New Jersey Fish and Wildlife, a part of the state Department of Environmental Protection, is proposing a new rule allowing the agency to restrict access to tidal waters and adjacent shorelines, to protect threatened or endangered species. The rule would give Fish and Wildlife the ability to override Public Trust Doctrine rights of access to waterways.
In a presentation and webinar, officials from Fish and Wildlife said similar management of tidal waters and shorelines has been in practice for over 20 years through mutually agreed and approved beach management plans and/or restrictions in Coastal Area Facility Review Act permits. Nevertheless, the officials involved in the webinar said the department has decided “to put in a process.”
There was no attempt in the webinar to demonstrate that the existing protections were not sufficient to the task. Rather, Fish and Wildlife representatives pointed to the fact that so far management plans have come from the “other side of the department” that deals with land use. The proposed rule is the first involvement of Fish and Wildlife aimed directly at giving the department sole decision-making authority over restrictions.
The new rule allows the DEP to restrict access to protect what it determines are critical habitat areas to deter threats to threatened or endangered species. The rule is broad enough that it also covers a department determination that the waters or shoreline are areas of anticipated use by such species.
One by one, the governing bodies of ocean-fronting communities in Cape May County have passed resolutions opposing the rule. These have passed in Ocean City, Upper Township, Sea Isle, both Avalon and Stone Harbor on 7 Mile Island, in the Wildwood communities of North Wildwood, Wildwood City and Wildwood Crest, and in Cape May City. What is not known is whether such opposition will carry any weight with the DEP.
In Ocean City, Administrator George Savastano, who also serves as administrator in Sea Isle, said that the city already does its part to protect endangered species. “We have a lot of plans, laws and regulations in place that protect our threatened and endangered species,” Savastano said. “We are highly regulated, and we have great protections in place.” He went on to call the proposed action “government overreach.”
Noted frequently in discussions of the proposed rule across the county’s island towns, the DEP has made no attempt to show that existing regulations and mutually approved plans are not working. What was most novel for Fish and Wildlife officials at their webinar was that the new rule represented the first proposed by their side of the DEP bureaucracy.
During an Avalon council work session on Feb. 28, business administrator Scott Wahl said the borough believes the proposed rule is an example of “extreme overreach and a dangerous precedent by giving all control of a municipal beachfront to state agencies.” Wahl said that the proposed rule “allows the New Jersey Fish and Wildlife to implement beach closures at their will, to remain in effect until such closure is revoked by the DEP.”
Several themes run through the collective opposition to the rule.
The resolutions argue that the rule is in conflict with the Public Trust Doctrine that the state uses as a basis for all of its public access rules.
They point to the fact that no legislative action authorizes the DEP to require more stringent restrictions on public lands.
The resolutions also point to the ways in which the DEP restrictions could hamper emergency response and put lives and public safety at risk.
In addition, they say the proposed rule is potentially harmful to the local economy, which depends upon tourism.
In the absence of details about how the current protections are insufficient, the Fish and Wildlife presentation showed examples of “injurious use” that depict common uses of the state’s beaches that have not been an issue in the two-decade-long period in which beach management plans and permit restrictions were deemed sufficient.
With all that is happening at the shore involving the DEP and with increasing regulation built on climate change scenarios, the opposition to the proposed rule demonstrates that for these communities this is the wrong time for Fish and Wildlife to want to copy the “other side of the department” with its own restrictions on access.
