Archive for the ‘Courts’ Category

DEP does not need a search warrant to inspect wetlands

Written by Mike Pisauro on April 16th, 2013 in Courts, land use, Wetlands | No Comments »

The New Jersey Supreme Court recently released its decision in Huber v. NJ DEP.  I wrote about the case in Does DEP need a search warrant to investigate wetlands on your property?  The Court held that while DEP does not need a search warrant, it cannot enter a residential property under the Freshwater Wetlands Act without the property owners consent or Court Order.    If a property owner does not voluntarily consent than the DEP has regulatory authority and ultimately judicial recourse to compel that inspection.

The Court noted that when a land owner receives property subject to a permit that allowed the wetlands to be impacted the land owner takes the land without a reasonable expectation of full privacy.    The property owner does have some measure of privacy but it is reduced.  That reduced level of privacy means that the DEP does not have the right to enter residential property over the objection of the landowner.  If the landowner objects, than the DEP commission can issue an order requiring compliance with DEP’s right to inspect the property including monetary penalties for non-compliance.  If that does not work, and I do not expect it will in many cases, DEP can then seek a judicial order permitting the inspection.  The Court was also careful to note that the standard to issue the court-ordered entry is lesser than the probable cause necessary to get a search warrant in a criminal case.  But the Court did not set out the standards for issuing the court-ordered entry.

The Court also left undecided, DEP’s argument that it also had a property right in the land because there was a conservation easement recorded as a result of the Freshwater Wetlands Permit.  In essence since the State owned the easement they did not need the owners of the rest of the property to consent to the search.  The Court did not decide whether under the New Jersey Conservation Restriction and Historic Preservation Restriction Act DEP had a property right to the effected land therefore it did not need a warrant.  This issue will likely be litigated in the future. In the Courts decision it indicated that it probably would not find constitutional a permit requirement to allow such inspections.  It is not clear whether the property interest in the easement would pass constitutional scrutiny with the Court.

Under the current statutory and regulatory provisions, if DEP wishes to inspect a wetland it must request permission from the property owner after showing proper credentials.  If the property owner refuses permission for DEP to inspect the property, than the DEP employee can request that that the Commissioner of DEP issue an administrative order compelling compliance under NJSA 13:9B-21(b).  This statute authorizes the DEP Commissioner who finds a person in violation of any provision of the act or regulation or permit to issue an order:

  • Specifying the provision(s) of the act, regulation, or permit violated;
  • Citing the action constituting the violation;
  • Requiring the person to comply with the cited provision.

So in the instances of the case, once the Hubers declined to allow DEP’s inspection (note that there is a dispute as to whether the Hubers consented or not); the DEP employee could have asked Commission Martin to find the Hubers in violation of NJSA 13:9B-21(m).  This provision authorizes DEP the “authority to enter any property, facility premises or site for the purposes of conducting inspections, sampling of soil or water  . . . and otherwise determining compliance with the provisions of the act.”  The Commissioner would than issue the order requiring the Hubers to allow DEP to inspect the wetlands and transition areas.  If the Hubers did not comply with that order DEP could then have filed suit seeking a court order to compel the inspections.

It is with this last step that the Court has left DEP and the public hanging.  What does DEP have to show to a judge for the judge to issue an order compelling the inspection?  Does DEP have to show that there were or might have been wetlands/transition areas on the property; thus subject to the regulation of DEP and that the property owner did not permit DEP to inspect?  Or will DEP have to show that they have some level of information that not only was or wetlands on the property but that those wetlands have been impacted in violation of the Act and that they requested permission to inspect and were denied by the property owner?  How much information or proof does DEP have to show to order to get a Court order?

Also, this also brings into question how many resources will DEP bring to bear on this issue?  Will they seek penalties and judicial orders compelling compliance against all property owners that refuse inspection?  Or will they in a time of increasing budget cuts, lack of resources and a lack of political will to enforce environmental protections not seek to enforce the law.  Will property owners with wetlands be able to do what they want because DEP will not enforce?  If so, NJ’s wetlands will suffer and in return all of New Jersey will suffer.

 

Does DEP need a search warrant to investigate wetlands on your property?

Written by Mike Pisauro on December 5th, 2012 in Courts, Wetlands | 4 Comments »

 

There is an interesting case awaiting a decision by the NJ Supreme Court.  The issue before the Court is whether a property owner has any Fourth Amendment right to require the DEP to obtain a warrant before inspecting a property for compliance with environmental regulation.  This case was argued before the Supreme Court on 10/23 and awaiting their decision.

