Do Maryland waterfront owners need a state permit to install erosion-control 'beach beams' on tidal land?

Plain-English summary

A state senator asked the Attorney General about "beach beams," a modular concrete breakwater structure placed just offshore of eroding tidal shoreline to dissipate wave energy and encourage sand to build up. He asked whether a landowner needed a permit to install one, who would own any new land the structure created, whether that new land belonged to the landowner as "natural accretion" or only as reclamation of land already lost since 1972, and who would be liable if a boat struck one.

The opinion concluded that installing a beach beam counted as "filling" under the Maryland Wetlands Act of 1970, because it displaced navigable water and occupied submerged wetlands, so a riparian owner needed a State wetlands license from the Board of Public Works (for State wetlands) or a private wetlands permit from the Department of Natural Resources (for private wetlands) before installing one. On ownership, the opinion reasoned that Maryland courts would probably not treat sand accretion caused deliberately by the landowner's own beach beam as "natural accretion" under the statute, since the case law distinguished accretion from a landowner's own artificial intervention from accretion caused by third parties or truly natural processes; instead, the landowner's claim would be limited to reclaiming land actually lost to erosion after January 1, 1972, within provable prior boundaries. On liability, the opinion concluded the owner of an installed beach beam remained responsible for it, including for injury to a boater if the structure created a nuisance or obstruction to navigation, particularly if it was installed without required approvals or failed to comply with any marking requirements, and that liability could still attach even to a properly marked structure if it moved out of position in a storm and struck an unwary boater.

Currency note

This opinion was issued in 1991 and analyzed the Wetlands Act of 1970 as it was then codified in the Natural Resources Article. An editor's note to the original opinion already records that the provisions discussed were transferred by Chapter 488 of the Laws of Maryland 1995 to Title 16 of the Environment Article, so the specific section numbers cited here no longer describe current law. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis further since 1995. Treat this page as historical context, not current legal advice. Verify the current codification in the Environment Article and current wetlands permitting rules before relying on any specific rule described here.

Common questions

Did a Maryland landowner in 1991 need a permit to put an erosion-control structure on tidal shoreline?
According to this opinion, yes. The Attorney General concluded that a beach beam displaced navigable water and occupied wetlands, which counted as "filling" under the Wetlands Act of 1970, so a State wetlands license (for State wetlands) or a DNR private wetlands permit (for private wetlands) was required before installation, and the structure did not fall within any of the statute's listed exemptions.

Would sand that built up behind a beach beam have belonged to the shoreline owner?
The opinion viewed this as doubtful. It reasoned that Maryland courts would likely not treat accretion the landowner caused through the landowner's own artificial structure as "natural accretion" under the statute, distinguishing it from case law allowing accretion caused by third parties or gradual natural processes. The owner's entitlement instead depended on the statute's separate, narrower right to reclaim land actually lost to erosion after January 1, 1972.

Who was responsible if a boat hit a beach beam?
According to the opinion, the person who owned or installed the beach beam remained its owner and stayed responsible for it, and could face tort liability if the structure created a nuisance or obstruction to navigation, especially without required approvals or proper markings. The opinion also noted that even a properly marked beach beam could move in a storm and still expose the owner to liability if an unwary boater struck it.

Background and statutory framework

The Board of Public Works had issued four State wetlands licenses for beach beam projects since 1988, covering shoreline distances of 140 to 1,880 feet, with the structures placed 35 to 80 feet channelward of mean high water. A riparian owner's rights and duties in this setting flowed from the Wetlands Act of 1970, codified as §9-101 through §9-603 of the Natural Resources Article. Under NR §9-202(a), a State wetlands license from the Board of Public Works was required before filling or dredging State wetlands, and under NR §9-306, a private wetlands permit from DNR was required for private wetlands. The opinion worked through the statute's definition of "filling" in NR §9-101(f)(1), the exemption list in NR §9-202(d), and the accretion and reclamation language in NR §9-201(a), which gave a riparian owner rights to natural accretion and to reclaim fast land lost to erosion or avulsion after January 1, 1972, within provable existing boundaries.

