When the Legislature codified the public trust doctrine into statute (S-1074, Smith), they left it to the New Jersey Department of Environmental Protection to fill in many of the gaps left in the legislation. NJBIA had lobbied for, and was successful in having the legislation changed to provide for various business protections, but the final law was nonetheless vague. That means the regulations will have to provide clarity and certainty. This vagueness is a potential problem for the business community and a reason why NJBIA is a vocal participant in these stakeholder meetings.
Some of the questions to be resolved are:
- Should facilities that are not required to provide on-site access for homeland security purposes need to provide for, or pay for, off-site access, and if so, how much should they pay?
- Should businesses, when they apply for a permit, be required to provide community facilities such as parking or restrooms?
- Should public access be required on properties even if it is unsafe?
- Should permits by rule, general permits, and general permits by certification, which are intended to be simple, minor, and quickly issued actions, need to be subject to public access requirements?
- Which permits should be subject to a detailed public access analysis of the area and which ones can be more uniform in nature? and
- Should minor changes on a property, such as a bulkhead or small building expansion, be subject to public access requirements?
How the DEP answers these questions in their regulatory proposal will largely determine the burden to be placed on the business community and homeowners. The impacts can be significant, as was seen in the DEP’s 2007 public access rules, which were later replaced by more reasonable rules in 2012. It will also determine if the Land Use program continues to enhance its regulatory process efficiency initiatives (i.e. single, online permit application) or takes a major step backward where even the simplest permits are bogged down in unnecessary analysis and regulatory requirements.
The rule proposal is expected to be published before the end of this year.