N.J. Admin. Code § 7:7-16.9

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:7-16.9 - Public access

(a) Public access to the waterfront is the ability of the public to pass physically and visually to, from, and along tidal waterways and their shores and to use such shores, waterfronts and waters for activities such as navigation, fishing, and recreational activities including, but not limited to, swimming, sunbathing, surfing, sport diving, bird watching, walking, and boating. Public accessways and public access areas include streets, paths, trails, walkways, easements, paper streets, dune walkovers/walkways, piers and other rights-of way. No authorization or approval under this chapter shall be deemed to relinquish public rights of access to and use of lands and waters subject to public trust rights in accordance with 7:7-9.48. Further, no authorization or approval under this chapter shall be considered a Tidelands approval or shall exempt an applicant from the obligation to obtain a Tidelands approval, if needed.

(b) In addition to the broad coastal goals outlined at N.J.A.C. 7:7-1.1(c), public access shall be provided in a manner designed to achieve the following public access goals:

1. All levels of government in New Jersey shall seek to create and enhance opportunities for public access to tidal waterways and their shores, on a non-discriminatory basis;

2. All existing public access to, and along tidal waterways and their shores shall be maintained to the maximum extent practicable;

3. New development shall provide opportunity for public access to tidal waterways and their shores on or offsite.

i. Public access proposed by an applicant may include any one or combination of the following:

(1) A public accessway designed in accordance with (u) below, located parallel to the shoreline with perpendicular access;

(2) A boat ramp, pier, fishing, or other direct access to the waterway;

(3) A waterfront pocket park;

(4) Public restrooms to accommodate those utilizing public access; and/or

(5) Additional public parking to accommodate those utilizing public access;

ii. Public access proposed by an applicant shall incorporate, to the maximum extent practicable, fishing access and associated amenities, including parking that accommodates nighttime fishing for a reasonable duration of time, on or adjacent to tidal waterways and their shores. In the case of a beach, fishing access shall not be required in areas designated for swimming during hours designated for swimming.

4. Public access to tidal waterways and their shores shall be provided in such a way that it shall not create conditions that may be reasonably expected to endanger public health or safety, or damage the environment. To that end, public access may be restricted seasonally, hourly, or in scope (for example, access restricted to a portion of the property, or access allowed for fishing but not swimming due to consistent strong currents); and

5. Public access to tidal waterways and their shores shall be provided in such a way that it shall not create a significant homeland security vulnerability, as determined by the Department in consultation with the New Jersey Office of Homeland Security and Preparedness or the United States Department of Homeland Security. Therefore, public access may be prohibited in locations where homeland security concerns are present or where it is not practicable based on the risk of injury from hazardous operations or substantial permanent obstructions, and no measures can be taken to avert these risks.

(c) Development proposed on sites, which are located on or adjacent to tidal waterways and their shores shall provide public access in accordance with (c)1 through 4 below. Municipalities are encouraged to develop and submit to the Department an application for approval of a Municipal Public Access Plan. Public transportation agencies and counties are encouraged to submit to the Department an application for approval of a Transportation Public Access Plan.

1. In municipalities from which the Department has received a resolution incorporating a Department-approved Municipal Public Access Plan into the municipality's Master Plan in accordance with (i) below on or before the date of receipt of a permit application by the Department, public access requirements shall be satisfied in accordance with the Municipal Public Access Plan;

2. In municipalities from which the Department has not received a resolution incorporating a Department-approved Municipal Public Access Plan into the municipality's Master Plan in accordance with (i) below on or before the date of receipt of a permit application by the Department, access shall be provided in accordance with (k) below, for commercial, residential, industrial and public development, for homeland security facilities and ports. Coastal permit applications shall include a project specific access plan that provides for public access in accordance with all applicable requirements; and

3. In all municipalities, regardless of whether the Department has received a resolution incorporating a Department-approved Municipal Public Access Plan into the municipality's Master Plan in accordance with (i) below, access shall be provided in accordance with (m) below for marinas, (n) below for piers, (o) below for beach and dune maintenance activities, and (p) below for shore protection projects. Coastal permit applications shall include a project specific access plan that provides for public access in accordance with all applicable requirements.

4. In all municipalities, regardless of whether the Department has received a resolution incorporating a Department-approved Municipal Public Access Plan into the municipality's Master Plan in accordance with (d) below, public access for public highways shall be provided in accordance with (l) below.

(d) Department approved Municipal Public Access Plans shall satisfy the goals specified at N.J.A.C. 7:7-1.1(c) and the public access goals at (b) above. Municipal Public Access Plans shall additionally meet the requirements at (d)1 through 4 below, as well as all other requirements of this section.

1. Municipal Public Access Plans shall incorporate fishing access and associated amenities, including parking that accommodates nighttime fishing for a reasonable duration of time, to the maximum extent practicable on or adjacent to tidal waterways and their shores. In the case of a beach, fishing access shall not be required in areas designated for swimming during hours designated for swimming.

2. Municipal Public Access Plans shall require public access along the Hudson River and on adjacent piers in the Hudson River Waterfront Area as defined at 7:7-9.46(a)2 consistent with 7:7-9.46(d) and (e).

3. Municipal Public Access Plans shall require installation and maintenance of appropriate public access signage in accordance with N.J.A.C. 7:7-16.9(r).

4. Municipal Public Access Plans shall not provide for access that is contrary to any requirement contained in this chapter (for example, access that encroaches upon threatened or endangered species habitat or is in violation of the dunes rules).

