NY/NJ Baykeeper and Hackensack Riverkeeper filed suit today, asserting that the New Jersey Department of Environmental Protection (NJ DEP) does not have the legal authority to allow municipalities to restrict public access to tidal waters.
On Nov. 5, 2012, NJ DEP adopted a rule governing how towns provide access to tidal waters, including the Atlantic coast, Bayshore and the banks of rivers. While the Public Trust Doctrine gives the people an inalienable right to access and enjoy lands below the high tide line, DEP's rule enables municipalities to limit access as they see fit.
Further, the new rule limits the amount of access towns can require — in some cases potentially allowing them to offer no access at all — effectively placing a ceiling above public rights rather than a floor beneath them. The rule does nothing to create new public access, and in many places it will prevent the public from ever accessing the shores and riversides.
"It is New Jersey's responsibility under the Public Trust Doctrine to manage Public Trust resources (tidal waters and the shoreline) for the benefit of all citizens," said Captain Bill Sheehan, Hackensack Riverkeeper. "When DEP adopted its new rule they, in effect, declared that the state no longer has to uphold its duty. The rule sets the DEP above the Public Trust Doctrine, and presumes to allow the Department to decide when - and if - you can enjoy your public trust rights. The DEP simply cannot do that."
Under the previous DEP rule, if an existing development operating on tidal waters sought to expand operations, it often either had to offer onsite public access or, if such access was impractical, contribute to a fund to create public access nearby. NJ DEP's new rule swept away this provision.
Now most existing commercial, residential and industrial developments do not have to provide public access when they expand or redevelop the site if no public access existed previously. These exemptions allow businesses to dominate a public resource without compensating the public.
"Anyone who has been to North Jersey can see that access to natural resources is limited," said Debbie Mans, NY/NJ Baykeeper. "Urban residents' right to access tidal waters-a public resource-has been given away for free under this rule. The new rule shows utter disregard for urban communities' need for access to nature. NJ DEP does not have the authority to give away precious public resources and with this lawsuit and we intend to stop them from doing so."
Baykeeper and Riverkeeper assert that the DEP has no power make these rules until the legislature gives authority and guidance on how to protect the Public Trust rights of all New Jerseyans. The DEP should then act on that authority to protect the rights of all the people in the state, not just industrial interests and wealthy landowners.
"The shore belongs equally to all New Jerseyans, but this rule would close access to many urban waters forever, and allow shore towns to decide when - or even if - the rest of New Jersey ever gets to visit our public trust lands," said Christopher Len, Staff Attorney for both Waterkeepers. "The Atlantic shore, the bayshore and the banks of our rivers belong to all of us — restricting our access to these lands is bad policy and is against the law."