The opinion traced the accretion question through Maryland case law, including People's Counsel v. Maryland Marine, 316 Md. 491 (1989), and Rayne v. Coulbourne, 65 Md. App. 351 (1985), the latter observing that the 1970 Wetlands Act left it "unclear whether the legislature now intends to disentitle riparian owners of artificially accreted lands." Reasoning that the statute's earlier history, going back to Chapter 129 of the Laws of Maryland 1862, treated artificial and natural accretion alike as long as the process was gradual and not caused by the claiming owner, the opinion concluded that a beach beam's owner-caused accretion would fall outside that protection because the owner, not a third party or nature, produced the artificial condition. On liability, the opinion drew on maritime obstruction cases including Kennebec Towage Co. v. State, 142 Me. 327 (1947), and Hamburger v. United States, 318 F. Supp. 103 (D. Md. 1970), describing the Coast Guard's role in marking known obstructions under 14 U.S.C. §87, and concluded that a beach beam's owner remained liable for injury caused by the structure as a nuisance or navigation obstruction, citing Adams v. Commissioners of the Town of Trappe, 204 Md. 165 (1954), for the State's police-power authority to abate such a nuisance, and NR §9-601(d) for DNR's authority to require restoration of unlawfully filled wetlands.

Citations and references

Statutes:

• Maryland Wetlands Act of 1970, the governing statute for tidal wetlands regulation discussed throughout the opinion
• §9-101 through §9-603 of the Natural Resources Article, the codification of the Wetlands Act at the time of this opinion
• NR §9-202(a), requiring a State wetlands license from the Board of Public Works before filling or dredging State wetlands
• NR §9-306, requiring a private wetlands permit from DNR before filling or dredging private wetlands
• NR §9-201(a), the provision granting riparian owners rights to natural accretion and to reclaim land lost to erosion or avulsion after January 1, 1972
• NR §9-202(d), listing activities exempt from the Board's State wetlands licensing process
• COMAR 08.05.07.03, listing activities exempt from DNR's private wetlands permitting process
• NR §9-101(e), defining "dredging" under the Wetlands Act
• NR §9-101(f)(1), defining "filling" under the Wetlands Act
• NR §9-101(f)(3), listing activities that do not count as "filling"
• NR §9-102, stating the Wetlands Act's public policy purpose of preserving wetlands
• NR §9-102(b), the provision on preventing wetlands despoliation cited regarding the legislative trend toward tighter regulation
• Former Article 54, §45 of the Maryland Code, the 1862 riparian accretion statute
• Chapter 129 of the Laws of Maryland 1862, enacting the original riparian accretion provision
• Former Article 66C, §720, the Wetlands Act's original 1970 natural-accretion provision
• Chapter 241 of the Laws of Maryland 1970, enacting the original Wetlands Act natural-accretion language
• Chapter 775, Laws of Maryland 1973, amending the accretion statute to add a reclamation right for land lost after January 1, 1972
• Article 83B, §5-620 of the Maryland Code, addressing submerged archeological historic property, noted as outside the opinion's scope
• §10-402(a) of the State Finance and Procurement Article, governing Board of Public Works conveyances of submerged State land
• NR §9-601(d), authorizing DNR to require restoration of wetlands unlawfully filled
• 14 U.S.C. §87, the federal statute underlying Coast Guard marking of navigational obstructions
• Chapter 488 of the Laws of Maryland 1995, the later law transferring these provisions to the Environment Article (per the opinion's editor's note)

Cases:

• People's Counsel v. Maryland Marine, 316 Md. 491, 493 n.1, 560 A.2d 32 (1989), Maryland Court of Appeals decision defining a riparian owner and construing the scope of the Wetlands Act's improvement provision
• Board of Public Works v. Larmar Corp., 262 Md. 24, 37, 227 A.2d 427 (1971), Maryland Court of Appeals decision on the history of wetlands filling in Maryland and vested rights in State-approved structures
• Rayne v. Coulbourne, 65 Md. App. 351, 365, 500 A.2d 665 (1985), Court of Special Appeals decision on whether artificially created land counts as accretion under the Wetlands Act
• State v. Pankratz, 538 P.2d 984, 989 (Alaska 1975), Alaska Supreme Court decision on accretion caused by the claiming party's own artificial activity
• California v. United States, 457 U.S. 273 (1982), U.S. Supreme Court decision holding artificial accretion does not pass title to submerged state lands
• Internal Imp. Trust Fund v. Sand Key Assoc., 512 So. 2d 934 (Fla. 1987), Florida Supreme Court decision on artificial accretion and state-owned submerged land
• Kennebec Towage Co. v. State, 142 Me. 327, 52 A.2d 166 (1947), Maine Supreme Judicial Court decision on negligence for leaving an unmarked underwater obstruction
• Williams v. Edward Gillen Dock Co., 258 F. 591 (1919), federal decision on marking requirements for a lawfully constructed navigation obstruction
• Paramount Development v. Hunter, 249 Md. 188, 238 A.2d 869 (1968), Maryland Court of Appeals decision cited on evidence of negligence from noncompliance with safety regulations
• Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148 (1964), Maryland Court of Appeals decision cited alongside Paramount Development on negligence standards
• J. Aron & Co., Inc. v. Service Transportation Co., 486 F. Supp. 1070 (D. Md. 1980), federal district court decision cited on obstruction-related liability
• Ritchey v. Florida Power & Light Co., 468 So. 2d 306 (Fla. App. 1985), Florida appellate decision holding failure to mark or light a structure in violation of federal law is negligence per se
• Hamburger v. United States, 318 F. Supp. 103, 105-06 (D. Md. 1970), federal district court decision describing the Coast Guard's role in marking known navigational obstructions
• Edmondson Island Case, 42 F. 15, 20 (D. Md. 1890), federal circuit court decision on a structure's owner remaining liable for nuisance or trespass on State land
• Adams v. Commissioners of the Town of Trappe, 204 Md. 165, 173, 102 A.2d 830 (1954), Maryland Court of Appeals decision on the State's police power to abate a nuisance on submerged land

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1991/Volume76_1991.pdf (this opinion appears at printed pages 307-322 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

NATURAL RESOURCES

Water Resources - Applicability of Wetlands Act to
Installation of "Beach Beam" Erosion Control Device

                          February 7, 1991

The Honorable Laurence Levitan
Maryland Senate

You have requested our opinion on several questions relating to the

placement of erosion control devices known as "beach beams."1 Your
specific questions are as follows:

  1.    [May a riparian landowner] make improvements in front of

the land to preserve the [landowner's] access to navigable waters or
protect the shore of that person against erosion without going through a
... permit or licensing process?

  2.    Beach beams may accelerate the accretion to land through

natural processes. If this accretion is considered "natural" could the
[riparian] landowner be entitled to this newly created fast land? If the
accretion is considered artificial would the landowner be entitled to
reclaim only that which had been lost to erosion after 1972?

  3.    If a boat should run into or otherwise be damaged by these

structures in State waters is there any liability? What if [the structures]
are marked?

  4.   If these structures are not attached to the fast land of the

riparian property owner, who owns and who is responsible for installed
beach beams?

  For the reasons stated below, we conclude as follows:

1.      In general, a riparian landowner may make improvements to

the shoreline without obtaining a State wetlands license or a private
wetlands permit only under certain limited circumstances. A landowner
intending to place a beach beam in wetlands would require a license or
a permit.2

2.       A riparian landowner is entitled to any natural accretion to

the landowner's shoreline. However, the courts would not likely view
accretion caused by a beach beam to be "natural," within the meaning of
the Wetlands Act of 1970. Assuming that accretion accelerated by a
beach beam is artificial, a riparian landowner has the right to reclaim
fast land lost by erosion or avulsion only during that person's ownership
of the land after January 1, 1972 and only to the extent of provable
existing boundaries. We think it doubtful that the riparian owner would
be entitled to such accretion beyond the point of erosion of fast land.

3.       A person who places or causes to be placed a beach beam in

navigable waters could be liable for any injury caused by the placement
of the structure, if the beach beam was placed so as to be a nuisance or
an obstruction to navigation, particularly if the owner fails to obtain
applicable federal, State, and local approvals.

4.       The person who owns a beach beam and who installs it or

causes it to be installed in tidal waters remains the owner of the beach
beam and is ultimately responsible for it, even if the beach beam moves
out of its original position.

   1
      Although the term is apparently not trademarked, the "beach beams"

referred to in your inquiry and discussed in this opinion are specifically those
designed by Advanced Erosion Control, Inc., of Queenstown, and marketed by
Design Resources Company, Inc., of Annapolis. See note 2 below and
accompanying text.
2
This opinion does not discuss the potential applicability of federal
permit requirements or requirements under Article 83B, §5-620 of the Maryland
Code, should a beach beam disturb submerged archeological historic property.