(e) A municipality may seek approval of a Municipal Public Access Plan by filing an application for approval with the Department. The application shall include a proposed Municipal Public Access Plan consisting of the following elements:

1. A statement describing the overall goal of the Municipal Public Access Plan and the administrative mechanisms (for example, conservation restrictions, easements, ordinances) that either are already in place, or that shall be put in place to ensure that the municipality will provide permanently protected access to the water and water dependent and water oriented activities along all tidal waterways and their shores within the municipal boundaries. If the Municipal Public Access Plan proposes to provide access to the same waterway outside of municipal boundaries through a joint effort with a county or adjacent municipal governmental body, the statement shall include a description of the administrative mechanisms that will ensure access through that effort will be permanently protected;

2. A statement of consistency with any applicable provisions of the municipal Master Plan;

3. A public access needs assessment that evaluates:

i. Existing access points or locations providing perpendicular access to tidal waterways and their shores within the municipality;

ii. Existing water dependent and water oriented activities that provide public access to tidal waterways and their shores within the municipality;

iii. Existing practical limitations to public access. Examples of practical limitations include, but are not limited to, a lack of restrooms or parking, including restrictions on parking availability and duration, which could effectively limit the public's access to tidal waterways and their shores. Alternatives to address any limitations determined to exist shall be provided, where feasible; and

iv. The need for additional locations to provide perpendicular access to tidal waterways and their shores within the municipality;

4. A digital map and inventory identifying:

i. All tidal waterways and their shores within the municipality and all lands held by the municipality adjacent thereto;

ii. All existing and proposed public accessways to tidal waterways and their shores including, but not limited to, streets, roads, paths, trails, easements, paper streets, dune walkovers/walkways, and public dedicated rights-of-way held by the municipality;

iii. All proposed public access facilities, including, but not limited to, public accessways located parallel to the shoreline with perpendicular access; boat ramps, piers, or other direct access to the waterway; sitting/observation areas; public restrooms; off and on-street parking; and

iv. Those facilities identified in (e)4ii and iii above that are compliant with the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.);

5. An implementation strategy that:

i. Describes the forms of public access proposed in order to satisfy the need for public access as determined by the public access needs assessment, while taking into account the population, anticipated demand and local availability of alternatives;

ii. Provides a comprehensive list of public access projects and initiatives to be undertaken along with an implementation schedule;

iii. Identifies proposed tools to implement the municipal public access plan measures, including, but not limited to, the adoption or amendment of municipal ordinances, and the development of other municipal programs that ensure reasonable access to the water, and water dependent and water oriented activities along all tidal waterways and their shores;

iv. Identifies and, as necessary, proposes modifications to existing plans, ordinances and programs necessary to implement the Municipal Public Access Plan;

v. For municipalities conducting a shore protection project pursuant to (s) below, identifies how the municipality proposes to provide access points to achieve compliance with that subsection;

vi. Provides an estimate of the cost of implementing, constructing and maintaining the access facilities proposed in the plan and specifies how this cost will be funded;

vii. Provides a schedule for implementation of the municipal public access plan;

viii. Identifies ordinances already in place or to be adopted requiring appropriate signage and placement of signage for public access areas;

ix. Identifies measures to be implemented to permanently protect the public access identified in the plan through the required recording of conservation easements/restrictions, or, for municipally owned properties providing public access, through placement of the property providing access on the municipal Recreation and Open Space Inventory (ROSI) (see Green Acres Program rules at 7:36-6.5, Recreation and Open Space Inventory submissions);

x. Provides examples and/or model(s) of existing and proposed conservation easements/restrictions that preserve all public access identified in the municipal public access plan, to protect the access in perpetuity; and

xi. Includes a draft resolution for incorporating the Department-approved, Municipal Public Access Plan into a Master Plan element (for example, the land use, recreation, and/or conservation plan element); and

6. Documentation of any public meetings held by the municipality to accept comments on the proposed Municipal Public Access Plan.

(f) A municipality may, pursuant to the general police powers at N.J.S.A. 40:48-1 et seq., the power of municipalities bordering on the Atlantic Ocean, tidal water bays or rivers to exercise exclusive control over municipal beaches and other facilities at N.J.S.A. 40:61-22.20, or pursuant to the powers in the "Municipal Land Use Law" at N.J.S.A. 40:55D-1 et seq., include requirements in its Municipal Public Access Plan that exceed the requirements for certain types of development set forth at (f)1 through 8 below. The Department may approve a Municipal Public Access Plan that includes any additional requirements imposed by a municipality on these types of development under the municipality's independent authority. However, should an applicant propose to the Department a public access project that satisfies the standards listed in (f)1 through 8 below in a municipality which has adopted a Municipal Public Access Plan with requirements in addition to this chapter, the Department shall not deny a permit based upon the public access not satisfying the additional requirements specified in the Municipal Public Access Plan.

1. Public access along the Hudson River in the Hudson River Waterfront Area as defined at N.J.A.C. 7:7-9.46(a)2 shall be consistent with N.J.A.C. 7:7-9.46(e). Public access elsewhere in the Hudson River Waterfront Area shall be governed by this section;

2. Public access at marinas, as defined at N.J.A.C. 7:7-15.3(d)1 shall be governed by (m) below;

3. Public access at piers shall be governed by (n) below;

4. Public access at existing commercial development that is not classified as "new commercial development" pursuant to (k)1ii below shall be governed by (k)1i below;

5. Public access at existing residential development or new residential development where the development consists solely of the construction of one single family home or duplex not in conjunction with a previous development shall be governed by (k)2i below. Public access at new residential development, consisting solely of the construction of one single family home or duplex not in conjunction with a previous development, shall be governed by (k)2ii below;

6. Public access at existing industrial or public development shall be governed by (k)3i below;

7. Public access at existing homeland security facilities shall be governed by (k)4i below; or

8. Public access at existing or new ports shall be governed by (k)5 below.

(g) The Department shall review an application for approval of a Municipal Public Access Plan to determine whether the plan is consistent with the broad coastal goals described at 7:7-1.1(c), the goals for public access at (b) above and all other requirements of this section.

1. Upon receipt of an application for approval of a Municipal Public Access Plan that meets the requirements of (e) above, the Department shall seek public comment on the application by:

i. Posting the proposed Municipal Public Access Plan on the Department's website;

ii. Notifying by e-mail individuals who have requested notice of applications for approval of Municipal Public Access Plans; and

iii. Publishing notice in the DEP Bulletin.

