New Jersey Administrative Code
Title 7 - ENVIRONMENTAL PROTECTION
Chapter 7 - COASTAL PERMIT PROGRAM RULES
Subchapter 9 - SPECIAL AREAS
Section 7:7-9.48 - Lands and waters subject to public trust rights

(a) Lands and waters subject to public trust rights are tidal waterways and their shores, including both lands now or formerly below the mean high water line, and shores above the mean high water line. Tidal waterways and their shores are subject to the Public Trust Doctrine and are held in trust by the State for the benefit of all the people, allowing the public to fully enjoy these lands and waters for a variety of public uses. Public trust rights include public access which is the ability of the public to pass physically and visually to, from and along the ocean shore and other waterfronts subject to public trust rights and to use these lands 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 trust rights also include the right to perpendicular and linear access.

(b) Public access to lands and waters subject to public trust rights shall be provided in accordance with the public access rule, 7:7-16.9. Development that does not comply with 7:7-16.9, Public access, is discouraged in lands and waters subject to public trust rights.

(c) Rationale: The public's rights of access to and use of tidal waterways and their shores, including the ocean, bays, and tidal rivers, in the United States predate the founding of this country. These rights are based in the common law rule of the Public Trust Doctrine. First codified by the Roman Emperor Justinian around 500 AD as part of Roman civil law, the Public Trust Doctrine establishes the public's right to full use of the seashore as declared in the following quotation from Book II of the Institutes of Justinian:

"By the law of nature these things are common to all mankind-the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only to the law of nations."

Influenced by Roman civil law, the tenets of public trust were maintained through English Common Law and adopted by the original 13 colonies, each in their own form. The grants that form the basis of the titles to private property in New Jersey never conveyed those public trust rights, which were reserved to the Crown. Following the American Revolution, the royal rights to tidal waterways and their shores were vested in the 13 new states, then each subsequent state, and have remained a part of law and public policy into the present time. Tidal waterways and their shores always were, and remain, subject to and impressed with these public trust rights. See Arnold v. Mundy, 6 N.J.L. 1 (1821); Borough of Neptune v. Borough of Avon-by-the-Sea, 61 N.J. 296 (1972); Hyland v. Borough of Allenhurst, 78 N.J. 190 (1978); Matthews v. Bay Head Improvement Association, 95 N.J. 306 (1984); Slocum v. Borough of Belmar, 238 N.J.Super. 179 (Law Div. 1989); National Ass'n of Homebuilders v. State, Dept. of Envt'l Protect., 64 F.Supp.2d 354 (D.N.J. 1999); Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, Inc., 185 N.J. 40 (2005). See also Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892); Karam v. NJDEP, 308 N.J. Super. 225, 240 (App. Div. 1998), aff'd, 157 N.J. 187 (1999), cert. denied, 528 U.S. 814 (1999).

The Public Trust Doctrine serves as an extremely important legal principle that helps to maintain public access to and use of tidal waterways and their shores in New Jersey for the benefit of all the people. Further, it establishes the right of the public to fully utilize these lands and waters for a variety of public uses. While the original purpose of the Public Trust Doctrine was to assure public access for navigation, commerce and fishing, in the past two centuries, State and Federal courts recognized that modern uses of tidal waterways and their shores are also protected by the Public Trust Doctrine. See, for example, Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988). In New Jersey, the Public Trust Doctrine expressly recognizes and protects natural resources as well as public recreational uses such as swimming, sunbathing, fishing, surfing, sport diving, bird watching, walking and boating along the various tidal waterways and their shores.

The Public Trust Doctrine is an example of common law authority that is continually developing through individual court cases. The first published court case in New Jersey to discuss the Public Trust Doctrine was in 1821. See Arnold v. Mundy, 6 N.J.L. 1 (1821). Within the past three decades, several New Jersey court decisions have clarified the public rights of access to and use of areas above the mean high water line as needed for access to and use of tidal waterways and their shores, under the Public Trust Doctrine. See, for example, Arnold v. Mundy, 6 N.J.L. 1 (1821); Borough of Neptune v. Borough of Avon-by-the-Sea, 61 N.J. 296 (1972); Hyland v. Borough of Allenhurst, 78 N.J. 190 (1978); Matthews v. Bay Head Improvement Association, 95 N.J. 306 (1984); Slocum v. Borough of Belmar, 238 N.J. Super. 179 (Law Div. 1989); National Ass'n of Homebuilders v. State, Dept. of Envt'l Protect., 64 F.Supp.2d 354 (D.N.J. 1999); Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, Inc., 185 N.J. 40 (2005).

As the trustee of the public rights to natural resources, including tidal waterways and their shores, it is the duty of the State not only to allow and protect the public's right to use them, but also to ensure that there is adequate access to these natural resources. As the State entity managing public access along the shore, the Department has an obligation to ensure that this occurs.

Development and other measures can adversely affect tidal waterways and their shores as well as access to and use of those lands. One example of adversely affecting tidal waterways and their shores would be the development of a building that "shadows" a public beach. The proximity of the building serves to diminish the quality of the experience of the beachgoer, encouraging them to go elsewhere. Development that adversely affects or limits public access to tidal waterways and their shores includes building over traditional accessways, putting up threatening signs, eliminating public parking, and physically blocking access with fences or equipment.

In addition to cases involving physical barriers to access, there have been instances where municipalities and local property owner associations have attempted to limit use of recreational beaches to their residents and members through methods designed to exclude outsiders. In the majority of these cases, New Jersey courts have ruled that these actions violate the Public Trust Doctrine because lands that should be available for the general public's recreational use were being appropriated for the benefit of a select few. The decision in Matthews v. Bay Head Improvement Association, 95 N.J. 306 (1984) recognized that, under the Public Trust Doctrine, not only does the public have the right to use the land below the mean high water mark, but also they have a right to use a portion of the upland dry sand area on quasi-public beaches. Id. at 325. "(. . . where use of dry sand is essential or reasonably necessary for enjoyment of the ocean, the doctrine warrants the public's use of the upland dry sand area subject to an accommodation of the interests of the owner.") The New Jersey Supreme Court recognized that this principle also applies to exclusively private beaches, in Raleigh Avenue Beach Association v. Atlantis Beach Club, Inc. et al, 185 N.J. 40 (2005).