                                 I

                          Beach Beams

A beach beam is a modular, permeable breakwater structure four to

six feet in height and 10 to 15.5 feet in length, weighing up to 12.5
tons. It is manufactured of steel-reinforced concrete and resembles the
"Jersey barriers" familiar to highway drivers, with triangular cutouts to
allow passage of water. Placed parallel to the shoreline, a series of
beach beams would be intended to dissipate wave energy and to increase
deposition of sand along an eroding shoreline.3

Since 1988 the Board of Public Works has issued four State wetlands

licenses for beach beam projects. These projects include shoreline
distances of 140 to 1880 feet. The beach beams are to be placed in State
waters from 35 to 80 feet channelward of mean high water, with the top
of the beams even with the water level at high tide. At low tide they are
partially or totally exposed.4

                                II

           Regulation of Shoreline Improvements

A riparian owner has been defined as "one who owns land bordering

upon, bounded by, fronting upon, abutting or adjacent and contiguous
to and in contact with a body of water, such as a river, bay, or running
stream." People's Counsel v. Maryland Marine, 316 Md. 491, 493 n.l,
560 A.2d 32 (1989).

   3
      This information was provided in a brochure produced for Design

Resources Company, Inc., which markets the beach beams.
4
This information was provided by the Tidal Wetlands Program, Water
Resources Administration, Department of Natural Resources. The Program is
monitoring the four beach beam projects, in addition to eight "beach prism"
projects. The beach beam is now preferred over the earlier beach prism design.

A riparian owner who wishes to make improvements to the shoreline

of tidal wetlands must comply with the Maryland Wetlands Act of 1970,
codified as §§9-101 through 9-603 of the Natural Resources Article
("NR" Article). In general, a State wetlands license from the Board of
Public Works is needed before filling or dredging State wetlands. NR
§9-202(a).5 A private wetlands permit from the Department of Natural
Resources ("DNR") is needed before filling or dredging private
wetlands. NR §9-306.6

We recognize that, under the Wetlands Act, a riparian owner "may

make improvements into the water in front of the land to preserve that
person's access to the navigable water or protect the shore of that person
against erosion. After an improvement has been constructed, the
improvement is the property of the owner of the land to which the
improvement is attached." NR §9-201(a). However, the intent of this
language is not to impliedly exempt these activities entirely from the
regulatory process. See People's Counsel v. Maryland Marine, 316 Md.
at 505 n.7. Rather, improvements that are otherwise within the scope
of the Act are subject to its requirements unless they fall within a
specific exemption. The activities expressly exempted from the Board
licensing process are listed in NR §9-202(d):

       The provisions of this section do not apply to any
       operation for:

             (1) Dredging and filling being conducted as
       of July 1, 1970, as authorized under the terms of
       an appropriate permit or license granted under
       the provisions of existing State and federal law;

             (2) Dredging of seafood products by any
       licensed operator, harvesting of seaweed, or
       mosquito control and abatement as approved by
       the Department of Agriculture;

             (3) Improvement of wildlife habitat or
       agricultural drainage ditches as approved by an
       appropriate unit; or

             (4) Routine maintenance or repair of
       existing bulkheads, provided that there is no
       addition or channelward encroachment.

Activities in private wetlands expressly exempted from the DNR
permitting process are contained in COMAR 08.05.07.03 but are too
numerous to list here.

   5
       NR §9-101(n) defines "State wetlands" as:
                      [A]ny land under the navigable waters
            of the State below the mean high tide, affected
            by the regular rise and fall of the tide.
            Wetlands of this category which have been
            transferred by the State by valid grant, lease,
            patent or grant confirmed by Article 5 of the
            Maryland Declaration of Rights shall be
            considered "private wetland" to the extent of the
            interest transferred.
   6
       NR §9-101(j) defines "private wetlands" are defined as follows:
                       (1) [A]ny land not considered "State
             wetlands" bordering on or lying beneath tidal
             waters, which is subject to regular or periodic
             tidal action and supports aquatic growth.
                       (2) "Private wetlands" includes
             wetlands, transferred by the State by a valid
             grant, lease, patent, or grant confirmed by
             Article 5 of the Maryland Declaration of rights,
             to the extent of the interest transferred.

The State has adopted private wetlands maps under NR §9-301, which are filed
in the land records of each county with tidal waters. These maps provide notice
to riparian landowners that there are tidal wetlands on or adjacent to their
properties.