As way of background, the DEP entered the Huber’s property, after receiving complaints, to determine whether the Hubers had encroached or filed in wetlands or the transition area.  The department determined that portions of the Huber’s deck, patio and retaining wall encroached into the wetlands and the transition area.  The DEP also determined that the Hubers had filed in part of the wetlands.

The Huber’s challenged all of the DEP’s findings, as well as the existence of the conservation easement that was recorded on the property.  At the hearing before the administrative law judge, the Hubers also challenged the admissibility of the evidence.  The Hubers asserted that the DEP’s inspection was a search under the Fourth Amendment and required DEP to obtain a warrant.  Therefore, the evidence should be suppressed as it was gathered in violation of the Fourth Amendment.    This is the question under consideration by the NJ Supreme Court.

As we probably all know, the Fourth Amendment of the U.S. Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

NJ’s Constitution has a very similar provision:

Art. 1, Sec. 7.   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.

The Hubers argued, before the Appellate Court and before the Supreme Court, that DEP was required to obtain a warrant before they inspected the wetlands and the buffers on their property.  The Appellate Division found that the Freshwater Wetlands Protection Act provided the authority for the DEP to perform its warrantless inspections.  In particular the Court noted, NJSA 13:9B-21(m) provides:  “The department shall have the authority to enter any property, facility premises or site for the purpose of conducting inspections, sampling of soil or water, copying or photographing documents or records, and for otherwise determining compliance with the provisions of the act.”    The Appellate Court also cited to the enabling legislation of DEP which provides for a very similar general power to the Department.

The question is whether the Freshwater Wetlands Protection Act provides authority to DEP to perform warrantless inspections.  And even if the statutes give the authority to the DEP that does not necessary mean that the inspections pass constitutional must.  Or in another way, do the provisions of the Freshwater Wetlands Act pass constitutional requirements under the Fourth Amendment?  The Courts have generally accepted that inspections as part of an administrative process to enforce regulatory programs can fall under the Fourth Amendments’ requirements.

In general the Courts have accepted warrantless inspections in highly regulated industries.  The Court noted that wetlands were a highly regulated area.  It would appear that the fact that wetlands were a highly regulated “brought it directly under the regulatory arm of the DEP just as much as if it was regulated industry.”    The Hubers have challenged this assumption.  They believe that a homeowner and their house/surrounding yard are entitled to more protection than a regulated industry.  In short, because homes are highly protected by the 4th Amendment, DEP should have gotten a search warrant prior to performing the inspection.

One Justice was very interested in learning that if DEP had to get a search warrant in order to inspect any wetland in order to insure that it was not impacted in violation of the statute, how DEP would be able to convince a judge they had probable cause to justify the warrant.  If it was very difficult to show probably cause didn’t that mean that DEP’s ability to enforce its regulations would be in jeopardy?  On the other hand, another Justice was asking the State’s attorney how far could DEP go without getting a warrant.  Could they drive a backhoe and remove significant amounts of dirt during their “inspection.”  In short was there any limit on their ability to perform a warrantless search.

While the State’s attorney tried to make the point that the property and the wetlands were subject to a conservation easement, I am not sure, at least from the questioning, that issue was weighing heavily on the Court.  DEP argued that since there was a conservation easement, DEP had a property right in the land; therefore, they as a property owner had every right to go onto the property and inspect the condition of their property.  It may have not weighed heavily in the Court’s mind because it would appear that the DEP inspector was not aware that a conservation easement regarding the wetlands existed.

This case has several unanswered questions which may impact DEP’s ability to enforce its regulations not only in wetlands cases but others.

  • Does DEP need a search warrant to do a site inspection?
  • What standard of proof does DEP have to demonstrate in order to have probable cause for a search warrant?
  • Do conservation easements in of themselves provide some additional right to DEP to perform an inspection without a warrant?
  • Does DEP have to know that it has a conservation easement in order to validate a warrantless inspection?

We will see how this decision will impact DEP’s ability to perform inspections and enforce its regulations.

Property Owners no longer need to certify their propert is clean to get ISRA exemption.

