The current bill would cement into law that projects that receive public money — including beach replenishment projects — be consistent with the public trust doctrine.
By Tim Dillingham
Fishermen, surfers and the public in New Jersey face a gauntlet of hurdles to get to the water's edge in many places. Despite a 2,000-year old public trust legal doctrine guaranteeing the rights of the public to access tidal waters, and a long history of support from New Jersey's Supreme Court, politics, weak state regulatory policies over coastal development and aggressive measures by some towns to keep "outsiders" away create inaccessible waterfronts throughout the state.
Sens. Bob Smith (D-Middlesex) and Kip Bateman (R-Somerset) have introduced a bill (S-2490) regarding public access to tidal waters and waterfronts. The challenge of protecting, promoting and enhancing the public's ability to take advantage of their right to access waters and waterfronts is one of the most contentious issues in the state.
The proposal would cement into law that projects that receive public money -- including beach replenishment projects -- be consistent with the public trust doctrine. These are critical steps towards meaningful public access to the shore. This proposed bill provides for needed policies and direction to the state.
Today, public access to the state's waters and waterfronts continues to be lost. Mantoloking and Deal continue to adopt restrictive parking ordinances near traditional access ways such as street ends in attempts to make beaches private, beaches rebuilt with taxpayer dollars; beautiful summer days bring early closures of Island Beach State Park and Sandy Hook because they are full. Towns give street ends near the water to neighboring property owners in Sea Bright, Deal and Long Branch, preventing public access.
Seaside Heights is selling its beach to a developer. Despite millions of dollars of taxpayer support for beach restoration projects, there is no parking, insufficient access and no stairways over seawalls, an issue facing Atlantic City where great fishing opportunities could help the struggling city. Existing fishing spots such as the jetties of Elberon are sacrificed to beach nourishment projects without replacement.
In North Jersey, obstructions are created to public spaces by adjacent property owners, enabled by a lack of enforcement from the Department of Environmental Protection.
A recent report found that only 9 percent of the Hudson estuary waterfront in areas determined as "highest need" is publicly accessible; areas where higher percentages of youth and people of color live, and median household incomes are 53 percent lower than the region in general.
Lastly, along the Shore, high beach fees raise concerns about discriminatory impacts and increased safety risk, as people use the beaches after lifeguards have left, in order to avoid the costs.
The legislation draws on the consensus findings of a task force that was created by the Senate Environment Committee. The task force's report provided a comprehensive compilation of the significant issues surrounding public access, and reflected the positions of many of the state's organized stakeholders in the debate.
The bill establishes that the state has a "duty to promote, protect and safeguard the public's rights" in tidal waters, waterfronts and formerly filled tidelands, and "to ensure reasonable and meaningful public access to tidal waters and adjacent shorelines."
It provides goals for the DEP:
"Make all areas of the coast and tidal waters and waterfronts available to the public to the greatest extent possible; protect existing access; provide access in all communities equitably; maximize different experiences offered by the diversity of New Jersey's tidal waters and waterfronts; ensure that public expenditures and investments maximize public use and access where such investments are made and that (sic) remove physical and institutional impediments to the maximum extent possible."
These goals would shape regulations to control coastal development, fund beach nourishment programs and enforce violations of the public's right to access the water.
It is clear from the ongoing and chronic conflicts around public access to the water that a clearer direction from the Legislature is needed, and that the DEP needs to be more aggressive in protecting the public's rights of access. Smith and Bateman's proposal is a good and much needed start.
Tim Dillingham is the executive director of the American Littoral Society, a coastal conservation organization based in Highlands.
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