Assuming no pertinent exemption, whether a particular shoreline

improvement project requires a State wetlands license or a private
wetlands permit depends on whether it constitutes filling or dredging
under NR §9-101(f). NR §9-101, which provide as follows:

       (e) "Dredging" means the removal or
       displacement by any means of soil, sand, gravel,
       shells, or other material, whether or not of
       intrinsic value, from any State or private
       wetlands.

       (f)(1) "Filling" means:

            (i) The displacement of navigable water by
       the depositing into State or private wetlands of
       soil, sand, gravel, shells, or other materials; or

          (ii) The artificial alteration of navigable water
      levels by any physical structure, drainage ditch,
      or otherwise.7

  This analysis applies to beach beams. As we understand the facts,

a beach beam in tidal wetlands clearly displaces waters of the State,
occupies a considerable area of submerged wetlands, and establishes a
structure that could interfere with navigation and fisheries.
Accordingly, it entails "filling," as defined in NR §9-101(f)(l). Such
structures are not within a statutory or regulatory exemption. Therefore,
a wetlands license or permit, as the case may be, is required before a
person may install a beach beam.8

   7 Under NR §9-101(f)(3):
         "Filling" does not include:
                  (i) Drainage of agricultural
                  land;
                  (ii) In-place replacement or repair of
         shore erosion control structures using
         substantially similar materials and construction
         design; or
                  (iii) Planting of wetlands vegetation
         when no grading or filling State of private
         wetlands is necessary.
   8
      This conclusion accords with the stated policy objectives of the

Wetlands Act. NR §9-102 states in part:
(a) In many areas of the State much of
the wetlands have been lost or despoiled by
unregulated dredging, dumping, filling, and
like activities, and the remaining wetlands are
in jeopardy of being lost or despoiled by these
and other activities...
(b) It is the public policy of the State,
taking into account varying ecological,
economic, developmental, recreational, and
aesthetic values, to preserve the wetlands and
prevent their despoliation and destruction.

                               III

                       Ownership of Land

A. Legislative History

The history of wetlands development and regulation in Maryland

reflects a trend toward tighter restrictions on human intervention in the
tidal environment. Through the middle of the nineteenth century,
Maryland law encouraged the filling of wetlands, in order to
accommodate a growing population and develop commerce. Much of
Baltimore's Inner Harbor sits atop filled wetlands. See Board of Public
Works v. Larmar Corp., 262 Md. 24, 37, 227 A.2d 427 (1971).

In 1862, the General Assembly enacted the following provision on

riparian ownership rights:

              The proprietor of land bounding on any of
        the navigable waters of this State shall be entitled
        to all accretions to said land by the recession of
        said water, whether heretofore or hereafter
        formed or made by natural causes or otherwise,
        in like manner and to like extent as such right
        may or can be claimed by the proprietor of land
        bounding on water not navigable.

Former Article 54, §45 of the Maryland Code (enacted in Chapter 129
of the Laws of Maryland 1862) (emphasis added).

The ambiguous phrase "accretions ... by natural causes or otherwise"

led to uncertainty whether fast land created by artificial means belonged
to the riparian owner. See Larmar Corp., 262 Md. at 40. See generally
Salsbury, Maryland's Wetlands: The Legal Quagmire, 30 Md. L. Rev.
240, 247-48 (1970). Ultimately, the Court of Special Appeals held
unequivocally that "the Act of 1862 contemplated no distinction between
accretions formed naturally and those formed by artificial means."
Rayne v. Coulbourne, 65 Md. App. 351, 365, 500 A.2d 665 (1985).

The Wetlands Act of 1970 initially provided that only natural

accretion belonged to the riparian owner:

        The owner of land bounding on navigable waters
        shall be entitled to all natural accretions to said
        land and to make improvements into the waters
        in front of said land for the purposes of
        preserving his access to navigable water or for
        protecting his shore against erosion. After an
        improvement has been constructed, it shall
        become the property of the owner of the land to
        which it is attached.

Former Article 66C, §720 (enacted in Chapter 241 of the Laws of
Maryland 1970) (emphasis added).

Then, in 1973 the General Assembly entitled riparian owners in

addition to their right to "natural accretions," "to reclaim fast land lost
by erosion or avulsion during [their] ownership of the land to the extent
of provable preexisting boundaries ...," but only as to "fast land lost
after January 1, 1972 ...." Chapter 775, Laws of Maryland 1973.

