Opinion Number ( 1997 )

Dear Mayor Price:

This responds to your request for an opinion of this office concerning the authority of the City of Mandeville to regulate works on the seashore within the limits of the municipality.

In your initial request, you advised, as follows:

The Corps of Engineers has permitted the construction of a structure out into Lake Pontchartrain within the city limits of the City of Mandeville. Does the City of Mandeville have the power to prevent or regulate the construction of this structure under the provisions of the above Civil Code article?

In order to determine the limits of the project, we have reviewed the project applications with the Corps of Engineers, the State of Louisiana, and the various drawings covering installation and maintenance of fill for the breakwater jetty, aerial photographs, and prior reclamation permits.

It is our understanding that this project will, as you have stated, be located on State waterbottoms. As you have also stated, Civil Code Article 452 provides that the "seashore within the limits of a municipality is subject to its police power, and the public use is governed by municipal ordinances and regulations."

However, it is our understanding that the breakwater jetty which is the subject of this request will not actually make contact with the seashore. The seashore is the space of land over which the waters of the sea spread in the highest tide during the winter season and would extend from the waters edge to the highest elevation touched by the highest tide during the winter season. See Civil Code Article 451 and jurisprudence.

In this instance, the proposed breakwater jetty is intended to terminate prior to making contact with land. That is, the breakwater would terminate seaward of the land/water contact point. Thus, if the project does not make contact with the seashore it would not be considered a part of the seashore and, thus, not subject to regulation by a municipality.

Under the circumstances, it would seem that the City of Mandeville would have jurisdiction only to such portions of the project as might fall within the limits of the seashore. As you point out, the City of Mandeville is not interested in regulating the waterbottoms, and the appropriate federal and state agencies have already approved the project through the exercise of their own areas of jurisdiction. Thus, the only remaining aspect of the possible exercise of jurisdiction would occur at the interface of the seashore and Lake Pontchartrain.

Parenthetically, if the breakwater jetty does not contact the seashore, the City of Mandeville would not be able to exercise jurisdiction.

We hope that this opinion is of benefit and if we may be of any further assistance, please advise us.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: __________________________ EMORY A. BELTON, JR. Assistant Attorney General RPI/EAB/tp