The New Jersey Sierra Club has submitted comments against the new DEP Public Access Rules that takes the side of developers and special interests over our right to access our beaches and waterways. In New Jersey, under the Public Trust Doctrine, the people have a right to access our state and coastal waters, including our bays, rivers, and oceans. The problem is getting the public access with these rules. In 2011, we opposed the new beach access rules that rolled back the original rules from 2007. These rules were challenged in court and struck down in Court. The Superior Court decided the DEP did not have the legislative authority to do so, but since the legislature changed the law. The DEP’s new rules are now out for public comment, but they are basically the same rules that still weaken public access. They also go against the current beach access bill in the legislature that is based on the Public Trust Doctrine. The DEP comment period on the rules will close on Saturday, November 5th.
“Our right to enjoy and use beaches and waterways are being threatened by the new DEP Public Access Rules. Since Governor Christie first came into office, he rolled back the 2007 rule, and then proposed rules severely restricting access. Despite the public outcry on those rules and the court case, the DEP has taken the side of developers, wealthy property owners, marinas, beach clubs, and municipalities against the people of New Jersey. These rules will actually bring us back to the day when towns want our money to pay for their beaches but do not want us to access our beaches,” said Jeff Tittel, Director of the New Jersey Sierra Club. “The New Jersey Supreme Court has ruled in favor of the Public Trust Doctrine that all tidal waters belong to the people of New Jersey. However, the DEP refuses to listen because these rules violate the Public Trust Doctrine and shut people out from our public spaces.”
These rules seek to protect the public’s right to access the State’s waters through a variety of mechanisms like the Municipal Public Access Plans (MPAPs). These plans are not required since the rule says may and are entirely voluntarily. While the new rules put forward goals for the MPAPs, there are no enforcement standards if the goals are not achieved and the development of a MPAP is not mandatory for all communities bordering tidal waters. These rules also limit public access by relying on Army Corp of Engineers (ACOE) standards instead of the one-quarter of a mile standard provided under the existing rule. As part of their MPAP, municipalities using federal funding for beach replenishment projects would be able to provide access every one-half mile under the ACOE standard.
“The DEP rules call for Municipal Action Plans, but they are voluntary, not mandatory. That means towns do not have to come forward with plans or have a plan in place. Since there are no standards, the towns could even use these plans to further limit access. Even if the town has a plan, they don’t have to implement it. If they fail to implement the plan, there is no enforcement by the DEP. All they have to do is submit a report every 5 years, but if did nothing to implement the plan, there is no penalty. These rules are really a sham because it makes the public think towns need to do a public access plan, when they really don’t,” said Jeff Tittel.
We are concerned about these rules because they are still not tied to any kind of permitting requirements or public financing so there is no incentive for towns to do anything. Towns could even get the money or a permit without implementing public access.
“These rules are a complete giveaway of our coast because they will allow marina owners and municipalities to get a free pass. In the old rules, if you received permits for waterfront development, wetlands, CAFRA, you were required to provide access somewhere else. Now the Christie Administration has removed that requirement. Even if you receive Green Acres funding, you now do not have to require access. Towns can even close existing access points because there are no penalties. We could also see towns giving access without parking or put access in a place that the public cannot get to,”said Jeff Tittel. “The other problem with this rule is that it is using the weaker federal standards, which is one access point per every mile, when New Jersey used to require one access point for every quarter mile. That means the taxpayers have to pay to replenish beaches, but may not be allowed to access the beaches they paid for.”
These rules go against proposed legislation S2490 (Smith), that provides for protection of the public’s right to access beaches and waterfronts under the Public Trust Doctrine. As taxpayers are paying hundreds of millions of dollars for restoring our beaches, it is even more important for the public to have access to them. This bill will help overturn court decisions that have limited the right of the public to get access to the beaches and waterfronts of New Jersey.
“The new DEP rules are a cynical attempt to undermine and stop other
We are also concerned that public access will not be based on the right of the public to access its waterways but the cost-cutting desires of municipalities and developers. These entities will choose the least expensive access option, not what will provide the best or most enhanced access. These rules will allow municipalities to simply construct walkways to fulfill access requirements.
“For most of the inland bays and waterways in New Jersey, there is access required except for the Hudson River, which was required by a Supreme Court case. That means urban areas have no access for walkways or access, which will undermine re-development and block access to waterways that belong to them,” said Jeff Tittel. “These rules turn the power over to the towns that have blocked beach access for years. In the past we have seen municipalities eliminate street parking, close off access points, only have two-hour parking, and side with private property owners in public access disputes. In Long Beach Township, the only public beach with parking floods. Deal has also been trying to restrict parking for only residents. One of the biggest problems with this rule is that towns and beaches in other places will get over-crowded.”
