Waterfront Access Regulations Make Long Walks on the Beach More Complicated

For the second time in eight years, the New Jersey Appellate Division has rejected the State’s waterfront access regulations. On December 22, 2015, the court held in Hackensack Riverkeeper v. New Jersey Department of Environmental Protection that the most recent iteration of the waterfront access rules exceeded the authority of the NJDEP. This decision prompted quick legislative and executive action prior to the end of the 216th Legislative Session, and ushers in the possibility of future legislative action.

NJDEP initially issued waterfront access regulations in 2007 that mandated broad public availability. These regulations were struck down by the Appellate Division in Borough of Avalon v. New Jersey Department of Environmental Protection, 403 N.J. Super. 590 (App. Div. 2008), certif. denied, 199 N.J. 133 (2009).

In response to Avalon, the NJDEP issued new regulations in 2012 and 2015. The 2012/2015 regulations required each town to develop its own public access rules, known as Municipal Public Access Plans (“MPAP”). The MPAP would be reviewed and approved by the NJDEP on a case-by-case basis to ensure proper public access. After the NJDEP’s approval, the MPAP would then be incorporated into the town’s master plan.

Upon a challenge from various groups, the Appellate Division concluded the latest regulations (1) exceeded the Legislature’s limited delegation of authority to the NJDEP under the Coastal Area Facility Review Act (“CAFRA”), N.J.S.A. 13:19-1 to -21; and (2) the rules were not authorized by any other legislative enactment or by the Legislature’s delegation of powers to the NJDEP pursuant to the public trust doctrine.

The Hackensack decision prompted the Legislature and Governor to quickly enact Senate Bill 3221/Assembly Bill 4927, which authorizes the NJDEP to require public access to waterfront and shorelines. However, NJDEP will have to reissue its waterfront access regulations under this new grant of authority. In addition, the State Senate Environment and Energy Committee is holding stakeholder meetings to discuss whether more legislative action should be taken to grant waterfront and shoreline public access.

Should you have an interest in waterfront and shoreline access, please contact a member of the Gibbons Government & Regulatory Affairs Department. We will continue to monitor future action on the subject.