Can North Carolina agree with the federal Minerals Management Service to fix the state's seaward boundary at a series of permanent coordinates, or must the boundary remain ambulatory and shift with changes to the shoreline?
Plain-English summary
The federal Minerals Management Service (MMS) asked NC to agree on a definition of the state's seaward boundary by a series of coordinates along the shoreline. The NC Geodetic Survey asked the AG whether that agreement could be entered without amending N.C.G.S. § 141-6, and whether the boundary could be modified without legislative consent.
The constitutional and statutory baseline. Article XIV, § 2 of the NC Constitution says: "The limits and boundaries of the State shall be and remain as they are now." N.C.G.S. § 141-6(a) implements that by defining the seaward boundary as it has been since 1776: one marine league (three geographical miles) east of the extreme low water mark (ELWM) of the Atlantic Ocean.
The federal layer. The Submerged Lands Act of 1953, 43 U.S.C. § 1301 et seq., confirmed state ownership of the lands beneath the Atlantic Ocean within three miles of the coast. State ex rel. Bruton v. Flying "W" Enterprises, 273 N.C. 399 (1968), confirmed that the United States "in effect quitclaimed and confirmed the ownership of the State of North Carolina" in those lands.
The U.S. Supreme Court in United States v. California, 381 U.S. 139 (1965), held that the baseline for measuring the seaward limit must come from the Convention on the Territorial Sea and the Contiguous Zone (an international treaty), which defines the baseline as the low water line along the coast. That baseline is ambulatory: it moves with natural changes to the coastline (United States v. Louisiana, 394 U.S. 11 (1968)) and with artificial changes (United States v. Louisiana, 389 U.S. 155 (1967)).
Putting it together. NC's eastern boundary has always been three geographical miles from the ELWM. The boundary's physical location moves as the ELWM migrates, but the distance from ELWM is constant. Reading the constitution + statute + case law together: the boundary must remain three miles from the actual ELWM at any given time.
MMS proposal: ambulatory, not fixed. If the MMS proposal would permanently fix the boundary at specific coordinates, it would violate Article XIV § 2 because erosion and accretion would put the boundary at varying distances from the ELWM. But MMS's actual letter (cited in the opinion) referred to "ambulatory boundaries…the boundaries will continue to move with the erosions and accretions of the shoreline." That is constitutional.
The Alaska waiver issue. United States v. Alaska, 381 U.S. 139 (1992) (note: the citation date in the opinion appears to be a misprint; the actual Alaska decision was 521 U.S. 1 (1997)), held that the Corps of Engineers can consider the federal interest in submerged lands when reviewing § 10 Rivers and Harbors Act permits, and can require permit applicants to waive boundary shifts that would otherwise result. The federal government had asked NC to sign waivers for Corps-permitted beach nourishment projects, on the theory that the new beach should not shift the state's seaward boundary outward.
The AG concluded: NC cannot sign such a waiver. Article XIV § 2 forbids it. The boundary must remain three miles from the actual ELWM, whether the ELWM moved naturally or artificially. The state had signed one waiver for a Pea Island project in 1989 but has refused since 1995. The Corps has continued permitting projects without waivers.
The state's narrower argument on small renourishment. The AG suggested that United States v. Alaska dealt with a large permanent solid fill (Alaska's 2,700-foot extension over 730 acres of gold-bearing seabed). NC beach renourishment, by contrast, produces only minor, temporary changes to a dynamic shoreline. The state's gains in jurisdiction from such projects are "short-term and inconsequential" and do not detrimentally affect the federal government's legitimate interests.
Bottom line for the MMS proposal. NC can agree to coordinates that depict the boundary at a particular date as long as the agreement makes clear that the boundary continues to move with erosion, natural accretion, and artificial accretion (beach renourishment). NC cannot agree to anything that would permanently fix the boundary or waive shifts from Corps-permitted projects.
Currency note
This opinion was issued in 1998. 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.
The federal Minerals Management Service was reorganized into the Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and Environmental Enforcement (BSEE) in 2011. The constitutional and statutory framework for NC's seaward boundary remains. Anyone working on a current boundary or submerged-lands question should check the current text of § 141-6, current federal agency successors to MMS, and any post-1998 Supreme Court decisions on state seaward boundaries.