The Sierra Club is also concerned with the proposed changes in the rules that would allow for the regulated community to provide “equivalent” access if new commercial developments or upgrades at existing facilities would block access that is currently provided to the public. Is “equivalent” separate but equal? Replacement public access must also be enhanced if existing access points are being closed and shifted somewhere else to allow for more development.
“We are also concerned that no public notification is required when public access points are moved either elsewhere on-site or completely off-site. There is also no provision of temporary access points during construction. Public notification provisions must be contained in the rules and temporary access points provided. Under these rules, there are no standards for towns regarding where or how to provide for parking as well as requirements for bathroom or changing areas for people who are using the beaches and waterways,” said Tittel.
The Sierra Club has serious concerns with exempting Green Acres funded properties from the public access rules. These rules also allow towns to get permits for state funding without having to provide access. The proposed amendments would delete any and all references to Green Acres properties from the Public Access Rule.
“This is again part of the Christie Administration’s attack on the environment and playing games with beach access. They are trying to privatize our parks and turn our beaches over to wealthy property owners, beach clubs, land speculators, developers and municipalities. These rules should be withdrawn because cannot trust the DEP with the Public Trust Doctrine,” said Jeff Tittel, Director of the New Jersey Sierra Club.
The rule notice can be found below, with the rules and our comments attached.
NJ DEPARTMENT OF ENVIRONMENTAL PROTECTION
LAND USE MANAGEMENT
Notice of Rule Proposal
Coastal Zone Management Rules, N.J.A.C. 7:7
Take notice that the NJ Department of Environmental Protection is proposing amendments in the Coastal Zone Management (CZM) Rules, N.J.A.C. 7:7, at N.J.A.C. 7:7-16.9, Public access. The proposed amendments update several provisions in the Department’s requirements to provide public access to tidal waterways and their shores to address the Superior Court, Appellate Division’s decision in Hackensack Riverkeeper, Inc. and NY/NJ Baykeeper v. New Jersey Department of Environmental Protection, Docket No. A-1752-12T3 (App. Div. Dec. 22, 2015) (“Hackensack”) and subsequent amendments to the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 et seq., and the Waterfront Development Act, N.J.S.A. 12:5-3, effectuated by P.L. 2015, c. 260.
The Hackensack decision called into question the Department’s authority to require public access as a condition of a coastal permit and disputed the consistency of the CZM Rules with the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. While the enactment of P.L. 2015, c. 260 reaffirmed the Department’s authority to require public access under CAFRA and the Waterfront Development Act, the Department has determined that it is appropriate to amend N.J.A.C. 7:7-16.9 in several respects in consideration of the Court’s analysis in Hackensack. Among other changes, the proposed amendments clarify that the submission of a Municipal Public Access Plan (MPAP) is entirely voluntary. While the proposed rules continue to encourage municipalities to coordinate with the Department in planning public access through the adoption of MPAPs, the proposed amendments eliminate any misconception that the rules require municipalities to pursue such planning.
The proposed amendments also eliminate the ability of a municipality to require, as part of an MPAP, a monetary contribution to a municipal Public Access Fund as an alternative to providing onsite or offsite public access. The Appellate Division determined that inclusion of establishment of a dedicated municipal Public Access Fund as a mechanism for local utilization of monetary contributions in lieu of onsite public access in the CZM Rules is beyond CAFRA’s jurisdiction and contrary to the Municipal Land Use Law. As such, all provisions related to the establishment of a municipal Public Access Fund are proposed to be deleted.
The proposal is scheduled to be published in the New Jersey Register dated September 6, 2016. A copy of the proposal is available at http://www.nj.gov/dep/rules/proposals/20160906a.pdf and from LexisNexis free public access to the New Jersey Register, www.lexisnexis.com/njoal.
A public hearing concerning the proposal is scheduled as follows:
Wednesday, September 28, 2016 at 6:00 P.M.
Long Branch Municipal Building
Council Chambers, 2nd Floor
Long Branch, NJ 07740
Submit written comments by November 5, 2016 electronically at http://www.nj.gov/dep/rules/comments. The Department encourages electronic submittal of comments. In the alternative, comments may be submitted in hard copy to:
Gary J. Brower, Esq.
ATTN: DEP Docket No. 07-16-07
NJ Department of Environmental Protection
Office of Legal Affairs
Mail Code 401-04L
401 East State Street, 7th Floor
PO Box 402
Trenton, NJ 08625-0402