Can a Virginia locality get an easement on state-owned river bottomlands to build a flood-control levee, and who in state government grants it?
Plain-English summary
Virginia Marine Resources Commissioner Steven Bowman asked three layered questions about easements on state-owned submerged lands for local flood control: are flood-control structures (dikes, levees, tide gates) a "governmental activity" under §§ 28.2-1300 and 28.2-1400? Does § 28.2-1200.1 authorize an easement for those structures? Does the General Assembly have to approve each easement, or can VMRC do it on its own with the Governor's and AG's signatures?
AG Mark Herring's three-part answer:
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Yes, local flood control is a "governmental activity." Section 28.2-1300 defines the term as "any of the services provided by the Commonwealth or a county, city, or town to its citizens for the purpose of maintaining public facilities." Flood control is a service localities provide to citizens (§ 15.2-970(A) expressly declares it a "proper governmental function for a public purpose"). And "public facilities" picks up flood control because § 15.2-2329(E) treats "flood control facilities, and bank and shore protection and enhancement improvements" as public facilities. Read together (the courts read the Code as a single body), local flood control structures qualify.
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Yes, § 28.2-1200.1 authorizes the easement. The statute lets the Commonwealth grant an easement in state-owned bottomlands so long as the bottomlands are used by a "governmental entity for the performance of a governmental activity." "Governmental entity" logically includes local governments, especially because the linked term "governmental activity" is defined to cover services of "the Commonwealth or a county, city, or town."
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VMRC grants the easement; no individual General Assembly approval is required. Section 28.2-1200.1 is silent on procedure, but the closely related § 28.2-1208 (which covers general bottomlands easements outside the Baylor Survey) gives VMRC authority to grant such easements "with the approval of the Attorney General and the Governor," with the easement "executed for, and in the name and on behalf of, the Commonwealth by the Attorney General and ... countersigned by the Governor." Reading the two sections together (in pari materia), the AG concluded that VMRC follows the same procedure for § 28.2-1200.1 easements. And because § 28.2-1200.1 doesn't reserve General Assembly approval for each easement, a general statutory grant of authority to the executive doesn't require case-by-case legislative approval.
The opinion expressly limited its conclusions to submerged bottomlands outside the Baylor Survey (which maps the Commonwealth's natural oyster beds).
Currency note
This opinion was issued in 2019. 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
VMRC's jurisdiction "include[s] the Commonwealth's territorial sea and extend[s] to the fall line of all tidal rivers and streams except in the case of state-owned bottomlands where jurisdiction extends throughout the Commonwealth" (§ 28.2-101).
Section 28.2-1200.1 provides, in relevant part: "the Commonwealth may grant a lease, easement, or other limited interest in state-owned bottomlands covered by waters pursuant to § 28.2-1208 or as long as the property is used by a governmental entity for the performance of a governmental activity, as defined in §§ 28.2-1300 and 28.2-1400."
Section 28.2-1300 (and the nearly identical § 28.2-1400) defines "governmental activity" as "any of the services provided by the Commonwealth or a county, city, or town to its citizens for the purpose of maintaining public facilities, including but not limited to, such services as constructing, repairing and maintaining roads; providing street lights and sewage facilities; supplying and treating water; and constructing public buildings."
Section 15.2-970 expressly empowers localities to construct dams, levees, seawalls, or perform dredging operations to "prevent the tidal erosion, flooding or inundation of such locality" and declares that work "a proper governmental function for a public purpose." Section 10.1-658 (declaration of policy) supports flood control projects as necessary local and state expenses.
Section 15.2-2329(E), in the context of impact fees, classifies "flood control facilities, and bank and shore protection and enhancement improvements" as "public facilities."
Section 28.2-1208 sets the procedure for general bottomlands easements outside the Baylor Survey: VMRC grants them "with the approval of the Attorney General and the Governor," with the AG executing on behalf of the Commonwealth and the Governor countersigning. Section 2.2-1150 (DGS conveyance procedure) was not necessary here because the specific Chapter 12 procedure controls under the rule that specific statutes prevail over general ones (Beard Plumbing v. Thompson Plastics, 254 Va. 240 (1997)).
Common questions
Q: What about Army Corps of Engineers flood control projects, where the locality is a non-federal sponsor?
A: The opinion's footnote 12 flags that situation as fact-dependent. § 62.1-148 expressly authorizes localities to give assurances to the Corps for federal flood control projects, and § 62.1-150 covers easement acquisition for that purpose. Whether the Commonwealth can grant a § 28.2-1200.1 easement to a locality acting as a Corps non-federal sponsor depends on the specific roles.
Q: Why limit the analysis to bottomlands outside the Baylor Survey?
A: The 1894 Baylor Survey maps the Commonwealth's natural oyster beds, rocks, and shoals. Bottomlands within the Baylor Survey have additional layers of legal protection tied to the public oyster fishery. The opinion did not analyze whether or how easements could be granted on Baylor-Survey bottomlands.
Q: Does the General Assembly retain any oversight?
A: General oversight, yes, but not project-by-project approval. The General Assembly created § 28.2-1200.1 as a general grant of authority; it can revise the statute if it wants more control, but the operational decision rests with VMRC, the AG, and the Governor.
