Summer is here – humid days, hot sun and lots of mosquitoes.  All three of these can be temporarily dispelled by a quick swim in the river…unless, of course, you are visiting one of the local state parks.
 
Upon reading the signs posted along the shoreline – which are required by the Richmond central office, it prompted me to send the following request for an opinion from our Attorney General:
 

Dear Attorney General Mims,
 
I am writing to request an Attorney General’s opinion regarding Virginia’s Department of Conservation and Recreation’s policy of only allowing state park visitors to wade into the public waters which are adjacent to certain Virginia parks.  This ‘no swimming’ policy is, while perhaps well intentioned, in my mind, ‘nanny-istic’.  More importantly, I fail to recognize the statutory authority by which any riparian owner can prohibit activity in publicly owned waters, or on publicly owned bottom land.

 A park ranger informed me that this policy was in place because of ‘liability issues’.  Due to the doctrine of sovereign immunity, I fail to understand the ‘liability issues’ argument.  And, if there are ‘liability issues’, would not the Department of Game and Inland Fisheries also have ‘liability issues’ from all of their boat ramps?  What about a state university which owns a waterfront parcel?  To the extent that an individual’s family can sue the Commonwealth because their family member drowned in state owned waters, should we ban all boats from waters in the Commonwealth?  It seems to me that unless all common sense has died, a sign simply stating ‘Swim At Your Own Risk’ is sufficient public precaution.
 
My rationale is simple:  it is clearly established that boats, floating blinds and other such activities can take place in the public waters up to the mean low water line of a riparian owner. Therefore, if an individual is wading in the seaward direction from state owned uplands, they are immediately on the publicly owned bottom land once they traverse the mean low water line.  Thus, does not the authority of the upland owner stop at the mean low water line?  Accordingly, I fail to understand by what statutory authority the park system can prohibit swimming in water it does not own.

 
To put this another way, is there anything that the Department of Conservation and Recreation, or any private owner, could do to prevent a swimmer from swimming in public waters adjacent to their land?  If the answer to this is no, then clearly the Department of Conservation and Recreation’s policy is outside the bounds of the law.