When the Legislature was considering legislation this last year to codify and expand the public trust doctrine and to require that public access be considered in many permit applications, NJBIA expressed concerns about potential implications. Now that the legislation is law, and the DEP is considering implementing regulations, many of our concerns, initially brushed off as “fear mongering,” are being realized.
In quick summary, the new public access law codified and expanded the public trust doctrine, an ancient common law doctrine that provided the public with the right to access tidal waters, such as the ocean, the bays, and many rivers. The law provided that applicants for coastal and flood hazard permits must perform public access needs assessments and provide public access where warranted. Certain properties, such as homeland security facilities, were exempt from providing onsite access. Many minor permits were brought into the law giving the DEP wide discretion to determine which permittees may need to provide for public access.
At a recent stakeholder meeting of businesses, environmentalists, fishermen, and the public, DEP staff signaled where the rules may be heading. They indicated that while some minor activities such as the repair of a bulkhead would not need to provide public access, many other minor activities would. This may also result in the elimination of many current permits by rule. Minor facility expansions, even if they do not impact public access, may be required to provide access. Most disappointing is that exempt facilities may be required to provide public access offsite. This could significantly increase the cost of projects as well as the time to obtain a permit.
The DEP staff did offer a potential alternative to providing public access for minor activities – pay money into a fund. It is unclear if the DEP has the authority to require such payments or if legislation is needed. In either event, the alternatives are not acceptable.
NJBIA will continue to engage the DEP as it develops its rules and we will explore all options to protect the interests of the business community. If you have any comments or concerns please reach out to Ray Cantor at firstname.lastname@example.org