2. The Department shall accept public comments on the proposed application for approval of a Municipal Public Access Plan for 30 days following publication of the notice in the DEP Bulletin.

3. After the close of the public comment period, the Department may request revisions to the proposed Municipal Public Access Plan.

4. If revisions are requested, the Department shall, in writing, notify the municipality within 60 days of receipt of the revisions that the proposed Municipal Public Access Plan either:

i. Satisfies the requirements of this section and is approved; or

ii. Does not satisfy the requirements of this section and is not approved with explanation.

5. If no revisions are requested by the Department, the Department shall, in writing, notify the municipality within 60 days of the end of the public comment period that the proposed Municipal Public Access Plan either:

i. Satisfies the requirements of this section and is approved; or

ii. Does not satisfy the requirements of this section and is not approved with explanation.

6. The Department shall provide notice of its determination under (i)4 or 5 above by:

i. Posting on the Department's website;

ii. Notifying by e-mail individuals who have requested notice of applications for approval of Municipal Public Access Plans; and

iii. Publishing the determination in the DEP Bulletin.

(h) A municipality which has received approval of a Municipal Public Access Plan shall as a condition of the approval:

1. Initiate action necessary to incorporate the Department-approved Municipal Public Access Plan into the municipality's Master Plan;

2. Notify the Department two weeks in advance of the dates and times of any scheduled public meetings on the Department-approved Municipal Public Access Plan. The Department shall post the meeting information on its website and notify by e-mail individuals who have requested notice of applications for approval of Municipal Public Access Plans;

3. Upon adoption of the Municipal Public Access Plan into the municipal Master Plan, provide the Department with a copy of an approved resolution incorporating the Department-approved Municipal Public Access Plan into the Master Plan;

4. Every five years after adoption of the Municipal Public Access Plan, provide the Department with an update on the status of all projects that have been undertaken in accordance with the Municipal Public Access Plan; and

5. Within 90 days notify and submit to the Department for approval any changes to a Department approved Municipal Public Access Plan that impact the location or type of public access provided. Failure to submit any changes under this paragraph may constitute good cause to revoke approval of a Municipal Public Access Plan.

(i) Upon receipt by the Department of the resolution incorporating the approved Municipal Public Access Plan into the municipality's Master Plan, public access required to satisfy the conditions of a coastal permit for development in the municipality for permit applications filed with the Department subsequent to the Department's receipt of the resolution shall be provided in accordance with the Municipal Public Access Plan. The Department shall include on the posted Department-approved Municipal Public Access Plan the date of receipt of the resolution.

(j) The Department shall revoke its approval of a Municipal Public Access Plan for good cause. Good cause includes failure to implement the Municipal Public Access Plan and/or noncompliance with the Municipal Public Access Plan such as, but not limited to, conversion of public access sites to other uses, and failure to maintain existing public access and signage.

1. Upon determination that good cause exists, the Department shall furnish written notice of its determination to the municipality by certified mail, providing 30 days within which to either remedy the noncompliance, provide an explanation of why such noncompliance cannot be remedied, offer a plan to remedy such noncompliance, or demonstrate to the Department that good cause for revocation does not exist. Any remedial plan shall indicate the time necessary to implement the remedy.

2. If the above requirements are not met, the Department shall provide the Municipality with written notice, by certified mail, of intent to revoke the Department's approval of the Municipal Public Access Plan and of the Municipality's right to a hearing pursuant to the provisions of N.J.A.C. 7:728. A request for a hearing shall be addressed to the New Jersey Department of Environmental Protection, Office of Administrative Hearings and Dispute Resolution, ATTENTION: Adjudicatory Hearing Requests, 401 E. State St., Mail Code 401-07A, PO Box 420, Trenton, New Jersey 08625-0420. A copy shall also be submitted to the Office of Land Use Planning, Mail Code 401-07C, PO Box 402, 401 E. State St., 7th floor, Trenton, New Jersey 08625.

3. If a hearing under (j)2 above is not requested within 10 days of receipt of said notice, the Municipal Public Access Plan shall be revoked.

(k) In municipalities that do not have an approved Municipal Public Access Plan, for sites which are located on or adjacent to tidal waterways and their shores, public access along and use of the beach and the shores shall be provided as specified in this subsection and, as applicable, in (m) below for marinas and (n) below for piers. Public access may include any one or a combination of the options listed at (b)3 above. When determining whether proposed public access is appropriate and/or sufficient, the Department shall consider factors such as type of public access available, the compatibility of the proposed public access with the applicant's proposed use of the site, square footage of access area, and environmental impact or benefit. The Department shall not approve public access that is contrary to any requirement contained in this chapter (for example, access that encroaches upon threatened or endangered species habitat or is in violation of the dunes rules):

1. Commercial development shall provide both visual and physical access as follows:

i. For existing commercial development, except for existing commercial development classified as "new commercial development" pursuant to (k)1ii below, where the proposed activity consists of maintenance, rehabilitation, renovation, redevelopment, or expansion that remains entirely within the parcel containing the existing development, no public access is required if there is no existing public access onsite. Any existing public access shall be maintained or equivalent public access shall be provided onsite. Equivalent public access shall include access that provides for opportunities to participate in the same activities, such as fishing, swimming and passive recreation, in the same manner and by the same number of people as in the existing public access area;

ii. Except as provided in (k)1ii(1) below, for new commercial development, access shall be provided onsite, at a minimum during normal operating hours. For the purposes of this subparagraph, "new commercial development" also includes the conversion of any existing non-commercial use to a commercial use and any change in an existing development that would result in either greater than a cumulative 50 percent increase in the area covered by buildings, asphalt, or concrete paving; or development outside the parcel containing the existing development;

(1) Public access along the Hudson River and on adjacent piers in the Hudson River Waterfront Area as defined at 7:7-9.46(a)2 shall be provided in accordance with 7:7-9.46(d) and (e).

