CHAPTER 632

An Act to amend the Code of Virginia by adding in Title 62 a new chapter
numbered 5.1, consisting of sections numbered 62-94.1 through 62-
94.12; to provide for the conservation of flood waters under certain
conditions; to define terms; to provide how certain impounding struc-
tures may be built; to provide for notice to certain persons; to provide
for the jurisdiction of certain courts; to prescribe the procedure tn
such cases; to set forth rights which may vest; and to give the con-
sent of the Commonwealth to the use of the beds of certain water-

courses.
[H 546]
Approved March 31, 1956

Be it enacted by the Genera] Assembly of Virginia:
1. That the Code of Virginia be amended by adding in Title 62 a chapter
numbered 5.1 consisting of §§ 62-94.1 through 62-94.12 as follows:

Chapter 5.1

Impoundment of Surface Waters

§ 62-94.1. (1) Except as modified below, the definitions contained
in Title 1 shall apply in this chapter.

(2) “Commissioner” means the Commissioner of Water Resources.

(8) “Impounding structure’ means a man made device, whether a
dam across a watercourse or other structure outside of a watercourse,
used or to be used for the authorized storage of flood waters for subsequent
beneficial use.

(4) “Watercourse” means a natural channel having a well defined
bed and banks and in which water flows when it normally does flow. For
the purposes hereof they shall be limited to rivers, creeks, streams,
branches, and other watercourses which are nonnavigable in fact and
which are wholly within the jurisdiction of the State.

(5) “Riparian land’? is land which is contiguous to and touches a
watercourse; it does not include land outside the watershed of the water-
course; real property under common ownership and which is not separated
from riparian land by land of any other ownership shall likewise be
deemed riparian land, notwithstanding that such real property is divided
into tracts and parcels which may not bound upon the watercourse.

(6) “Riparian owner” is an owner of riparian land.

(7) “Average flow” means the average discharge of a stream at a
particular point and normally is expressed in cubic feet per second. It
may be determined from actual measurements or computed from the most
accurate information available.

(8) “Diffused surface waters” are those which, arising from precipi-
tation, wander aimlessly and do not occur in watercourses.

(9) “Flood waters’ means water in a stream which is over and
above the average flow.

(10) “Court” means the circuit court of the county or corporation
court of the city in which an impoundment is located or proposed to be
located.

§ 62-94.2. Diffused surface waters may be captured and impounded
by the owner of the land on which they are present and, when so im-
pounded, become the property of that owner. Such impoundment shall
not cause damage to others.

§ 62-94.3. Water in watercourses which is over and above the
average flow of the stream may, upon approval, be captured and stored
by riparian owners for their later use under the following conditions:
(1) As a result of the capture and storage of such waters, there will
be no damage to others.

. (2) The title to the land on which the impounding structure and the
authori’ water will rest are in the person or persons requesting the
authority.

(3) All costs incident to such impoundment, including devices above
and below for indicating average flow, will be borne by the person or
persons requesting the authority.

For impoundments with a capacity of more than fifty acre-feet
of storage all construction is approved by a registered civil engineer. For
those with capacities of fifty acre-feet, or less, of storage all construction
will be approved by a registered civil engineer or by some other competent
person.

(5) Those requesting the authority will insure that the flow below
the impoundment is equal to:

(a) at least the average flow when the flow immediately above the
impounding structure is greater than the average flow, or

(b) at least the flow immediately above the impounding structure
when that flow is equal to or less than the average flow.

(6) If needed, provision will be made in the impounding structure
for an adequate spillway and for a means of releasing water to maintain
the required flow downstream.

(7) If for purposes of irrigation, the quantity of water stored (exclu-
sive of foreseeable losses) will not exceed that required for a period of
twelve months to irrigate the cleared acreage owned by those participating
in the undertaking and lying in the watershed of the stream from which
the water is taken.

(8) All structures and equipment incident to such impoundment
will be maintained in safe and serviceable condition by the owners and
all parts thereof in a watercourse will be removed when no longer required
for the purpose.

(9) Priority to the right to store flood waters, as outlined, will go
to upstream riparian owners.

