Christie DEP Considers Public Access to Rivers a Tax on Business

DEP Public Access Rules Must Be Blocked By the Legislature 

DEP Slogans Mask the Fact That Christie Executive Order #4 Guts State Responsibility To Protect Public Access Rights From Local Abuse

[Udate 2: 4/14/11 – Bergen Record weighs in with a good story: Environmental groups opposed to rules proposed by state on water access

Update 1: Our Country began fighting corporate power and relied on public access to rivers and ports (watch a video of the real history) .

Boston Tea Party – access to the harbor!

I don’t think I’ve seen two more misinformed and downright stupid statements by DEP in the same story.

Despite having written numerous times about how Governor Christie’s Executive Orders and DEP’s pro-business anti-regulatory policies harm protections of public health and the environment.

Despite strong criticism of DEP Commissioner Martin for his lack of qualifications, his warped economistic priorities, and vision that DEP promote economic development.

Despite exposing the false claims that protecting the environment is related to the economic recession or lack of private investment is NJ economic development.

And despite noting that proposed new DEP rules will limit public access to the ocean and to our rivers.

Still, despite writing all this and despite knowing how bad for the environment our current DEP leadership is, we never imagined that these economic issues were related in some way to the public access issues. I just never imagined that kind of warped thinking could creep into the public access issue to so subvert the public interest.

But, like looking through the wrong end of a telescope, DEP Commissioner Bob Martin and his political sidekick Ray Cantor see the (wrong) economic and private property side of the equation.

Check out these statements in today’s Bergen Record coverage of DEP’s new proposed public access rules (click to read rules):

New rules that would keep the public off industrial riverfront property and exempt the owners of those sites from contributing to a fund to build waterfront parks will take a step forward Monday.

A coalition of environmental advocacy groups say the regulations from the state Department of Environmental Protection would block public access points along the Hackensak and Passaic rivers and make it harder to rehabilitate them. DEP officials say the “common sense” rules offer balance between the public’s right to the waterfront and economic expansion by industry. …

“For existing companies, we felt that if they were trying to do some expansion, we felt that it was a tax and that was unnecessary,” Bob Martin, the DEP commissioner, said Friday. …

Ray Cantor, an adviser to Martin, said the measure is intended to help eliminate an unnecessary fee on businesses that want to expand. “If they want an enhancement to the riverside, the best way to do that is allow an industrial site to expand and pay more property taxes,” Cantor said. “We don’t need these large obligations to pay tens of thousands of dollars into a fund.”

I guess if all you’ve got is a pro-business economic development hammer everthing looks like a regulatory nail.

So maybe Bob and Ray don’t know that the public has ancient rights of acccess to rivers and the shore under what is known as “The public trust doctrine” ? (Wiki):

The ancient laws of the Roman Emperor Justinian held that the seashore not appropriated for private use was open to all. This principle became the law in England as well. In the Magna Carta in England centuries later public rights were further strengthened at the insistence of the nobles that fishing weirs which obstructed free navigation be removed from rivers.

These rights were further strengthened by later laws in England and subsequently became part of the common law of the United States as established in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). In that case the Illinois Legislature had granted an enormous portion of the Chicago harbor to the Illinois Central Railroad.  A subsequent legislature sought to revoke the grant, claiming that original grant should not have been permitted in the first place. The court held that common law public trust doctrine prevented the government from alienating the public right to the lands under navigable waters (except in the case of very small portions of land which would have no effect on free access or navigation).

In subsequent cases it was held that this public right extended also to waters which were influenced by the tides regardless of whether or not they were strictly navigable. This concept also has been found to apply to the natural resources (mineral or animal) contained in the soil and water over those public trust lands.

Even the NJ Business and Industry Association statement contradicts the DEP logic. Note that NJBIA claims lack of public demand for access to the waterfront, not to any adverse economic impacts of DEP rules on industrial expansion: (and do we even want our rivers further industrialized?)

The New Jersey Business & Industry Association has long supported the rules changes, saying industries don’t need to be hit with fees when there is little demand for access to the waterfront near their properties.

Maybe someone can ask NJBIA how they determined that there was “little [public] demand for access to the waterfront”.

Debbie Mans of NY/NJ Baykeeper gets it right – the public must be compensated for loss of access to their rivers:

“The DEP is missing the point,” said Debbie Mans, head of the NY/NJ Baykeeper. “This fund was set up to compensate the public for being blocked from their resource: the rivers.” Other opponents include the Hackensack Riverkeeper, the Surfrider Foundation and the Ironbound Community Corp.

Under NJ’s Constitution, the Legislature has the power to strike down regulations  as “inconsistent with legislative intent”. Politically, all that is required is a Resolution that is passed by both houses – the procedure does not require the Governor’s approval.

That power – or the threat of invoking it – has been used by the business community to back DEP off strong rules to protect the environment.

Ironically, in this case, it needs to be used to protect the public interest.

So, what Legislator will step up to the plate and sponsor that Resolution?

[Update 2: Kirk Moore has his typical good story in Asbury Park Press about some of the controverial beach access and shore issues. See: New beach access rules to allow towns to propose own plans

What the hell, DEP lets polluters be in charge of toxic site cleanups and DEP Commissioner Martin says it’s DEP’s job to promote economic development.

So, why not let towns – who have a long history of limiting public access – be in charge of public accesss!

Kind of like letting oil companies write energy laws, drug companies run FDA, and the developers write local zoning.

Welcome to the New Normal at Customer Friendly and the Open for Business Christie DEP!

[Update #3 – The DEP press release provides revealing glimpses of what this is really all about.

Commissioner Martin’s statements show that public access has become a victim of not only the Christie Administration’s anti-regulatory policies, but Executive Order #4, which attacks so called “state mandates”.

In these rules, under slogans (“common sense”, “top down”, “one-size-fits-all”) and the pretext that DEP is “imposing state-dictated access rules”, DEP is eliminating a state duty to protect public access and essentially delegating that function to local governments:

“The DEP will work with towns and cities to craft access plans that make local sense and protect the rights and needs of residents and businesses, instead of imposing one-size-fits-all, state-dictated access rules. The Department, however, still has final authority to approve any municipal access plans. The plans must ultimately meet the needs of the public.”

[Update 4 – the proposal itself states that the basis lies in Christie’s Executive Orders and Red Tape Report:

The Department is guided in this effort by the standards set forth in Governor Christie’s Executive Order No. 2 (2010) which demands that rules be governed by a set of “common sense principles. The Red Tape Review Group’s Findings and Recommendations (April 19, 2010) (see http://www.nj.gov/governor/news/news/552010/pdf/20100419_rtr_final_report.pdf  determined that elements of the existing public access rule needed revision.

Excerpts – More evidence in the proposal of Christie slogans that mask a regulatory animus:

In short, the Department is transforming how it accomplishes its environmental and policy goals in recognition that results matter, and such results can be accomplished without extensive and proscriptive regulatory requirements.

Public access can better be provided by applying common sense principles of governing, working with local governments, eliminating unnecessary burdens on residents, businesses, and governmental entities, and by bringing other resources to bear to create a comprehensive public access program that is beyond merely imposing proscriptive regulatory requirements. …

The Department has established teams of professionals to work with municipal officials to put together Municipal Public Access Plans with the intent of enhancing the public’s access to tidal waters in a more comprehensive manner rather than the current, limited, purely regulatory approach.