Common questions
Q: Why does NC care about the seaward boundary?
A: Title to submerged lands within three miles of the coast belongs to NC under the Submerged Lands Act. NC can lease those lands for oil and gas exploration, sand mining, marina construction, and other uses. The boundary determines which submerged lands are NC's vs. the federal government's, and which leasing/permitting authority applies.
Q: What does "ambulatory" mean?
A: Moving with the underlying physical feature. An ambulatory boundary tracks the actual low water mark; if the low water mark erodes inland, so does the boundary. An ambulatory boundary, defined by coordinates representing a particular date, gives both governments a snapshot for working purposes while preserving the constitutional constancy of the distance.
Q: What happens during a major hurricane?
A: The shoreline can move significantly in a storm. Under NC's ambulatory boundary rule, the seaward boundary moves with the post-storm ELWM. If subsequent renourishment pushes the ELWM back out, the boundary moves with it.
Q: Does NC own all the sand on its beaches?
A: The state owns submerged lands and (per the 1985 amendment in § 146-6(f)) lands raised by publicly funded renourishment above the mean high water mark. Privately owned beachfront upland remains private to its mean-high-water boundary.
Q: What about Pamlico Sound or other inshore waters?
A: Those are bays and estuaries, generally owned by the state under separate principles of state ownership of navigable bottoms. The opinion focuses on the Atlantic Ocean seaward boundary.
Q: Why did NC sign the 1989 Pea Island waiver but then refuse later?
A: The opinion doesn't fully explain. The 1989 waiver predated the analysis crystallizing post-1992 Alaska. By the mid-1990s the State Property Office had concluded that the state constitution barred such waivers, so NC has refused since 1995.
Background and statutory framework
The seaward boundary question sits at the intersection of state and federal law. Federal law (the Submerged Lands Act and the Outer Continental Shelf Lands Act) sets the federal-state line. State constitutions and statutes define the state-side detail. The Convention on the Territorial Sea and the Contiguous Zone provides the international rule for baseline definition.
NC's "as they are now" constitutional provision (Art. XIV § 2) is a substantive limit, not just a procedural reservation. The NC Supreme Court in McIntyre v. Clarkson, 254 N.C. 510 (1961), confirmed that the constitution operates as a limit on the General Assembly and on agencies of the state. Neither the legislature nor an executive officer can agree to a boundary location other than three miles from the ELWM.
The Corps of Engineers' authority over coastal projects under § 10 of the Rivers and Harbors Act of 1899 is the federal hook for the waiver issue. The Corps reviews permits in the "public interest," which (per Alaska) includes the federal interest in submerged lands. Asking applicants to waive boundary shifts is the Corps's way of protecting that interest. NC's refusal to sign general or individual waivers is grounded in the state constitutional constraint.
The opinion is a sophisticated piece of state-federal coordination. It rejects the permanent-coordinates approach while preserving working coordinates for ambulatory boundary purposes. It says no to the Corps waiver while suggesting a narrower argument for small renourishment projects (de minimis impact on federal interests). The legal stakes (potential future federal claims to gold-bearing or oil-bearing submerged lands) make the position high-leverage.
Citations
- N.C. Const. Art. XIV, § 2 ("The limits and boundaries of the State shall be and remain as they are now")
- N.C. Gen. Stat. § 141-6(a) (defining seaward boundary at one marine league east of the extreme low water mark)
- Submerged Lands Act of 1953, 43 U.S.C. §§ 1301 et seq., § 1312 (federal quitclaim of submerged lands within three miles)
- Rivers and Harbors Act of 1899, § 10 (Corps permit authority)
- State ex rel. Bruton v. Flying "W" Enterprises, 273 N.C. 399, 160 S.E.2d 482 (1968) (Submerged Lands Act effect on NC submerged-lands ownership)
- United States v. California, 381 U.S. 139 (1965) (baseline = low water line per international convention)
- United States v. Louisiana, 394 U.S. 11 (1968) (ambulatory boundary follows natural shoreline change)
- United States v. Louisiana, 389 U.S. 155 (1967) (ambulatory boundary follows artificial shoreline change)
- United States v. Alaska, 381 U.S. 139 (1992) (Corps may protect federal interest in submerged lands through § 10 permit review)
- McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888 (1961) (state constitution limits both legislature and executive)
Source
Original opinion text
February 11, 1998
Gary W. Thompson
Chief, North Carolina Geodetic Survey
512 North Salisbury Street
Raleigh, North Carolina 27604
RE: Advisory Opinion: North Carolina Seaward Boundary. N.C. Const. Art. XIV, § 2; N.C.G.S. § 141-6.
