A December 16, 2024 email bulletin from the New Jersey Department of Environmental Protection (NJDEP) and its Division of Fish & Wildlife announced a new rule proposal to allow greater access restrictions to tidal waters for endangered species protection in the Garden State. The proposal contains the procedure for the NJDEP to establish public access restrictions near tidal waters and adjacent shorelines to protect wildlife species that appear on the New Jersey Endangered Species list.
“It defines the criteria and terms the Department uses to identify critical habitat areas that endangered species rely upon for breeding, resting, and/or foraging in tidal water, adjacent shoreline, or both tidal water and adjacent shoreline,” the bulletin noted, explaining how the rule would set out a procedure the NJDEP will follow, providing public notice prior to the onset of access restrictions, the installation of signage and other methods of identifying restricted habitat areas, as well as the civil penalties for violations.
At the January 9th meeting of the New Jersey Marine Fisheries Council (Council), Kathy Clark, Chief of the Endangered and Nongame Species Program at NJDEP spent roughly an hour answering council questions about the proposed rule, including where the term “critical habitat area” came from. According to Clark, the new definition is somewhat unique to the state of New Jersey.
“It’s not the same as critical habitat as defined by the (federal) Fish & Wildlife Service, it’s not the same,” Clark replied. “It’s what we (NJDEP) determine as what is the actual area that endangered species or the colony is using or anticipated to use,” she added.
As written into the proposal a critical habitat area is defined as “the tidal waters, adjacent shoreline, or both that are suitable for breeding, resting, or foraging by endangered species and are essential to the conservation of the species, thereby warranting special management considerations or protection.”
The Council’s newly elected acting chairman Pat Donnelly expressed concern that this was the first official presentation of the new access rules before the Council, leaving little time to consult with coastal fisheries stakeholders who may be affected by the decision. With only 35 days from the date of the January council meeting until the February 13 deadline for comment, the Council voted unanimously to send the entire recorded and transcribed portion of the January 9th discussion to the NJDEP as official public comment.
Also submitting comment to the NJDEP Office of Legal Affairs related to the Proposal for Access Restriction to Tidal Waters for Endangered Species Protection (DEP Docket Number: 13-24-11) in the form of a group letter is Berkeley Striper Club, Hudson River Fishermen’s Association, New Jersey Beach Buggy Association, Jersey Coast Anglers Association and The Fisherman.
In the letter the angling groups express overall support for programs that protect endangered species, but called the current proposal “overreach” which goes above and beyond established guidelines of the Endangered Species Consultation Handbook published by the U.S. Fish &Wildlife Service and National Marine Fisheries Service in March 1998. As per the letter, these national guidelines were part of a “performance-based program” which coastal stakeholders found to be workable. “These closures did not typically include banning people from walking along the beach and/or fishing in the ocean,” the letter stated.
The angling groups pointed out where the new proposal supports a prescriptive closure based on “anticipated use,” which as written gives NJDEP authority to determine an area closure ahead of time, wherever and whenever staff anticipates an endangered species could show up. “It does not require the presence of nesting behavior, the establishment of a nest or the presence of eggs. It simply places the area off-limits using very prescriptive rules that are not based on the actual presence of the endangered species,” the letter stated.
The letter also points out where a single plover nest at Island Beach State Park in 2024 required the closure of one of the beach driving access points, though only vehicles and dogs were prohibited during the restrictive period. “People were allowed to walk and fish along the waterline. What is being proposed now would unnecessarily eliminate all pedestrian access.”
The groups also brought up the issue of enforceability in restricted areas. “Dogs, either on or off leash, are already prohibited, but that seems to stop only a few people,” the letter stated, adding “Since there already is a prohibition of dogs in the nesting areas, and it is rarely enforced, how does the DEP propose to enforce that rule?”
Find the official Notice of Rule Proposals at dep.nj.gov/rules/notice-of-rule-proposals – the final deadline for comment is February 13, 2025.