New Jersey Chris Christie recently signed legislation that authorizes the New Jersey Department of Environmental Protection (NJDEP) to require public access to waterfront and adjacent shoreline as a condition of waterfront development approvals and permits issued pursuant to the Coastal Area Facility Review Act (CAFRA) and other applicable laws. The legislation was proposed in direct response to a recent Appellate Division’s ruling that invalidated the NJDEP’s so-called public access rules.
As previously discussed on the the Scarinci Hollenbeck Government & Law Blog, the NJDEP adopted the challenged public access rules (Rules) in 2012, after a prior version was invalidated by the courts. The rules amend the DEP’s Coastal Zone Management (CZM) regulations, N.J.A.C. 7:7-9.48, known as the public trust rights rule, which states that public access to “lands and waters subject to public trust rights” must be provided in accordance with N.J.A.C. 7:7-16.9, and any development “that does not comply with N.J.A.C. 7:7-16.9 . . . is discouraged . . . .” In turn, N.J.A.C. 7:7-16.9, known as the public access rule, encourages, but does not require, municipalities to create Municipal Public Access Plans (MPAPs) that, among other things, identify current public access points and corresponding signage, incorporate parking and other amenities to the maximum extent practicable, and plan for future public access.
In Hackensack Riverkeeper, Inc. and NY/NJ Baykeeper v. New Jersey Department of Environmental Protection, a New Jersey appeals court concluded that the NJDEP was not authorized by CAFRA, the public trust doctrine or the Municipal Land Use Law to promulgate the Rules. “The Rules must be stricken, and we invalidate N.J.A.C. 7:7-9.48, the public trust rights rule, and N.J.A.C. 7:7-16.9, the public access rule, as well as any other provisions of the regulations that rely upon those two sections,” Judge Carmen Messano wrote.
The new waterfront access law (S-3321/A-4927) confirms the authority of the NJDEP to require, as a condition of a waterfront development approval or a CAFRA permit, that the applicant provide on-site public access to the waterfront and adjacent shoreline, or off-site public access if the department determines that on-site public access is not feasible. The bill also expressly states that its provisions should not be construed to abrogate or otherwise affect any public access obligations or requirements of any approval, permit, administrative order, consent decree, or court order in in effect prior to its effective date.
“We had to act quickly to ensure chaos did not ensue, and that’s what we did,” said state Sen. Robert Smith, who sponsored the bill. “This clarifies that the DEP has the authority to regulate access to the state’s waterfront lands and keeps in place the current rules to do so.”
The Appellate Division invalidated the Rules, largely citing the lack of legislative authority. The Legislature has now provided that authority. The legislation’s sponsor, Senator Robert Smith, maintains that the legislation restores the status quo, so that the invalidated rules are now valid again. Nevertheless, he has asked environmentalists, municipalities and business interest to meet as a committee to determine if changes to the regulations are appropriate.
For more information about the new public access law or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.