Whose Water Is It?

The Rappahannock River. Photo credit: Va. Dept. of Conservation and Recreation

by Dick Hall-Sizemore

There are some issues that seem to be baked into public policy and, because they affect sensitive and important areas, tend to lead to controversies periodically.

Many years ago, one of the hottest controversies was the “inter-basin transfer of water.” Because Virginia is a “riparian rights” state, folks who live next to rivers can withdraw water from the river, but are not supposed to divert it to use by other people who do not live on the river. To do so would diminish the water available for those other riparian landowners. The Virginia Supreme Court in the 1942 case of Town of Purcellville v. Potts declared a per se prohibition against inter-basin transfer:

While a riparian owner is entitled to a reasonable use of the water, he has no right to divert it for use beyond his riparian land, and any such diversion and use is an infringement on the rights of the lower riparian proprietors who are thereby deprived of the flow. Such a diversion is an extraordinary and not a reasonable use.

The field of water law is a very complex one and that is as far as I am willing to dip my toe into it. Suffice it to say that inter-basin transfer of water is an important concept. For a more in-depth discussion, see here.

In the 1980’s, the City of Virginia Beach, projecting a future need for water that would exceed its access to groundwater, proposed running a pipeline about 100 miles west and dipping into Lake Gaston in rural Brunswick County. The political fight raged for years. Because most of Lake Gaston was located in North Carolina, it became an interstate issue as well. The city finally succeeded and is now pumping up to 60 million gallons of water daily from Lake Gaston. (The city of Chesapeake gets about 10 million gallons from that flow.)

Another epic political battle in Virginia was over the proposal of VEPCO (precursor of Dominion Energy) and coal companies to construct a pipeline to transport coal mixed in water from the coalfields in Southwest Virginia to eastern Virginia. The railroads furiously fought this “coal slurry pipeline.” Although the inter-basin transfer of water was not the major issue in this fight, it played a role. (For a detailed description of this political battle, see Jim Bacon’s article in Bacon’s Rebellion.)

The issue of the inter-basin transfer of water has arisen again, albeit on a smaller scale. As reported by the Fredericksburg Free-Lance Star, Caroline County wants to pump water from the Rappahannock River in a “45-mile pipeline [that] would carry it to the other side of the county for some residential and business growth, but mainly for three large industrial projects proposed in Carmel Church and Ladysmith.” (The large industrial projects are reputedly data centers. For readers unfamiliar with Caroline County, Carmel Church and Ladysmith are unincorporated communities on Rt. 1, but there are exits off I-95 for each one.)

The proposed pipeline would move water from the Rappahannock River basin to the Mattaponi River basin, clearly an “inter-basin transfer” although it would remain in the same jurisdiction. Not only is the owner of land on which the county wants to build its pump station upset, the proposal has raised concerns from folks downstream. A conservation group in Essex County has expressed its concerns. Chief Ann Richardson of the Rappahannock Tribe is upset that the county has not contacted the tribe about its plans. (To be fair, the county seems to have avoided, to the extent possible, letting anyone know of its plans.)

This situation could involve another political hot button: eminent domain. The owner of the 10-acre parcel which the county wants for its pump station says that the larger property that includes the 10 acres has been in his family for generations, and he does not want to sell. “If the county takes possession, it will have to be by eminent domain,” he said. So far, the county has been low-key on the issue, trying to persuade him by pointing out the benefits of the pipeline to the county as a whole.

Eminent domain may not be a tool the county has available. In 2012, in the wake of the U.S. Supreme Court decision in Kelo v. City of New London in which the court ruled that states could use eminent domain to seize private property for private development, Virginia voters approved an amendment to the Virginia Constitution designed to prevent the government from doing just that. Section 11 of Article 1 (the Virginia Bill of Rights) allows the taking of private land for public use, but goes on to say that, except for public service companies and railroads, the taking “is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.”

That provision would seem to prohibit Caroline County from exercising its power of eminent domain to condemn land for the purpose of constructing a pump station that would benefit economic development. Of course, the county could make an offer the landowner would feel he could not refuse. Such a circumstance, however, would not prevent the riparian landowners downstream from opposing this proposed inter-basin transfer of water.

This case could be interesting and fun to watch.