New Jersey is moving closer to enshrining in state law the public-trust doctrine, a common-law principle that ensures natural resources such as tidal waters and waterfront areas are preserved for public use.
Dating back hundreds of years (1641) to English common law, the concept is based on the premise that the people’s ownership of tidal waters and adjacent shorelines is held in trust by the state, a concept long embraced by conservationists as guaranteeing public access to waterfront areas.
But its application is not so easy in New Jersey, where shoreline and waterfront areas are lined with oil refineries, luxury condominium complexes, power plants, urban redevelopments, and multimillion-dollar homes. In fact, litigation over past access rules led to a new bill to resolve the issue.
After months of wrangling, amendments, and debate, legislators appear to have settled on a bill, although some interest groups remain unhappy. The legislation (S-1074/A-4221), in the works since 2016, quickly won approval from the Assembly Appropriations Committee on Monday, setting it up for final approval by both the Assembly and Senate.
“This is the version I am sure we will see on the Governor’s desk,’’ said Raymond Cantor, a vice president of the New Jersey Business & Industry Association, a group still pushing for amendments it says could improve the bill.
Onus on DEP in its regulatory actions
The bill stipulates the state, through the Department of Environmental Protection, has a duty to protect and promote the public’s right of physical and visual access to public-trust lands in its funding decisions and permitting actions involving coastal, wetlands and flood-control rules. All those actions would now need to be consistent with the public-trust doctrine.
“The bill will strengthen the state’s ability to provide public access to waterfront and shoreline areas,’’ said Tim Dillingham, executive director of the American Littoral Society, one of four co-chairs that served on a special legislative task force to study the issue. “In the end, it will give us more public access.’’
With some notable exceptions. Michael Egenton, executive vice president of the New Jersey Chamber of Commerce, another co-chair, argued for and eventually won exemptions for critical infrastructure along the waterfront — nuclear power plants, chemical facilities, and petroleum tank farms.
“It’s a balanced bill that meets the needs of the stakeholders involved in the process,’’ Egenton said. “We tried to balance the interests of private landowners and the need to open up some areas to the public.’’
In the end, the chamber, the Chemical Industry Council, the Maritime Association, and the New Jersey Petroleum Council endorsed the latest version. The NJBIA did not, even though it had originally backed the version that was approved by the Senate.
“We think there could be a little bit of improvements that can come out of the regulatory process,’’ Cantor said.
Key issues left unaddressed
The problem of access to waterfront areas emerged in late 2015, when a state appeals court struck down the DEP’s authority to establish rules governing access to waterfront areas and beaches. The Legislature quickly approved a temporary fix, but Sen. Bob Smith (D-Middlesex) appointed a stakeholder task force to hammer out a consensus on further steps.
The consensus bill that ultimately emerged only focuses on codifying the public-trust doctrine in public law, but leaves many other, much more controversial issues yet to be determined.
For instance, if certain critical areas are exempted from granting public access, should the owners have to pay to develop pathways to waterfront and beach areas elsewhere? Business interests oppose that concept.
The special legislative task force also wanted to dedicate a portion of beach fees imposed by towns to fund new access points to the beach. It also recommended providing free or affordable parking along waterfront areas to ensure easier access to beaches. Neither is included in the language of the bill.