 Thus, as presently worded, NR §9-201 provides as follows:

              (a) A person who is the owner of land
        bounding on navigable water is entitled to any
        natural accretion to the person's land, to reclaim
        fast land lost by erosion or avulsion during the
        person's ownership of the land to the extent of
        provable existing boundaries.9 The person may
        make improvements into the water in front of the
        land to preserve that person's access to the
        navigable water or protect the shore of that
        person against erosion. After an improvement
        has been constructed, the improvement is the
        property of the owner of the land to which the
        improvement is attached. A right covered in this
        subtitle does not preclude the owner from
        developing any other use approved by the Board.
        The right to reclaim lost fast land relates only to
        fast land lost after January 1, 1972, and the
        burden of proof that the loss occurred after this
        date is on the owner of the land.

              (b) The rights of any person, as defined in
        this subtitle, which existed prior to July 1, 1973,
        in relation to natural accretion of land are
        deemed to have continued to be in existence
        subsequent to July 1, 1973 to July 1, 1978.


   9
      The term "avulsion" means "the rapid, easily perceived and sometimes

violent shifts of land incident to floods, storms or channel breakthroughs." 57
Opinions of the Attorney General 445, 451 (1972).

To summarize, a riparian owner owns: (i) fast land resulting from
natural accretion, without regard to existing boundaries; (ii) fast land
resulting from reclamation, but only to the extent of land lost after
January 1, 1972, within provable existing boundaries; and (iii)
improvements to preserve water access or protect against erosion,
subject to regulatory approvals under the Wetlands Act.

B. "Natural Accretion"

As discussed in Part II above, a beach beam itself constitutes a

"filling" if it is placed in tidal wetlands and displaces navigable water,
and therefore requires licensing or permitting. If accretion accelerated
by placement of a beach beam is considered to be natural, the accretion
would belong to the riparian owner, provided the beach beam was
approved by the Board of Public Works or DNR, as appropriate.

The question whether any sand or other sediments accreting because

of the riparian owner's placement of a structure like a beach beam would
be considered natural has not been directly addressed by the Maryland
courts. In an opinion issued soon after enactment of the Wetlands Act,
Attorney General Burch concluded that "change brought about gradually
through artificial means will result in either a gain or loss to the
landowner, provided, of course, that statutory provisions are complied
with." 57 Opinions of the Attorney General 445, 455 (1972). The view
taken by that opinion is that the artifice is irrelevant if the change is
gradual: "It is not the source of the change which is relied upon, but the
manner in which change occurs." 57 Opinions of the Attorney General
at 453. This understanding of the statutory term "natural accretion"
reflects the view of a majority of common law decisions "that it is
immaterial whether the deposits causing the new land derived from
natural causes or had an artificial impetus so long as the deposits were
gradual." Rayne v. Coulbourne, 65 Md. App. at 364.

The Court of Special Appeals was careful to point out, however, that

the cases cited in support of this proposition dealt with accretion caused
by the artificial intervention of third parties, not the riparian landowner.
See generally Annotation, Riparian Owner's Right to New Land Created
by Reliction or by Accretion Influenced by Artificial Condition Not
Produced by Such Owner, 63 A.L.R. 3d 249 (1975). Indeed, when
construing the 1862 Wetlands Act as applicable to artificial accretion,
the court emphasized the lack of the landowner's involvement or
control:

       [The riparian owners] had no more control over
       the erection of the dike and subsequent accretion
       than they would have had if the accretion had
       occurred naturally. To interpret the Act as to
       penalize them simply because the cause of the
       accretion, which was beyond their control, was
       an artificial rather than a natural one would
       produce a result that is unfair and unreasonable.

65 Md. App. at 365.

Conversely, the general common law rule is that "a riparian owner

cannot claim title to land added by accretion ... as a result of creating by
himself an artificial condition causing the reliction ...." Annotation,
Waters - rights in respect of changes by accretion or reliction due to
artificial conditions, 134 A.L.R. 467, 472 (1941) (citing cases but
noting "authority to the contrary"). See, e.g., State v. Pankratz, 538
P.2d 984, 989 (Alaska 1975) ("it is ... settled that accretion may result
from artificial causes, provided that the party claiming the benefit did
not himself cause the artificial accumulation.").