Dear Mr. Thompson:
We reply to your request for our opinion regarding the seaward boundary of North Carolina. You advised that the Minerals Management Service ("MMS") of the U.S. Department of the Interior has requested that the State agree to define North Carolina's seaward boundary as a series of coordinates of points along the shoreline. You asked the following questions:
Questions: Would a modification of N.C.G.S. § 141-6 be required before this proposal could be accepted? Does N.C.G.S. § 141-6 allow the modification of the seaward boundary without the consent or approval of the North Carolina Legislature?
Answer: If the MMS proposal is to permanently fix the seaward boundary for the State at specific coordinates, accepting it would violate both N.C.G.S. § 141-6(a), and Article XIV, § 2 of the N.C. Constitution, which the statute implements. However, an ambulatory boundary, which merely represents the seaward boundary's location at a certain time, and moves with changes to the shoreline, whether by erosion, accretion or fill deposition, would be consistent with the constitution and not require amendment of the statute.
Discussion
Article XIV, § 2 of the N.C. Constitution provides that "[t]he limits and boundaries of the State shall be and remain as they are now." N.C.G.S. § 141-6(a), making reference to the constitutional provision, defines the eastern or seaward boundary of the State as follows:
. . . the eastern limit and boundary of the State of North Carolina on the Atlantic seaboard having always been, since the Treaty of Peace with Great Britain in 1783 and the Declaration of Independence of July 4, 1776, one marine league [three geographical miles] eastward from the Atlantic seashore, measured from the extreme low water mark, the eastern boundary is hereby declared to be fixed as it always has been at one marine league eastward from the seashore of the Atlantic Ocean bordering the State of North Carolina, measured from the extreme low water mark of the Atlantic Ocean seashore aforesaid.
The North Carolina Supreme Court concluded that, by adopting the Submerged Lands Act of 1953, 43 USC §§ 1301, et seq., "the United States in effect quitclaimed and confirmed the ownership of the State of North Carolina in the lands beneath the Atlantic Ocean" within three geographical miles of its coastline, consistent with N.C.G.S. § 141-6(a). State, ex rel. Bruton v. Flying "W" Enterprises, 273 N.C. 399, 406, 160 S.E.2d 482 (1968); 43 USC § 1312. In United States v. California, 381 U.S. 139 (1965), the U.S. Supreme Court held that § 1312 of the Submerged Lands Act requires that the baseline for measuring the seaward limit of the State's boundary be established in accordance with the Convention on the Territorial Sea and the Contiguous Zone, an international treaty. The Convention defines the baseline generally as "the low water line along the coast. . . ." The baseline for measuring the state boundary, being the low water mark, is ambulatory, and thus the State's boundary, shifts with natural changes in the State's coastline. United States v. Louisiana, 394 U.S. 11, 34 (1968). Likewise, artificial changes to the coastline cause corresponding changes in the baseline, and also alter the State's seaward boundary. United States v. Louisiana, 389 U.S. 155, 158 (1967).
Since July 4, 1776 the State's eastern boundary has been located three geographical miles from the extreme low water mark (ELWM) of the Atlantic Ocean. Of course, the physical location of the boundary has moved as the ELWM has migrated, but it has always remained at the same distance from the ELWM. Thus, reading the state constitutional provision together with the statute and the case law, we interpret them to require that the eastern boundary always remain at distance of three geographical miles from the ELWM. The state constitution being a limitation not only upon the executive branch, but upon the power of the legislature, McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888 (1961), this section would operate to bar either the General Assembly or an agent of the State from setting the boundary at some other location.
