When North Carolina pours public money into a beach renourishment project on the Atlantic Ocean and the project restores land that had eroded into the sea, does that new land belong to the State or to the adjacent oceanfront property owner? And does the answer change if the project was privately funded?
Plain-English summary
Senator Marc Basnight, the Senate's President Pro Tempore, asked the AG to sort out a recurring question on North Carolina's barrier islands. When beach renourishment projects pump sand back onto eroded oceanfront beaches, who owns the new land? Is it the adjacent property owner who used to own that land before erosion, or the State?
Senior Deputy AG Daniel C. Oakley and Special Deputy AG Daniel F. McLawhorn unpacked the rule in N.C.G.S. § 146-6(f), a 1985 addition to the state-lands statute.
The general rule: any land along the Atlantic Ocean raised above the mean high water mark by a publicly financed dredging or fill project vests in the State of North Carolina. That includes beaches where the renourishment was done by the U.S. Army Corps of Engineers, by a local government using state or federal money, or by any other publicly funded mechanism.
The exception: land raised by a privately financed project goes to the adjacent littoral proprietor (the upland owner). So if a beach club, condo association, or individual oceanfront owner pays for renourishment from private funds, the new sand is theirs, with public-trust use rights preserved.
The statute does not draw any distinction between gradual erosion and sudden loss. Whether the land disappeared over decades or in a single hurricane, the renourishment-ownership rule is the same. The common-law distinction between erosion (slow) and avulsion (sudden) was abrogated by the 1959 State Lands Chapter and confirmed by the 1985 amendment as to publicly funded ocean renourishment.
What happens to a former oceanfront owner whose land was lost to the sea and then later restored at public expense? The statute makes the State the title holder, but the former owner is not without recourse. The renourished land is classified as "vacant and unappropriated lands" under § 146-64(6) and (9). Under § 146-4, the Department of Administration can sell vacant and unappropriated lands "at public or private sale, at such times, upon such consideration, in such portions, and upon such terms as are deemed proper by the Department and approved by the Governor and Council of State." Former owners can apply to repurchase the renourished portion adjacent to their land, but the sale would have to include a condition or limitation preserving the public-trust rights established by § 146-6(f).
Those public-trust rights are not optional. The final sentence of § 146-6(f) provides: "All such raised lands shall remain open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches, which rights are part of the common heritage of the people of this State." A companion statute, N.C.G.S. § 1-45.1, defines public-trust rights to include the right to freely use and enjoy the state's ocean and estuarine beaches and the right of public access to those beaches. So when the State sells back land, it must reserve an area equivalent to the historic dry-sand-beach use area plus access corridors. The buyer gets fee title subject to these permanent public-use easements.
The AG opinion also explained the legislative purpose behind § 146-6(f). The 1985 amendment had two motivating concerns. First, the U.S. Army Corps of Engineers' beach renourishment projects required the local sponsor to obtain easements from each adjacent oceanfront landowner before pumping sand onto formerly private lands. That requirement was expensive and slow. The Atlantic Beach project was delayed for a season just to gather easements. By vesting title to publicly funded renourishment in the State, the legislature eliminated the need for repeated easement acquisitions on the same beaches over successive renourishment cycles. Second, the legislature wanted to expand public beach access. Under common law, the publicly owned area of natural beaches is the foreshore or "wet sand beach"; the dry sand beach above the mean high water mark is private property subject to public-trust use rights. As beaches erode and structures get closer to the water, the customary dry-sand-beach area used by the public shrinks. The 1985 amendment was meant to ensure that renourished beaches preserved that public-use area in state hands rather than expanding the private oceanfront strip.
Currency note
This opinion was issued in 1996. 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. N.C.G.S. § 146-6 has been amended several times since 1996, and the public-trust framework for North Carolina ocean beaches has been refined by later cases including Nies v. Town of Emerald Isle and the body of public-beach-access litigation. Owners involved in current renourishment or repurchase questions should consult counsel and check the current statute.
Background and statutory framework
North Carolina's ocean beaches occupy a unique legal status. The state Constitution and centuries of common law treat the foreshore (wet sand) as state property and the dry sand above the mean high water mark as private property impressed with strong public-trust rights of use. The mean high water mark moves as beaches accrete, erode, and are renourished, which means the boundary between public and private land is in constant motion.
