Ezel / AG Opinions / MS
MS 2024-04-M-Watson-April-9-2024-Placement-of-Breakwater-on-Tidelands April 9, 2024

Can a Mississippi waterfront homeowner build a living shoreline breakwater without leasing the underlying state tidelands?

Short answer: Often yes, no lease needed. If a breakwater qualifies as an 'other structure' under § 49-15-9 (a littoral right), § 29-15-5(2) lets a residential property owner build it on tidelands without a Secretary of State lease. Artificial accretions, though, do not increase the upland owner's land.
Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.
View original AG opinion (PDF)

Plain-English summary

Mississippi's tidelands belong to the state, held in trust for the public. The Secretary of State is the trustee and manager of those tidelands and is generally the official who decides whether someone can lease them for a permanent structure. The Department of Marine Resources (DMR) handles separate environmental permitting under the Coastal Wetlands Protection Law and General Permits from the Army Corps of Engineers. The two regimes overlap but are distinct: a DMR permit is not a tidelands lease, and a tidelands lease is not a DMR permit.

Secretary Watson asked the AG four questions about residential homeowners building "living shoreline" breakwaters (sloped structures of natural materials like sand, rock, and plants designed to reduce erosion and stabilize the shoreline). The core question: do these homeowners need to lease the underlying tidelands from the Secretary of State?

The AG's answer is conditional but generally favorable to homeowners. Section 29-15-5(2) says: "Residential property owners shall not be required to obtain a tidelands lease for exercising their common law and statutory littoral and riparian rights." Those rights, codified in § 49-15-9, include "the sole right of planting, cultivating in racks or other structures, and gathering oysters and erecting bathhouses and other structures in front of any land bordering on the Gulf of Mexico or Mississippi Sound." If a breakwater is an "other structure" under § 49-15-9, then a residential owner can place it without a tidelands lease.

The AG was careful not to make the factual call: he did not declare every breakwater an "other structure," and he flagged the Secretary's own administrative rules (Rule 4(C) of the tidelands rules) as the practical guide. Under those rules, no tidelands lease is required for structures under DMR General Permits MS-GP-02 or MS-GP-04 if the combined non-pier structure footprint is under 1,000 square feet and the use is non-commercial.

The other three questions:

  • Can the Secretary require an agreement that the current high-water mark is the boundary, excluding artificial accretions? No statutory authority for that specific requirement. But the existing law in § 29-15-7(2) already produces that result: natural accretions increase the upland owner's land; artificial accretions (like land that builds up because of a homeowner-built living shoreline) do not.

  • Are there any other state-law limits on the Secretary's consent? None beyond what is already discussed. And the Secretary's consent is only needed when a tidelands lease is required.

  • If DMR permits a living shoreline under the Army Corps General Permit, does the homeowner still need Secretary of State consent? DMR permitting and tidelands leasing are separate. DMR consent is not the Secretary's consent. Whether the Secretary's consent is needed loops back to question 1: it depends on whether a tidelands lease is needed, which depends on the residential littoral-rights exception.

What this means for you

If you own waterfront property on the Mississippi Gulf Coast and want to build a living shoreline

You probably do not need a tidelands lease from the Secretary of State if (a) your project qualifies as exercising your littoral rights under § 49-15-9 and (b) you are doing it as a residential, non-commercial owner. The Secretary's tidelands rules give you a clean safe harbor: structures built under DMR General Permits MS-GP-02 or MS-GP-04, under 1,000 square feet of combined non-pier structures, non-commercial. If your project fits that safe harbor, get the DMR permit, follow the General Permit conditions, and move forward. If your project is bigger or might be commercial (e.g., a marina component), call the Secretary of State's office and ask about a tidelands lease.

A practical caveat: a living shoreline can build up sand and natural materials behind it. That is "artificial accretion." Section 29-15-7(2) does not give you ownership of that built-up land. The water-side boundary of your property does not move out as the living shoreline does its work. If you want certainty about where your property line ends and state tidelands begin, get the boundary settled before you build.

If you are at the Secretary of State's Public Lands Division

The opinion confirms that your office's authority kicks in only when a tidelands lease is needed, and that residential exercise of littoral rights typically does not require a lease. The opinion does not expressly authorize you to require homeowners to sign agreements fixing the boundary at the current high-water mark and excluding artificial accretions, but the same result already follows from § 29-15-7(2). If a homeowner asks for a clarifying agreement (so a future buyer or appraiser does not have to relitigate the question), nothing in the opinion stops you from offering one; it just is not something you can require.

