Bill fixing N.J.'s authority over beach access waiting for Christie's signature

Nearly three weeks after a state appellate court said the state Department of Environmental Protection doesn't have authority over waterfront access, state lawmakers worked quickly to specifically give the environmental agency that power.

TRENTON --The state Legislature earlier this week closed what a court found was a major loophole in how New Jersey ensures public access to the waterfront, but some access advocates say that pending change won't solve the problems with how people get to New Jersey's waterways.

Nearly three weeks after a state appellate court said the state Department of Environmental Protection doesn't have authority over waterfront access, state lawmakers worked quickly to specifically give the environmental agency that power. The Senate and Assembly approved the bill (S3321) without opposition on Jan. 9, the last day of the 2015-2016 legislative session.

Urging the legislature to work quickly, DEP Commissioner Bob Martin said that without his department having explicit control over waterfront access, the public could actually lose access to tidal waterways and the state could forfeit federal funding for certain marine-related projects.

The U.S. Army Corps of Engineers, however, would not say whether federal funding would be in jeopardy.

"The Corps is evaluating any impacts, if any, on our projects of the recent appellate court decision and the proposed legislation in New Jersey," said Stephen Rochette, spokesman for the Army Corps' Philadelphia district.

Court tosses N.J. beach access rules, says agency overstepped authority

Of primary concern to Martin is the beach replenishment work the Army Corps has been doing after Hurricane Sandy to build wider beaches with taller dunes for greater storm protection.

As part of that work, the state has required oceanfront property owners to grant easements by giving up the rights to a portion of their property where the dunes and beaches are to be built.

While the majority of coastal property owners have voluntarily given those easements for free, about 250 property owners in Ocean County have not. Many of them are taking the state to court on claims the DEP doesn't have the authority to require those easements.

Anthony Della Pelle, a Morristown attorney representing several oceanfront property owners who are going to court, said he doesn't know yet how the new bill - if signed into law - will affect his cases. He said his clients are fighting the DEP under a law different from the one amended under S3321.

He said the DEP is seeking the easements under a law that doesn't include a remedy for property owners to be financially compensated for their losses.

Della Pelle's clients are also arguing that with these easements, the state wants to turn what was once private beach into public beach. He contends the state is wrong when it claims Army Corps requires that whatever property gets new sand has to be open to the public.

"The way in which they've done it represents an overreach of what they can do," Della Pelle said.

Superior Court Assignment Judge Marlene Lynch Ford is scheduled to hear those arguments in Toms River on Feb. 12.

Bill Sheehan, executive director of Hackensack Riverkeeper, called S3321 "stop-gap legislation."

He and other access advocates want the state to adopt a new set of rules that they say would ensure more people get to the waterfront.

His organization, which brought the suit that challenged the DEP's authority over waterfront access, had contended state law never gave the DEP jurisdiction over waterfront access. And an appellate court agreed on Dec. 22 when it said the DEP didn't have the authority to say how the public could get to the state's tidal waterways.

The Hackensack Riverkeeper brought the suit after the DEP under Republican Gov. Chris Christie changed the rules adopted under his predecessor, Democrat Jon Corzine.

The rules under Corzine required, among other things, owners of commercial properties on the waterfront who couldn't provide public access to the water to pay into a fund. That fund would be used to buy other waterfront parcels open to the public.

But that provision, which Sheehan says is important in getting people to riverfronts in a portion of the state that has little public access, was eliminated under the new rules adopted by the Christie administration in 2012.

"What we wanted was a fair shake for the northern part of the state," Sheehan said.

State Sen. Bob Smith (D-Middlesex), a sponsor of S3321, said the legislature plans to establish a committee to write new waterfront access rules that would take into consideration the concerns of access advocates.

"While this legislation will not change the previously adopted regulations, we are working to create a committee made up of stakeholders to study this issue and come back to us with recommendations in the new legislative session," Smith said.

Christie has until Tuesday to sign the bill into law.