Beach Access Bill Violates Public Trust

Today the Assembly Appropriations Committee released A4221 Aca (1R) (Pinkin): The bill provides for protection of public right of access to certain public trust lands.

“We oppose this bill. This legislation violates the public trust and closes the door on public beach access. Through the amendments the bill has so many loopholes big enough to fit a bulldozer through. We feel these changes have undermined the public access to beach and waterfronts that belong to them. Overall, this legislation is a step backwards. With these amendments the DEP and the legislature is taking the side of wealthy property owners over the people who those beaches belong to. This reinforces the fact that they want our money to replenish their beaches while keeping the public out,” said Jeff Tittel, Director of the New Jersey Sierra Club.

New Amendments to the bill in section d. state “[The] Pursuant to the public trust doctrine, the¹ State of New Jersey ¹[has a duty to] ²[shall¹] has a duty to² promote, protect, and safeguard the public’s rights and ¹[to]¹ ensure reasonable and meaningful public access to tidal waters and adjacent shorelines

“Changing may or shall from having the duty to, makes the bill too vague. This language can be subject to challenge and can end up in courts. Using this kind of language makes the bill open to interpretation. Who is going to interpret these language changes? Deal, Avalon, or the developers?” said Tittel. “That is why it is so important that the new amendments changed the language to a shall. Whether it’s some of the wealthy home owners in Edgewater who we have been battling for years for public access on the Hudson or down in Long Beach Township. If it the law becomes a may, they are not going to do it.”

The new amendments also stated that The Department of Environmental Protection [has the authority and the duty to] shall protect the public’s right of access to tidally flowed waters and their adjacent shorelines under the public trust doctrine and statutory law. In so doing, the department [has the duty to] shall make all tidal waters and their adjacent shorelines available to the public to the greatest extent [possible] practicable.

“The bill still gives DEP flexibility in granting permits. The legislation has too many exemptions for DEP in granting permits too. It’s good that the language for public trust doctrine will be expanded to include groundwater, surface water, and tidal water. However, we are concerned with language change from possible to practicable when it comes to protecting access rights. Practicable is one of those words that is open to interpretation,” said Tittel. “The bill also states the DEP may produce rules. Instead it should say that DEP shall produce rules.”

Other new amendments to the bill state that in determining the public access that is required at a property, the department shall consider the scale of the changes to the footprint or use, the demand for public access, and any [adopted] department-approved municipal public access plan or public access element of a municipal master plan.

“It is important that the new amendments will review beach replenishment and maintenance. However, DEP reviewal is only considered when it should be mandated. DEP also only have to consider certain permits instead of requiring certain permits. The legislature must make sure that language in the bill is not up to interpretation or optional. Who will decide, will builders decide? Too many times people give restricted access to these areas that we all own. We need to codify the Public Trust Doctrine to help ensure access. As taxpayers are paying hundreds of millions of dollars for restoring our beaches, it is even more important for the public to have access to them,” said Jeff Tittel, Director of the New Jersey Sierra Club.