Virginia Law

In order to conserve and utilize the otherwise wasted energy from the water powers in this Commonwealth, it is hereby declared to be the policy of the Commonwealth to encourage the utilization of the water resources in the Commonwealth to the greatest practicable extent and to control the waters of the Commonwealth, as herein defined, and also the construction or reconstruction of a dam in any rivers or streams within the Commonwealth for the generation of hydroelectric energy for use or sale in public service, all as hereinafter provided.

Code 1950, § 62-68; 1968, c. 659.

The provisions of this chapter shall apply only to public utilities as defined in § 56-232.

1981, c. 557.

The term "waters of the Commonwealth" as used in this chapter shall mean: (a) Any stream or that portion of any stream in this Commonwealth which prior to June 21, 1932, has been declared navigable by any unrepealed statute of this Commonwealth, or (b) any stream or that portion of any stream in this Commonwealth, the bed of which is owned by the Commonwealth, or (c) those parts of streams or other bodies of water in this Commonwealth which either in their natural or improved condition, notwithstanding interruptions between the navigable parts of such streams or waters by falls, shallows, or rapids, compelling land carriage, are used or suitable for use for the transportation of persons or property in interstate or foreign commerce, including therein all such interrupting falls, shallows or rapids, and also any stream or part thereof in this Commonwealth other than those above mentioned in this subdivision in which the construction of any dam or works as authorized by this chapter would affect the interests of interstate or foreign commerce, or (d) that portion of any river or stream flowing between the high-water mark on the Virginia shore and the low-water mark when such low-water mark constitutes the boundary line between Virginia and another state.

Code 1950, § 62-69; 1956, c. 229; 1968, c. 659.

The control and regulation on the part of the Commonwealth of the development of the waters of the Commonwealth shall be paramount, and shall be exercised through the agency of the State Corporation Commission, sometimes in this chapter referred to as the Commission; provided, however, nothing contained in this chapter shall deprive any riparian owner of any right which he may have, under existing law, except by due and further process of law upon the exercise of eminent domain and upon the payment of just compensation for any such right.

Code 1950, § 62-70; 1968, c. 659.

No person, firm, association or corporation, private or municipal, proposing to construct or reconstruct any dam across or in the waters of the Commonwealth, as defined in § 62.1-81, or a dam in any rivers or streams within the Commonwealth when such dam is for the purpose of generating hydroelectric energy for use or sale in public service, shall begin the construction or reconstruction of any such dam unless and until the provisions of this chapter shall have been complied with, and every such dam shall in every respect be subject to the provision of this chapter and such other general laws of the Commonwealth as may be applicable thereto. Nor shall any dam constructed or reconstructed after July 1, 1932, in any waters, rivers or streams within the Commonwealth, without a license under this chapter, be utilized at any time for the purpose of generating hydroelectric energy for use or sale, directly or indirectly, in public service, unless and until licensed or permitted so to do by order of the State Corporation Commission, after hearing, and finding that the public interest will be thereby promoted or will not be detrimentally affected.

Code 1950, § 62-71; 1968, c. 659.

The word "dam" as used in this chapter is intended to include the appurtenant pondage area or any part thereof.

Code 1950, § 62-72; 1968, c. 659.

The construction or reconstruction of any such dam as is mentioned in § 62.1-83 shall not be begun until the person, firm, association, corporation, private or municipal, or public utility as defined in § 56-232 proposing to construct or reconstruct the same shall first obtain a license so to do from the State Corporation Commission. The application for such license shall be filed with the Commission and in it all the essential facts shall be stated to enable the Commission to pass upon its merits. A copy of such application shall also be filed by the applicant with the Executive Director of the State Water Control Board within ten days after filing such application with the State Corporation Commission. Each application for license shall be accompanied by such maps, plans and other information as may be necessary to give a clear and full understanding of the proposed scheme of development, and of dams, generating stations or other major structures, if any, involved therein.

Code 1950, § 62-73; 1968, c. 659; 1982, c. 183.

As soon as practicable after the filing with the State Corporation Commission of any application for a license under the provisions of this chapter, the Commission shall set a day for a public hearing upon such application, and the applicant shall give notice to the public of the application, in form to be prescribed or approved by the Commission, by publication once in each week for four successive weeks prior to such hearing in a newspaper or newspapers of general circulation published in the city or county wherein the proposed construction, or the greater part thereof, is to be made and any adjoining or connecting county or city affected and every other county downstream from such development through which the stream runs to its mouth, if there be such newspaper, and, if there be no such newspaper, then by publishing the same in a newspaper of general circulation in such county or counties or cities affected. In such notice the date fixed by the Commission for the public hearing on the application shall be stated.

