% of the waterway’s width as measured from mean low water to mean low water.  Narrower waterways in Virginia Beach are not subject to the 25% requirement, but the pier may not impede navigation as determined by the Planning Department. Additionally, piers may not be erected within 25 feet of an established channel.  Information about the Virginia Beach permitting process can be found here; and information about the Norfolk permitting process can be found here. Our waterfront law team is very familiar with local regulations and with the JPA process and will be happy to assist in obtaining the proper permits.

2.  You Can Be Liable for an Unpermitted Pier - Even If it Already Existed When You Bought Your Home

Many waterfront property purchasers are surprised to find out that they can be liable for a pier that was built without a permit, even if that pier was built by a previous owner and has existed for many years. This is because having an unpermitted pier on your land is known in legal parlance as a “strict liability” violation. Under strict liability, the intent of the violator does not matter, and the property owner will be liable even if she was completely unaware of the violation. 

People summoned to appear before the VMRC have the right to have an attorney appear at the hearing and speak on his/her behalf. If this happens to you, it is wise to consult with an experienced riparian rights attorney who may be able to help reduce the penalties or even avoid them altogether. 

For example, if your pier was built before 1962, a permit is not required because the VMRC did not gain its authority to regulate encroachments onto state-owned bottomland until that year and the existing pier might be “grandfathered in.”  Even if your pier was built after 1962, there may be mitigating factors in your favor that can reduce the penalty.  Cooperation with the VMRC goes a long way, and our team has had good success in the past in working to reduce penalties and gain “after-the-fact” permit approvals.

3.  You May Construct a Pier Only If It Will Be Contained in Your “Riparian Area”

As we have explained extensively in our waterfront property law blog, there are specific benefits that accrue to the owner of land that is adjacent to navigable waters. The Supreme Court has stated that there are five separate and distinct riparian property rights.

 Your Riparian Property Rights

1. The right to enjoy the natural advantages conferred upon the land by its adjacency to the water. This is usually interpreted to mean the right to enjoy such benefits as fishing, swimming, or having a reasonably unobstructed water view.
2. The right of access to the water, including a right of way to and from the navigable part.
3. The right to build a pier or wharf out to navigable water, subject to State regulations.
4. The right to make a reasonable use of the water as it flows past or leaves the land.
5. The right to accretions or alluvium. This means that your property line changes over time, as sand and sediment are slowly and imperceptibly deposited (accretion) or washed away from (alluvium) your shoreline.

Defining Your Riparian Area

Importantly, a waterfront property owner enjoys these five rights only in his or her “riparian area.” Most people mistakenly assume that the riparian area is determined simply by extending his or her property line out into the water. This is incorrect.  As we have explained in our waterfront property law blog, establishing A Riparian Area Under Virginia Law it is actually determined using a highly complex formula which first measures the length of a property owner’s shoreline, and then measures the length of the “line of navigability.”  Each property owner’s riparian area is then determined according to his or her proportionate share of the line of navigability as compared to the length of shoreline.

How to Build a Pier that is Legal For “Riparian Property”

It is critical to have an accurate survey conducted of your riparian area. Our team works closely with expert surveyors who know exactly how to do this complicated work. Using these riparian surveys, we have been successful in both defending our clients’ rights to build piers in their riparian areas, and in preventing neighbors from building structures that encroached into our clients’ riparian areas. 

4.  Your Property Line Must Legally Be Connected to the Water

Close Is Not Good Enough, and an Inch Can Make a World of Difference

It is imperative to understand that a property owner has riparian rights only if the land is adjacent to the water. This means that the land must actually touch the water. We were recently involved in a case in which a buyer purchased a lovely house on the water, believing that she would have riparian property rights with her new home.  However, shortly after closing, a survey revealed that the property line was actually one inch shy of the river.  

Even though it only missed the water by an inch, because her land is not adjacent to the water this unfortunate buyer does not have riparian property rights. Consequently she is unable to exercise any of the five benefits laid out by the Supreme Court, including the right to build a pier. This is true even though she purchased the property (and paid a substantial premium for it!) with the clear intent of building a pier for deep water access. Needless to say, this buyer is very unhappy with her real estate agent and may be pursuing legal action.

5.  Riparian Rights Can Be Severed

Anyone who has ever purchased real estate knows the importance of a good title search. Most real estate agents and title companies are good at searching through chains of title to find encumbrances on the land such as liens, easements, and rights of way. However, it is not common knowledge, even among real estate professionals, that riparian rights can be severed in the chain of title. 

This means that at some point in the past, a previous seller conveyed a parcel of land but retained the riparian rights for herself. Most real estate professionals are not aware of this possibility, and therefore it is unlikely that they will always check for riparian rights during the title search. 

A buyer who purchases real estate for which the riparian rights have been severed will find herself in the same situation as the buyer described above whose land did not touch the water. In other words, she will not have riparian rights and will be prevented from building a pier, among other things. Potential buyers of waterfront property would be well advised to have the chain of title examined by an attorney who is well-versed in riparian property rights prior to signing any land sale contract. 

In Conclusion:

Owning waterfront property is a dream-come-true for many, but it is also a complex investment that is not for the unwary. There are many things that a potential buyer of waterfront real estate should consider. The five issues explained here are some of the most common pitfalls that owners face, but there are many others as well. 

Bryan Peeples is a Pender & Coward attorney focusing his practice on waterfront law matters.