Therefore, the MMS request would violate Article XIV, § 2 of the N.C. Constitution, and N.C.G.S. § 141-6(a) if it permanently defined the boundary at fixed location, because erosions and accretions, whether natural or artificial, would then cause the boundary to be located at some distance other than three geographical miles from the actual ELWM of the ocean. However, coordinates depicting an ambulatory boundary, which merely represents the seaward boundary's location at a certain time, and moves with changes to the shoreline but always remains three geographical miles from the ELWM would not conflict with the constitution, nor require amendment of N.C.G.S. § 141-6.
Nothing else appearing, it would appear from the following language contained in the November 19, 1997 letter (first page, second paragraph) to you from Leland F. Thormahlen, Chief, MMS Mapping and Boundary Branch, which offered this proposal, that the MMS contemplates an ambulatory boundary:
The boundaries referenced in this letter were derived from copies of the most current National Ocean Service (NOS) nautical charts, as noted in the salient point Listing, and were developed as ambulatory boundaries, that is to say the boundaries will continue to move with the erosions and accretions of the shoreline.
(Emphasis added.) However, earlier correspondence from MMS raises the concern whether the federal government would construe acceptance of this proposal to effect a general waiver by the State of changes to the State's seaward boundary, per United States v. Alaska, 381 U.S. 139 (1992), resulting from the placement of "solid fill" below the high water mark of the ocean under permits by U.S. Army Corps of Engineers. In particular, a letter from Lee Thormahlen of MMS to you, dated July 25, 1996, suggested fixing the seaward boundary through the proposed agreement as an alternative to North Carolina signing such a disclaimer for boundary changes resulting from Corps-permitted projects. The federal government has sought such waivers in the past for beach nourishment and maintenance dredging projects. Although the State of North Carolina executed an individual waiver on June 28, 1989 to the Corps for a project at Pea Island, the State has since refused to sign individual or general disclaimers, on the grounds that it was barred by the state constitution. (Joseph H. Henderson, State Property Office to Daniel Small, U.S. Army Corps of Engineers, August 16, 1995) Since the 1992 United States v. Alaska decision, the Corps has continued to permit projects without receiving the requested waivers. It is our opinion that waiving or disclaiming changes to the State's seaward boundary, so as to reduce the boundary to less than three geographical miles at any particular point, would violate the Article XIV, § 2 of the N.C. Constitution. Therefore, the MMS proposal must clearly state that the seaward boundary would also move with so-called "artificial accretions," such as beach nourishment projects, as well as natural erosions and accretions, so as to always remain at three geographical miles from the ELWM, before it can be accepted.
At issue in United States v. Alaska was the seaward extension of the Alaska's boundary by 2,700 feet, shifting title to about 730 acres of submerged lands with potentially valuable gold content from the federal government to the State. The U.S. Supreme Court concluded that Section 10 of the Rivers and Harbors Act of 1899 granted administrative discretion to the Corps of Engineers to consider the protection of the United States' interest in its submerged lands as part of the Corps' "public interest" review in making the permit decision. The Court found that consideration of the impact on the rights of the federal government lay properly within such public interest review. The Court also reasoned that the Corps' action did not conflict with the Submerged Lands Act, because the Corps was not attempting to alter the State's boundaries, but rather was determining whether the project in navigable waters would increase the State's control over federal submerged lands to the detriment of the legitimate interests of the United States.
In United States v. Alaska, the Supreme Court was faced with a large, permanent solid fill structure affecting 730 acres of potentially gold-bearing substrate, rather than a temporary alteration of the shoreline on a dynamic, rapidly changing barrier island. We are of the opinion that coastal projects such as beach replenishments, which generally result in only in minor, temporary changes to the shoreline should be distinguished from substantial permanent alterations of the coastline. Any increases in the State's control over federal submerged lands from such projects are short-term and inconsequential, having no detrimental effect on the legitimate interests of the United States.
Thank you for your inquiry. Please advise if we may be of further assistance.
signed by:
Daniel C. Oakley
Senior Deputy Attorney General
J. Allen Jernigan
Special Deputy Attorney General