2. Residential development shall provide both visual and physical access as follows:

i. At an existing residential development, where the proposed activities consist solely of accessory development or structural shore protection, no public access is required if there is no existing public access onsite. Any existing public access shall be maintained. If it is necessary to permanently impact the existing public access in order to perform the activities, equivalent access shall be provided onsite;

ii. For new residential development, where the development consists solely of the construction of one single-family home or duplex not in conjunction with a previous development as defined at 7:7-2.2(b)8, no public access is required;

iii. Except as provided in (k)2iii(3) below, for new residential development consisting of more than one single-family home or duplex, or the conversion of any existing non-residential use to a residential use consisting of more than one single-family home or duplex, that has a total frontage of 500 linear feet or less on areas subject to N.J.A.C. 7:7-9.48, public access shall be provided onsite.

(1) If the applicant demonstrates that onsite public access is not feasible, based on the size of the site, the character of the waterway, and environmental impact or benefits, equivalent offsite public access shall be provided on the same waterway within the same municipality as the residential development. The Department shall consider factors such as type of public access available (for example, if swimming access is available onsite, then swimming access should be available at the offsite location), square footage of access area, and environmental impact/benefit when determining whether the proposed offsite public access is equivalent to that which would have been required onsite;

(2) If the applicant demonstrates that offsite public access within the same municipality is not feasible because there are no sites available upon which to provide public access in accordance with (k)2iii(1) above, equivalent offsite public access shall be provided on the same waterway within a neighboring municipality where the access is consistent with the neighboring municipality's Municipal Public Access Plan or, if there is no Municipal Public Access Plan, the access is located and designed to be consistent with (b) above. The Department shall consider factors such as type of public access available (for example, if swimming access is available onsite, then swimming access should be available at the offsite location), square footage of access area, and environmental impact/benefit when determining whether the proposed offsite public access is equivalent to that which would have been required onsite;

(3) Public access along the Hudson River and on adjacent piers in the Hudson River Waterfront Area as defined at 7:7-9.46(a)2 shall be provided in accordance with N.J.A.C. 7:7 7:7-9.46(d) and (e).

iv. Except as provided in (k)2iv(1) below, for new residential development consisting of more than one single-family home or duplex or the conversion of any existing non-residential use to a residential use consisting of more than one single-family home or duplex, where the development has a total frontage of more than 500 linear feet on areas subject to N.J.A.C. 7:7-9.48, public access shall be provided onsite.

(1) Public access along the Hudson River and on adjacent piers in the Hudson River Waterfront Area as defined at 7:7-9.46(a)2 shall be provided in accordance with 7:7-9.46(d) and (e).

3. Except as provided at (k)4 and 5 below, industrial development and public development, except for public highways, shall provide both visual and physical access in accordance with (k)3i through iv below. Public highways shall meet the requirements at (l) below.

i. For existing industrial or public development, except as provided at (k)3ii below, where the proposed activity consists of the maintenance, rehabilitation, renovation, redevelopment, or expansion that remains entirely within the parcel containing the existing development, no public access is required if there is no existing public access onsite. Any existing public access shall be maintained or equivalent onsite public access shall be provided. Equivalent public access shall include access that provides for opportunities to participate in the same activities (such as fishing, swimming, or passive recreation), in the same manner and by the same number of people as in the existing public access area;

ii. Except as provided in (k)3ii(1) below, for new industrial or public development, including the conversion of any existing use to an industrial or public use, public access shall be provided onsite during normal operating hours, unless it can be demonstrated that continued public access is not practicable based on the risk of injury from proposed hazardous operations, or substantial permanent obstructions, or upon documentation of a threat to public safety due to unique circumstances concerning the subject property, and no measures can be taken to avert these risks. In cases where the Department concurs that the risk is too great for onsite public access, access shall be provided in accordance with (k)3iii below. For the purposes of this paragraph, "new industrial or public development" includes development of areas not within the parcel containing the existing development.

(1) Public access along the Hudson River and on adjacent piers in the Hudson River Waterfront Area as defined at 7:7-9.46(a)2 shall be provided in accordance with 7:7-9.46(d) and (e).

iii. Where it has been demonstrated that onsite access is not practicable based on the presence of substantial permanent obstructions or the risk of injury from proposed hazardous operations, or upon documentation of a threat to public safety due to unique circumstances concerning the subject property, and no reasonable measures can be taken to avert these risks, equivalent offsite public access shall be provided on the same waterway and within the same municipality as the development. The Department shall consider factors such as type of public access available (for example, if swimming access is available onsite, then swimming access should be available at the offsite location), square footage of access area, and environmental impact/benefit when determining whether the proposed offsite public access is equivalent to that which would have been required onsite;

iv. If the applicant demonstrates that offsite public access within the same municipality is not feasible because there are no sites available upon which to provide public access in accordance with (k)3ii above, equivalent offsite public access shall be provided on the same waterway within a neighboring municipality where the access is consistent with the neighboring municipality's Municipal Public Access Plan or, if there is no Municipal Public Access Plan, the access is located and designed to be consistent with (b) above.

4. Homeland security facilities shall provide both visual and physical access as follows:

i. For existing homeland security facilities, except as provided at (k)4ii below, where the proposed activity consists of maintenance, rehabilitation, renovation, redevelopment, or expansion that remains entirely within the parcel containing the existing development, no public access is required if there is no existing public access onsite. Any existing public access shall be maintained onsite or equivalent public access shall be provided either onsite or offsite on the same waterway and within the same municipality as the development. Equivalent public access shall include access that provides for opportunities to participate in the same activities such as fishing, swimming, or passive recreation, in the same manner and by the same number of people as in the existing public access area;

ii. Except as provided in (k)4i(1) below, for new homeland security facilities, including the conversion of a non-homeland security facility to a homeland security facility, or the expansion of an existing homeland security facility onto areas not within the parcel containing the existing development, the applicant may provide either onsite public access or equivalent offsite public access on the same waterway and within the same municipality as the development. The Department shall consider factors such as type of public access available (for example, if swimming access is available onsite, then swimming access should be available at the offsite location), square footage of access area, and environmental impact/benefit when determining whether proposed offsite public access is equivalent to that which would have been required onsite;

(1) Public access along the Hudson River and on adjacent piers in the Hudson River Waterfront Area as defined at 7:7-9.46(a)2 shall be provided in accordance with 7:7-9.46(d) and (e).

