The state’s Fish & Wildlife division has published a proposal through which the state can restrict “public access of total waters and adjacent shorelines” in order to protect endangered wildlife species.
The new rule would allow the agency to override the Public Trust Doctrine right of citizens’ access to waterways, as well as to act outside the context of existing state-approved beach management plans.
The new rule, published Dec. 16, comes as Shore communities are already bracing for the impact of new Department of Environmental Protection land-use regulations published in August and known as Resilient Environments and Landscapes (REAL).
Fish & Wildlife says that the new rule will most likely have minimal impact in communities with existing beach management plans. The argument from the agency is that what is included in the rule is already being implemented as part of either beach plans or Coastal Area Facility Review Act permit requirements. The rule, according to the agency, is directed more at towns where approved beach management plans do not exist.
The relationship between the DEP and Shore communities has been frayed of late as the agency has taken aggressive steps to introduce new climate change-based regulations that rely on sea level rise projections 75 years into the future. Many Shore communities feel that DEP has little appreciation of how these proposed regulations impact the unique economies in the state’s coastal zone.
The proposed new Fish & Wildlife rule has been called “government overreach” by Ocean City Business Administrator George Savastano. Avalon’s administrator, Scott Wahl, also opposes the rule, pointing out that the agency gets to act even in cases where the shoreline is “anticipated” to be used by endangered species and access by the public would result in harm to the species.
The argument from Fish & Wildlife that communities with existing beach management plans will not see much change soothes the concerns of few; the trust level is not strong between the DEP and those communities.
A webinar held in the spring gave Fish & Wildlife an opportunity to build support and make the agency’s argument for the rule’s need. Instead the webinar, as the Herald reported at the time, contained no attempt to show that the existing protections were not sufficient to the task.
The Fish & Wildlife webinar added to the concern over the new rule. It showed examples of “injurious use” that depicted common use of the state’s beaches that have not been singled out as an issue in a decades-long period in which beach management plans and permit restrictions were deemed to be sufficient regulation.
In a Jan. 3 communication from a resident, F. Emmet Fitzpatrick III, to the Ocean City Council, the proposed rule is termed “a patently unlawful attempt by the NJDEP to circumvent the restrictions on its authority that were wisely imposed by the Legislature and the courts, and which clearly represent the will of the electorate.”
A copy of the published rule is available at dep.nj.gov/rules/notice-of-rule-proposals/20241216a. Public comment on the rule can be submitted by Feb. 13, electronically at dep.nj.gov/rules/rule-comment-form, or by sending hard copy to Stephanie J. Press, Esq., Attn: DEP Docket No.13-24-11, NJ Department of Environmental Protection, Office of Legal Affairs, Mail Code 401-04L; PO Box 402, 401 East State St., 7th floor, Trenton, NJ 08625-0402.
Contact the reporter, Vince Conti, at vconti@cmcherald.com.