If you are at DMR

The opinion reinforces the institutional separation. DMR permits the regulated activity under the Coastal Wetlands Protection Law; the Secretary leases the tidelands. Both can be needed for the same project. Your permit decision does not bind the Secretary, and the Secretary's lease decision does not bind you. The Watts and Stewart cases support that division.

If you are a real estate attorney advising coastal clients

Two practical points. First, a buyer doing due diligence on a waterfront property with an existing living shoreline should look at when it was built, what it is built of, whether it is on tidelands, and whether DMR permitted it. Second, the rule that artificial accretions do not enlarge the upland owner's tract matters for surveying and title work. Old surveys may not match the current shoreline, and the property line on the water side stays at the original (pre-living-shoreline) high-water mark.

If you are a coastal city or county

This is largely state-tidelands law, not local zoning. But if your local rules touch construction in coastal wetlands or shoreline structures, the AG's opinion is a reminder that DMR permitting and Secretary of State leasing run separately from your local approvals. The opinion explicitly noted the AG cannot opine on local ordinances.

Common questions

Q: What exactly is a living shoreline?
A: From the NOAA Fisheries definition the AG quoted: a "protected, stabilized coastal edge made of natural material such as plants, sand, or rock" that "connect[s] the land and water to stabilize shorelines, reduce erosion, and provide valuable habitat that enhances coastal resilience." It is the eco-friendly alternative to seawalls and bulkheads.

Q: Are breakwaters "other structures" under § 49-15-9 or not?
A: The AG declined to answer that with finality. The statute says "other structure," which is broad and open-ended, and the AG noted that "if it is determined that the placement of a breakwater constitutes an 'other structure,'" the residential littoral-rights exception applies. The factual call on whether a particular breakwater fits is left to the Secretary's office (and ultimately the courts).

Q: What is the difference between a tidelands lease and a DMR permit?
A: A tidelands lease is a property-rights instrument from the Secretary of State authorizing use of state-owned trust land. A DMR permit is an environmental authorization under the Coastal Wetlands Protection Law for activities affecting coastal wetlands. They serve different purposes and are issued by different officials. Some projects need both; some need only one.

Q: I built a living shoreline. Did my property line move out into the water?
A: No. Mississippi distinguishes natural from artificial accretion. Natural accretion (where a river or sea naturally deposits sand against your shore over time) increases the upland owner's land under § 29-15-7(2). Artificial accretion, including buildup behind a homeowner-built living shoreline, does not. Bayview Land discusses the doctrinal background.

Q: Can the Secretary of State say no to a residential breakwater that doesn't need a lease?
A: The AG's answer is essentially: the Secretary's authority is keyed to the lease requirement. If no lease is needed, the Secretary does not have a separate consent power to say no. DMR may still say no as part of its environmental permitting. And other agencies, federal permitting, and local rules may apply.

Q: Does this opinion cover commercial waterfront uses?
A: No, the residential exception in § 29-15-5(2) is specific to residential property owners. The Secretary's Rule 4(C)(2) makes the same point: leases are required of commercial and industrial applicants and for commercial and industrial use of littoral and riparian rights.

Background and statutory framework

Mississippi tidelands are state property held in trust. Stewart v. Hoover, 815 So. 2d at 1159 ("It is a well-established principle of law that lands covered by tide waters within a state belong to the state in which they are found."). Section 29-15-5(1) codifies the trust: "Tidelands and submerged lands are held by the state in trust for use of all the people."

Section 29-15-3(1) sets the public policy direction: "It is declared to be the public policy of this state to favor the preservation of the natural state of the public trust tidelands and their ecosystems and to prevent the despoliation and destruction of them, except where a specific alteration of specific public trust tidelands would serve a higher public interest in compliance with the public purposes of the public trust in which such tidelands are held."

Section 7-11-11 and § 29-1-107(2)(a) make the Secretary of State the trustee and manager of state-owned tidelands and submerged lands and give the Secretary, with the Governor's approval, leasing authority.

Section 29-15-9 generally requires a tidelands lease for "permanent structures" on state-owned waterbottoms. Nelson (Sept. 18, 1998) confirms the rule. But § 29-15-5(2) carves out residential property owners exercising littoral and riparian rights.