5. Ports, as defined at N.J.A.C. 7:7-9.11, shall provide both visual and physical access as follows:

i. For existing ports, public access shall be provided as follows:

(1) No public access is required if there is no existing public access onsite. Any existing public access shall be maintained or equivalent onsite public access shall be provided. If it can be demonstrated that continued onsite public access is not practicable based on the risk of injury from proposed hazardous operations, or substantial permanent obstructions, or upon documentation of a threat to public safety due to unique circumstances concerning the subject property, and no measures can be taken to avert these risks, equivalent public access shall be provided offsite on the same waterway and within the same municipality as the development. The Department shall consider factors such as the type of public access available (for example, if linear or visual access is available onsite then linear or visual access should be available at the offsite location), square footage of access area, and environmental impact/benefit when determining whether the proposed offsite public access is equivalent to that which would have been required onsite.

(2) If the applicant demonstrates that offsite public access within the same municipality is not feasible because there are no sites available upon which to provide public access in accordance with (k)5i(1) above, equivalent offsite public access shall be provided on the same waterway within a neighboring municipality where the access is consistent with the neighboring municipality's Municipal Public Access Plan or, if there is no Municipal Public Access Plan, the access is located and designed to be consistent with (b) above.

ii. For new ports, no public access is required.

(l) Public highways, including superhighways, shall provide both visual and physical access as follows. For purposes of this subsection, an example of visual and physical access is a sidewalk on or adjacent to a bridge. Public transportation agencies and counties are encouraged to submit to the Department an application for approval of a Transportation Public Access Plan in accordance with (l)3 below:

1. Superhighways, specifically, the Garden State Parkway, New Jersey Turnpike, Atlantic City Expressway, and Interstates 76, 78, 80, 95, 276, 278, 195, 295, and 676, shall provide access as follows:

i. Where the proposed activity consists of maintenance, rehabilitation, reconstruction, or expansion that remains entirely within the right-of-way existing as of November 5, 2012, no public access is required if there is no existing public access onsite. Any existing public access shall be maintained or equivalent public access shall be provided offsite on the waterway(s) and within the municipality(s) where the development is located. Equivalent public access shall include access that provides for opportunities to participate in the same activities, in the same manner and by the same number of people as in the existing public access area;

ii. Where the proposed activity is an expansion outside the right-of-way existing as of November 5, 2012 and the expansion crosses or proposes fill in a tidal waterway, public access shall be provided offsite on the waterway(s) and within the municipality(s) where the development is located or in accordance with the following:

(1) A Department approved Transportation Public Access Plan;

(2) A Department approved Municipal Public Access Plan; or

(3) An agreement between the New Jersey Department of Transportation and the Department specifying the payment of funds to the Department or the municipality to be used to provide new or enhanced public access;

iii. If the applicant demonstrates that offsite public access in the same municipality is not feasible because there are no sites available upon which to provide public access in accordance with (l)1i and ii above, equivalent offsite public access shall be provided on the same waterway(s) within a neighboring municipality where the access is consistent with the neighboring municipality's Municipal Public Access Plan or, if there is no Municipal Public Access Plan, the access is located and designed to be consistent with (b) above.

2. Public highways, other than superhighways, shall provide both physical and visual access as follows:

i. For existing public highways, except as provided at (l)2ii below, where the proposed activity consists of the maintenance, reconstruction, rehabilitation, or expansion that remains entirely within the right-of-way existing as of November 5, 2012, no public access is required if there is no existing public access onsite. Any existing public access shall be maintained or equivalent onsite public access shall be provided. Equivalent public access shall include access that provides for opportunities to participate in the same activities, in the same manner and by the same number of people as in the existing public access area.

ii. For new public highways, or expansion of existing public highways outside the right-of-way existing as of November 5, 2012 where the new public highway or expansion crosses or proposes fill in a tidal waterway, public access shall be provided in accordance with a Department approved Transportation Public Access Plan if one exists or onsite unless it can be demonstrated that public access is not practicable based on the risk of injury from proposed hazardous operations, or substantial permanent obstructions, or upon documentation of a threat to public safety due to unique circumstances concerning the subject property, and no measures can be taken to avert these risks. In cases where the Department concurs that the risk is too great for onsite public access, access shall be provided in accordance with (l)2iii below;

iii. Where a Transportation Public Access Plan does not exist and it has been demonstrated that onsite access is not practicable based on the presence of substantial permanent obstructions or the risk of injury from proposed hazardous operations, or upon documentation of a threat to public safety due to unique circumstances concerning the subject property, and no reasonable measures can be taken to avert these risks, equivalent public access shall be provided in accordance with the following:

(1) Offsite on the waterway(s) and within the municipality(s) where the development is located where the access is consistent with the municipality's Municipal Public Access Plan;

(2) Consistent with an agreement between the New Jersey Department of Transportation and the Department specifying the payment of funds to the Department or the municipality to be used to provide new or enhanced public access; or

(3) In accordance with (b) above if there is no Municipal Public Access Plan;

iv. If the applicant demonstrates that offsite public access in the same municipality is not feasible because there are no sites available upon which to provide public access in accordance with (l)2ii and iii above, equivalent offsite public access shall be provided on the same waterway(s) within a neighboring municipality where the access is consistent with the neighboring municipality's Municipal Public Access Plan or, if there is no Municipal Public Access Plan, the access is located and designed to be consistent with (b) above.