This background permits us to reach the conclusion that accretion

resulting from a landowner's installation of a beach beam would not
likely be deemed "natural accretion," within the meaning of NR §9-
201(a). In Rayne v. Coulbourne, the Court of Special Appeals stated in
dicta that an artificially created peninsula was not "natural" accretion and
therefore the riparian owner would have had no claim to it had the
project been completed after passage of the Wetlands Act of 1970.10 65
Md. App. at 361. At another point in the opinion, the court observed
that "it is unclear whether the legislature now intends to disentitle
riparian owners of artificially accreted lands." 65 Md. App. at 365
n.13.

As we see it, the General Assembly did not intend to disentitle

riparian owners of artificially accreted lands if the artificial accretion is
gradual and if the riparian owner did not produce the artificial condition.
But if the riparian owner intervenes in the environment to cause the
accretion - and, it must be remembered, thereby deprives some other
riparian owner of the accretion that would otherwise have occurred on
the latter's land - a statutory "natural accretion" will not be found.

C. Reclamation of Lost Fast Land

You also asked whether the landowner would be entitled to reclaim
only that which had been lost to erosion after 1972 if the accretion is
considered artificial.

   10
       The artificial accretion at issue in Rayne occurred before 1970;

therefore, NR §9-201 was not applicable.

Because, in our view, a riparian owner who installs a beach beam is

not entitled to the resulting accretion under the Wetlands Act's "natural
accretion" provision, the owner's entitlement depends on the statute's
authorization "to reclaim fast land lost by erosion ...." The General
Assembly has limited a riparian owner's right to reclaim lost fast land
solely during that owner's title to the land and to the extent of provable
boundaries since January 1, 1972. NR §9-201(a). In light of this
legislative policy judgment, we do not see a basis on which Maryland
courts would consider accretion brought about by a beach beam beyond
the limit of provable erosion to be the riparian owner's property.

Once a riparian owner has reclaimed lost fast land, with the approval

of the State by means of a State wetlands license (because wetlands
created by erosion revert to the State), any further filling of wetlands by
accretion would take State wetlands. Since 1970 the Board of Public
Works may convey title to submerged lands of the State only to the
riparian owner or proprietor of the land abutting the land conveyed.
§10-402(a) of the State Finance and Procurement Article ("SF"
Article).11 This conveyance is done by quitclaim deed and to date has
only been done for fills creating fast land where extreme personal
hardship or economic benefit to the public has been shown.12 The State
wetlands licensing procedure does not convey title to submerged land,
but merely allows certain use or activity under certain conditions to
occur in State wetlands. See NR §9-202. Absent an express conveyance
or lease of the filled submerged land by the Board of Public Works in
conjunction with a State wetlands license, the riparian owner does not
receive title to that filled land.

Until 1970 the trend of Maryland riparian rights law was to increase

the rights of the riparian owner. Since 1970 the legislative trend has
been to limit and regulate riparian rights in order to protect the
Chesapeake Bay and its tributaries. See NR §9-102(b). In addition, any
increase in shoreline brought about by deposition of sand or sediment
behind a beach beam would necessarily cause a commensurate decrease
in natural accretion elsewhere, in contravention of the right afforded to
all riparian owners under NR §9-201. For these reasons, it is our
opinion that Maryland courts would disfavor entitlement to artificial
accretion beyond the limit of land lost to erosion.13

   11
      Riparian owners obtain a vested right in structures created with

approval of the State upon their completion. Board of Public Works v. Larmar
Corp., 262 Md. at 50.
12
Letter from Harold M. Cassell, Wetlands Administrator, Board of
Public Works, to John W. Rhoads, Chairman, Maryland-National Capital Park
and Planning Commission, September 28, 1990.
13
In cases involving California and Florida, courts have held that
artificial accretion does not pass title in what had been state submerged lands to
the private riparian owner. See California v. United States, 457 U.S. 273 (1982);
Internal Imp. Trust Fund v. Sand Key Assoc., 512 So. 2d 934 (Fla. 1987).

                                 IV

                            Liability

Should a person operating a vessel in State waters collide with a

beach beam, the owner of the beach beam could be liable in a tort action
for any injury caused by the placement of the beach beam, if the beach
beam was placed so as to be a nuisance or an obstruction to navigation.
Liability would be especially likely if the beach beam was placed
without approval of all applicable governmental bodies or in violation
of any of the requirements of the approving authorities such as position,
depth, markings, signs, or warning devices.14

