Sea Grant Law and Policy Journal
Dams have been a significant part of flood prevention and management systems in the United States, dating back to the systematic efforts of the Tennessee Valley Authority and, less systemically, long before that. Dealing with flood management in Virginia presents unique challenges because of a colonial legacy that allows most dams in Virginia to be privately owned. Through a mechanism called King’s Grants, some Virginia landowners hold title not simply to property surrounding a navigable waterway, but also to the soil beneath the river and to dams crossing the river. Such ownership of the soil of large, navigable waterways is unique to this particular type of land grant as it has been construed by the Virginia Supreme Court. Dam management is a significant issue for public safety for two reasons. First, roughly 20% of Virginia’s dams fall within the high hazard category, which means that significant loss of life and property would result from a breach. With climate change indicating a greater likelihood of high magnitude storms, dam failures are all the more anticipated. Private ownership causes unique challenges in this regard because expenses of dam renovations tend to far exceed the means of private landowners who hold title to roughly three-fifths of the dams in the state. Second, flood management requires coordinated and comprehensive action, which is a far greater logistical challenge when dams are managed and operated by more than a thousand individual landowners within the state. Despite those challenges, this article argues that such a comprehensive approach is the only option in the face of significant storm risks and sea level rise.
Jill Fraley, Colonial Property, Private Dams, and Climate Change in Virginia, 5 Sea Grant L. & Pol. J. 47 (2013).