Municipalities, businesses and property owners along New Jersey’s coastline and waterways–and beach-goers and recreational fishermen, too–all have a stake in the extensively re-written ‘public-access’ rules adopted this month by the New Jersey Department of Environmental Protection.  

Attorneys in the Environmental Group at the Wolff Samson law firm provided a nice background and summary for their clients. We appropriated and reproduced it below. Thanks, guys.

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On
October 4, 2012, New Jersey Department of Environmental Protection (NJDEP)
Commissioner Martin signed a final rule that significantly re-writes NJDEP’s
public access requirements. As a result, the final Public Access Rules
completely change the way NJDEP will require public access to beaches and
tidal waterways as part of coastal permitting.

By way
of background, NJDEP originally wrote its public access requirements in 2007.
Those public access requirements added a Public Trust Rights Rule to the
Coastal Zone Management Rules, as well as other ancillary requirements,
commonly known as the “Public Access Rules.” These rules imposed
extensive access requirements on all coastal permittees, such as those
obtaining Coastal Area Facilities Review Act and Waterfront Development Act
permits. In some cases, coastal permitting ground to a halt as permittees and
NJDEP negotiated public access requirements that were expensive and, in some
cases, unnecessary since certain properties already provided public access. These
requirements were also criticized as threatening public safety, because
access requirements were imposed at night, or on facilities not suited for
public access. The burdens imposed on municipalities and industries resulted
in a public outcry for reform.

The
breadth of these Public Access Rules was challenged both in court and in the
public policy arena. In 2007, the Borough of Avalon successfully overturned
certain municipal access requirements in the existing rules. Further, after
Governor Chris Christie was elected in 2009, the Public Access Rules were
identified early-on as one set of rules that needed significant reform. In
fact, the Governor’s Red Tape Review Group identified the Public Access Rules
as one of several rules that “offends common sense.”

After
commencing a stakeholder process, NJDEP proposed a complete re-write of the
rules on April 4, 2011. Significant amendments to the proposal were published
by NJDEP on March 19, 2012.

The new
Public Access Rules adopted this month emphasize public access planning by
municipalities. Specifically, the new rules allow municipalities to create
“Municipal Public Access Plans” (MPAPs) as part of the town’s
master plan, which, once adopted by NJDEP, would become the mechanism by
which coastal permittees would provide public access. Opportunities for
public access can include actual access to the shoreline, or other
opportunities such as boat ramps or piers for fishing. In addition, the rules
allow municipalities to develop provisions that permit a monetary
contribution in lieu of providing public access. Municipalities would be
required to dedicate a public access fund, which could be used for new or
enhanced access to waterways. There are specific rules governing access to
certain types of facilities obtaining coastal permits in municipalities that
have not adopted MPAPs.

The new
rules also generally emphasize maintenance of existing public access. In
certain circumstances, the rules do not require new public access for
existing properties. For example, for existing industrial development, no
public access is required if there is no existing public access on site where
the proposed activity consists of the maintenance, rehabilitation, renovation,
redevelopment or expansion that remains entirely with the parcel containing
the existing development. If an existing industrial development already has
public access, it is to be maintained or equivalent onsite public access is
to be provided. Similar provisions apply to other types of development,
including residential and commercial development, homeland security
facilities and ports.

If you
would like further information on the new Public Access Rules, including
details on specific access requirements for certain types of facilities,
please contact:

Dennis M. Toft |
Co-Chair, Environmental Group dtoft@wolffsamson.com | (973) 530-2014 

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