Q: Why does the Attorney General have to execute the easement?
A: That's the procedure § 28.2-1208 uses for other bottomlands easements: "executed for, and in the name and on behalf of, the Commonwealth by the Attorney General." The AG read § 28.2-1200.1 to follow the same procedure, with the AG signing as Commonwealth's representative and the Governor countersigning.
Q: Does the DGS recommendation process under § 2.2-1150 apply too?
A: The opinion concluded no. Section 2.2-1150 is the general statute for state property conveyances; § 28.2-1200.1 is specific to bottomlands easements for governmental activity. Under the specific-controls-general canon (Beard Plumbing), the Chapter 12 procedure controls and DGS recommendation is not required.
Q: What counts as "use" for the governmental-activity test?
A: The locality has to be the one putting the bottomlands to work for the governmental activity. A flood-control structure is a clear case. Construing the statute by its purpose, the easement supports the locality's exercise of its statutory authority to prevent flooding (§ 15.2-970).
Q: What kinds of structures qualify?
A: The opinion uses dikes, levees, and tide gates as examples but does not draw an exhaustive list. Any structure that fits the definition of "flood control facility" (or "bank and shore protection and enhancement improvement") under § 15.2-2329(E) and serves the purpose described in § 15.2-970 would be a candidate.
Q: Does climate-adaptation infrastructure (like living shorelines) qualify?
A: The opinion was framed around traditional flood control. Living shoreline projects are designed to reduce erosion and flooding through nature-based techniques and would arguably fit if the locality is the user and the activity is flood control. The factual analysis would have to be done case-by-case.
Citations
The opinion is built on §§ 28.2-101, 28.2-1200.1, 28.2-1208, 28.2-1300, 28.2-1400, 15.2-102, 15.2-970, 15.2-2329(E), 10.1-658, 2.2-1150, and 62.1-148 to -150. It cites King v. Commonwealth, 2 Va. App. 708 (1986), Virginia Society for Human Life v. Caldwell, 256 Va. 151 (1998), Beard Plumbing & Heating v. Thompson Plastics, 254 Va. 240 (1997), and Dodson v. Potomac Mack Sales & Service, 241 Va. 89 (1991) for canons of construction.
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2019/Bowman-issued-19-017.pdf
Original opinion text
COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General
September 6, 2019
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1
The Honorable Steven G. Bowman
Commissioner, Virginia Marine Resources Commission
Building 96
380 Fenwick Road
Fort Monroe, Virginia 23651
Dear Commissioner Bowman:
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 several related questions regarding the Commonwealth's authority to grant easements pursuant to § 28.2-1200.1 of the Code of Virginia "for local government projects that are necessary to increase resilience to natural hazards and extreme weather." Specifically, you ask:
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Are flood control projects including, but not limited to structures such as dikes, levees, and tide gates on state-owned submerged land that increase resilience to natural hazards and extreme weather, considered to be a type of "governmental activity" as defined in §§ 28.2-1300 and 28.2-1400?
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Does § 28.2-1200.1 provide authority to grant an easement for such projects?
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Does § 28.2-1200.1 require the easement to be granted by the Commonwealth through action of the General Assembly, or does it provide for an easement to be granted by the Virginia Marine Resources Commission with the approval of the Governor and Attorney General?
Taken as a whole, I understand you to ask whether, and by what procedure, § 28.2-1200.1 allows the Commonwealth to grant an easement in state-owned bottomlands to a local government for the construction of flood control projects. Please note that the conclusions that follow are limited to easements in submerged bottomlands that are located outside the Baylor Survey.
Applicable Law and Discussion
1. Local Flood Control Projects are "Governmental Activities" under §§ 28.2-1300 and 28.2-1400.
Section 28.2-1200.1 provides in relevant part that "the Commonwealth may grant a lease, easement, or other limited interest in state-owned bottomlands covered by waters pursuant to § 28.2-1208 or as long as the property is used by a governmental entity for the performance of a governmental activity, as defined in §§ 28.2-1300 and 28.2-1400." Sections 28.2-1300 and 28.2-1400 define the term "governmental activity" as follows:
"Governmental activity" means any of the services provided by the Commonwealth or a county, city, or town to its citizens for the purpose of maintaining public facilities, including but not limited to, such services as constructing, repairing and maintaining roads; providing street lights and sewage facilities; supplying and treating water; and constructing public buildings.
In order for a flood control project to be a "governmental activity," therefore, it must be (1) a service provided by the Commonwealth or a county, city, or town to its citizens, and (2) for the purpose of maintaining public facilities. With regard to the first prong of this definition, a local government's flood control project to increase resilience to natural hazards and extreme weather is a service undertaken by a county, city, or town for its citizens. With regard to the second prong of the definition, neither § 28.2-1300 nor § 28.2-1400 defines the term "public facilities." Therefore, consideration of other sections of the Code of Virginia is appropriate in accordance with the rule of statutory construction that "[t]he Code of Virginia constitutes a single body of law, and other sections can be looked to where the same phraseology is employed."