Code 1950, § 62-74; 1968, c. 659.

At such public hearing the applicant and any other interested person, firm, association or corporation shall be given an opportunity to present facts, evidence and argument for and against the granting of the application.

Code 1950, § 62-75; 1968, c. 659.

Before acting upon any application, the Commission shall weigh all the respective advantages and disadvantages from the standpoint of the Commonwealth as a whole and the people thereof and shall make such investigation as may be appropriate as to the effect of the proposed construction upon any cities, towns and counties and upon the prospective development of other natural resources and the property of others.

Code 1950, § 62-76; 1968, c. 659.

If the Commission shall be of the opinion from all the evidence before it that, in pursuance of the herein expressed policy of the Commonwealth to encourage water-power development, the plans of the applicant provide for the greatest practicable extent of utilization of the waters of the Commonwealth for which the application is made and that the applicant is financially able to construct and operate the proposed dam and works and that the general public interest will be promoted thereby, it shall grant the license to construct and operate the proposed dam and works.

Code 1950, § 62-77; 1968, c. 659.

If the Commission be of the opinion, from the evidence before it, that the prospective scheme of development is inadequate or wasteful or that the applicant is financially unable to construct and operate the proposed dam and works, or that it is prejudicial to the public interest, the Commission may require the applicant to modify the plans for the development in such manner as may be specified by the Commission or the Commission may reject the application.

Code 1950, § 62-78; 1968, c. 659.

In granting any license the Commission may include in the grant thereof such terms and conditions with respect to the character of construction, operation and maintenance of the proposed dam and works as may be reasonably necessary in the opinion of the Commission in the interest of public safety; and in granting every such license the Commission shall determine what provision, if any, shall be made by the licensee to prevent the unreasonable obstruction of then existing navigation or any unreasonable interference with stream flow. In the case of a dam located across any navigable waters of the United States, the owner shall make such provision for navigation as is required by the Secretary of the Army of the United States.

Code 1950, § 62-79; 1968, c. 659.

No priority of location or appropriation shall be recognized by the Commission in its consideration of any application for a license, under this chapter, except that in case of an application for a license for any reconstruction or enlargement of any existing development, the owner of such development shall be entitled to priority over any other applicant for a license for the construction of a development which would materially affect such existing development, and every such applicant for a license under this chapter shall give notice of his application within ten days after filing of the same with the State Corporation Commission to every other person, firm, association or corporation owning any other development which might be affected thereby, whose application for a license under this chapter would be entitled to priority if such application were filed. In case of conflict between two or more applicants, the Commission may grant the license to such applicant as it may deem best in the light of the considerations herein specified.

Code 1950, § 62-81; 1968, c. 659.

With respect to any license which may be granted, the Commission shall prescribe a time limit of not more than two years after the granting of such license for the commencement of the construction of the proposed dam and works of the applicant and of not more than five years after the granting of such license for the completion of such dam and works, either or both of which initial time limits may be extended for good cause from time to time in the discretion of the Commission.

Code 1950, § 62-82; 1968, c. 659.

All licenses granted under the provisions of this chapter shall remain in effect for a period of fifty years from and after the date of granting thereof. From and after the expiration of such terms of fifty years the licensee, its successors and assigns, shall hold the property and rights acquired under the authority of this chapter under an indeterminate license, which shall continue until such property and rights have been purchased by the Commonwealth, or until the same have been acquired by the Commonwealth by due process of law; provided that the right of the Commonwealth to take over, maintain and operate any development licensed under this chapter at any time by condemnation proceedings, upon payment of just compensation, is hereby expressly reserved.

Code 1950, § 62-83; 1968, c. 659.

In any valuation, for the purpose of rate making or for the purpose of acquisition by the Commonwealth by condemnation or by purchase as above provided for, or the property included in any development licensed under this chapter, there shall not be claimed by the licensee or allowed by the State Corporation Commission any value for the license granted by the Commonwealth for such development, or for the right of the licensee to utilize the natural resources owned by the Commonwealth and used by the licensee in connection with the construction, maintenance and operation of such development, nor shall there be claimed or allowed any appreciation on the intangible water-power value in excess of the fair intangible water-power value at the time of the granting of the license for the construction of such development, such intangible water-power value being distinguished from the value of land or an interest in land, or the right to flood or damage or otherwise utilize land, or to interfere with or to divert water, or to otherwise damage a riparian owner or owners of other real estate. The provisions contained in this section are hereby made an express condition of every license granted hereunder and to the exercise by the licensee of the right of eminent domain in this chapter conferred.

