State Sen. Bob Smith wants the Attorney General's Office to determine whether the beach access regulations are in effect or remain invalidated by the court
TOMS RIVER -- The state could be exposing itself to a massive lawsuit if it doesn't figure out whether it has rules governing how the public accesses beaches and other waterfront areas across New Jersey, a state lawmaker warned.
The adversaries in a lawsuit over public access to the state's waterways disagree over whether the state Department of Environmental Protection has any rules in place dictating access requirements, a situation that could encourage developers to sue the state, state Sen. Bob Smith said.
Under rules adopted in 2012, developers of coastal areas would have to provide public access to beachfronts and other waterways when they construct more than a certain number of units or make certain types of improvements to waterfront businesses. But now that there's confusion over whether those rules are now invalid, developers could sue if the DEP rejects their projects over a coastal access issue, Smith said.
"This is a major problem," said Smith (D-Middlesex) at the conclusion of last week's joint Senate and Assembly environment committee hearing. "I can see the mother of all lawsuits coming when somebody wants to develop something down the Shore and the DEP says 'no, you can't do it,' and the developer goes to court and says 'you have no right to regulate that.'"
Saying the DEP lacked the authority to set or enforce coastal access regulations, an appellate court in December threw out the state's waterfront access rules. The state Legislature made some attempt early this year to address the issue, but the NY/NJ Baykeeper and the Hackesack Riverkeeper say those rules still remain invalid.
The DEP, which was sued by those two coastal conservation organizations, insists the rules -- which govern the location of public access points to waterways -- are still in effect.
Because of those conflicting interpretations, Smith said he wants an opinion from the state Attorney General's Office before New Jersey gets sued over those rules.
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The confusion stems from a lawsuit Riverkeeper and Baykeeper filed after after the DEP revised its access rules in 2012. In December, an appellate panel ruled the DEP overstepped its authority in issuing those regulations because, the court found, the state Legislature never gave the state agency that power. The appellate court then invalidated those rules.
Alarmed by the ruling, the state Legislature acted swiftly, and within a month it passed a bill specifically giving the DEP the authority to regulate land use in coastal zones.
Ray Cantor, chief assistant for the DEP, told a joint session of the Senate Environment and Energy and the Assembly Environment and Solid Waste committees in Toms River on Thursday that the bill lawmakers passed, and Gov. Chris Christie signed, in January restored those regulations.
"We believe our rules are in full force and effect," Cantor told the committee members.
But Andrea Leschak, a staff attorney for Riverkeeper, said that because the state Supreme Court refused to take up the DEP's appeal of the December ruling, the appellate decision that invalidated the rules remains in effect.
"In our opinion, the 2012 rules are no longer in effect," she told the joint committees. "It means the DEP has to start all over again."
Smith, chairman of the Senate Environment and Energy Committee, said he doesn't know whom to believe. He said he plans to ask state Attorney General Christopher Porrino for an interpretation of the court ruling.
Lee Moore, a spokesman for the Attorney General's Office, said the office isn't commenting on NJ Advance Media's questions about whether the rules are in effect. He said the attorney general has not yet received a letter from Smith.
MaryAnn Spoto may be reached at mspoto@njadvancemedia.com. Follow her on Twitter @MaryAnnSpoto. Find NJ.com on Facebook.