3. Transportation Public Access Plans shall satisfy the goals specified at N.J.A.C. 7:7-1.1(c) and the public access goals at (b) above. Transportation Public Access Plans shall additionally meet the requirements at (l)3i through iii below:

i. Transportation Public Access Plans shall incorporate fishing access and associated amenities where appropriate.

ii. Transportation Public Access Plans shall require installation and maintenance of appropriate public access signage in accordance with 7:7-16.9(u).

iii. Transportation Public Access Plans shall not provide for access that is contrary to any requirement contained in this chapter (for example, access that encroaches upon threatened or endangered species habitat or is in violation of the dunes rules).

4. A public transportation agency or county seeking approval of a Transportation Public Access Plan shall file an application for approval with the Department. The application shall include a proposed Transportation Public Access Plan consisting of the following elements:

i. A statement describing the overall goals of the Transportation Public Access Plan;

ii. A public access policy for public roadways included in the Transportation Public Access Plan;

iii. A description of potential public access options;

iv. A description of the general locations where public access will be provided;

v. A description of the general locations where public access will not be provided due to practical limitations;

vi. An implementation strategy that describes the forms of public access proposed in order to satisfy the public access policy and measures to be implemented to permanently protect public access;

vii. Demonstration that at least two public informational meetings have been held to take public comment on the proposed Transportation Public Access Plan and that the applicant notified the Department two weeks in advance of the dates and times of the public meetings so that the Department can provide notice of the public meetings by posting the meeting information on its website and notifying by e-mail individuals who have requested notice of applications for approval of Transportation Public Access Plans; and

viii. A description of any changes made to the Transportation Public Access Plan as a result of public comments received.

5. The Department shall review an application for approval of a Transportation Public Access Plan to determine whether the plan is consistent with the broad coastal goals described at N.J.A.C. 7:7-1.1(c), and the goals for public access at (b) above as follows:

i. Upon receipt of an application for approval of a Transportation Public Access Plan that meets the requirements of (l)4 above, the Department shall seek public comment on the application by:

(1) Posting the proposed Transportation Public Access Plan on the Department's website;

(2) Notifying by e-mail individuals who have requested notice of applications for approval of Transportation Public Access Plans; and

(3) Publishing notice in the DEP Bulletin.

ii. The Department shall accept public comments on the proposed application for approval of a Transportation Public Access Plan for 30 days following publication of the notice in the DEP Bulletin.

iii. After the close of the public comment period, the Department may request revisions to the proposed Transportation Public Access Plan.

iv. If revisions are requested, the Department shall, in writing, notify the applicant within 60 days of receipt of the revisions that the proposed Transportation Public Access Plan either:

(1) Satisfies all applicable requirements of this section and is approved; or

(2) Does not satisfy all applicable requirements of this section and is not approved with explanation.

v. If no revisions are requested by the Department, the Department shall, in writing, notify the applicant within 60 days of the end of the public comment period that the proposed Transportation Public Access Plan either:

(1) Satisfies all applicable requirements of this section and is approved; or

(2) Does not satisfy all applicable requirements of this section and is not approved with explanation.

vi. The Department shall provide notice of its determination under (l)5iv or v above by:

(1) Posting on the Department's website;

(2) Notifying by e-mail individuals who have requested notice of applications for approval of Transportation Public Access Plans; and

(3) Publishing the determination in the DEP Bulletin.

6. A public transportation agency or county which has received approval of a Transportation Public Access Plan shall as a condition of the approval, every five years after the date of approval, submit to the Department a report detailing:

i. The status of all projects that have been undertaken in accordance with the Transportation Public Access Plan; and

ii. Any problems encountered in pursuit of the plan's objectives and goals and proposed remedies to assure the objectives and goals of the plan are met.

7. Department review and approval is required before a public transportation agency or county may make changes to an approved Transportation Public Access Plan. In support of a request to amend the approved plan under this subsection, the applicant shall submit to the Department the approved plan with the information specified in (l)4 above updated to reflect the proposed change. This submission shall detail how the proposed change affects the approved plan. The Department shall review and make a determination on the Transportation Public Access Plan amendment request in accordance with (l)5 above.

(m) Marinas, as defined at N.J.A.C. 7:7-15.3(d)1, shall provide both visual and physical public access in accordance with this subsection. Public access may include any one or a combination of the options listed at (b)3 above. When determining whether proposed public access is appropriate and/or sufficient, the Department shall consider factors such as type of public access available, the compatibility of the proposed public access with the applicant's proposed use of the site, square footage of access area, and environmental impact or benefit.

1. For existing marina development where the proposed activity consists of maintenance, rehabilitation, renovation, redevelopment, or expansion that remains entirely within the parcel containing the existing development, no public access is required if there is no existing public access onsite, except as provided at (p)3 below. Any existing public access shall be maintained. If it is necessary to impact the existing public access in order to perform the proposed activities, equivalent public access shall be provided onsite. Equivalent public access shall include access that provides for opportunities to participate in the same activities, such as fishing, swimming, and passive recreation, in the same manner and by the same number of people as in the existing public access area;

2. For new marina development, public access shall be provided onsite during normal operating hours. For the purposes of this subsection, "new marina development" includes any change in the existing development that would result in greater than a cumulative 50 percent increase in the area covered by buildings, asphalt, or concrete paving, or proposed development of areas not within the parcel containing the existing development;

3. If the marina development includes a beach area, public access along and use of the beach shall be provided and activities that have the effect of discouraging or preventing the exercise of public trust rights, as described at N.J.A.C. 7:7-9.48, are prohibited in accordance with (s) below;

4. Applicants for new marinas, as described at (m)2 above, shall provide to the Department at the time of application, for its review and approval, a public access plan for the marina development which shall include the following:

i. A site plan identifying the location and type of access provided, including both existing and proposed, as well as any areas closed to public access based on the presence of substantial permanent obstructions, the risk of injury from proposed hazardous operations, or a threat to public safety due to unique circumstances concerning the subject property, and where no reasonable measures can be taken to avert these risks. The plan shall include an explanation of what the specific risks and hazards are and shall indicate where access has been enhanced to compensate for the area closed due to the dangerous or hazardous conditions; and

ii. A listing of the normal operating hours for the marina;

5. Once a marina access plan has been approved by the Department, any proposed changes to that plan shall require additional Department review and approval, regardless of whether or not a permit modification is also required. In support of a request to amend the approved plan under this paragraph, the applicant shall submit to the Department the approved plan updated to reflect the proposed change(s). This submission shall provide information with reference to the requested change(s) to the plan and shall detail how the proposed change(s) affects the approved plan. If the proposed change(s) results in a reduction in any way of public access, the submission shall additionally specify proposed changes to offset proposed reductions in public access.

