The uncertainty involving the New Jersey Department of Environmental Protection’s (“DEP”) Public Access Rule promulgated in 2012 under the Coastal Zone Management Rules continues. The Supreme Court by Order dated June 17, 2016 denied the State’s Petition for Certification to challenge the Appellate Division’s Hackensack Riverkeeper, Inc. and NY/NJ Baykeeper v DEP, 443 N.J. Super 293 (App. Div. 2015) decision. In another Order issued the same day, the Court also denied the State’s motion for a stay of Hackensack Riverkeeper, and vacated an Order of the Court that had temporarily stayed the decision.

The Appellate Division in Hackensack Riverkeeper expressly invalidated DEP’s Public Access Rule and all related provisions of the Coastal Rules, finding that DEP lacked authority to adopt the Public Access Rule under the Coastal Area Facility Review Act, any other statute, or the common law Public Trust Doctrine. The Legislature quickly responded adopting P.L. 2015, c. 260 on January 19, 2016, which amends the Waterfront Development Law and CAFRA to give DEP authority to require on-site or off-site public access to the waterfront and adjacent shoreline as a condition of CAFRA and waterfront development approvals, subject to DEP’s adoption of regulations pursuant to the Administrative Procedures Act for said purpose. While the legislation gives DEP authority to adopt new public access regulations or arguably re-establish the invalidated Public Access Rule, DEP did not have such statutory authority when the rule was promulgated and the legislation does not expressly retroactively validate the Public Access Rule.

To date, DEP has not taken action to propose regulations to establish a new or modified public access rule in response to the Hackensack Riverkeeper decision. Absent further agency action, which seems likely with the Court’s refusal to review Hackensack Riverkeeper, and given the lifting of the temporary stay of the decision, nothing in the current Coastal Rules gives DEP regulatory authority to impose public access requirements as a condition of CAFRA or Waterfront Development approvals.