Section 15.2-970 grants any locality the power to "construct a dam, levee, seawall or other structure or device, or perform dredging operations ... referred to as 'works,' the purpose of which is to prevent the tidal erosion, flooding or inundation of such locality, or part thereof." Section 15.2-970 further states that "[t]he design, construction, performance, maintenance and operation of any such works is hereby declared to be a proper governmental function for a public purpose." Additionally, § 15.2-2329, which grants certain localities the power to impose impact fees to pay for "public facilities" necessary for residential development, deems "flood control facilities, and bank and shore protection and enhancement improvements" as public facilities.
Given that the Code (1) empowers a locality to construct "works" to "prevent the tidal erosion, flooding or inundation of such locality" and declares that such an undertaking is a proper governmental function for a public purpose; and (2) refers to "flood control facilities" as "public facilities," it is my opinion that the type of flood control projects described in your letter are "public facilities" as that term is used in § 28.2-1300 and § 28.2-1400. Accordingly, it is also my opinion that when a local government undertakes a flood control project, it is engaging in a "governmental activity" as defined in §§ 28.2-1300 and 28.2-1400.
- Section 28.2-1200.1 Authorizes the Commonwealth to Grant Local Governments Easements in State-Owned Bottomlands Covered by Waters for Flood Control Projects.
Section 28.2-1200.1(A) refers to the granting of an easement or other limited interest in state-owned bottomlands to be used by a "governmental entity." Although this section does not define "governmental entity," the term logically includes local governments. Therefore, it is my opinion that § 28.2-1200.1 authorizes the Commonwealth to grant an easement over state-owned bottomlands covered by waters to a local government when, as discussed above, such local government uses the easement for a governmental activity such as a flood control project.
- The Procedure for Granting an Easement Under § 28.2-1200.1.
Section 28.2-1200.1 is silent on the precise procedure by which the Commonwealth grants an easement in state-owned bottomlands to a governmental entity for the performance of a governmental activity ("§ 1200.1 Easement"). Rather, § 28.2-1200.1 states simply that "the Commonwealth may grant" such an easement. In ascertaining the meaning of a statute, the principal rule is to determine the intent of the legislature. "Where the words used in the statute are not sufficiently explicit," the legislature's intent may be determined "from a comparison of [the statute's] several parts and of other acts in pari materia." Reading Chapter 12 of Title 28.2 as a whole, together with the general statutes establishing the jurisdiction of the Virginia Marine Resources Commission (VMRC), it is my opinion that the General Assembly intended to authorize VMRC to grant a § 1200.1 Easement without the need for General Assembly approval of each such easement.
VMRC's jurisdiction "include[s] the Commonwealth's territorial sea and extend[s] to the fall line of all tidal rivers and streams except in the case of state-owned bottomlands where jurisdiction extends throughout the Commonwealth." Section 28.2-1200.1 gives "the Commonwealth" authority to grant a § 1200.1 Easement, as well as easements made pursuant to § 28.2-1208. In the case of the latter, VMRC is expressly authorized to grant easements in submerged lands outside of the Baylor Survey "with the approval of the Attorney General and the Governor." Specifically, such easements may be "executed for, and in the name and on behalf of, the Commonwealth by the Attorney General and shall be countersigned by the Governor."
Although no such explicit authority is given to VMRC by § 28.2-1200.1, it is nevertheless reasonable to conclude that the General Assembly intended VMRC to act as the agency responsible for granting easements in state-owned bottomlands, over which it has regulatory jurisdiction, using the same procedure set out in § 28.2-1208. Accordingly, it is my opinion that when the Commonwealth grants an easement in state-owned bottomlands to a governmental entity for the performance of a governmental activity, pursuant to § 28.2-1200.1, such easement may be granted in the name of the Commonwealth, acting through VMRC, and shall be executed by the Attorney General, and countersigned by the Governor.
Additionally, it is my opinion that General Assembly approval is not necessary for each § 1200.1 Easement granted. Section 28.2-1200.1 generally empowers the Commonwealth to grant easements in state-owned bottomlands, without reserving General Assembly oversight over each particular easement. Indeed, if General Assembly approval were necessary as a condition for each grant of a § 1200.1 Easement, the general authorization in § 28.2-1200.1 for the Commonwealth to grant such easements would be superfluous; therefore, such a reading of the statute should be avoided.
Conclusion
For the reasons discussed above, it is my opinion that (1) a local government's use of state-owned bottomlands for a flood control project qualifies as a "governmental activity" as defined in § 28.2-1300 and § 28.2-1400; (2) § 28.2-1200.1 empowers the Commonwealth to grant easements to local governments to use state-owned bottomlands for flood control projects; and (3) an easement granted pursuant to § 28.2-1200.1 is made in the name of the Commonwealth acting through VMRC as the granting agency and that such easement must also be executed by the Attorney General, indicating the Attorney General's approval and countersigned by the Governor, indicating the Governor's approval.
As indicated earlier, however, these conclusions are limited to easements in submerged bottomlands located outside the Baylor Survey.
With kindest regards, I am,
Very truly yours,
Mark R. Herring
Attorney General