The littoral and riparian rights themselves are in § 49-15-9: planting/cultivating oysters, erecting bathhouses and "other structures" in front of land bordering the Gulf of Mexico or Mississippi Sound, extending out 750 yards (or to the midline if the distance from shore to shore is less than 1,500 yards). The right is subject to the Coastal Wetlands Protection Law (§§ 49-27-1 et seq.).

DMR's authority over coastal wetlands runs through the Coastal Wetlands Protection Law and § 49-15-11(1). DMR permits regulated activities; the Secretary leases tidelands. Watts v. Lawrence and Stewart both treat the two regimes as separate.

The accretion rule in § 29-15-7(2) is the boundary backstop. Natural accretions enlarge the upland owner's land; artificial accretions do not.

Citations

  • Miss. Code Ann. § 7-11-11
  • Miss. Code Ann. § 29-1-107(2)(a)
  • Miss. Code Ann. §§ 29-15-1 et seq.
  • Miss. Code Ann. § 29-15-3(1)
  • Miss. Code Ann. § 29-15-5(1), (2)
  • Miss. Code Ann. § 29-15-7(2)
  • Miss. Code Ann. § 29-15-9
  • Miss. Code Ann. § 49-15-9
  • Miss. Code Ann. § 49-15-11(1)
  • Miss. Code Ann. §§ 49-27-1 et seq.
  • Miss. Code Ann. § 49-27-3
  • Miss. Code Ann. § 49-27-5(c)
  • Miss. Code Ann. § 49-27-7
  • Miss. Code Ann. § 49-27-9(1)
  • Miss. Code Ann. § 7-5-25
  • Stewart v. Hoover, 815 So. 2d 1157 (Miss. 2002)
  • Bayview Land, Ltd. v. State ex. rel. Clark, 950 So. 2d 966 (Miss. 2006)
  • State by and through Watson v. RW Development, LLC, 357 So. 3d 1028 (Miss. 2023)
  • Watts v. Lawrence, 703 So. 2d 236 (Miss. 1997)
  • Columbia Land Dev., LLC v. Sec'y of State, 868 So. 2d 1006 (Miss. 2004)
  • MS AG Op., Nelson (Sept. 18, 1998)
  • MS AG Op., Snell (Mar. 16, 2018)
  • MS AG Op., Tullos (Aug. 27, 2018)
  • MS AG Op., Provine (July 28, 2006)
  • Rules of Secretary of State for the Administration, Control, and Leasing of Public Trust Tidelands, Rule 4(C)

Source

Original opinion text

April 9, 2024

The Honorable Michael Watson
Secretary of State
401 Mississippi Street
Jackson, Mississippi 39201
Re: Placement of Breakwater on Tidelands

Dear Secretary Watson:
The Office of the Attorney General has received your request for an official opinion.

Questions Presented
1. Does the law allow the Secretary of State to authorize the placement of breakwaters on tidelands without requiring the upland owner to lease land under the footprint of the breakwater?
2. May the Secretary of State require private resident upland landowners wanting to place living shoreline breakwaters on state-owned tidelands to enter into binding agreements identifying the current mean high-water mark as the boundary of public trust lands and excluding artificial accretions to the uplands from the ownership or title of the upland owner?
3. Is the Secretary of State otherwise limited by law from consenting to such placement of structures on tidelands?
4. Even if the Department of Marine Resources ("DMR") authorizes a living shoreline under a Mississippi General Permit from the Army Corps of Engineers, is the residential property owner allowed to place such structures on tidelands without the consent of the Secretary of State?

Brief Response
1. The Secretary of State's authorization is only necessary when a tidelands lease is needed. Generally, "[p]ermanent structures . . . may not be erected on state[-]owned waterbottoms unless done so pursuant to a lease with the Secretary of State." MS AG Op., Nelson at *1 (Sept. 18, 1998). However, pursuant to Mississippi Code Annotated Section 29-15-5(2), "[r]esidential property owners shall not be required to obtain a tidelands lease for exercising their common law and statutory littoral and riparian rights." If it is determined that a breakwater constitutes an "other structure" as set forth in Section 49-15-9, and is thus a littoral right of property owners, Section 29-15-5(2) authorizes the placement of breakwaters on tidelands without requiring residential upland owners to lease the land under the footprint of the breakwater.
2. There is no statutory provision specifically authorizing the Secretary of State to require agreements with the private landowner establishing the current high-water mark as the boundary of public trust tidelands and excluding artificial accretions from ownership/title. However, Section 29-15-7(2) provides that "natural" accretions increase the land owned by the contiguous upland owner, but it does not afford upland owners the same increase in land as a result of "artificial" accretions.
3. Aside from the provisions mentioned herein, we are aware of no other state law that would limit the Secretary of State from consenting to living shoreline breakwaters on tidelands. However, the Secretary of State's authorization and/or consent is only necessary to the extent a tidelands lease is needed.
4. Mississippi General Permits from the Army Corps of Engineers or Wetlands Permits issued by DMR are wholly separate and distinct from public trust tidelands leases entered with the Secretary of State. Consent from the Secretary of State is not a requirement of DMR's permitting process. Beyond this, see the response to question one.

