After Congress deauthorized the federal Stonington Harbor breakwater in 2016, who owns it and who is responsible for maintaining it?

Plain-English summary

The Stonington Harbor Breakwater was built by the U.S. Army Corps of Engineers between 1828 and 1832 to protect the harbor from south-southeast storm swells off the open Atlantic. The federal government effectively abandoned the project under the Rivers and Harbors Act of 1950 but kept formal authorization on the books until December 2016, when Section 1313 of the Federal Water Infrastructure Improvements for the Nation Act expressly deauthorized it. After deauthorization, no one was certain who owned the structure or who had to maintain it. The Department of Energy and Environmental Protection asked the AG.

The AG's answer was straightforward: Connecticut owns both the breakwater and the submerged lands it rests on, and DEEP regulates its maintenance. Three legal threads led to that conclusion. First, federal law (the Submerged Lands Act, 43 U.S.C. § 1311) confirms that title to lands beneath navigable waters within state boundaries belongs to the states. Second, Connecticut's public trust doctrine and statutory framework treat the state as trustee of those submerged lands and of structures resting on them. Third, federal deauthorization releases the federal government's interest in structures it built under the navigational servitude, and there is no authority by which a municipality, political subdivision, or private party could claim title to the breakwater.

DEEP's regulatory jurisdiction follows from Conn. Gen. Stat. § 22a-359 et seq., which gives the agency authority over structures in tidal, coastal, or navigable waters waterward of the coastal jurisdiction line.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The breakwater's history illustrates how a 19th-century federal coastal-protection project can become a 21st-century state ownership puzzle. An 1828 letter from the Secretary of War transmitted a survey and report recommending that Congress fund a sea-wall to protect the harbor. The Act of May 23, 1828 authorized construction. The Corps built the structure between 1828 and 1832. The Rivers and Harbors Act of 1950 effectively abandoned the project, but the Department of the Army's October 21, 2014 letter to Senator Blumenthal explained that prudent practice was to seek explicit congressional deauthorization. Section 1313 of the Federal Water Infrastructure Improvements for the Nation Act (P.L. 114-322), effective December 16, 2016, accomplished that.

For ownership of the underlying lands, the AG started with the Submerged Lands Act. 43 U.S.C. § 1311(a) declares that title to lands beneath navigable waters within state boundaries is "in the public interest" vested in the respective states, and § 1311(b) releases all federal interest in those lands. Section 1312 sets the seaward boundary of state jurisdiction at three geographical miles from the coast. Connecticut's public trust doctrine, drawn from common law, treats the state as trustee of waters and submerged lands waterward of the mean high tide line. Conn. Gen. Stat. § 22a-15 puts the state's air, water, and natural resources in public trust. Section 22a-94(b) defines the coastal boundary as continuous on the seaward side by the seaward extent of state jurisdiction. Section 22a-93(6) defines a public beach as "that portion of the shoreline held in public fee ownership by the state or that portion of the shoreline below the mean high tide elevation that is held in public trust by the state." DEEP confirmed that the breakwater sits entirely below the mean high tide line. The state therefore holds the underlying land in public trust.

For ownership of the structure itself, federal law was less direct. While 33 U.S.C. § 579a addresses deauthorization of navigable-waterway construction projects, no federal statute prescribes who owns a deauthorized structure. The October 2014 letter from the Department of the Army indicated that, in the Army's view, deauthorization extinguished any federal interest. The structure was originally built under the navigational servitude (the federal commerce-power authority over navigable waters first articulated in Gibbons v. Ogden), so until deauthorization the breakwater was federal property. After deauthorization, ownership defaulted to the next entity with an interest in the underlying land. That, the AG reasoned, was the State of Connecticut.

The AG also addressed the Coast Guard's continued operation of a navigation light on the seaward end of the breakwater. The opinion noted that DEEP should contact the Coast Guard, which may not have known the underlying breakwater had been deauthorized.

For DEEP's role going forward, Conn. Gen. Stat. § 22a-359 et seq. gives DEEP regulatory authority over structures in tidal, coastal, or navigable waters of the state waterward of the coastal jurisdiction line. That maps onto the breakwater's location and disposes of the question of which agency oversees its maintenance.

Common questions

What about the town of Stonington? Could it claim ownership?

No. The opinion specifically considered whether a municipality, political subdivision, or private party might claim an interest, and found no statutory or other legal authority by which any of them could. None of those entities had ever held an ownership interest in the structure, and no part of the breakwater rests on land owned by them.

Does the state's ownership mean the state must maintain the breakwater?

The opinion answered the legal-ownership question, not the budget question. DEEP regulates maintenance under Conn. Gen. Stat. § 22a-359 et seq., but who actually pays for repair, restoration, or removal is a separate matter for the legislature, DEEP, and any willing partners (federal, municipal, or private) to work out.

What about the navigation light operated by the Coast Guard?

The Coast Guard operates a navigation light on the seaward end. The AG flagged that the Coast Guard may not have been aware that the underlying breakwater had been deauthorized and recommended the State contact them. The state's ownership of the breakwater does not necessarily affect the Coast Guard's continuing federal authority to operate aids to navigation, but the relationship needs to be addressed.

