On Jan. 19, Governor Christie signed S-3321/A-4927 (the “Legislation”), a bipartisan piece of legislation authorizing the New Jersey Department of Environmental Protection (DEP) to require waterfront development permitees to provide public access to the waterfront being improved. In doing so, the State has breathed new life into regulations invalidated by the Appellate Division just one month earlier and appears to be taking the position that it can now enforce those regulations without first re-adopting the regulations through the procedures required by the Administrative Procedures Act (APA). This apparent position creates the potential for a legal challenge to DEP’s retroactive application of the Legislation.

The Legislation was passed in response to the Appellate Division’s holding in the matter of Hackensack Riverkeeper and NY/NJ Baykeeper v. N.J. Dep’t of Envtl. Prot., 443 N.J. Super. 293 (App. Div. 2015), which upended the public access rules promulgated by DEP in 2012. The procedural background of the matter, however, begins in 2007, when DEP first finalized a set of public access regulations. Both the initial set of regulations and the more recent rules purported to provide DEP the means to require public access to New Jersey’s shorelines and tidal waterways. In practice, this authority takes the form of public access conditions attached to DEP permits authorizing coastal and waterfront development projects.

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