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NJDEP Finalizes Public Access Rules

October 19, 2012

On October 4, 2012, New Jersey Department of Environmental Protection (NJDEP) Commissioner Martin signed a final rule that significantly re-writes NJDEP’s public access requirements. As a result, the final Public Access Rules completely change the way NJDEP will require public access to beaches and tidal waterways as part of coastal permitting.

By way of background, NJDEP originally wrote its public access requirements in 2007. Those public access requirements added a Public Trust Rights Rule to the Coastal Zone Management Rules, as well as other ancillary requirements, commonly known as the “Public Access Rules.” These rules imposed extensive access requirements on all coastal permittees, such as those obtaining Coastal Area Facilities Review Act and Waterfront Development Act permits. In some cases, coastal permitting ground to a halt as permittees and NJDEP negotiated public access requirements that were expensive and, in some cases, unnecessary since certain properties already provided public access. These requirements were also criticized as threatening public safety, because access requirements were imposed at night, or on facilities not suited for public access. The burdens imposed on municipalities and industries resulted in a public outcry for reform.

The breadth of these Public Access Rules was challenged both in court and in the public policy arena. In 2007, the Borough of Avalon successfully overturned certain municipal access requirements in the existing rules. Further, after Governor Chris Christie was elected in 2009, the Public Access Rules were identified early-on as one set of rules that needed significant reform. In fact, the Governor’s Red Tape Review Group identified the Public Access Rules as one of several rules that “offends common sense.”

After commencing a stakeholder process, NJDEP proposed a complete re-write of the rules on April 4, 2011. Significant amendments to the proposal were published by NJDEP on March 19, 2012.

The new Public Access Rules adopted this month emphasize public access planning by municipalities. Specifically, the new rules allow municipalities to create “Municipal Public Access Plans” (MPAPs) as part of the town’s master plan, which, once adopted by NJDEP, would become the mechanism by which coastal permittees would provide public access. Opportunities for public access can include actual access to the shoreline, or other opportunities such as boat ramps or piers for fishing. In addition, the rules allow municipalities to develop provisions that permit a monetary contribution in lieu of providing public access. Municipalities would be required to dedicate a public access fund, which could be used for new or enhanced access to waterways. There are specific rules governing access to certain types of facilities obtaining coastal permits in municipalities that have not adopted MPAPs.

The new rules also generally emphasize maintenance of existing public access. In certain circumstances, the rules do not require new public access for existing properties. For example, for existing industrial development, no public access is required if there is no existing public access on site where the proposed activity consists of the maintenance, rehabilitation, renovation, redevelopment or expansion that remains entirely with the parcel containing the existing development. If an existing industrial development already has public access, it is to be maintained or equivalent onsite public access is to be provided. Similar provisions apply to other types of development, including residential and commercial development, homeland security facilities and ports.

If you would like further information on the new Public Access Rules, including details on specific access requirements for certain types of facilities, please contact:

John G. Valeri, Jr. | Member of the Firm | | (973) 530-2030
Dennis M. Toft | Co-Chair, Environmental Group | | (973) 530-2014
Daniel T. McKillop | Associate | | (973) 530-2066