How general is this analysis to other deauthorized federal harbor structures?

The framework (federal navigational servitude, Submerged Lands Act, state public trust doctrine, default to state ownership after deauthorization) is broadly applicable. Each project requires fact-specific analysis of where the structure sits relative to the mean high tide line, whether any private parties have claims, and what state statute identifies the regulatory agency.

Citations

Statutes and federal authorities

• 43 U.S.C. § 1311(a)-(b) (Submerged Lands Act, state title to lands beneath navigable waters)
• 43 U.S.C. § 1311(d) (federal reservation for navigation purposes)
• 43 U.S.C. § 1313(c) (federal exception for structures built under navigational servitude)
• 43 U.S.C. § 1312 (three-mile seaward boundary)
• 33 U.S.C. § 579a et seq. (deauthorization framework)
• Conn. Gen. Stat. § 22a-15 (public trust in air, water, natural resources)
• Conn. Gen. Stat. § 22a-93(6) (public beach definition)
• Conn. Gen. Stat. § 22a-94(b) (coastal boundary)
• Conn. Gen. Stat. § 22a-359 et seq. (DEEP regulatory authority over coastal structures)
• Act of May 23, 1828 (4 Stat. 288, ch. 73) (original authorization)
• Section 1313, Water Infrastructure Improvements for the Nation Act, P.L. 114-322 (2016 deauthorization)

Cases

• Gibbons v. Ogden, 22 U.S. 1 (1824) (federal navigational servitude)
• Leydon v. Town of Greenwich, 257 Conn. 318 (2001) (Connecticut public trust doctrine)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2017/2017-04_stonington_harbor-pdf.pdf?rev=1418572270154e5da47b46fe32caec6c

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120

GEORGE JEPSEN
ATTORNEY GENERAL

Office of the Attorney General (860) 808-5319

State of Connecticut
May 8, 2017

The Honorable Robert J. Klee
Commissioner
State of Connecticut
Department of Energy and Environmental Protection
79 Elm Street
Hartford, CT 06106

Dear Commissioner Klee:

You have asked my office for an opinion identifying the owner of a structure commonly known as the Stonington Harbor Breakwater, which is located in the Stonington Harbor adjacent to Stonington, Connecticut (the "Breakwater"). You also seek an opinion to identify the owner of the lands upon which the Breakwater rests. Determining the answers to these questions will facilitate the preservation and maintenance of the Breakwater.

We conclude that the State of Connecticut is the owner of the Breakwater and the lands on which it rests. We further conclude that the Department of Energy and Environmental Protection ("DEEP") is responsible for regulating the maintenance of the Breakwater.

I. Background.

A letter and accompanying report from the Secretary of War to the U.S. House of Representatives dated February 28, 1828 (attached to this opinion as Exhibit A) indicates that the Breakwater was constructed by the federal government for the protection of the Stonington Harbor, and vessels traveling or moored within the harbor, from potential damage caused by ocean currents. The construction of the Breakwater was originally authorized by the Act of May 23, 1828 (4 Stat. 288, chapter 73). See Section 1313 of the Federal Water Infrastructure Improvements for the Nation Act, Public Law No. 114-322 (attached to this opinion as Exhibit B).

A letter dated October 21, 2014 from the Department of the Army (the "Department") to United States Senator Richard Blumenthal (attached to this opinion as Exhibit C), states that the Breakwater was constructed by the U.S. Army Corps of Engineers during the time period from 1828 to 1832. The letter further states that the Breakwater was subsequently abandoned pursuant to the Rivers and Harbors Act of 1950. Despite this, the Department believed it prudent that the Breakwater be specifically deauthorized by the U.S. Congress. It was the Department's opinion that once the Breakwater was so deauthorized, it would be up to the State of Connecticut (the "State") to determine the ownership of the Breakwater based on the application of appropriate state law.

Section 1313 of the Federal Water Infrastructure Improvements for the Nation Act deauthorized the Breakwater as a Federal project as of December 16, 2016, the effective date of the Act. See Exhibit B. Because the Breakwater has been deauthorized by the federal government, the question of its subsequent ownership has arisen and prompted this opinion.

II. Discussion.

Before turning to the ownership of the Breakwater itself, it is helpful first to address the ownership of the land on which the Breakwater rests. Federal law provides that it is "in the public interest that . . . title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and . . . the right and power to manage, administer, lease, develop, and use [those] lands," be vested in the respective states. See 43 U.S.C. § 1311(a). The federal government further releases to the states "all right, title and interest" it has in and to those lands. See 43 U.S.C. § 1311(b). Thus, under federal law, the general rule is that if land is within the navigable waters of a State's boundaries, it is owned by the State.