Before 1985, common-law rules applied to lands raised from the sea. Some doctrines made the new land follow the adjacent upland owner; others made it accrete to the State. The 1959 State Lands Chapter codified most of the law, generally giving lost lands to the State and allowing adjacent owners to apply to acquire raised lands. The 1985 amendment in § 146-6(f) carved out a specific rule for ocean renourishment: publicly funded renourishment vests in the State, with permanent public-use reservations.
The opinion drew on the Gwathmey v. State, 342 N.C. 287 (1995) line of cases for the proposition that public-trust conditions are not waivable by ordinary statute. Only an express legislative act can release public-trust rights, and the State is presumed not to abandon those rights through administrative action. The Department of Administration could sell renourished land but not without preserving the public-use reservations. That presumption acts as a hard floor against private-favoring deals.
Concerned Citizens of Brunswick County Taxpayers Ass'n v. State ex rel. Rhodes, 329 N.C. 37 (1991), provided the modern framework for public-trust rights in dry sand beach areas. The AG opinion cited it for the proposition that the public has rights in the dry sand beach above the mean high water mark, even though the land is technically private property.
The legislative-purpose narrative in the opinion is unusually detailed for an AG opinion. The discussion of the Atlantic Beach project's easement-acquisition costs, the U.S. Army Corps of Engineers' procedure, and the public-access motivation reflects the AG's effort to give Senator Basnight (the chamber's most senior member at the time) a substantive understanding of why the 1985 amendment was structured the way it was.
Common questions
If the State owns renourished land, can the former oceanfront owner still cross it to reach the water?
Implicitly yes, because the renourishment is on their formerly oceanfront lot, and the State's title is subject to public-trust use rights including beach access. The opinion's repurchase mechanism also gives former owners a path to fee-title reacquisition of the land adjacent to theirs, subject to public-use reservations.
Can the State sell the renourished land to anyone, or only to the prior owner?
Section 146-4 lets the Department of Administration sell vacant and unappropriated lands at terms it determines, with the Governor and Council of State's approval. The opinion focuses on the prior owner's application path, but the statute does not strictly limit sales to that owner. Public-trust reservations still attach to any sale.
What if the renourishment mixed public and private funding?
The opinion did not directly address mixed funding. The statute's text says "publicly financed projects." A genuine mixed-funding project could create gray areas. In practice, most large renourishment projects have been overwhelmingly public.
Could the legislature change this rule and give renourished land back to oceanfront owners?
The legislature could amend § 146-6(f) for future renourishment projects. But because the public-trust rights established by the statute are a public-policy commitment of long standing, Gwathmey suggests courts would scrutinize any attempt to release those rights, requiring clear and express legislative action.
Source
Citations
- N.C.G.S. §§ 146-6(b), 146-6(f), 146-4, 146-64, 1-45.1, 77-20(a), 113A-134.1, 4-1
- Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297 (1970)
- Concerned Citizens of Brunswick County Taxpayers Ass'n v. State ex rel. Rhodes, 329 N.C. 37 (1991)
- Gwathmey v. State, 342 N.C. 287 (1995)
- State v. Johnson, 278 N.C. 126 (1971)
- Ward v. Sunset Beach, 53 N.C. App. 59 (1981)
Original opinion text
October 15, 1996
The Honorable Marc Basnight President Pro Tempore North Carolina General Assembly State Legislative Building Raleigh, North Carolina 27601-2808
Re: Advisory Opinion Ocean Beach Renourishment Projects, N.C.G.S. §146-6(f)
Dear Senator Basnight:
We reply to the questions raised in your recent letter addressed to Joe Henderson, Director of the State Property Office.
We repeat the questions in your letter and follow with our answer. The more general discussion which shows the reasoning for the answers follows.
QUESTIONS AND ANSWERS
Question 1. Where publicly financed beach nourishment has occurred and previously lost public and private land is restored, who holds title to the restored land, the private property owner or the State of North Carolina? Please explain.
Answer. Title to the restored land vests in the State of North Carolina pursuant to N.C.G.S. § 146-6(f) which provides in pertinent part: "Notwithstanding the other provisions of this section, the title to land in or immediately along the Atlantic Ocean raised above the mean high water mark by publicly financed projects which involve hydraulic dredging or other deposition of spoil materials or sand vests in the State."
