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REPLY TO: James C. Gulick Environmental Division jgulick@mail.jus.state.nc.us Telephone: 919/716-6600 Fax: 919/716-6767

September 15, 2003

Representative Jean Preston 603 Legislative Office Building Raleigh, NC 27603-5925

Re: Advisory Opinion concerning ownership of dredged fill and accretions on Bogue Banks at Bogue Inlet; N.C. Gen. Stat. §§ 146-6.

Dear Representative Preston:

You ask several hypothetical questions relating to ownership of land that might be created by dredging fill and accretion on Bogue Banks at Bogue Inlet. The questions pose different actions the Town of Emerald Isle hypothetically might take in relation to its effort to move the navigational channel in Bogue Inlet from its current location directly next to Bogue Banks toward the middle of the inlet approximately 3000 linear feet west of Bogue Banks (Emerald Isle) and approximately 4,000 linear feet east of Bear Island. The Town proposes to block the old navigational channel and to stabilize the inlet shoreline at Emerald Isle.

The Town contemplates blocking off (damming up) the old channel with a large sand deposit of dredged material inland (i.e., North) of the area of the western tip of Bogue Banks adjacent to a large sand spit that has formed there. The Town wants to assure that beaches created by its dredging and nourishment project, including any beach that is expected to be formed along the existing channel’s shoreline, will remain undeveloped public beaches vested in the State of North Carolina. In a conversation with the Town Manager after receiving your request, we ascertained that the Town’s primary concern is an area of channel shoreline where a number of houses in the Town of Emerald Isle are threatened by the channel’s eastward erosion. This area is inland of the COLREGS Demarcation Line,1 but well seaward (i.e., South) of the proposed

1 The COLREGS Demarcation Line is a useful tool in determining where the Ocean shoreline ends and the channel, or inlet, shoreline begins. It is the same as the

Representative Jean Preston September 15, 2003 Page 2

dam. You ask specifically:

Question 1: If the Town’s blocking off the old navigational channel in the manner described were to cause significant accretion along the old (existing) channel’s shoreline on Bogue Banks at Emerald Isle, would the accretion be owned by:

A. The current owner of the upland property pursuant to N.C. Gen. Stat. § 146-6(a) ; or

B. The prior owner of property that has already completely eroded away prior to the dredging project;

C. The State of North Carolina in trust for the public pursuant to N.C. Gen. Stat. § 146-6(f) [“land in or immediately along the Atlantic Ocean”] or N.C. Gen. Stat. § 146-6(a) ?

In our opinion, both our statutory and case law would make the current owner of the upland property the owner of the newly accreted land. Pursuant to N.C. Gen. Stat. § 146-6(a), “If any land is, by any process of nature. . ., raised above the high watermark of any navigable water, title thereto shall vest in the owner of that land which, immediately prior to the raising of the land in question, directly adjoined the navigable water.” "'Accretion' denotes the act of depositing, by gradual process, of solid material in such a manner as to cause that to become dry land which was before covered with water." State v. Johnston, 278 N.C. 126, 146, 179 S.E.2d 371, 384 (1971). It is a “process of nature.”

The State would not acquire any interest in the accreted land because N.C. Gen. Stat § 146-6(f) is inapplicable to the hypothetical question posed for two reasons. First, subsection (f) does not apply to lands raised by accretion. Rather in our opinion, it applies only where the new land is raised above the mean high water mark by direct deposit by man of dredging fill or spoil on the shore.

Second, subsection (f) explicitly applies only to the title to land “in or immediately along the Atlantic Ocean.” This hypothetical question, like those remaining, assumes that the deposition at issue is on the channel shoreline, as distinguished from the shore in or immediately along the Atlantic Ocean.

baseline of the State's territorial sea, which is determined according to the International Convention on the Territorial Sea and the Contiguous Zone. United States v. California, 381 U.S. 139 (1965). This line has been located at Bogue Inlet according to the International Regulations for Preventing Collisions at Sea, commonly known as "COLREGS," pursuant to 33 U.S.C. §§ 1601, et seq."

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Finally, the title of the previous owner, whose property had been completely washed away by erosion, was extinguished; it is not he, but the current owner, who would own the newly accreted land. Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297, 177 S.E.2d 513 (1970).

Question 2: If the Town were to directly place a portion of the dredged material along the old (existing) channel shoreline (i.e., beside the threatened homes) in Emerald Isle, thereby creating a small strip of land along that shoreline above the mean high water mark, would that newly created shoreline vest in the State?

Once again the answer is no. N.C. Gen. Stat § 146-6(f) is inapplicable again because the channel shoreline about which the Town is concerned is not “immediately along the Atlantic Ocean.” Instead, N.C. Gen. Stat. § 146-6(d) provides the answer. That section provides in pertinent part:

“[I]f in any process of dredging, by either the State or federal government, for the purpose of deepening any harbor or inland waterway, or clearing out or creating the same, a deposit of the excavated material is made upon the lands of any owner, and title to which at the time is not vested in either the State or federal government, or any other person, whether such excavation be deposited with or without the approval of the owner or owners of such lands, all such additions to lands shall accrue to the use and benefit of the owner or owners of the land or lands on which such deposit shall have been made, and such owner or owners shall be deemed vested in fee simple with title to the same.”

Thus, title to the raised lands would vest in the adjacent upland owner in accordance with N.C. Gen. Stat. § 146-6(d). The fact the Town, rather than the State directly, finances and conducts the dredging and filling makes no difference. The Town is a political subdivision of the State and, in our opinion, the legislature did not intend that the State would have greater rights if the Town, rather than the State, financed the project. Any accretion to those raised lands would vest in the owner of the raised lands, not the State, per N.C. Gen. Stat § 146-6(a).

Your third question contemplates that the title to the newly raised land in one or both of the first two questions would vest in the State. As neither of the methods described in Questions 1 or 2 would vest title in the State, this question is moot and we do not address it.

Question 4: Assuming that neither of the methods described in Questions 1 and 2 would vest title to the newly raised land in the State, can you identify any appropriate mechanism, either at the State or local level, that can be implemented to insure that no development of newly raised land at the channel shoreline of Bogue Inlet at Emerald Isle can occur?

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The newly raised lands would be within the Inlet Hazard Area of Environmental Concern designated by the Coastal Resources Commission in 15A N.C. Admin. Code 7H.0304(3) under the authority of the Coastal Area Management Act, N.C. Gen. Stat. §§ 113A-100, et seq. (“CAMA”). Therefore, any development must be consistent with CAMA permitting requirements. Additional protections against development could be obtained by obtaining from the upland owners the dedication of a conservation easement to the Town, in exchange for the deposition of fill materials on their lots.

If the dredged spoil material were used to create an island in the old channel, that island would belong to the State. “If an island is, by any process of nature or by act of man, formed in any navigable water, title to such island shall vest in the State and the island shall become a part of the vacant and unappropriated lands of the State.”

N.C. Gen. Stat. 146-6(d). Were the island by accretion then to become connected to privately owned property along the inlet shoreline, the State would retain its interest in what had been the island. The boundary line would be located at the point where the State-owned island and the private uplands eventually join. State v. Johnston, 278 N.C. at 146-147, 179 S.E.2d at 384. This, of course, could be an expensive operation with an uncertain outcome, depending as it would on accretion.

Please note that this opinion does not address what permits or other approvals may be required for this project. We trust this Advisory Opinion is helpful to you and the Town.

Sincerely,

James C. Gulick Senior Deputy Attorney General

J. Allen Jernigan Special Deputy Attorney General