Written by Mike Pisauro on July 13th, 2012 in Clean Up, Courts, Regulation, Site Remediation | 1 Comment »

The New Jersey Appellate Division has just made it even harder for NJDEP to insist that contaminated sites be cleaned up. In a decision rendered last week the Court invalidated DEP’s requirement that applicants for a de minimis exception certify that the property is clean. While the Court stayed the decision for 30 days to allow for the inevitable appeal to be filed, we will have to wait to see if that blow was also dealt to NJ’s environment or if it is limited to a very particular set of facts and regulations.

The case that brought about this decision was filed by Des Champs Laboratories, Inc. The property owner sold a property in 1997 after receiving a No Further Action (NFA) from the Department. In 2008 DEP tracked down contamination that it determined was emanating from Des Champs’ property and rescinded the NFA. DEP further required the property owner to proceed with a site investigation, preliminary assessment and, ultimately, to hire an LSRP.

The property owner, however, refused to abide by DEP’s requirements and instead sought DEP’s approval for a de minimis quantity exemption (DQE). The Industrial Site Remediation Act (ISRA) provides for an exception to its applicability if a property owner or operator qualifies as a DQE. Under ISRA an owner or operator qualifies if the following conditions are met:

  • The total hazardous substances or wastes on the property does not exceed 500 pounds or 55 gallons; or
  • If mixed with nonhazardous substances the total quantity does not exceed 500 pounds or 55 gallons; or
  • No more than 220 gallons of hydraulic or lubricating oil in the aggregate.

The applicant, in this case, indicated that, in addition to using only de minimis quantities of hazardous substances they did not use any of the substances found in the ground water. DEP, however, denied their DQE application because “the overlying presumption that an industrial establishment, without regard to fault, should not qualify for a DQE when contamination is known to exist at the site.” This requirement was not in the regulation implementing ISRA, at the time Des Champs DQE application was made but was subsequently added in the 2009 re-adoption of the regulations. It is not in the ISRA statute.

The Court rejected DEP’s rejection – as well as the 2009 regulations – explaining that, ), the Legislature has moved the State to a more streamlined and less burdensome process since the Environmental Cleanup Responsibility Act of 1983 (ECRA). By enacting ISRA the State responded comments that ECRA interfered with the transfer of properties. As part of ISRA the State specifically wanted to “reduc[e] oversight of those industrial establishments where less extensive regulatory review will ensure the same degree of protection to public health, safety, and the environment.” With ISRA the State also wanted to “guard against redundancy from the regulatory process and to minimize governmental involvement in certain business transactions.” The Court then noted that the State continued this trend of “minimizing governmental involvement,” when it passed the Site Remediation Reform Act (SRRA).

The Court ruled that “despite its important regulatory role and its expertise over environmental matters, [DEP] acted in the present context beyond its legislatively-delegated powers. . . .” going too far beyond the requirements set out in ISRA. In short, since ISRA did not require the property to be free of contamination in its DQE requirements, DEP could not add that requirement. The Court believed that requiring property owners to investigate their properties to insure that they are contaminant free was too substantial a burden and counter to ISRA and SRRA’s intent to remove State involvement in these kinds of business transactions.

Since the Appellate Court has stayed its decision for 30 days to allow an appeal to be filed. It is possible that the Supreme Court could overturn this decision

In its decision the Court made a couple of observations that are worth noting. First, although DEP could not compel an applicant to certify the property was clean; that did not mean that DEP was without power to require a cleanup under the Spill Act or other regulation. Second, the Court also seemed to be inviting the Legislature to correct their mistake by passing legislation giving DEP the power it sought to exercise. Lastly, the Court also seemed to be indicating that the subsequent property owner may have contractual or legal rights to compel Des Champs to investigate the property and clean it up.

While it is always possible that the Legislature may give DEP the power it seeks, I think that is highly unlikely as this Legislature has been steadily moving away from protecting the environment and more towards easing restrictions on businesses. The more interesting possibility of compelling cleanups is the rights between the parties. Who would like to buy property that may be contaminated just because the seller may not have been the one to do the contamination or use large quantities of hazardous substances? Purchasers of industrial properties may, in their contracts, require that the seller insure that the property is not contaminated.

Waiver Rule: One Rule to Rule Them All!