Applicable Law and Discussion
We first note that the Attorney General is authorized to issue official opinions on prospective matters of state law only; this office cannot opine on matters of federal law. Miss. Code Ann. § 7-5-25; MS AG Op., Snell at 2 (Mar. 16, 2018). Likewise, this office may not opine upon any applicable ordinances, zoning codes, or regulations. MS AG Op., Tullos at 1 (Aug. 27, 2018); MS AG Op., Provine at *1 (July 28, 2006). Accordingly, the scope of this opinion is limited to Mississippi law.

According to the Mississippi Supreme Court, "[i]t is a well-established principle of law that lands covered by tide waters within a state belong to the state in which they are found." Stewart v. Hoover, 815 So. 2d 1157, 1159 (Miss. 2002); see also Miss. Code Ann. § 29-15-5(1) ("Tidelands and submerged lands are held by the state in trust for use of all the people . . . ."). As set forth in your request, the Secretary of State is the statutorily designated trustee and manager of state-owned public trust tidelands and submerged lands along Mississippi's southern border and has the authority, with the Governor's approval, to rent or lease state public trust tidelands. Miss. Code Ann. § 7-11-11; § 29-1-107(2)(a).

Sections 29-15-1, et seq., govern Public Trust Tidelands, and Section 29-15-3(1) sets forth the legislature's public policy in regard to these tidelands:

It is declared to be the public policy of this state to favor the preservation of the natural state of the public trust tidelands and their ecosystems and to prevent the despoliation and destruction of them, except where a specific alteration of specific public trust tidelands would serve a higher public interest in compliance with the public purposes of the public trust in which such tidelands are held.

As the designated trustee of Mississippi's public trust tidelands, it is the duty of the Secretary of State to accomplish the public policy set forth by the legislature.

You first ask if the law allows the Secretary of State to authorize the placement of breakwaters on tidelands without requiring the upland owner to lease the land under the footprint of the breakwater. To begin, it is the opinion of this office that the Secretary of State's authorization is only necessary to the extent that a tidelands lease is necessary. This said, generally speaking, "[p]ermanent structures . . . may not be erected on state[-]owned waterbottoms unless done so pursuant to a lease with the Secretary of State under his authority to lease such submerged lands under Section 29-1-107 and Section 29-15-9 of the Mississippi Code." Nelson at *1 (Sept. 18, 1998). However, there are certain fact-specific exceptions to this general rule. See, e.g., Bayview Land, Ltd. v. State ex. rel. Clark, 950 So. 2d 966, 988 (Miss. 2006); State by and through Watson v. RW Development, LLC, 357 So. 3d 1028, 1038 (Miss. 2023). Moreover, Section 29-15-5(1) provides that "[l]ittoral and riparian property owners have common law and statutory rights under the Coastal Wetlands Protection Law which extend into the waters and beyond the low tide line," and Section 29-15-5(2) provides that "[r]esidential property owners shall not be required to obtain a tidelands lease for exercising their common law and statutory littoral and riparian rights."

The statutory littoral and riparian rights referenced in Section 29-15-5 are set forth in Section 49-15-9, which states:

The sole right of planting, cultivating in racks or other structures, and gathering oysters and erecting bathhouses and other structures in front of any land bordering on the Gulf of Mexico or Mississippi Sound or waters tributary thereto belongs to the riparian owner and extends not more than seven hundred fifty (750) yards from the shore, . . . measuring from the average low water mark, but where the distance from shore to shore is less than fifteen hundred (1500) yards, the owners of either shore may plant and gather to a line equidistant between the two (2) shores, but no person shall plant in any natural channel so as to interfere with navigation, and such riparian rights shall not include any reef or natural oyster bed and does not extend beyond any channel. A riparian owner shall comply with the Coastal Wetlands Protection Act in exercising the use of these riparian rights. Stakes of such frail materials as will not injure any watercraft may be set up to designate the bounds of the plantation, but navigation shall not be impeded thereby. The riparian owner shall clearly mark such cultivation racks and other structures.

