If Emerald Isle moves the Bogue Inlet navigational channel and creates new land by dredging or accretion, who owns the new beach: the State or the adjoining property owners?

Plain-English summary

Representative Jean Preston asked the AG four hypothetical questions about who would own newly created land if the Town of Emerald Isle moved the Bogue Inlet navigational channel away from the eastward-eroding shoreline of Bogue Banks toward the middle of the inlet. The Town wanted to dam off the existing channel with dredged sand, stabilize the threatened shoreline, and make sure any new beaches created stayed as public, undeveloped beach.

Senior Deputy AG James Gulick and Special Deputy AG J. Allen Jernigan worked through G.S. § 146-6, the statute governing title to newly raised land in NC, and concluded that the Town's plan would generally not put new land in State hands.

Question 1 (accretion from blocked channel). If damming the old channel causes natural accretion along Bogue Banks, the new land belongs to the upland owner under G.S. § 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." The State's claim under § 146-6(f) fails for two reasons:
- Subsection (f) applies to direct deposit by man of dredging fill, not to natural accretion.
- Subsection (f) is limited to land "in or immediately along the Atlantic Ocean," and the inlet-channel shoreline is not that.

The previous owner whose land had already eroded away has no claim either; their title was extinguished when the land disappeared. Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach (1970) controls.

Question 2 (direct dredged-fill deposit on channel shoreline). Title still goes to the upland owner. G.S. § 146-6(d) directly addresses dredged-spoil deposits on private land and says any "addition 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." The fact that the Town is funding the dredging instead of the State or federal government does not change the result; a town is a political subdivision and the legislature did not intend the State to get better outcomes when a town funds the project.

Question 3. Moot. Because Questions 1 and 2 do not produce State ownership, Question 3 (which assumed they did) does not arise.

Question 4 (how to keep the new land undeveloped). Two practical mechanisms:
- Regulatory. The new land sits within the Inlet Hazard Area of Environmental Concern designated under the Coastal Area Management Act, 15A N.C. Admin. Code 7H.0304(3). Any development requires a CAMA permit, which gives the State significant control over how (or whether) the new land can be built on.
- Property-rights. In exchange for placing fill on a private lot, the Town could ask the upland owner to dedicate a conservation easement back to the Town. A negotiated easement is the cleanest way to lock in undeveloped status.

The AG also addressed a bonus scenario: if the dredged spoil were instead used to create an entirely new island in the old channel, G.S. § 146-6(d) gives that island to the State as "vacant and unappropriated lands of the State." Even if the island later accretes onto private property, the State keeps its interest in the original island footprint. The boundary would sit at the joinder point. State v. Johnston explains this rule.

The AG closed with a standard disclaimer: this opinion only addresses ownership questions, not what permits or approvals the project would need. CAMA and federal permitting are separate analyses.

Currency note

This opinion was issued in 2003. 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 CAMA regulatory framework has been updated repeatedly since 2003, and counties or towns considering inlet realignment projects should consult current Coastal Resources Commission rules along with the statutory text of § 146-6.

Background and statutory framework

The accretion rule in NC. G.S. § 146-6 is the keystone of NC land law for newly raised coastal and riverbed land. The statute draws careful lines between four distinct scenarios:
- (a) Natural accretion: upland owner gets the new land.
- (d) Dredged-fill deposit on private land: upland owner gets it; new islands in navigable water go to the State.
- (f) Direct deposit of fill on land "in or immediately along the Atlantic Ocean": State gets it.
- Other subsections address related fact patterns.

Why "Atlantic Ocean" vs. "channel shoreline" matters. The AG read subsection (f) narrowly. The inlet, even though it connects to the Atlantic, is not "in or immediately along" the ocean. The inlet has its own shoreline, distinct from the open-ocean beach. The COLREGS Demarcation Line (the international navigation rule line, codified at 33 U.S.C. § 1601 et seq.) is a convenient marker for where the ocean shoreline ends and the inlet begins. United States v. California used the same line for federal territorial-sea purposes.

Erosion vs. accretion in NC property law. Property lines move with the water. When land erodes, the upland owner's title is extinguished as to the eroded portion. Carolina Beach Fishing Pier makes that explicit. When water recedes or land builds up, the upland owner gains. That is the "process of nature" baseline; the AG was applying it.

Coastal Area Management Act overlay. CAMA (G.S. § 113A-100 et seq.) layers regulatory control on top of ownership. Even where the upland owner has fee simple title, CAMA permitting controls what they can build. The Coastal Resources Commission designated the Bogue Inlet area as an Inlet Hazard Area of Environmental Concern, which sharply restricts development.

Common questions

Q: If my oceanfront beach naturally accretes a few feet of sand seaward over a decade, does my property line move?

A: Yes. Under G.S. § 146-6(a), naturally accreted land vests in the upland owner. Your property line follows the new mean high water mark. That said, the seaward portion of your beach is subject to CAMA setbacks and the public-trust easement that extends to the mean high water line.

Q: What if the town dumps sand directly on my lot during a beach nourishment project?

A: It depends on where. Under G.S. § 146-6(d), dredged-fill deposits on your lot vest in you. But subsection (f) carves out the special case of fill placed "in or immediately along the Atlantic Ocean," which under the AG's reading vests in the State. The line is somewhat fuzzy in practice. Most nourishment-project participants sign easements clarifying the property and access expectations in advance.

Q: Can the Town force me to take dredged fill?

A: This opinion does not address that question. The opinion assumed dredged fill would be deposited "with or without the approval of the owner," and held the title outcome the same either way under § 146-6(d). But whether the Town has authority to compel deposition is a separate constitutional and statutory question (touching on takings, easements, and police-power authority) that would need its own analysis.

Q: How does CAMA's Inlet Hazard Area designation affect development?

A: Inlet Hazard Areas have strict development setbacks and density limits, plus stronger structural requirements when development is allowed. The Coastal Resources Commission's rules at 15A N.C. Admin. Code 7H.0304 lay out the specifics. A CAMA permit is required for any major development in an AEC, and many proposed projects face significant constraints in an Inlet Hazard Area.

Citations

Statutes and regulations:
- N.C. Gen. Stat. § 146-6 (title to raised land, generally)
- N.C. Gen. Stat. § 146-6(a) (accretion to upland owner)
- N.C. Gen. Stat. § 146-6(d) (dredged fill on private land; islands)
- N.C. Gen. Stat. § 146-6(f) (raised land immediately along Atlantic Ocean)
- N.C. Gen. Stat. §§ 113A-100 et seq. (Coastal Area Management Act, CAMA)
- 15A N.C. Admin. Code 7H.0304(3) (Inlet Hazard Area AEC)
- 33 U.S.C. §§ 1601 et seq. (international navigation rules / COLREGS)

Cases:
- State v. Johnston, 278 N.C. 126, 179 S.E.2d 371 (1971) (definition of accretion; boundary at joinder)
- Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297, 177 S.E.2d 513 (1970) (eroded upland owner's title is extinguished)
- United States v. California, 381 U.S. 139 (1965) (territorial sea baseline under COLREGS)

Source

• Landing page: https://ncdoj.gov/opinions/bogue-inlet/

Original opinion text

REPLY TO: James C. Gulick
Environmental Division
[email protected]
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, but well seaward (i.e., South) of the proposed dam. You ask specifically:

[Footnote 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 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.]

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.

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?

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