Code 1950, § 62-84; 1968, c. 659.

No voluntary transfer or assignment of any license granted under this chapter shall be made to any transferee or assignee unless he be financially able to carry out the project or development, nor shall any such voluntary transfer or assignment be valid or of any effect whatsoever unless the same shall be in writing and a copy thereof be filed with, and approved by, the Commission, provided that any mortgage or trust deed, or foreclosure under any mortgage or deed of trust, or any judicial or tax sale, merger or consolidation, or any sale of the greater part of the property of the licensee in the Commonwealth, shall not be deemed a voluntary transfer within the meaning of this chapter. Any successor or assignee of the rights of the licensee, whether by voluntary transfer, judicial sale, foreclosure sale or otherwise, shall be subject to all of the obligations, liabilities and conditions incident to such license to the same extent as though such successor or assignee were the original licensee.

Code 1950, § 62-85; 1968, c. 659.

In event of violation by the licensee of any of the terms of a license, or for the purpose of remedying by injunction, mandamus or other process any act of commission or omission by the licensee in violation of any of the provisions of this chapter, or of any lawful regulation or order promulgated in pursuance thereof, the Attorney General of this Commonwealth shall, upon request of the Commission, institute proceedings in the Circuit Court of the City of Richmond in the name of the Commonwealth at the relation of the Commission for the purpose of compelling the licensee to comply with the provisions of the license or of this chapter, or for the purpose of revoking the right of the licensee to proceed further under the license, or similarly as to a specified portion or portions of the development which is under license. The court shall have jurisdiction over all of the above-mentioned proceedings and shall be empowered to issue and execute all necessary process and to make and enforce all writs, orders and decrees to compel compliance with the lawful orders and regulations of the Commission and to compel the performance of any condition imposed under the provisions of this chapter. If a decree is entered by the court revoking the right of the licensee to proceed further with the development under license, or similarly with respect to a specified portion or portions of the development under license, the court is empowered to sell at public sale to the highest responsible bidder the property and rights of the licensee used or useful in connection with such development or such specified portion thereof, to distribute the proceeds to the parties entitled thereto and to make and enforce such further or other orders and decrees as equity and justice may require. At such sale or sales the vendee shall succeed to the rights and privileges of the licensee with respect to such development or such specified portion thereof and shall perform all the duties of the licensee under the license and assume all such outstanding obligations and liabilities of the licensee as the court may deem equitable in the premises.

Code 1950, § 62-86; 1968, c. 659.

In addition to any right or power of eminent domain that it may have under existing law, every public service corporation engaged in the development of waterpower in this Commonwealth for the production, sale and supply of hydroelectric power and energy to the public shall be vested with the right of eminent domain to the full extent requisite for the acquisition of all lands, property and rights necessary for the purpose of the construction, enlargement, maintenance or operation of any dam, reservoir, power station and/or other structures of any such water-power development, subject to the following provisions:

1. Such corporation may, by the exercise of such right for such purpose, acquire all necessary lands, property and rights of whatsoever nature, whether or not such lands, property or rights have been theretofore appropriated or devoted, or sought to be appropriated or devoted to public use, including but not restricted to, the lands, property and rights necessary for any storage, diversion, regulation, detention, or interference with the flow of any water and for any waterway and including also, but not restricted to, any lands, structures, property or rights owned, used or held by or for public or private, religious, charitable, educational or cemetery purposes; any dwelling houses and any public or private roads and bridges, and any other property, public or private, when necessary for such purpose; provided, however, that the right of eminent domain under this section shall not be available against existing public-carrier railroads; and provided further that, in the event of the condemnation under this chapter of any roads or bridges, the commissioners or jurors in assessing the compensation and damages therefor, shall consider the cost of relocating and constructing such roads or bridges upon other reasonable convenient locations, and the damage, if any, to persons and corporations because of relocation and construction. No such corporation shall impair the drinking water supply of any city or town or acquire any municipal electric light and power or water plant by virtue of any additional powers conferred by this chapter; provided further that the provisions of this section shall not be construed to authorize the acquisition by condemnation or otherwise of any streets or alleys or portions thereof in incorporated cities or towns.

2. When, in the operation of any dam, power station or other structure of a water-power development, any such public service corporation interferes, to an extent beyond its common-law riparian rights, with the flow of water downstream from such structure and by reason of such interference any property or riparian right, or any part thereof or interest therein, is destroyed or damaged, such corporation may exercise the right of eminent domain for the purpose of acquiring such property, right or interest so destroyed or of ascertaining and paying just compensation for any such damage.

