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Public Access Rule

Over the past century, physical barriers (such as fences, bulkheads and contamination), and prohibitions (the privatization of our beaches and waterfront) have reduced public access to the Estuary. Using the Public Trust Doctrine (PTD), NY/NJ Baykeeper has defended the public’s inalienable right of access to these waters. People have the right to walk beside, safely catch and eat fish and crabs, swim, and boat in the waterways. NY/NJ Baykeeper advocates for construction of waterfront walkways, public boat ramps and docks, for open space preservation as parks and other access points, and for pollution cleanup. NY/NJ Baykeeper also works to gain public access to illegally restricted private beaches and waterfront developments.

On November 5, 2012, NJ DEP adopted a rule governing how towns provide access to tidal waters, including the Atlantic coast, Raritan Bayshore and the banks of our urban rivers. While the Public Trust Doctrine gives the people an inalienable right to access and enjoy lands below the high tide line, DEP’s rule enables municipalities to limit access as they see fit. Further, the new rule limits the amount of access towns can require – in some cases potentially allowing them to offer no access at all – effectively placing a ceiling above public rights rather than a floor beneath them. The rule did nothing to create new public access, and in many places it will prevent the public from ever accessing the shores and riversides.

On December 19, 2012, NY/NJ Baykeeper and Hackensack Riverkeeper filed suit, asserting that the New Jersey Department of Environmental Protection (NJ DEP) does not have the legal authority to allow municipalities to restrict public access to tidal waters.

Governor Christie signed Senate Bill No. 3321 into law on January 19, 2016 which affirms the Department of Environmental Protection’s (DEP) authority to require public access as a condition of granting permits under the Coastal Area Facility Review Act (CAFRA) and the Waterfront Development Act. This stopgap fix was important to clarify the DEP’s ability to continue requiring developers to include public access as part of development projects. Yet, comprehensive legislation is still needed to provide the DEP with clear guidance and standards that will guarantee the public’s longstanding right of access to NJ’s beaches, tidal waterways, and adjacent shorelines.
In the coming months, NY/NJ Baykeeper will lead, along with three other co-chairs, a Public Access Task Force charged with developing recommendations that will be considered in a bill before the Senate Environment and Energy Committee in Spring 2016. As a leader of this task force, we will fight for fair and equitable public access for all of New Jersey’s coastal communities, including our northern urban communities.