Your question is specific to breakwaters. A breakwater is defined as "an offshore structure (such as a wall) protecting a harbor or beach from the force of waves." MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/breakwater (last visited April 9, 2024). "Other structure," as set forth in Section 49-15-9, is a broad and open-ended term. If it is determined that the placement of a breakwater constitutes an "other structure" as set forth in Section 49-15-9, and thus is considered a littoral right of property owners, Section 29-15-5(2) authorizes residential upland property owners to place breakwaters on tidelands without requiring them to lease the land under the footprint of the breakwater.

Furthermore, while this office may not opine upon rules and regulations, the Secretary of State's own Rules for the Administration, Control and Leasing of Public Trust Tidelands should also be considered in regard to who must obtain a lease. See Rules of Secretary of State for the Administration, Control, and Leasing of Public Trust Tidelands, Rule 4(C)(1) ("A public trust tidelands lease shall not be required for structures built in the riparian or littoral area pursuant to General Permits MS-GP-02 or MS-GP-04 provided that the combined area of structures (excluding access piers) and berthing areas does not exceed 1,000 square feet and so long as said structures are not used for, or in association with, commercial purposes."); Rule 4(C)(2) ("Leases are required of commercial and industrial applicants and for commercial and industrial use of littoral and riparian rights.").

You next ask if the Secretary of State may require private resident upland landowners wanting to place living shoreline breakwaters on tidelands to enter into binding agreements identifying the current mean high-water mark as the boundary of ownership or title of the upland owner. There is no statutory authority allowing the Secretary of State to require such agreement. This said, Section 29-15-7(2) provides that "natural" accretions increase the land owned by the contiguous upland owner, but it does not afford upland owners the same increase in land as a result of "artificial" accretions. Put differently, "artificial" accretions derived from an upland owner's construction of a living shoreline will not increase the land owned by the contiguous upland owner from that determined prior to construction of a living shoreline. See Bayview Land, Ltd., 950 So. 2d at 983-84 (indicating same but also noting Mississippi common law provides that "accretions caused by third-party strangers to the upland title will vest in the upland owner . . ., at least as to non-state third-party strangers to the upland title.").

Your third question is whether the Secretary of State is otherwise limited by law from consenting to such placement of structures on tidelands. Aside from the provisions mentioned herein, we are aware of no other state law that would limit the Secretary of State from consenting to living shoreline breakwaters on state-owned tidelands. Again, the Secretary of State's authorization and/or consent is only necessary to the extent a tidelands lease is needed. As stated supra, it is the duty of the Secretary of State as the designated trustee of Mississippi's tidelands to accomplish the public policy set forth by the legislature in Section 29-15-3(1). Please note that this office may not opine upon any federal law, ordinances, zoning codes, or regulations that may be applicable.

Finally, you ask "[e]ven if the Department of Marine Resources authorizes a living shoreline under a Mississippi General Permit from the Army Corps of Engineers, is the residential property owner allowed to place such structures on tidelands without the consent of the Secretary of State?" The Coastal Wetlands Protection Law, commonly known as the "Wetlands Act," is set forth in Sections 49-27-1, et. seq. Like tidelands, the legislature has set forth public policy for preserving wetlands, which can be found in Section 49-27-3. In advancement of this policy, the Wetlands Act mandates that "[n]o regulated activity shall affect any coastal wetlands without a permit unless excluded in Section 49-27-7." Miss. Code Ann. § 49-27-9(1). These permits are issued by DMR, which is vested with the full power "to manage, control, supervise, enforce and direct any matters pertaining to saltwater aquatic life and marine resources under the jurisdiction of the [Mississippi Advisory Commission on Marine Resources]." Miss. Code Ann. § 49-15-11(1). Consent from the Secretary of State is not a requirement of the permitting process. Although both are often necessary, rendering overlap, permits issued by DMR are wholly separate and distinct from public trust tidelands leases entered with the Secretary of State. See Watts v. Lawrence, 703 So. 2d at 238 (recognizing DMR's administrative control over littoral rights and noting construction of structure by residential property owner was subject only to regulation by DMR after receiving permit to build); Stewart, 815 So. 2d at 1163 (reiterating same). Accordingly, please see the response to question one.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General