2013-01-10 / Front Page

Baykeeper challenges DEP public-access rules

Appeal claims Legislature, not the agency, has authority over public access to waters
Staff Writer

Members of environmental groups staged a protest on a gated section of beach in Elberon last year to draw attention to public access issues along the shore. 
FILE PHOTO Members of environmental groups staged a protest on a gated section of beach in Elberon last year to draw attention to public access issues along the shore. FILE PHOTO KEYPORT — The NY/NJ Baykeeper is asking the courts to set aside the Department of Environmental Protection’s (DEP) new public-access rules that have drawn widespread criticism from the environmental community.

The Baykeeper and the Hackensack Riverkeeper filed a notice of appeal in the Appellate Division of state Superior Court on Dec. 19, arguing that the DEP does not have the legal authority to a create publicaccess rules for the state’s bays, beaches and waterways. The two groups argue that is the jurisdiction of the state Legislature.

“The reflection here is that the DEP is making the rules without authority from the Legislature. They haven’t been told how to make the rules and it’s a failure in that they don’t know who it is that they are supposed to be looking out for,” said Chris Len, attorney for both environmental groups.

“The court, should they decide our way, would say that the rules are illegal. ... and we would look for legislation to govern properly how the DEP would then write the rules.”

The new rules galvanized opposition by environmental groups — including the American Littoral Society and the Surfrider Foundation — that maintain the Public Trust Doctrine guarantees public access to waterways and the government is responsible for protecting that right.

“When the DEP announced these rules, they said that the one-size-fits-all approach does not make sense. It’s like freedom of speech. You don’t allow only certain people freedom of speech. When it comes to basic fundamental rights like the right to public access, one size does fit all,” Len said.

“These properties are public-trust properties that are to be managed by the state for all people in New Jersey, except people are being kept away from them, and that is a bad matter of policy and a matter of law.”

The Baykeeper’s primary objection is the removal of, and changes to, the requirement for providing access to the waterfront, which is an issue for many urban areas affected by large-scale development.

Under previous DEP rules, if an existing development along tidal waters sought to expand, public access would have to be provided onsite or, if such access was impractical, funds would have to be set aside to create public access nearby.

The Baykeeper argues that the new rules remove this provision and that existing commercial, residential and industrial developments do not have to provide public access when they expand or redevelop a site if no public access existed previously.

According to Debbie Mans, executive director of the Baykeeper, these exemptions would 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,” Mans said in a press release.

“Urban residents’ right to access tidal waters has been given away for free. The new rules show utter disregard for urban communities’ need for access to nature. The DEP does not have the authority to give away precious public resources and … we intend to stop them from doing so.”

While the Baykeeper’s focus is on urban areas of the state, Len said there are concerns that the rules give coastal municipalities the authority to regulate public access, a concern shared throughout the environmental community.

The DEP rules require local municipalities to draw up their own Municipal Public Access Plans, which the agency would review. The plans would address issues including beach access points, signage and parking.

Len said municipal access plans do not provide for input from citizens throughout the state.

“If you are a coastal town, your duty as the trustee of those lands is not to just hear the residents, but people throughout the state,” he said.

“I have just as much right as a Montclair resident to go to the coast as much as the people in those towns, but that is not how those plans are going to be developed.”

However, a DEP spokesman said the new rules actually broaden public access.

“Nothing in the rules diminishes the access that we already have and what we will be doing to make public access much better,” Larry Hajna, a spokesman for the DEP, said in an interview on Dec. 27. “Municipal leaders in both coastal and urban communities have praised the rules in giving them the mechanisms they need to make access to our waterways better for everyone.”

Len disagreed, stating that giving control to the municipalities is putting the “fox in charge of the hen house” because many towns “are hostile to providing public access.”

According to the Baykeeper, the new rules actually limit the degree of access towns can provide and in some cases, allow them to offer no access at all.

“We should be looking for ways to expand public access and the DEP’s rules; while it says it expands public access, I don’t see that it points at expanding anything,” he said.

However, Hajna explained that the new rules expand on the Public Trust Doctrine.

“The Public Trust Doctrine is the basis for everything that we have and the basis for everything that we are going to be doing to make it better,” he said.

“There is not going to be a rollback. It’s going to be moving forward.”

The access rules apply to 231 municipalities from the New York/New Jersey Harbor region, south along the entire coastline, and north along the Delaware Bay and tidal portions of the Delaware River.

According to Hajna, the Jersey Coast is very accessible, with over 1,200 different points of public access, including access at marinas, beaches and bay beaches.

“There are only a handful of places where access is not very good and clearly needs to be better,” he said.

“The rules are a common-sense approach that works with municipal governments to ensure access through a cooperative approach.”

The Baykeeper’s mission is to protect the waters from Sandy Hook to Jamaica Bay in New York, stop polluters, champion public access, influence land-use decisions and restore habitat.

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