August 20, 2019

August 20, 2019

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August 19, 2019

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New Jersey Appellate Division Upends Public Access Rules (Again)

This week, the New Jersey Appellate Division threw out the so-called “public access rules” (“Rules”) promulgated in 2012 by the New Jersey Department of Environmental Protection (‘DEP”), which govern DEP’s authority to require public access to New Jersey’s beaches and other tidal waterways.  This is not the first time DEP has been unsuccessful in defending public access rules from a legal challenge.  In 2009, in Borough of Avalon v. N.J. Dep’t of Envtl. Prot., 403 N.J. Super. 590, 595 (App. Div. 2008), the Court overturned public access rules that DEP finalized in 2007.  Interestingly, the Court’s reasoning in overturning the current Rules is markedly similar to the earlier decision.

In the recent case, Hackensack Riverkeeper, Inc. and NY/NY Baykeeper v. N.J. Dep’t of Envtl. Protection, Docket No. A-1752-12T3, two environmental groups brought a challenge to the Rules shortly after their final adoption in 2012.  The environmental groups argued that DEP gave itself authority in the Rules beyond what has been granted to it by the state Legislature, and which infringes on powers reserved to the state’s municipalities.  Further, the environmental groups claimed that the powers granted to DEP in the Rules were not authorized by any statute.

In response, DEP argued that it was authorized by the public trust doctrine to manage lands held in public trust, such as beaches and tidally-flowed waters.  DEP also contended that the provisions of the 2012 Rules were authorized by the Coastal Area Facility Review Act (“CAFRA”) and that certain provisions of the Rules encouraged cooperation with municipalities consistent with the Municipal Land Use Law (“MLUL”).

The Court ultimately agreed with the environmental groups and struck the Rules.  First, the Court held that, despite case law that establishes the public’s right to access the ocean and certain privately-owned dry sand areas upland of the water, the public trust doctrine does not operate to afford DEP the broad authority to promulgate rules affecting lands held in public trust.  Instead, relying on the earlier Avalon case, the Court held that the earlier cases explained what access must be afforded to the pubic but did not stand for the proposition that the public trust doctrine grants regulatory powers to DEP.  Next, the Court held that the provisions of the Rules were not authorized by any statute.  Specifically, the Court found that provisions of the Rules allowing municipalities to adopt Municipal Public Access Plans (“MPAP”) and thereafter enjoy certain benefits had little, if any, connection to the permitting process under CAFRA.  Moreover, the Court noted that CARFA only applied to a portion of the state rather than everywhere lands held in public trust might exist.  Lastly, while the Court held that there is room in the provisions of the MLUL to allow MPAPs without creating a direct conflict, it expressed doubt as to how the provisions of the Rules requiring regular updates of an MPAP could coincide with the provisions of the MLUL as a practical matter.

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About this Author

Michael J. Gross, Giordano Law Firm, Environmental Attorney
Shareholder/Managing Partner

Mike, chair of the Environmental Law Practice Area, handles all aspects of New Jersey and federal environmental law, including permitting and litigation, CAFRA, sewage disposal and water supply, wetlands, riparian (tidelands) law, solid waste, flood hazard areas, siting of energy and other industrial facilities, site remediation, Pinelands, Highlands, cultural resources, stormwater, wastewater planning, water and air pollution. He also appears before planning and zoning boards and has handled complex construction litigation matters.

Mike is...

732-741-3900
David J. Miller Shareholder environmental regulatory, real estate and corporate transactional matters attorney
Shareholder

Dave is an environmental attorney with experience in the private and public sectors who focuses his practice on environmental regulatory, real estate and corporate transactional matters. He counsels clients on site remediation, the Industrial Site Recovery Act (ISRA), Site Remediation Reform Act (SRRA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), due diligence, participation in potentially responsible party groups and interaction with the Environmental Protection Agency on Superfund matters.  Dave also advises on the procurement of environmental permits from state and federal agencies for major commercial and industrial development, transaction-triggered environmental laws and voluntary brownfields remediation programs.  In addition, he litigates environmental compliance matters, especially those involving hazardous substances.

Previously, Dave served as senior counsel in the Office of Governor Philip D. Murphy, overseeing environmental and energy issues and initiatives, and was a law clerk for the United States Environmental Protection Agency. Prior to attending law school, Dave worked in the Commissioner’s Office of the New Jersey Department of Environmental Protection.

732-741-3900