Question 2. Does your opinion in question #1 change if the renourishment and restoration of lost land is privately financed? Why or why not?
Answer. Yes, the opinion changes because N.C.G.S. §146-6(f) declares that "[t]itle to such lands raised through projects that received no public funding vests in the adjacent littoral proprietor."
Question 3. In determining title to restored/renourished ocean-front property, is there any distinction made between restored land which was lost gradually through erosion as opposed to land lost suddenly (such as through a storm)? Please explain.
Answer. N.C.G.S. §146-6(f) recognizes no such difference. Furthermore, any difference which existed in the Common Law was abrogated in 1959 when the General Assembly adopted N.C.G.S. §146-6. That statute provides the means to determine the title to lands raised from navigable waters of the state when the lands were lost "by natural causes". The phrase "natural causes" includes loss due to erosion as well as loss due to sudden events such as a hurricane.
Question 4. If previously lost private ocean-front property is restored through publicly financed beach renourishment and title is determined to be vested with the State, does the private property owner have any means by which he can regain title to that restored property which was previously owned by him? Please explain.
Answer. When title to the renourished land vests in the State, it is impressed with public trust rights and becomes a part of the "vacant and appropriated lands" of the State. N.C.G.S. §146-4 authorizes the Department of Administration to sell the "vacant and appropriated lands . . . at public or private sale, at such times, upon such consideration, in such portions, and upon such terms as are deemed proper by the Department and approved by the Governor and Council of State." Owners of property lost to natural causes can make application to purchase any part of the newly created land which is not needed to meet the public trust reservations. Along with the other requirements to which such a sale may be subjected under Chapter 146, the sale would have to include a condition or limitation which preserved the public trust rights created in and impressed on the lands by N.C.G.S. §146-6(f).
ANALYSIS The replies to your questions were derived from N.C.G.S. §146-6(f), a 1985 addition to the statute. A legislative study commission proposed the bill which resulted in the addition. The bases for the bill were identified from the on-going experience of the Atlantic Beach beach nourishment project. When the U.S. Army Corps of Engineers conducts such projects, the local sponsor of such projects is required to secure easements or other permission from each adjacent ocean front land owner. The time and expense to secure these easements is significant. The Atlantic Beach project was delayed for a season to secure the easements to fill from the ocean front land owners.
Most nourishment projects have only occurred on beaches which are severely eroded and which are densely settled. A beach once nourished will require renourishment. Over time, the projects will require renourishment with increasing frequency. By vesting the newly created lands in the State, the need to secure easements for future projects on the same beach is avoided if the renourishment occurs before the erosion consumes the initial project.
A second significant reason for the legislation was to assure continued public beach areas.
N.C.G.S. §77-20(a) declares that the boundary between public and private property along the ocean front is the mean high water mark of the Atlantic Ocean. Under the Common Law, the publicly owned area of the natural beaches is the foreshore or "wet sand beach", the area exposed at low tide and covered by water at high tide. Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297, 302 (1970). Because the public ownership stops at the high water line, the public must either be in the water or on the dry sand beach when the tide is high. The term "dry sand beach" refers to the flat area of sand seaward of the dunes or bulkhead which is flooded on an irregular basis by storm tides or unusually high tides. It is an area of private property which the State maintains is impressed with public rights of use under the public trust doctrine and the doctrine of custom or prescription. See Concerned Citizens of Brunswick County Taxpayers Ass'n. v. State ex rel. Rhodes, 329 N.C. 37, 55 (1991). As the beach area erodes on developed beaches so that the mean high water line moves closer to the foundations of ocean front structures, the area of dry sand beach regularly used by the public is lost.
The Division of Coastal Management, in its advocacy of the bill, urged that public beach access be assured on the newly created beaches through public ownership of the beaches. In 1981, the legislature included in the legislative findings for the Coastal and Estuarine Water Beach Access Program the following:
The public has traditionally fully enjoyed the State's ocean and estuarine beaches and public access to and use of the beaches. The beaches provide a recreational resource of great importance to North Carolina and its citizens and this makes a significant contribution to the economic well-being of the State. The ocean and estuarine beaches are resources of statewide significance and have been customarily freely used and enjoyed by people throughout the State. N.C.G.S. §113A-134.1.
