Springs, creeks and water rightswhat a deed gives you along the water, and what the Commonwealth keeps
Land along a creek comes with rights at the water's edge and with limits the Commonwealth never handed over. This guide sets the two side by side, then takes each row in turn and names the office that settles it.
What the deed carries to the water, and what the Commonwealth holds back
Water rights on rural land in Virginia are easiest to follow as two lists held next to each other: what goes with the deed to creek-side land, and what stays with the Commonwealth whoever owns the bank.
| Question | What goes with the land | What the Commonwealth keeps |
|---|---|---|
| The boundary | The bounds, and the owner's rights and privileges, reach the mean low-water mark | Everything past that mark, unless the creek or river lies within a lawful survey |
| The bed | Only where a special grant or compact conveyed it | Beds not conveyed that way, held as a common for fishing, fowling and hunting |
| Work on the bed | Irrigation and watering animals on riparian land, under the statute's three conditions | A VMRC permit for building, dumping, encroaching or taking materials, unless an exception applies |
| The water | The riparian rights the statutes refer to, with the use of stream water limited by the water policy statute | Surface and underground water, declared a natural resource the Commonwealth should regulate |
| Withdrawals | Withdrawals under the reporting line and within the VWP exclusions, though other permits may still apply | Reporting above 10,000 gallons per day averaged over a month, and permits past the exclusions |
| Fishing | No license for the landowner and the family members the statute lists, on their own land and inland waters (stocked trout water is a question for DWR) | A license for everyone else fishing inland waters, subject to the statute's exemptions |
Two things run under every row. The Commonwealth's rules reach the water no matter who holds the bank, and whether a particular tract came with more than the statute's default is a title question, read from the deed and the grant behind it.
The mean low-water mark is the default line, and a lawful survey is the exception
Virginia puts the edge of a creek-side tract in one sentence of its code, Va. Code 28.2-1202: the bounds of the land, and the owner's rights and privileges, reach the mean low-water mark and no farther, unless the creek or river lies within a lawful survey.
The companion section, Va. Code 28.2-1200, says what happens to everything else: beds of the bays, rivers and creeks not conveyed by special grant or compact remain the Commonwealth's, usable as a common for fishing, fowling, hunting and taking shellfish.
A lawful survey in that sense is not the same thing as ordering a new boundary survey. A surveyor locates the lines a deed describes; the statute's lawful survey turns on land held under a special grant or compact and shown on a recorded plat, which is what a title examiner and an attorney read for. That test, and what it means for one bed, is worked through in who owns the riverbed in Virginia.
Watering stock from the creek is excepted on three conditions, and a permanent structure on the bed fails the first
Building, dumping, encroaching or taking materials on a Commonwealth-owned bed takes a permit from the Virginia Marine Resources Commission under Va. Code 28.2-1203, unless the act falls within one of the section's listed exceptions.
One exception is written for farms. Agricultural, horticultural or silvicultural irrigation on riparian lands, or watering animals on riparian lands, is excepted only if all three of these hold:
- no permanent structure is placed on or over the bed;
- the person withdrawing water complies with the requirements the Department of Environmental Quality administers under Title 62.1;
- the activity is conducted without adverse impacts to instream beneficial uses.
The third condition uses a defined term. Va. Code 62.1-10 says instream beneficial uses include, but are not limited to, the protection of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. The withdrawal requirements in the second condition are DEQ's to administer, and whether a particular setup meets all three is not something to settle from the bank.
A dock or pier is a different permit path from a pump on the bank, taken up in building a dock on the New River.
The statutes name riparian rights, and the water policy chapter limits the use of stream water
Virginia's statutes refer to an adjacent landowner's riparian or littoral rights. What those words mean as a term is set out under riparian rights; what the water policy chapter adds is a limit on the right to use water from a natural stream.
The chapter starts wide. Water, in Va. Code 62.1-10, includes all waters on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, which affect the public welfare. Va. Code 62.1-11 then declares: "Such waters are a natural resource which should be regulated by the Commonwealth."
The right to the use of water or to the flow of water in or from any natural stream, lake or other watercourse in this Commonwealth is and shall be limited to such water as may reasonably be required for the beneficial use of the public to be served; such right shall not extend to the waste or unreasonable use or unreasonable method of use of such water.
Va. Code 62.1-11 E
That subsection is a declaration of policy, not a formula. It says the right to use water stops short of waste and unreasonable use, and it gives no gallon figure for an ordinary owner. How it applies between two owners on one creek, an upstream pond against a downstream pasture, is not settled on the face of the statute, and a dispute of that kind is a question for an attorney.
