FEATURE ARTICLE

January 2010

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The Boundary of Navigable Waters and Tidelands May Extend behind Lawfully Built Shore Defense Structures as if They Do Not Exist

The ownership and regulation of thousands of miles and acres of shoreline and low-lying lands have been thrown into question by a ruling of the Ninth Circuit Court of Appeals that the mean high water line, the country’s principal waterfront boundary, lies not where it actually is on the ground, but rather where it would be if shore defense structures such as levees and seawalls had never been built and water had been allowed to flow freely onto the land. In U.S. v. Milner, ___F.3d___, Case No. 05-35802 (9th Cir. Oct. 9, 2009), the court held several homeowners who had lawfully built seawalls on their properties landward of the mean high water line (MHWL) to be liable for trespass and violation of the Rivers and Harbors Act when, after many years, the tides eroded the intervening beaches and reached their shore defense structures and would have reached further landward had the structures not held them back.