AVALON – New Jersey Fish and Wildlife, as part of the state Department of Environmental Protection, is proposing a new rule allowing the DEP to restrict tidal waters and/or the adjacent shoreline to protect threatened or endangered species of wildlife and their critical habitat areas.

The DEP sees its proposed rule as a necessary limitation on the public’s right to access the water based on the public trust doctrine. When the DEP speaks of the ability to restrict the adjacent shoreline that means the land above the mean high water mark, including the upland dry sand or other upland ecosystem or biome as determined by the department. The rule gives the DEP authority to act outside of and above a community’s own DEP approved beach management plan.

Under the rule the DEP decides if an endangered species is presently using, or is anticipated to use, tidal waters and/or the adjacent shoreline. Avalon’s Business Administrator Scott Wahl pointed out that the DEP gets to act even if the department believes the shoreline may be used by an endangered species.

The department also determines if the shoreline is a critical habitat area and if existing or anticipated injurious uses would result in harm.

A presentation by Fish and Wildlife staff never addressed the issue of why the rule is necessary when there is an agreed upon community beach management plan. There was no exception stating that the rule would only apply where a beach management plan did not exist.

A concern, as Wahl described it, is that the DEP’s determination under this rule could result in a beach area closure overriding agreed upon aspects of the community’s beach management plan and at any season including the busy summer season. Fines would apply for those who enter a restricted area or those who remove fencing and signage.

At an upcoming meeting, Avalon Borough Council will consider a resolution opposing the proposed rule.

Contact the author, Vince Conti, at vconti@cmcherald.com.