(n) Except in accordance with the Hudson Waterfront Area at N.J.A.C. 7:7-9.46, and Atlantic City at 7:7-9.47, development which is proposed to be located on an existing pier shall provide public access in accordance with the type of development being proposed, that is, commercial, residential, industrial or public, homeland security, or ports (see (n) above).

(o) For coastal permit applications that include beach and dune maintenance activities, existing public access shall be maintained or equivalent onsite public access shall be provided regardless of whether the loss of access is temporary or permanent. Equivalent public access shall include access that provides for opportunities to participate in the same activities, such as fishing, swimming, or passive recreation, in the same manner and by the same number of people as in the existing public access area.

(p) For applicants obtaining permits to conduct shore protection projects along the shores of the Atlantic Ocean, Sandy Hook Bay, Raritan Bay or Delaware Bay, and/or estuaries directly connected therewith, under the guidance of, and with participation by, the Army Corps of Engineers (ACOE), access shall be provided in accordance with the ACOE Planning Guidance Notebook Section IV- Hurricane and Storm Damage Prevention (CECW-P Engineer Regulation 1105-2-100, April 22, 2000), incorporated herein by reference, as amended and supplemented. The ACOE guidance states, "Reasonable access is access approximately every one-half mile or less," and further states, "lack of sufficient parking facilities for the general public (including nonresident users) located reasonably near and accessible to the project beaches may constitute a restriction on public access and use, thereby precluding eligibility for Corps participation." (See section E-24d., Public Use and its Relation to Federal Participation, provisions (2) and (3).)

(q) Public access must be available on a nondiscriminatory basis. All establishments, including municipalities, counties, marinas, condominium associations, homeowner associations and beach clubs, which control access to tidal waterways and their shores shall comply with the Law Against Discrimination, 10:5-1 et seq.

(r) Public access to tidal waterways and their shores shall be clearly marked. Department approved public access signs shall be installed at each public accessway, public access area and/or public parking area at the development site and maintained in perpetuity by the permittee and its successors in title and interest.

(s) Activities that have the effect of discouraging or preventing the exercise of public trust rights, as described at N.J.A.C. 7:7-9.48, are prohibited. These activities include, but are not limited to, requiring photographic identification, requiring a liability waiver, requiring the purchase of drinks or food from a specific vendor, or prohibiting bringing beach equipment such as blankets or beach chairs.

(t) Development on or adjacent to tidal waterways and their shores shall provide barrier free access where feasible and warranted by the character of the site.

(u) If a public accessway is chosen to satisfy the public access requirement in (k) and (m) above, the accessway shall provide a minimum width of 10 feet free of obstructions to public access. Amenities such as public benches, litter or recycling receptacles, and lighting fixtures are provided to enhance public access and shall not be considered obstructions.

(v) A fee for use of bathing and recreational facilities and safeguards, such as lifeguards, toilets, showers, and parking, at publicly or privately owned beach or waterfront areas, may be charged in accordance with (y)1 through 6 below. However, no fees shall be charged solely for access to or use of tidal waterways and their shores. The fee schedule and documentation of compliance with this paragraph shall be submitted to the Department by the permittee and its successors in title and interest upon request.

1. Fees shall be no greater than that which is required to operate and maintain the facility, taking into consideration basic support amenities provided, such as lifeguards, restroom/shower facilities and trash pickup. This requirement applies to facilities and services directly associated with using the tidal waterways and their shores and does not apply to additional amenities such as cabanas, pools, or restaurants;

2. Fees shall not discriminate between residents and non-residents or on any other basis, except as allowed by this rule or other law;

3. Fees shall not be charged for children under the age of 12 years;

4. Badges or passes must be available for sale at times and places that are reasonably convenient for the public. Badges and passes shall be offered for sale in person at the beach or waterfront area during the hours that the beach is staffed. In addition, if the entity that owns or operates the beach or waterfront area offers private memberships, public badges or passes must be offered for sale to the public in the same manner, times and places as private memberships;

5. Weekly, monthly or seasonal badges or passes shall be transferable at the discretion of the badge or pass holder; and

6. Public access to and use of tidal waterways and their shores may not be conditioned upon providing identification or signing or otherwise agreeing to any waiver or similar disclaimer of rights.

(w) The areas set aside for public access to tidal waterways and their shores shall be permanently dedicated for public use through the recording of a Department approved conservation restriction under the New Jersey Conservation Restriction and Historic Preservation Restriction Act, 13:8B-1 et seq., maintaining the publicly dedicated areas in perpetuity. The conservation restriction shall comply with the requirements of N.J.A.C. 7:7-18, Conservation Restrictions.

(x) Rationale: The Public Trust Doctrine states that natural resources, including, but not limited to, tidal waterways and their shores, air and wildlife in this State are held by the State in trust for the benefit of all of the people. Further, the Public Trust Doctrine establishes the right of the public to fully utilize these natural resources for a variety of public uses. The original purpose of the doctrine was to assure public access to waters for navigation, commerce and fishing. In the past two centuries, State and Federal courts in New Jersey have recognized that public uses guaranteed by the Public Trust Doctrine also include public recreational uses such as swimming, sunbathing, fishing, surfing, sport diving, bird watching, walking and boating along the various tidal shores.