(10) Those impounding flood waters will, upon request, provide ap-
propriate information concerning the impoundment to the Commissioner
and State Water Contro] Board.

§ 62-94.4. Any riparian owner, or riparian owners, desiring to store
flood waters under the conditions specified in § 62-94.3 may apply for leave
so to do to the circuit court of the county or corporation court of the city
wherein the impounding structure is proposed to be built. Such application
shall be made by petition filed in the clerk’s office of the court. It shall set
forth the name and address of the riparian owner, or owners, the purpose
of the proposed impoundment, the desired storage capacity and the basis
on which determined, the stream and the point on it from which flood
waters are proposed to be taken, the estimated cost of the project, and an
agreement to abide by the provisions of § 62-94.3. It shall be accompanied
by a plat or sketch of the riparian property which he or they own and on
which is shown the site of the impounding structure and the area to be
flooded by the impounded water. It shall also be accompanied by a plan
of the proposed impounding structure on which appears the approval of
the plan by a registered civil engineer (or other competent person for
storage capacities of fifty acre-feet or less) and agreement thereto by
the riparian owner. All interested persons shall be given notice of
such application by publication in accordance with §§ 8-71 and 8-72 of
the Code. A copy of the petition shall be sent by registered mail to the
_oromnipaisiner who shall forthwith notify the State Water Control Board

ereof.
CH. 632] ACTS OF ASSEMBLY 989

§ 62-94.5. Upon the filing of any such petition, the court or judge
thereof in vacation shall set a time and place for hearing the same, which
time and place shall be set forth in the order of publication. Any person
aiterieu may appear and be made a party to such proceeding by leave of
court.

_ § 62-94.6. Upon recipt of a copy of any such petition the Commis-
sioner shall examine the same and report thereon to the court upon the
following matters:

(1) The average flow of the stream at the point from which water
for storage will be taken.

_(2) Whether the proposed project conflicts with any other proposed
or likely developments on the watershed.

(3) The effect of the proposed impoundment on pollution abatement
to be evidenced by a certified statement from the State Water Control
Bonrd together with such other relevant comments as such Board desires

make.

(4) Any other relevant matters which he desires to place before
the court.

§ 62-94.7. The court, on the day specified in the order of publication
shall hear and determine the issues in the proceeding based on the report
and other evidence. In its discretion the court may refer any matter to
a commissioner in chancery to take such evidence as may be proper and
to make a report to the court.

§ 62-94.8. If, on the report and other evidence, it appears to the
court that by granting such leave other riparian owners will be injured,
or there are other justifiable reasons for denying the petition, the leave
shall not be granted; provided that in no case shall leave be granted if the
certified statement from the State Water Control Board, filed under
§ 62-94.6, shows that, in the opinion of such Board, the reduction of pol-
lution will be impaired or made more difficult. If it be granted, the court
shall place the applicant under such terms and conditions as shall seem
to it right. An appeal shall lie to the Supreme Court of Appeals.

§ 62-94.9. If the applicant shall not begin his work within two
years, and so far finish it within three years after such leave, as then to
have his impounding structure in good condition for use; or if such im-
pounding structure be at any time destroyed or rendered unfit for use,
and the rebuliding or repair thereof shall not within two years from the
time of such destruction or unfitness, be commenced, and within five years
from that time be so far finished as then to be in good condition for use,
the leave so granted shall then expire.

§ 62-94.10 The Commonwealth hereby gives its consent to the use
of the bed of any watercourse to which it has title for the construction
of any impounding structure under the provisions of this chapter. No
right to construct an impounding structure resting upon the bed of any
other watercourse shall lie unless the owner or owners seeking to construct
the same has title to the bed of such watercourse.

§ 62-94.11. The provisions of this chapter shall not apply to any
construction which should be undertaken under Chapters 5 or 6 of this
Title nor shall it apply in any case in which the consent of the federal
government or of any agency or instrumentality thereof is required.

62-94.12. Any owner constructing an impounding structure under
the provisions of this chapter shall have the sole and unrestricted use of
ie flood yale thus stored for the purpose for which the storage was
authorized.