New Virginia Water Quality Standard Protects Riparian Property Rights

The Daily Press reported that the State Water Control Board did something that, in time, will help waterfront property owners protect their riparian property rights. As explained elsewhere in this blog, riparian property rights under Virginia law consist of five specific benefits, one of which is the right to make a reasonable use of the water as it flows past or washes upon the land. Algae blooms damage this right to use the water. After all, no one wants to swim, bathe, or water their garden with water polluted by an algae bloom. The algae, when it dies, sucks all the oxygen from the water which kills fish. Algae can also kill fish by releasing toxin into the water. The unsightly appearance of the algae bloom is a further problem, not to mention the ugliness presented by a bunch of dead fish on the shoreline of your waterfront property. The newly adopted Water Quality Standard limits the amount of chlorophyll-a (the green pigment in algae) that can be present in the water. It is a seasonal numeric standard, which means that water samples taken from the tidal portion of the James River cannot have chlorophyll-a in concentrations that exceed the numeric standard. The numeric standard is “seasonal”, which means that the numeric standard varies according to the season of the year. The bad news is that the new Water Quality Standard is not effective until two more steps are completed. First, the new Water Quality Standard must undergo a Final Executive Review in the office of Governor Northam, a process set out in Executive Order Number Fourteen (2018). Next, in a process governed by section 303(C)(2)(A) of the federal Clean Water Act (33 U.S.C. §1313(c)(2)(A)), Virginia must submit the new Water Quality Standard to EPA for approval. These two processes can take anywhere from 6 months to several years but, once they are complete, the permits issued by the Virginia Department of Environmental Quality to companies or persons who discharge substances into the tidal portion of the James River will require those companies or persons to comply with the new Water Quality Standard for chlorophyll-a, which means that waterfront property owners on the tidal portion of the James River will have a new tool they can use to protect their riparian property rights against the damaging effect of algae blooms.