DEP Proposal Could Reignite Battle over Beach, Shoreline Access

Tom Johnson | September 8, 2016 | Energy & Environment
Critics contend new rules fail to ensure unfettered access promised by bipartisan bill now before Legislature

beach access
The Christie administration is proposing minor adjustments to the rules governing access to beaches and the shoreline, setting up a new battle with legislators and conservationists over the issue.

In a new regulation proposed on Tuesday, the state Department of Environmental Protection is recommending modifications in its rules detailing when and how it will require access to tidal waters, a source of controversy for many years.

The proposal is designed to accommodate state policies made in response to a court ruling late last year that overturned the agency’s authority to require access to waterways under certain permitting programs, according to the regulation.

But conservation groups and environmentalists were quick to denounce the proposal, faulting it as falling short of guaranteeing access to beaches and the shoreline as widely as a bill pending in the Legislature.

“They are proposing the same rules that limited beach access, were opposed by the public, and were struck down by the courts,’’ said Jeff Tittel, director of the New Jersey Sierra Club. “With these rules, we are going back to the day when towns want our money to pay for their beaches, but do not want us to access our beaches.’’

In its proposal, the department noted the changes it is making in the regulation are consistent with recent court rulings and legislation ensuring “public access is provided to tidal waters and their shoreline in a cost effective manner.’’

Citing the importance of public access to beaches as a key component of the state’s coastal tourism industry, the proposal said the changes “will confirm and strengthen the continuation of that access.’’

Lawyers who brought the case that led the court to strike down the agency’s old access rules argued that the new proposal is just as flawed as the regulation overturned last year. Edward Bonanno is representing the Hackensack Riverkeeper and Andrea Leshak the NY/NJ Baykeeper, the two organizations that challenged the old rules, adopted by the DEP in 2012.

In a letter they sent to key legislative leaders, they questioned the legality of the new proposal, threatening to return to court to litigate the issue. “If the department presses forward with this rule proposal, we fully expect that the courts will again find it unlawful and lacking legislative authority,’’ they wrote.

Last month, the Legislature discussed a bill (S-2490) aimed at ensuring public access to tidal waters, but the DEP opposed the measure saying it went too far and imposed undue requirements on property owners.

The bill, based on the recommendations of a diverse task force of business, conservation, and recreational interests, is expected to come up for a vote with bipartisan support this fall.

The legislation essentially would establish under law the longstanding public trust doctrine allowing the public to enjoy tidal waters and the shoreline. It also would allow the state to require off-site access to the waterfront in cases where the public is excluded because of security concerns, such as refineries and power plants.

Beyond questioning the legality of the new proposal, critics also said its provisions to encourage public access to waterways is hampered by making municipal access plans voluntary instead of mandatory for towns.

“The DEP’s rules include no standards or guidance for towns and do not even force them to comply,’’ Tittel said. It also repeals a stipulation that requires towns to make a monetary contribution to a municipal public access fund in lieu of establishing onsite or offsite access to the shoreline.