The "public trust doctrine," which has its roots in both statutory and common law, provides further guidance on the issue of land ownership. In Connecticut (and elsewhere), the term "public trust doctrine" traditionally has been used to refer to the body of common law under which the State holds in trust for public use title to waters and submerged lands waterward of the mean high tide line. See Leydon v. Town of Greenwich, 257 Conn. 318, 332 n.17, 777 A.2d 552 (2001). Under Connecticut statutory law, as set forth in Conn. Gen. Stat. § 22a-15, there is a public trust in the air, water, and other natural resources of the State. Connecticut statutes also establish a "coastal boundary," which is defined in Conn. Gen. Stat. § 22a-94(b) as "a continuous line delineated . . . on the seaward side by the seaward extent of the jurisdiction of the state." This shows an assumption by the legislature that the State has jurisdiction over this area (thus mirroring federal law). Further, Connecticut statutes define a "public beach" as "that portion of the shoreline held in public fee ownership by the state or that portion of the shoreline below the mean high tide elevation that is held in public trust by the state." Conn. Gen. Stat. § 22a-93(6) (emphasis added).

Thus, the Connecticut legislature intended to place the waters of the State in public trust, to establish a boundary with regard to the coastal waters that are subject to the jurisdiction of the State, and for the State to hold in public trust the portion of the shoreline below the mean high tide line. Further, Connecticut common law provides that the State holds in trust for public use title in waters and submerged lands waterward of the mean high tide line. See Leydon, supra. Finally, federal law indicates that it is in the public interest for the states to own such lands and that the federal government has released such lands to the states. Accordingly, we conclude that the lands within the jurisdiction of the State that are located seaward of the mean high tide line are held in public trust by the State. DEEP has informed us that the land upon which the Breakwater rests is located entirely below the mean high tide line and within the State's jurisdictional boundary. Therefore, we conclude that the State holds such land in trust for public use.

Turning to the issue of the ownership of the Breakwater, while federal law addresses the concept of deauthorization of no longer viable federal navigable waterway construction projects (see, e.g. 33 U.S.C. § 579a, et seq.), the statutes provide no direct guidance regarding the practical impact of such a deauthorization. However, based upon the October 21, 2014 letter from the Department to Senator Blumenthal, it seems clear that the Department takes the position that a deauthorization means the U.S. Government no longer holds any interest in the project in question. Given the federal government's deauthorization of the Breakwater, it is necessary to determine the Breakwater's current owner.

As noted above, the federal government has released to the states all right, title and interest it has in and to lands beneath the navigable waters within the states' boundaries. See 43 U.S.C. § 1311(b). Notwithstanding the foregoing, the United States specifically reserves for itself, subject to its constitutional authority, the use, development, improvement, and control of such lands and waters for the purposes of navigation and to regulate and improve navigation (among other things). See 43 U.S.C. § 1311(d).

In addition to the reservation contained in 43 U.S.C. § 1311(d), the federal government specifically excepts from state control under 43 U.S.C. § 1311 "all structures and improvements constructed by the United States in the exercise of its navigational servitude." See 43 U.S.C. § 1313(c). The doctrine of navigational servitude (or navigable servitude) gives the federal government the right to regulate navigable waterways as an extension of the Commerce Clause of the United States Constitution. See Gibbons v. Ogden, 22 U.S. 1, 197 (1824). We believe the Breakwater was constructed by the federal government in furtherance of its navigational servitude because the Breakwater's express purpose was to protect Stonington Harbor and the vessels that traveled to and from the harbor. See Exhibit A. Thus, until its deauthorization, the Breakwater was the property of the United States.

Because the federal government has abdicated its interest in the Breakwater, it is our opinion that ownership now goes to the State. As discussed above, DEEP has informed us that the Breakwater sits entirely upon lands located below the mean high tide line, which are lands held by the State in trust for the public. See Leydon, supra. Given this, and the relevant statutory and common law discussed above, the State becomes the next logical owner of the Breakwater. Further, we are aware of no statutory or other legal authority by which a municipality, other political entity or subdivision, or private party could lay claim to an ownership interest in it. No part of it rests on the land of any such entities or individuals, and no such entity or individual has ever held any ownership interest in it.

Regarding the state agency responsible for managing the Breakwater, Connecticut statutes provide that DEEP shall regulate, among other things, the erection and maintenance of structures and work incidental thereto in the tidal, coastal or navigable waters of the state waterward of the coastal jurisdiction line (i.e. the mean high tide line). See Conn. Gen. Stat. § 22a-359, et seq. Thus, it is our opinion that DEEP is responsible for the regulation of the maintenance of the Breakwater.

III. Conclusion.

Based upon our review of the relevant federal and state statutes, common law, and the specific facts of this matter, it is the opinion of this office that the State of Connecticut is now the owner of the Breakwater, along with the lands upon which it rests. DEEP is the state agency charged with regulating the maintenance of the Breakwater.

Very truly yours,

GEORGE JEPSEN
ATTORNEY GENERAL

Note: We have been informed that the United States Coast Guard owns and operates an aid to navigation (specifically a navigation light or beacon) installed on the waterward end of the Breakwater. We do not know whether the Coast Guard is aware that the Breakwater has been deauthorized by the federal government. We think it would be prudent for the State to contact the Coast Guard to discuss this situation.