3. In connection with the exercise of the right of eminent domain over public and private cemeteries, such corporation shall also have the right to acquire by condemnation proceedings other lands to which to remove the bodies and monuments or other structures from such public or private cemeteries. All the rights of the owners, including the Commonwealth, in and to the lands in such cemeteries shall pass to and vest in such corporation and the title to the lands acquired for the removal of such cemeteries shall vest in the former owners and such others as may have rights therein of such cemeteries so removed. However, before such corporation may flood or otherwise utilize any such cemetery, it shall remove the bodies and monuments or other structures to the lands acquired for such purpose and reinter the bodies and reset the monuments, under the direction and to the satisfaction of the court in which such condemnation proceedings are brought. If the parties in interest fail to agree as to the location and area of the additional lands to be acquired in which to reinter the bodies and on which to rest the monuments and other structures, the same shall be determined by the court.

4. For the purpose of relocating any railway, pipeline, wire line, road or bridge occupying the area on which any such water-power development or enlargement thereof is to be located, such corporation may acquire by the exercise of the right of eminent domain, any needful additional lands or other property, whether within or without the area upon such water-power development or enlargement thereof is to be located, and shall have the right for such purpose and shall convey such lands or other property or rights to the owner of such railway, pipeline, wire line, road or bridge.

5. In all cases of the exercise of such right of eminent domain just compensation shall be paid to the owners and tenants of the property taken or damaged, in the manner provided by law for all property taken or damaged. The proceedings for this purpose shall be in accordance with Chapter 2 (§ 25.1-200 et seq.) of Title 25.1 and other provisions of law. As to any part of the real estate sought to be taken for any of the purposes authorized in this chapter, such corporation may describe in its application for condemnation an estate or interest therein of a fee or less than a fee and, upon payment therefor, such estate or interest as is stated and described in such application shall vest in such corporation; but when less than a fee is taken, the commissioners or jurors in assessing damages shall take into consideration the actual damage that is done or that may be done to the fee by such taking, including the use to which the property so taken will be put by such corporation. However, nothing contained in § 62.1-97 shall deprive any owner of property of any right to receive just compensation and damages as provided by law, upon the exercise of the right of eminent domain by any licensee under this chapter.

6. Any public service corporation that shall exercise any of the additional powers of eminent domain granted in this chapter and not existing under the law in effect January 1, 1928, shall thereby be conclusively deemed to have agreed, as a condition precedent to the exercise of such powers, to be bound by all of the provisions of this chapter.

Code 1950, § 62-87; 1968, c. 659; 2003, c. 940; 2006, c. 586; 2010, c. 835.

Section 12 of Chapter 424 of the Acts of 1928, approved March 24, 1928, as amended by Chapter 346 of the Acts of 1932, approved March 26, 1932, codified as § 3581 (13) of Michie Code 1942 and as § 62-88 of the Code of Virginia of 1950, relating to water-power developments constructed or acquired prior to January 1, 1928, and being utilized on that date or within two years prior thereto, or upon which, between January 1, 1923, and June 17, 1928, not less than $50,000 had been expended, is continued in effect.

Code 1950, § 62-88; 1968, c. 659.

The Commission shall have the power to make such reasonable rules and regulations as may be necessary to administer the provisions of this chapter and to require licensees hereunder to render to it from time to time such reports as may be reasonably necessary. It shall have the power to employ expert engineers or other experts or persons to examine and report upon projects as proposed in applications for licenses, or the structures thereof, or upon plans submitted after the issuance of licenses covering additional details or succeeding stages of construction.

Code 1950, § 62-89; 1968, c. 659.

No alteration, amendment or repeal of this chapter shall, without the consent of the licensee, affect any license granted under the provisions of this chapter, nor shall it affect the provisions, terms and conditions of such license nor the rights of the licensee thereunder.

Code 1950, § 62-92; 1968, c. 659.

The provisions, terms, and conditions of any license may be altered or amended at any time by mutual consent of the licensee and the Commission, to the extent such alteration or amendment is not in conflict with the then existing law of the Commonwealth.

Code 1950, § 62-93; 1968, c. 659.

Nothing contained in this chapter shall be so construed as to interfere with the exercise of lawful jurisdiction of the government of the United States, or its duly constituted agencies, over the waters of the Commonwealth as herein defined.

Code 1950, § 62-94; 1968, c. 659.