The addition of paragraph (f) to N.C.G.S. §146-6 should be read in pari materia with findings stated above and the other purposes of the Beach Access statute. It was intended to assure public use areas on beaches which were so severely eroded that renourishment was needed and where little or no traditional dry sand beach area existed between ocean front structures and the foreshore. N.C.G.S. §146-6(f) should be interpreted and applied in light of the two legislative purposes described above.
The ownership of lands which become submerged by navigable waters due to natural causes and which later become raised from navigable waters, whether by nature or man, are subjects addressed by the Common Law. See 1 Robert E. Beck, Water & Water Rights, §6.03(b)(2) at pp. 187-194 (1991 ed.); Vol. I Henry P. Farnham, Water & Water Rights, §§71, 72, and 74 at pp. 326-29, 331-32 (1904); A. Dan Tarlock, Law of Water Rights & Resources, §3.09[4] at pp. 3-48.5 to 3-53 (1996 ed.); John Gould, Gould on Waters, §158 at pp. 314-15 (1900 ed.). When the General Assembly enacted the State Lands Chapter in 1959, it followed much of the Common Law; however, the alterations to the Common Law included the matters presented by your questions. The Common Law of England, as of July 4, 1776, is the law of this state until it is altered by the enactment of statutes or decisions of our appellate courts. N.C.G.S. §4-1; Gwathmey v. State, 342 N.C. 287, 296 (1995). The Common Law recognized a distinction between land lost by erosion and land lost by avulsion, both of which are caused by nature. N.C.G.S. §146-6(f) supplanted the Common Law rule for the ownership of filled ocean front property to make the State the owner of such lands. However, the Common Law rules continue to apply when the dispute over ownership of raised land is between private parties and does not involve the State. See State v. Johnson, 278 N.C. 126 (1971); Ward v. Sunset Beach, 53 N.C. App. 59 (1981).
With the enactment of N.C.G.S. §146-6, the legislature superseded the Common Law distinctions for lands lost due to "natural causes" and later raised from navigable waters by dredging or similar means when the ownership dispute is between the State and another. See N.C.G.S. §146-6(b). Under the 1959 act, all lost lands belonged to the State and all raised lands could be acquired by the owner who was adjacent to the raised lands. The statute was amended in 1985 by the addition of paragraph (f), whereby lands raised on the ocean front by publicly financed projects become State owned while lands raised without any use of public funds become the property of the adjacent littoral proprietor, subject to public rights of use.
Chapter 146 assigns all state lands to one or more of several categories. Among the categories, the only one applicable to lands raised from the bed of the Atlantic Ocean is "vacant and unappropriated lands." N.C.G.S. §146-64(6) and (9). As a general rule, the means to acquire vacant and unappropriated lands from the State would be for the prior property owner to submit a request to the State Property Office in the Department of Administration. The terms and conditions, including price for such a sale, are set by the Department and the Governor and the Council of State. See N.C.G.S. §146-4. At least one condition on such sales is established by statute. Since it is a public trust condition, it can only be waived by an express legislative act. See Gwathmey v. State, supra.
That condition is found in the concluding sentence of N.C.G.S. §146-6(f), which reads: "All such raised lands shall remain open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches, which rights are part of the common heritage of the people of this State." In a separate statute arising from the same legislative study commission, the term "public trust rights" was defined to include ". . . the right to freely use and enjoy the State's ocean and estuarine beaches and public access to the beaches." N.C.G.S. §1-45.1. The lands available for sale will be those excess lands not required to satisfy this reservation. Consistent with the language of the statute, an area must be reserved which is equal to the area of historic public use on natural beaches, along with access across the nourishment area to the beach area. Owners of property lost to natural causes can make application to purchase any part of the newly created land which is not needed to meet the public trust reservations. Along with the other requirements to which such a sale may be subjected under Chapter 146, the sale would have to include a condition or limitation which preserved the public trust rights created in and impressed on the lands by N.C.G.S. §146-6(f).
If further explanation or clarification is desired, please contact Dan McLawhorn at your convenience.
Daniel C. Oakley Senior Deputy Attorney General
Daniel F. McLawhorn
Special Deputy Attorney General