Public Access

It’s official! As of May 3, 2019, Public Access is now law in the great Garden State! We applaud Governor Phil Murphy for signing into law legislation that will codify the public’s right to access our waterways. We also heartily thank the legislative sponsors Senator Bob Smith, Sen. Kip Bateman, Assemblywoman Nancy Pinkin, Assemblywoman Joann Downey and Assemblyman Andrew Zwicker.

This Public Access legislation ensures that the public has meaningful and practical access to the shoreline and tidal waters that are protected under the Public Trust Doctrine.

Background

Over the past century, physical barriers (such as fences, bulkheads and contamination), and prohibitions (the privatization of our beaches and waterfront) have reduced public access to the Estuary. Using the Public Trust Doctrine (PTD), NY/NJ Baykeeper has defended the public’s inalienable right of access to these waters. People have the right to walk beside, safely catch and eat fish and crabs, swim, and boat in the waterways. NY/NJ Baykeeper advocates for construction of waterfront walkways, public boat ramps and docks, for open space preservation as parks and other access points, and for pollution cleanup. NY/NJ Baykeeper also works to gain public access to illegally restricted private beaches and waterfront developments.

On November 5, 2012, NJ DEP adopted a rule governing how towns provide access to tidal waters, including the Atlantic coast, Raritan Bayshore and the banks of our urban 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 did nothing to create new public access, and in many places it will prevent the public from ever accessing the shores and riversides.

On December 19, 2012, NY/NJ Baykeeper and Hackensack Riverkeeper filed suit, 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.

Governor Christie signed Senate Bill No. 3321 into law on January 19, 2016 which affirms the Department of Environmental Protection’s (DEP) authority to require public access as a condition of granting permits under the Coastal Area Facility Review Act (CAFRA) and the Waterfront Development Act. This stopgap fix was important to clarify the DEP’s ability to continue requiring developers to include public access as part of development projects. Yet, comprehensive legislation is still needed to provide the DEP with clear guidance and standards that will guarantee the public’s longstanding right of access to NJ’s beaches, tidal waterways, and adjacent shorelines.

NY/NJ Baykeeper and Hackensack Riverkeeper successfully sued NJDEP in 2016 to enforce better statewide protections of the public’s right to access their waterways.

Much needed legislation, which will codify and strengthen state obligations to the Public Trust doctrine, was agreed upon by the League of Municipalities, the business community and environmentalists.  It sailed through the Senate Environment and Energy Committee unanimously and was referred to the Assembly after a nearly unanimous floor vote. The Public Access Bill ensures through state law that the public has meaningful and practical access to, and use of, the shoreline and tidal waters that are protected under the Public Trust Doctrine.

The Assembly Environment and Solid Waste Committee scheduled A4221, its version of the Pubic Access Bill, for a vote when it met last week. However, eleventh hour amendments proposed by NJDEP to weaken this legislation, especially access to urban shorelines, prompted the Chair to table the vote.

 Vigilant action in the courtrooms, in Trenton and in our communities is what has and continues to protect everyone’s right to public access to our waterways!

 We applaud the American Littoral Society, Hackensack Riverkeeper, Surfrider Foundation, Sierra Club, NJ League of Conservation Voters and others who, along  with NY/NJ Baykeeper opposed the negative amendments proposed that would impede meaningful public access in NJ.

Resources

Amendments to Beach Access Bill Run Afoul of Conservationists, NJ Spotlight, 2/20/2019