Written by Mike Pisauro on April 30th, 2012 in Courts, legislation, Regulation | 1 Comment »

With the adoption of the “Waiver Rule” on March 6, 2012 the Department of Environmental Protection (DEP) attempted to give itself the authority to waive the requirement of any environmental regulations.  In order to qualify for a waiver one of the following four categories must be met:

  • Conflicting rules
  • Strict compliance with the rule would be unduly burdensome
  •  net environmental benefit; or
  • A public emergency

28 environmentalist and labor organizations immediately filed a lawsuit against the DEP asserting that the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization.  The promulgation violates separation of powers provisions of the New Jersey Constitution.  The waiver rule also fails to meet required standards for specificity.  The waiver rule fails to set up necessary process for the issuance of waivers.  The promulgation of a single waiver rule for all environmental statutes is overly broad.”

What does this all mean?  Let us take a closer look at each of these points.

First, the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization” and ‘the promulgation violates separation of powers provisions of the New Jersey Constitution.” Put plainly, does DEP have the authority to issue one rule that can affect the implementation of hundreds of other rules?  Did the Legislature grant DEP the authority to waive statutory or regulatory requirements? “An administrative agency only has the powers that have been ‘expressly granted’ by the Legislature and such ‘incidental powers [as] are reasonably necessary or appropriate to effectuate’  those expressly granted powers.”  Borough of Avalon v. New Jersey Dept. of Environmental Protection, 403 N.J. Super 590, 607 (App. Div. 2008).

That delegation of authority can be expressed or implied.  I do not believe that even DEP believes it has the express authority to issue this waiver rule.  DEP asserts that this power arises out of the implied powers in its authorizing statute as well as various other statutes.  There is a problem with this argument.

If the power is derived from its implicit powers, those powers must be fairly necessary to the implementation of the statutory authority.  In looking at the exercise of implicit authority, the Courts have stated that where there is “reasonable doubt as to whether such power is vested in the administrative body, the power is denied.”  This is because an agency only has the power that has been granted or delegated to it.  There is no statute which provides the Department with the authority, independent of its various individual statutes, to issue a blanket waiver.   Just as important, when the exercise of an implicit power concerns a policy question of significance, that power has not been delegated by the Legislature to an agency.  The Legislature has reserved policy questions of significance to itself..  What “greater policy question” can there be than which environmental protection is inferior to other protections?

Second, “the waiver rule also fails to meet required standards for specificity.” This is evidenced by the fatal deficiencies in qualifying 3 out of the 4 categories under which an applicant is eligible to apply for a waiver. Under the “conflicting rules” category are situations where compliance with one rule is prohibited by compliance with another rule – resulting in a conflict.  Further, this conflict is not limited to environmental regulations – it extends to   other agency rules as well.  The Waiver Rule, however, does not provide any guidance as to how a conflict is to be resolved.  For example, if a DOT rule requires 30 foot wide roads but constructing a 30 foot road on a parcel of property would put a portion of that road into the wetlands, under the Waiver Rule the wetland might be sacrificed for the road.  Another conflict might arise when a project is required to have zero net fill in a wetland but, in order to comply with that requirement, the road would be subject to flooding.  Which requirement takes precedence?

Under the second category, a waiver could be issued in situations where strict compliance with the rule would be unduly burdensome.  The rule ‘defines’ unduly burdensome as either:

  1. Actual, exceptional hardship for a particular project or activity, or property; or
  2. Excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.

However, the rule does not define an “actual, exceptional hardship.” Rather, the rule continues to state that one of factors to be considered is whether “the person seeking the waiver may have directly caused or contributed to the circumstances that resulted in the rule being unduly burdensome.”  This means that even if the applicant caused the hardship they will not be prohibited from getting a waiver.  For example if an applicant subdivided its property so that one or more lots are impacted by wetlands that applicant can seek a waiver from strict compliance with the wetlands rules, because it would be an exceptional hardship to comply with those rules.  DEP may still grant that waiver even though the applicant has created its own need for a waiver.   This creates an incentive for applicants to create hardships so as to maximize their economic profits while maximizing environmental damage.

The second part of the definition of “unduly burdensome” is also a bit vague on the details. The Waiver Rule does not require that the “alternative measure of compliance”  provide protection for the resource that was originally protected by the rule for which the waiver is being sought..  How then does one judge the importance of protecting one resource over another?  Is clean water more important than a nesting site for an endangered species?  Is clean air more important than protecting the water quality of a category one river?  One can certainly envision the arguments of a developer that they want to remediate and develop a contaminated site but to do so they need to impact a river.