The law recognizes that to leave a concealed and unprotected

underwater obstruction in a navigable channel may be negligence. See
Kennebec Towage Co. v. State, 142 Me. 327, 52 A.2d 166 (1947)
(proper for a jury to decide that state was negligent in leaving
underwater obstructions when constructing bridge). Either federal or
State statutory requirements might require the owner to mark such
obstructions. See Williams v. Edward Gillen Dock Co., 258 F. 591
(1919) (breakwater lawfully constructed for the improvement of
navigation may be obstruction to vessels and location may require
warning lights). Failure to comply with applicable safety regulations
would constitute potentially decisive evidence of negligence. See
Paramount Development v. Hunter, 249 Md. 188, 238 A. 2d 869
(1968); Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148 (1964). See
also J. Aron & Co., Inc. v. Service Transportation Co., 486 F. Supp.
1070 (D. Md. 1980). Cf. Ritchey v. Florida Power & Light Co., 468
So. 2d 306 (Fla. App. 1985) (utility company failure to mark or light
stanchions in compliance with federal law is negligence per se).

You have also asked whether there could be liability if the beams are

marked. In Hamburger v. United States, 318 F. Supp. 103, 105-06 (D.
Md. 1970), the federal district court described the role of the United
States Coast Guard under federal law in marking obstructions, usually
sunken vessels. The Coast Guard publishes notices when it learns of
new obstructions and a vessel operator is presumed knowledgeable of
navigational obstructions shown on official charts or noticed in these
official publications. Hamburger, 318 F. Supp. at 106.15

   14
      We do not understand your request to call on us to discuss whether the

State, through its review and approval process, potentially subjects itself to
liability.
15
Standards for marking obstructions in navigable waters are regulated
by the Coast Guard under 14 U.S.C. §87 and are found in 33 CFR §§.01 through
72.05.

However, beach beams are not anchored and may move in unusual

weather conditions, confusing even the boater who has actual notice of
the existence of the structures. It is conceivable that a properly
approved, marked beach beam could move in a storm and still expose
the owner to liability if it is struck by an unwary boater.

                                V

                           Ownership

The person who owns a beach beam and places it or causes it to be

placed in State wetlands continues to own and be responsible for that
structure even though its position may constitute a nuisance or trespass
to State land as well as a State wetlands violation if unlicensed.
Edmondson Island Case, 42 F. 15, 20 (D. Md. 1890). The State, here
as proprietor of submerged tidal lands, may abate the nuisance under its
police powers. See Adams v. Commissioners of the Town of Trappe,
204 Md. 165, 173, 102 A.2d 830 (1954). In addition, DNR may
require that State wetlands be restored by the owner by removal of the
structure as an unlawful filling. NR §9-601(d) provides:

             Any person who knowingly violates any
       provision of this title is liable to the State for
       restoration of the affected wetland to its condition
       prior to the violation, if possible. The court shall
       specify a reasonable time for completion of the
       restoration.

Thus, the owner of a beach beam installed in tidal waters remains the

owner of the beach beam and is ultimately responsible for it, particularly
if the beach beam moves out of position.

                                VI

                          Conclusion

In summary, it is our opinion that,

1.      In general, a riparian landowner may make improvements to

the shoreline without obtaining a State wetlands license or a private
wetlands permit only under certain limited circumstances. A landowner
intending to place a beach beam in wetlands would require a license or
a permit.

2.      A riparian landowner is entitled to any natural accretion to

the landowner's shoreline. However, the courts would not likely view
accretion caused by a beach beam to be "natural," within the meaning of
the Wetlands Act of 1970. Assuming that accretion accelerated by a
beach beam is artificial, a riparian landowner has the right to reclaim
fast land lost by erosion or avulsion only during that person's ownership
of the land after January 1, 1972 and only to the extent of provable
existing boundaries. We think it doubtful that the riparian owner would
be entitled to such accretion beyond the point of erosion of fast land.

3.       A person who places or causes to be placed a beach beam in

navigable waters could be liable for any injury caused by the placement
of the structure, if the beach beam was placed so as to be a nuisance or
an obstruction to navigation, particularly if the owner fails to obtain
applicable federal, State, and local approvals.

4.       The person who owns a beach beam and who installs it or

causes it to be installed in tidal waters remains the owner of the beach
beam and is ultimately responsible for it, even if the beach beam moves
out of its original position.

                                       J. Joseph Curran, Jr.
                                       Attorney General

                                       Judith F. Plymyer
                                       Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

Editor's Note:

The provisions discussed in this opinion were transferred by

Chapter 488 of the Laws of Maryland 1995 to Title 16 of the
Environment Article.