As the trustee of the public rights to natural resources, including tidal waterways and their shores, it is the duty of the State not only to allow and protect the public's right to use them, but also to ensure that there is adequate access to these natural resources. As the State entity managing public access along the shore, the Department has an obligation to ensure that this occurs. Access ensured by the Public Trust Doctrine can be classified into different types, including linear/lateral access, perpendicular access, and visual access.

Reasonable, convenient and safe conditions at or around public access areas and public accessways often affect whether the public will be able to reach and use tidal waterways and their shores. Such site conditions include informative signage marking public accessways, the absence of threatening or misleading signage, adequate facilities (such as restrooms and fish cleaning tables) within a reasonable distance of tidal waterways and their shores and sufficient parking located near public accessways. Additionally, special measures, such as ramps installed in accordance with the Americans with Disabilities Act, can be taken to ensure that coastal lands and waters are accessible by all members of the public.

Development can block tidal waters from public view and/or make physical access to tidal waterways and their shores difficult or impossible. Tidal shore areas located in residential areas or within private beach areas are sometimes fenced, blocked or otherwise obstructed, further complicating access to these sites. In addition, municipalities have at times sold portions of the public beaches and vacated public streets and street ends to private owners. The private ownership of land immediately inland from tidal waterways and their shores can limit public access to tidal waterways and their shores. This leads to limited access to and enjoyment of public resources by citizens who have rights of access and use recognized and protected by the Public Trust Doctrine. Furthermore, public funds have been used to support protection and maintenance of these resources. Barriers to access also negatively affect tourism, which is one of the top revenue producing industries in New Jersey.

The developed waterfront, due to its past industrial utilization and long history of development, has been largely closed to the public, limiting their ability to exercise their public trust rights. In an effort to encourage public access, the Department intends to promote a continuous linear network of open space along the shore of all tidal waters that may be used for fishing, walking, jogging, bicycling, kayaking, sitting, viewing and similar recreational activities. The path will be continuous but may detour around existing or proposed industry due to risk of injury from existing or proposed hazardous operations, or substantial existing and permanent obstructions. These linear walkways will connect future and existing waterfront parks and open space areas. The goal of the rule is to assemble a system, through acquisitions and easements, that will provide continuous linkages and access along the waterfront, enabling the State to adhere to its responsibilities to safeguard public rights of access to and use of all tidal waterways and tidal waterfront areas in New Jersey. Where easements are secured from landowners for public access purposes, the New Jersey Landowner Liability Act (2A:42A-2 et seq.) offers limited protection from the liability they would normally face under the common law.

In addition to the historic legal rights retained by the public to tidal areas, public funds are invested in numerous ways to protect these public resources and their adjacent lands. The lands and waters subject to public trust rights receive many State and Federal dollars which have been invested in beach replenishment, shore protection, road projects, water quality and monitoring programs, and solid waste monitoring. In part as a result of this investment, the public has the right to use these resources. State funds are also used to acquire and develop lands for parks and recreation through the Department's Green Acres Program. These programs are financed not just by the communities within which these lands and waters subject to public trust rights are located, but by residents Statewide. Additionally, residents Statewide contribute to fund various Federal programs that protect and enhance lands and waters subject to public trust rights. The rule ensures that all residents who contribute to the protection of these lands and waters are able to exercise their rights to access and use the lands and waters. Further, they are consistent with Federal programs which require projects utilizing Federal funds to provide public access upon receipt of funds and will ensure that increases in public access apply to lands and waters subject to public trust rights Statewide.

The Public Trust Doctrine is an example of common law authority that is continually developing through individual Court cases. In addition to cases involving physical barriers to access, there have been instances where municipalities and local property owner associations have attempted to limit use of recreational beaches to their citizens and members through methods designed to exclude outsiders. In the majority of these cases, New Jersey courts have ruled that these actions violate the Public Trust Doctrine because lands that should be available for the general public's recreational use were being appropriated for the benefit of a select few.

New Jersey Supreme Court cases including Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296 (1972) and Van Ness v. Borough of Deal, 78 N.J. 174 (1978) held that municipalities could not discriminate between residents and non-residents using municipally owned beaches through differential fees or by setting aside separate areas for each. The decision in the case Matthews v. Bay Head Improvement Association, 95 N.J. 306 (1984) recognized that, under the Public Trust Doctrine, not only does the public have the right to use the land below the mean high water mark, but also they have a right to use a portion of the upland dry sand area, on quasi-public beaches, ". . .where use of dry sand is essential or reasonably necessary for enjoyment of the ocean, the doctrine warrants the public's use of the upland dry sand area subject to an accommodation of the interests of the owner."

Most recently, the Court's ruling in Raleigh Avenue Beach Association v. Atlantis Beach Club, Inc., et al., 185 N.J. 40 (2005) used the criteria established in the Matthews case, and recognized that this principle also applies to the upland dry sand of a wholly privately owned and operated beach. The decision also confirms that the Department has the authority to regulate fees charged for use of beaches under CAFRA. The decisions in these cases guide the Department in upholding the Public Trust Doctrine and providing adequate public access. Other such cases include Arnold v. Mundy, 6 N.J.L. 1, 3 (Sup. Ct. 1821); Bell v. Gough, 23 N.J.L. 624 (E. & A. 1852); Martin v. Waddell's Lessee, 41 U.S. 367, 10 L.Ed. 997 (1842); Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894); Slocum v. Borough of Belmar, 238 N.J.Super. 179, 185 (Law Div. 1989).

N.J. Admin. Code § 7:7-16.9

Renumbered from 7:7E-8.11 by 47 N.J.R. 1392(a), effective 7/6/2015

Amended by 49 N.J.R. 3145(a), effective 9/18/2017

Administrative Change, 55 N.J.R. 528(a), effective 2/23/2023