The third criteria requires a net environmental benefit.  This provision is not limited to a situation where an applicant thinks that it may have a better way to meet the standards than what is required by the rule.  It could also apply to situations where an applicant is proposing exceeding one standard but may subject another media to less protection.  As noted above, regarding unduly burdensome, how does DEP make the determination that one statutory scheme deserves more protection than another.

The third issue raised by the waiver rule is that “the waiver rule fails to set up necessary process for the issuance of waivers.” The Courts have required agencies to “to structure and confine their discretionary powers through safeguards, standards, principles and rules”  in order to satisfy due process and produce reasoned and principled decisions” (Crema v. N.J. Dep’t of Envtl. Prot., 94 N.J. 286, 301, 463 A.2d 910 (1983)). There are no safeguards, and no standards or principles by which to judge or evaluate a request for a waiver.  In fact, DEP is delaying implementation of the waiver rule until August 1st in order to devise these guidelines.  There is no way that anyone could look at a particular project and apply the Waiver rule to it and know before applying whether that project would get the requested waiver or not.

As pointed out above 3 of the 4 categories for a waiver are so broad and undefined as to be meaningless.

The issue raised by the rule is that “the promulgation of a single waiver rule for all environmental statutes is overly broad.”  given that many of the statutes and their implementing regulations already provide for a relaxation of the rules under certain expressed circumstances, why does the department really needs one rule to rule them all.  They do not need the rule and more importantly they do not have the authority to issue the rule.

This blog post is my own opinion and is not intended to reflect the opinion of any client or organization.

DEP cannot ignore the requirments of the law

Written by Mike Pisauro on March 28th, 2009 in Courts, land use, Ocean | No Comments »

Recently, the appellate division reminded DEP that it has to follow the law. In Dragon v. NJDEP, the NJ Appellate Division reversed the DEP’s authorization of development in the CAFRA zone without issuing a permit.

The case arose because a property owner wanted to demolish their existing home and build a new larger one next to the beach of Brigantine. The original proposed expansion would have expanded their home from 1944 to 3480 square feet and brought the house nine feet closer to the beach. The homeowner applied twice for a general permit which was denied because they did not meet the requirements of the general permit on either occasion. On both applications, one of the homeowner’s neighbors objected to the applications.

The homeowners appealed the denial and the matter was referred to DEP’s office of dispute resolution. During the dispute resolution process the DEP and the homeowners reached a compromise. This settlement was reduced to a written “Mediation & Settlement Agreement in lieu of a permit.” The neighbor objected to the settlement and challenged it. The DEP rejected the challenge and issued the homeowners a “Letter of Authorization” (LOA) allowing the reconstruction of the house, but even bigger than what the homeowners requested and without any set back from the bulkhead along the beach. This LOA specifically provided that it was instead of a coastal general permit under the Coastal Zone Management rules.

The objecting neighbors appealed the issuance of the LOA alleging that the Coastal Area Facility Act (CAFRA) and its implementing rules did not allow the DEP to settle a case by authorizing development without the applicant meeting the requirements of and receiving a permit. The DEP countered it had the authority “deviate from strict compliance with its own regulations in order to avoid ‘litigation risks’ and to prevent” a possible adverse legal ruling.

The Appellate division ruled that CAFRA did not give the DEP authority to waive the substantive requirements of the statute or it’s implementing regulations. (DEP could have the authority to wave procedural requirements.) Because CAFRA was designed to balance the completing interests of protecting, repairing and enhancing the environment with encouraging compatible land use it was important that any development be either by permit or within one of CAFRA’s exemptions. DEP could not in the spirit of settlement avoid the need to issue a permit. If the DEP wanted authority to issue settlement agreements without issuing a permit or to waive substantive requirements, it must gain that authority from the legislature. In short, DEP cannot give itself more power than what the law permitted.

Court allows Threatened Species to exist

Written by Mike Pisauro on December 11th, 2008 in Courts, Endangered Species, Wetlands | No Comments »

In mid-November the Appellate Division handed to DEP a win by finding that the barred owl could be threatened.  In ZRB, LLC. v. NJ Dept. of Environmental Prot., A-6046-06T3, ZRB sought to fill in wetlands under general permit #6.  Under general permit #6, a permittee can fill in limited amounts of freshwater wetlands as long as the freshwater wetlands are not classified as an exceptional resource.  Freshwater wetlands are classified as exceptional, intermediate, or ordinary.

