The Department of Environmental Protection has signed the Public Access Rule following two years of public hearings on public access to the state’s diverse waterfronts including beaches, bays and tidal waters. It will become final upon publication in the New Jersey Register on November 5 replacing the previous ruling that, according to the courts, overstepped the authority of the DEP. The latest ruling applies to 231 municipalities from the New York-New Jersey Harbor region, south along the entire coastline and north along the Delaware Bay and tidal portions of the Delaware River.
The major bone of contention with the earlier ruling was the “one size fits all” approach that was unrealistic, impossible to monitor, and posed a financial burden and security risk on the impacted businesses and beach communities. For example, the ruling imposed 24/7public access to beaches and marina causing serious security and liability issues. Portable bathrooms and parking accommodations far exceeded the federal requirements and in many cases were impossible to meet. The DEP would have responsibility to oversee adoption of the new regulations in each community. The overall response to the ruling was that it was punitive and lacked a cooperative approach to achieving its purpose.
In response to public outcry, the DEP held public hearings over the past two years to amend the former ruling. The Jersey Shore Partnership participated in the public hearings that brought together diverse stakeholders who were there to ensure that the new public access rulings would support their specific agendas. The Partnership’s position from the onset of public hearings has been that beaches are public areas where people should have reasonable access to them. Participants included the marine trades, environmentalists, developers, real estate representatives, shore officials and others.
In a reversal of the original ruling, the DEP has given municipalities the flexibility to develop their own Municipal Access Plans within criteria established by the DEP. Happily, the restrictions for 24/7 access have been modified to the satisfaction of the stakeholders. The DEP states that the department will work with municipalities to provide technical assistance as needed. However, towns are struggling with budgetary concerns and are challenged to allocate additional financial and personnel resources to develop a comprehensive access plan for their town. An earlier draft of the ruling considered that towns that did not comply would risk losing beach replenishment and Green Acres funding. Unfortunately, there is no such explicit language in the final ruling. Without such an incentive, municipalities could decide to forego or postpone the work involved in developing a Municipal Access Plan.
As with any public question, there are those who are pleased with the ruling and those who view it as the state’s abdication of its responsibility to uphold the Public Trust Doctrine by allowing municipalities to develop their own plans. While not incorporating all recommended amendments, the DEP listened to stakeholders in promulgating the new ruling. It is now up to the municipalities to work in good faith to develop Municipal Access Plans that reflect the spirit of the Doctrine.
Jersey Shore Partnership