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State of New Jersey-Department of Environmental Protection-Public Acess
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Public Access Rule

The public rights of access to and use of the tidal waterways and their shores are based in the common law rule of the Public Trust Doctrine, first codified by the Roman Emperor Justinian around 500 AD as civil law. It establishes the public’s right to full use of the seashore. The current rule stems from this but has been modified by legal decisions and recent implementation policies.

N.J.A.C. 7:7E-8.11(a) Public Access
N.J.A.C. 7:7E-8.11(b) Public Access Goals
N.J.A.C. 7:7E-8.11(c) Public Access Planning Process
N.J.A.C. 7:7E-8.11(d) Municipal Public Access Plan Requirements
N.J.A.C. 7:7E-8.11(e) Municipal Public Access Plan Elements
N.J.A.C. 7:7E-8.11(f) Municipal Public Access Fund
N.J.A.C. 7:7E-8.11(g) Municipal Public Access Plan Non-requirements

N.J.A.C. 7:7E-8.11(a) Public Access
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 N.J.A.C. 7:7E-3.50. 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.

N.J.A.C. 7:7E-8.11(b) Public Access goals
In addition to the broad coastal goals outlined at N.J.A.C. 7:7E-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 nondiscriminatory 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;
    1. Public access proposed by an applicant may include any one or combination of the following:
      1. A public accessway designed in accordance with (w) 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;
    2. 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
    Text Box: Photo
  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.


N.J.A.C. 7:7E-8.11(c) Municipal Public Access Planning Process
(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 3 below. Municipalities are encouraged to develop and submit to the Department an application for approval of a Municipal Public Access Plan.

  1. In municipalities from which {have received Department approval of a Municipal Public Access Plan in accordance with (d ) through (m) below} the Department has received a resolution incorporating a Department-approved Municipal Public Access Plan into the municipality’s Master Plan in accordance with (k) 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, except in accordance with N.J.A.C. 7:7E-8.11(n)6ii(2);
  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 (k) below on or before the date of receipt of a permit application by the Department, access shall be provided in accordance with (n) below, for commercial, residential, industrial and public development, and for homeland security facilities, ports, and public highways. 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 {there is a Department approved Municipal Public Access Plan} the Department has received a resolution incorporating a Department-approved Municipal Public Access Plan into the municipality’s Master Plan in accordance with (k) below, access shall be provided in accordance with (o) below for marinas, (p) below for piers, (q) below for beach and dune maintenance activities, and (r) 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.


N.J.A.C. 7:7E-8.11(d) Municipal Public Access Plan Requirements
Municipal Public Access Plans shall satisfy the goals specified at N.J.A.C. 7:7E-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 N.J.A.C. 7:7E-3.48(a)2 consistent with N.J.A.C. 7:7E-3.48(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. 7:7E-8.11(t).
  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)

N.J.A.C. 7:7E-8.11(e) Municipal Public Access Plan Elements


N.J.A.C. 7:7E-8.11(e) Municipal Public Access Plan Elements
A municipality seeking approval of a Municipal Public Access Plan shall file 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 municipality 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:
    1. . Existing access points or locations providing perpendicular access to tidal waterways and their shores within the municipality;
    2. Existing water dependent and water oriented activities that provide public access to tidal waterways and their shores within the municipality;
    3. 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
    4. 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:
    1. All tidal waterways and their shores within the municipality and all lands held by the municipality adjacent thereto;
    2. 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;
    3. 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
    4. Those facilities identified in ii. 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:
    1. 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;
    2. Provides a comprehensive list of public access projects and initiatives to be undertaken along with an implementation schedule;
    3. Identifies proposed tools to implement the municipal public access plan measures, including, but not limited to, the adoption or amendment of municipal ordinances, the creation of a Public Access Fund established in accordance with (f) below to be used solely for the development and enhancement of public access, 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;
      1. If the Municipal Public Access Plan includes a provision for monetary compensation in lieu of onsite public access in accordance with (f) below, this portion of the plan shall specify the location and/or type of uses, for example, residential, commercial, industrial, homeland security, and/or public highways, for which a monetary contribution shall be required;
    4. Identifies and, as necessary, proposes modifications to existing plans,
      ordinances and programs necessary to implement the Municipal Public Access Plan;
    5. For municipalities conducting a shore protection project pursuant to (r) below, identifies how the municipality proposes to provide access points to achieve compliance with that subsection;
    6. 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;
    7. Provides a schedule for implementation of the municipal public access
      plan;
    8. Identifies ordinances already in place or to be adopted requiring
      appropriate signage and placement of signage for public access areas;
    9. 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 N.J.A.C. 7:36-6.5, Recreation and Open Space Inventory Submissions);
    10. 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
    11. 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.

N.J.A.C. 7:7E-8.11(f) Municipal Public Access Fund
(link to municipal public access fund subpage in Implementing MPAP page)
As an option for increased flexibility in implementing public access enhancements, municipal public access plans may require a monetary contribution in lieu of onsite or offsite physical public access. This option allows a municipality to fairly assess development that may not be appropriate for public access onsite, and where a new off-site location may also not be appropriate.

N.J.A.C. 7:7E-8.11(g) Non requirements
A Municipal Public Access Plan shall not require:

  1. Public access {requirements} along the Hudson River in the Hudson River Waterfront Area as defined at N.J.A.C. 7:7E-3.48(a)2 inconsistent with N.J.A.C. 7:7E-3.48(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. 7:7E-7.3(d)1. Public access requirements at marinas shall be governed by (o) below;
  3. Public access at piers. Public access requirements at piers shall be governed by (p) below;
  4. Public access at existing commercial development that is not classified as “new commercial development” pursuant to (n)1ii below. Public access requirements at existing commercial development shall be governed by (n)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. Public access requirements at existing residential development shall be governed by (n)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 (n)2ii below;
  6. Public access at existing industrial or public development. Public access requirements at existing industrial or public development shall be governed by (n)3i below;
  7. Public access at existing homeland security facilities. Public access requirements at existing homeland security facilities shall be governed by (n)4i below; or
  8. Public access at existing or new ports. Public access requirements at ports shall be governed by (n)5 below.

 

 

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Last Updated: March 21, 2014