Gov. Murphy Signs Public Trust Doctrine into Law
June 18, 2019
Last Month, Gov. Phil Murphy Codified New Jersey’s Public Trust Doctrine Into Law
Last month, Gov. Phil Murphy codified New Jersey’s Public Trust Doctrine into law. The legislation (Senate Bill 1074) aims to protect the public’s right to access the states’ beaches and waterfronts.
“New Jersey’s shoreline and coastal communities are some of our state’s greatest treasures,” Gov. Murphy said in a press release. “By strengthening the public’s right to access our beaches, we are ensuring that all New Jersey residents and visitors can enjoy our beautiful shore this summer and for generations to come.”
Public Trust Doctrine
Under the public trust doctrine, the public rights to tidal waterways and their shores are held by the state in trust for the benefit of all people. The doctrine further provides that the public has the right to fully utilize these lands and waters for a variety of public activities.
Because the public trust doctrine was previously codified under case law rather than statute, New Jersey courts have decided how far the doctrine extends and who can enforce it. A 2015 Appellate Division decision invalidating the New Jersey Department of Environmental Protection’s (NJDEP) Public Access Rule was one reason the Legislature sought to intervene.
In Hackensack Riverkeeper, NY/NJ Baykeeper v. NJ DEP, 443 N.J. Super 293 (App. Div. 2015), the Appellate Division concluded that the NJDEP did not have the authority to adopt and enforce such rules. “Case law that has developed regarding the public trust doctrine, including those which have expanded its reach to privately owned property, do not support NJDEP’s contention that the legislature implicitly delegated regulatory powers to the agency,” Judge Carmen Messano wrote on behalf of the court.
New Public Access Requirements
Senate Bill 1074 confirms the public’s right, under the public trust doctrine, to use and enjoy the State’s tidal waters and adjacent shorelines. To further this goal, the new law requires the NJDEP to ensure that any action taken by the agency pursuant to the Coastal Area Facility, Waterfront Development Act, the Wetlands Act of 1970, the Flood Hazard Area Control Act, and the federal Coastal Zone Management Act of 1972 is consistent with the public trust doctrine. It further mandates that the NJDEP ensure that any public funding issued, any action taken on a project using such public funding, and any project or any aspect of a project utilizing federal funding that is regulated or reviewed by the department is consistent with the public trust doctrine.
Under SB 1074, any application for a permit or other approval issued pursuant to the above laws, where the applicant proposes a change in the existing footprint of a structure or a change in use of the property, or the application involves beach replenishment or beach and dune maintenance, the NJDEP would be required to review the public access provided and determine whether to require additional public access consistent with the public trust doctrine. In determining the public access that is required at a property, the NJDEP would be required to consider the scale of the changes to the footprint or use, the demand for public access, and any NJDEP-approved municipal public access plan or public access element of a municipal master plan.
The new law provides an exemption for certain critical infrastructure, including power plants, oil refineries, tank farms, and other facilities. The Office of Homeland Security and Preparedness is tasked with establishing the rules governing which facilities are given the security designation.
Under Senate Bill No. 1074, when an existing marina seeks an application for a permit or other approval issued by the NJDEP, if the regulated activity that is the subject of the application is on the marina property, the NJDEP will require the applicant to maintain the degree of the existing public access to the waterfront and adjacent shoreline. If the regulated activity affects or diminishes public access on the marina property, the NJDEP will require equivalent access as a condition of the permit or other approval. If no public access was provided to the waterfront and adjacent shoreline, the NJDEP may not impose new public access requirements to the waterfront or adjacent shoreline.
The new law, however, includes an exception if the application for a marina property includes property on which there is a beach. In every case, the NJDEP must require that public access to the beach and the public’s use of the beach is provided as a condition of the permit or other approval and that activities that have the effect of discouraging or preventing the exercise of public access rights are prohibited.
For the development of any marina property that proposes to increase the area of existing development by at least 50 percent, or that proposes to develop a property that is not within the parcel of the existing marina development, the applicant must provide a public access plan to the NJDEP. The public access plan must identify: the location and type of public access to be provided; any areas closed to public access because of permanent obstructions or risks due to hazardous operations; and the operating hours of the marina. The plan would also include an explanation of the specific risks and hazards in the areas closed to public access with a description of the areas where public access is enhanced, or where public access is to be provided off-site, to compensate for the area closed due to permanent obstructions or risks due to hazardous operations. As a condition of the permit or other approval, public access to the waterfront and adjacent shoreline, as identified in the public access plan and approved by the DEP, must be provided during the marina’s operating hours.
The new public trust doctrine requirements apply to any application for an individual permit submitted on or after the effective date of the bill, which is 60 days following enactment.
Beginning no later than 18 months after that date, the requirements will apply to permits-by-rule, general permits, or general permits-by-certification issued by the NJDEP. Prior to these new requirements taking effect, the NJDEP must adopt rules and regulations establishing: (1) those permits-by-rule, general permits, and general permits-by-certification for which public access would be required, but which would not require individual review; (2) those permits-by-rule, general permits, and general permits-by-certification for which, consistent with the public trust doctrine, public access would not be required; and (3) specific categories of projects which, due to the existence of an emergency condition, or a condition that poses a significant and immediate threat to public health and safety, would not require individual review of public access.
To discuss how the new public access requirements may impact your development plans, we encourage you to contact a member of Scarinci Hollenbeck’s Environmental & Land Use Group.
If you have any questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.