Ten thousand gallons a day draws the reporting line, and a farm pond is measured by height and volume
Where the policy chapter speaks in principles, Virginia's water regulations speak in gallons. They set three withdrawal thresholds and a pond exclusion, each worth knowing by its number.
| Rule | The line | What it leaves open |
|---|---|---|
| Water withdrawal reporting, 9VAC25-200-30 | Applies to users of groundwater or surface water whose average daily withdrawal during any single month exceeds 10,000 gallons per day | The section lists its own exemptions, such as withdrawals made for the sole purpose of dewatering a mine or quarry or generating hydroelectric power |
| VWP exclusion for surface water withdrawals, 9VAC25-210-310 | Withdrawals for purposes not otherwise excluded that total less than 10,000 gallons per day from nontidal waters | Other permits under state and federal law may be required |
| VWP exclusion for agricultural withdrawals, 9VAC25-210-310 | Agricultural surface water withdrawals that total less than one million gallons in a single month from nontidal waters | DEQ may require an excluded withdrawal to stop and obtain a permit when its assessment finds listed harms |
| VWP exclusion for farm or stock ponds, 9VAC25-210-60 | Ponds for normal agricultural or silvicultural purposes less than 25 feet high or impounding less than 100 acre-feet | A VWP permit may be required for a surface water withdrawal from the pond |
A spring sits less tidily in that table than a creek does. USGS describes a spring as a place where water moving underground finds an opening to the land surface and emerges, the result of an aquifer being filled until the water overflows. The reporting rule counts groundwater and surface water alike, while the VWP exclusions above are written for surface water, so which rule reaches a spring-fed intake is a question to put to DEQ.
The same goes for a spring-fed pond. The farm pond exclusion is stated in height, volume and farm or forest purpose, and whether it reaches a pond fed by a spring is DEQ's to say.
Whether spring or well water is safe to drink is a question for the Virginia Department of Health. The covered box that collects water at a spring is described under spring box, and a drilled well and the permits behind it is covered in its own guide.
Landowners fish their own water without a license, and stocked trout water is DWR's question
Virginia makes fishing its inland waters without a license unlawful, subject to the exceptions in Va. Code 29.1-301, and the first of those exceptions belongs to the landowner.
It covers the landowner and the family members the statute names on the owner's own land and inland waters, including abutting public waters fished from inside the boundaries or from a private permanent extension.
Tenants with written consent and guests at a private fish pond have exemptions of their own, and the edges of all of it, stocked trout water among them, are for fishing your own creek without a license and for DWR.
One more question sits next to all of this and belongs somewhere else: whether a spring or a creek changes what a farm is worth. That is an opinion of value weighed with everything else on the property, and it is taken up in does a spring or creek add value to a farm.
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Good questions, straight answers.
Do the withdrawal thresholds treat a spring the same as a creek?
Not in so many words. Virginia's water withdrawal reporting rule covers users of groundwater or surface water whose average daily withdrawal during any single month exceeds 10,000 gallons per day, while the VWP permit exclusions are written for surface water withdrawals. USGS describes a spring as underground water emerging at the land surface, so which rule reaches a spring-fed intake is a question for DEQ.
Do I have to report water pumped from a creek for livestock?
Only above the state's threshold. Virginia's water withdrawal reporting rule applies, except as the section states, to users whose average daily withdrawal during any single month exceeds 10,000 gallons per day. Separately, agricultural surface water withdrawals under one million gallons in a single month from nontidal waters are excluded from VWP permits, though other permits may apply. DEQ confirms whether a given withdrawal is reportable or needs a permit.
Can an upstream neighbor use so much of a creek that less reaches my land?
The statute sets a limit rather than a number. Virginia's water policy law limits the right to use water from a natural stream to such water as may reasonably be required for the beneficial use of the public to be served, and says the right does not extend to waste or unreasonable use. How that applies between two owners on one creek is a question for an attorney, and whether a withdrawal needs a permit is DEQ's.
Can a pump intake or pipe sit on the creek bed for irrigation?
Not a permanent one under the irrigation exception. Virginia excepts irrigation and watering animals on riparian lands from the bottomland permit requirement only if no permanent structure is placed on or over the bed, the person withdrawing water complies with DEQ's requirements, and the activity has no adverse impacts to instream beneficial uses. Work outside that exception needs a permit or another listed exception, and the permitting agencies decide which.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- Va. Code 28.2-1200: beds of bays, rivers and creeks remain Commonwealth property Virginia General Assembly
- Va. Code 28.2-1202: bounds extend to the mean low-water mark, and the lawful survey Virginia General Assembly
- Va. Code 28.2-1203: unlawful use of Commonwealth-owned beds, and the exceptions Virginia General Assembly
- Va. Code 62.1-10: definitions, water and instream beneficial uses Virginia General Assembly
- Va. Code 62.1-11: declaration of water policy Virginia General Assembly
- 9VAC25-200-30: water withdrawal reporting, applicability and exemptions Virginia Administrative Code
- 9VAC25-210-60: VWP exclusions, including farm or stock ponds Virginia Administrative Code
- 9VAC25-210-310: surface water withdrawals excluded from VWP permits Virginia Administrative Code
- Springs and the water cycle USGS
- Va. Code 29.1-300: license required to hunt, trap or fish Virginia General Assembly
- Va. Code 29.1-301: exemptions from license requirements Virginia General Assembly