There are over 3,500 active dams in Virginia. Many of those dams create beautiful waterbodies such as lakes and rivers. Most of these artificially created lakes and rivers have existed for decades. It is not always obvious which waterbodies are naturally occurring and which ones were created by dams.
As a result, hundreds of Virginia residents have purchased waterfront homes on the shores of artificially created waterbodies. Waterfront homes are highly sought after, and the prices of these homes reflect the demand. Our research shows that homes located on the shores of a lake or river are generally priced over 20% higher than similar non-waterfront homes. This is true regardless of whether the homes are located on natural lakes and rivers, or whether they are on the shores of artificially created waterbodies.
Which begs the question: what happens if the dam is removed, and the lake or river goes away? Can these previously-waterfront homeowners sue for the loss of property value caused by the disappearing waterbody?
The Virginia Dam Safety Act
Before I answer that question, it is necessary to briefly discuss the laws governing dams in Virginia. As I explained in a previous article, many of Virginia’s dams are strictly regulated by the Virginia Department of Conservation and Recreation (DCR). Those regulated dams fall under the Virginia Dam Safety Act (“the Act”), codified in Virginia Code §10.1-604 et seq. The Act imposes inspection and permitting requirements on dam owners. The specific requirements vary based on the hazard classification of the dam.
Importantly, the Act also imposes “strict liability” on dam owners/operators, making them legally responsible for any injury to life or property which occurs from a dam failure. “Strict liability” means that the dam owner/operator is liable even if the dam failure was caused through no fault of the owner/operator. That the dam owner/operator may have complied with all the Act’s requirements does not protect him/her against liability.
Many of Virginia’s regulated dams are quite old and are reaching the end of their expected lifespans. Some of them are unsafe and in need of major repairs. In recent years the DCR has significantly stepped up its enforcement activity, requiring that the owners/operators of these unsafe dams either repair or remove the structures.
Dam repairs can be extremely expensive, usually costing at least several hundred thousand dollars. Making matters worse, the affected owner often does not even realize that she owns a dam!
You may ask, “How can someone be unaware that they own a dam? “ Actually, quite easily. Dams are not always easy to spot. While some are obvious, others look like natural dirt berms. Dam ownership usually “runs with the land.” This means that in most cases, if a buyer purchases land with a dam located on it, the buyer has also purchased the dam. This is true even if the buyer has no idea that a dam is located on the property. Sometimes a landowner does not learn that s/he owns a dam until s/he receives an enforcement letter from the DCR.
The Effect of Removing a Dam
The strict liability imposed upon dam owners for dam failures, coupled with the extreme cost of repairing the structures, makes it understandable that many dam owners are choosing to remove the dams instead of repairing them. When this happens the previously existing waterbody which had been created by the impoundment of water will drain away, rendering a devastating blow to other homeowners who purchased their waterfront properties expecting that the lake or river would last forever.
Which brings us to the central question of this article – what legal recourse is available to these affected homeowners for property damage caused by the disappearing waterbody? Unfortunately for the affected homeowners, the Eastern District of Virginia federal court recently answered that question, holding that the affected homeowners are barred from taking any action against the dam owners.
In Arner v. Hanover Wash. LLC, 2026 U.S. Dist. LEXIS 116012 (2026), several plaintiff landowners brought suit against the owner and operator of a dam which had stood in the South Anna River in Hanover County, Virginia, for many decades. The dam was in poor condition, and the owners/operators received the required authorizations to remove it. When they did so, the water level in the river adjacent to the plaintiff’s properties was substantially reduced. The plaintiffs claimed that this reduction in the water level negatively impacted the use and enjoyment of their waterfront properties and reduced their property values.
In a case of first impression in the Commonwealth, the Court dismissed the plaintiffs’ claims. The Court applied the common law doctrine that, “a possessor of land is not liable to persons outside the land for a nuisance resulting solely from a natural condition of the land." Id. at *12. Because the dam removal had simply returned the land to its natural condition, the plaintiffs had no claim against the persons who had lawfully removed the dam, regardless of whether the decreased water level caused damage to the plaintiffs’ properties. As the Court put it, “the condition of which Plaintiffs complain is the river's return to its natural level following the removal of an artificial impoundment. Thus, the alleged injury flows from the absence of an artificial condition and the watercourse's return to its natural state.” Id. at *13.
At present, the law in Virginia appears to be that waterfront property owners whose lands are affected by the lawful removal of a dam have no legal recourse against the person who removed it. This is one of the many reasons that Virginia residents who are thinking of purchasing waterfront property would be wise to consult an experienced riparian law attorney prior to making an offer. If you have concerns or questions regarding your rights pertaining to a dam, or about anything waterfront-related, our waterfront team can help.
Bryan Peeples is a Pender & Coward attorney focusing his practice in the areas of maritime and riparian law, eminent domain/right of way law, and worker’s compensation.