The applicant alleged the wetlands were of intermediate value and could be filled while the DEP alleged because of the property was of exceptional value.  DEP claimed the property was of exceptional value because it was suitable habitat for the barred owl.  In NJ the barred owl is considered to be a threaten species under N.J. Endangered and Non-game Species Act.  While the case is interesting for several reasons, the aspect I am going focus on is whether DEP is authorized to list a species as threatened.

In 1973 both New Jersey and the Federal government enacted endangered species laws.  Under the Federal ESA an “endangered species” is defined:

any species which is in danger of extinction throughout all or a significant portion of its range  . . .  16 U.S.C. 1532(6).

The Federal ESA has a separate definition for “threatened species” and provides a different level of protections.  Under the Federal ESA, “threatened species” are defined as:

any species which is likely to become an endangered species within the foreseeable future throughout all or a signification portion of its range.  16 U.S.C. 1532(20).

The Applicant argued that since the New Jersey Endangered and Non-game statute does not define “threatened,” DEP could not create threatened species in its regulations.  DEP’s regulations define threatened as, “a species that may become endangered if conditions surrounding it begin to or continue to deteriorate.”   NJAC 7:24-4.1.  If there could not be a threatened species, then DEP could not classify the freshwater wetlands as exceptional and the applicant would be able to fill in the wetlands on its property.

The Applicant was only partly correct in its argument.  While the NJ statute does not have a separate definition for “threatened” its definition of endangered is:

“Endangered species” means any species or subspecies of wildlife whose prospects of survival or recruitment are in jeopardy or are likely within the foreseeable future to become so due to any of the following factors . . . NJSA 23:2A-3(C).

According to the Appellate Court, the highlighted section is the lynch pin.  As the DEP’s definition of threaten is actually part of the definition of endangered the Appellate Court found that the DEP did not exceed the authority granted to it under the statute.  Since the DEP was reasonable in creating the threatened category in its implementing regulations and listing species as threatened, its denial of the general permit to ZRB was within DEP’s authority.

DEP's Beach Access Rules all washed up.

Written by Mike Pisauro on November 27th, 2008 in Courts, Ocean | No Comments »

Last week the New Jersey Appellate Division invalidated at least part of the Department of Environmental Protection’s beach access rule.  The rules, adopted in 2007, required coastal towns that provide unrestricted access to the beach.  Towns that seek shore protection funds are required to provide parking spaces and restroom facilities close to the beach.

The Borough of Avalon and others sued DEP alleging that the beach access rules were beyond the authority of the Department.  DEP argued the beach access rules were authorized by the public trust doctrine, Coastal Area Facility Review Act (CAFRA), and the Shore Protection Fund Act.  The Appellate Division found DEP’s basis for authority to be unpersuasive and invalidated the Public Access Rules.  This is somewhat startling given that the Courts give all due deference to the agencies and presume that the rules are valid and reasonable.

In invalidating the rule, the Court noted that township may close public facilities, including beaches, at times when use of the public facility may pose a threat to public safety.   Township’s further have the legal authority to implement reasonable “regulations as to the use and enjoyment of the beach.”  This right of the township is not inconsistent with the public trust doctrine according to the Court.  The Court then compared this broad right with DEP’s narrower authority to control the beaches.  The Judges found no basis in the law or the Public Trust Doctrine for the DEP to interfere with this township right.

The Court made short work of DEP’s argument that CAFRA provided the authority to implement the rules.  CAFRA provides DEP authority to regulate certain land use applications, including development of greater than 24 units;  developments on the dunes etc.  The Court found absolutely no authority under CAFRA for the rules.

Lastly, the Court noted that the Shore Protection Fund statute only authorized the DEP to develop a ranking system for shore protection projects and recommend projects to the legislature.  NJSA 13:19-16.2(a).  It is then up to the Legislature to enact the actually funding of non-emergency shore protection funding.  According to the Court, northing in the statute gave DEP authority to place obligations upon township in exchange for these funds.

At this time it is not clear whether the DEP will seek certification to the New Jersey Supreme Court.  The real solution is for the legislature to pass a bill authorizing DEP to implement the regulations.  Given that the State has already enacted a bill delaying the implementation of the beach access rules’ application to marinas, such a result is very unlikely.