Most regulations on protecting endangered species already in force
OCEAN CITY — The proposed Shore Protection Rule for endangered species that Ocean City Council voted to oppose March 14 would not appear to have as substantial an impact on the resort’s beaches or public safety as local officials fear.
Most of what is in the rule proposed by the New Jersey Department of Environmental Protection (NJDEP) is already covered under the beach management plans under which Ocean City operates because of its regular beach replenishments by the U.S. Army Corps of Engineers.
According to an NJDEP spokesman and information the resort learned directly from NJDEP Fish and Wildlife officials at a public stakeholder meeting last fall, municipalities are largely already familiar with the protections for endangered species in the Shore Protection Rule.
Responding via email to questions from the Sentinel, Lawrence Hajna, press director for the NJDEP, said the rule means to protect threatened and endangered wildlife and their critical habitat in coastal areas.
At the March 14 council meeting, city Business Administrator George Savastano criticized the rule as “government overreach” and said it adds another layer to regulations already in place.
The resolution council approved listed concerns about the rule’s impact on seasonal closures of beaches, waterways and entrances during the prime tourism season and limiting emergency response from police, fire and beach patrol personnel, asserting the rule could put life and safety at risk.
Asked directly about that latter issue, Hajna dismissed the concern.
“Rescues and other emergencies of a similar nature will always take precedence,” he said. “Those that operate under beach management plans know that emergencies are clearly exempted from all restrictions and the same will be true for the Shore Protection Rule.”
Hajna said towns (such as Ocean City) operating under a beach management plan or Coastal Area Facilities Review Act (CAFRA) permits on the Atlantic coast won’t see much change “because what is being considered for inclusion under the rule is already being implemented.”
A notable difference “envisioned” by the Shore Protection Rule are potential seasonal restrictions for migrating shorebirds such as red knots and beach-nesting birds such as piping plover that forage in the intertidal zone. The intertidal zone is the area between mean low tide and mean high tide; it is rich in resources for those bird species.
Hajna said that area is not as well protected now.
He noted before that kind of restriction is required, the NJDEP Endangered and Nongame Species Program would have to identify three conditions are present:
— An endangered species is presently using or anticipated to use tidal waters and/or adjacent shoreline;
— That area must be demonstrated as a critical habitat area for the species; and
— That existing or anticipated injurious uses would result in harm, a form of “take” prohibited under the Endangered and Nongame Species Conservation Act.
Fish and Wildlife would then determine the minimal area necessary for protection and that those restrictions could recur as needed annually or start and stop multiple times.
Landowners, including municipalities, can appeal restrictions.
Hajna said staff would “work to ensure minimal impacts on recreational areas.”
City officials already were aware that much of what the Shore Protection Rule proposes is already covered by the beach management plan.
Michael Rossbach, operations manager for the city’s Department of Public Works who oversees beach maintenance, took part in the Sept. 19, 2023 public stakeholder presentation about the proposed rule presented by NJDEP Fish and Wildlife. The hour-long presentation featured a question-and-answer portion.
Rossbach asked if Fish and Wildlife would publish a list of beaches that have been determined to be closed prior to seeking public comment on the proposal. Kathy Clark, chief of the Endangered & Nongame Species Program, NJDEP Fish and Wildlife, said once the rule is in place Fish and Wildlife would stick to a process to notify property owners. She said most of the areas would be ones that had a “long tradition” of being fenced for nesting and migrating birds.
Christina “Kashi” Davis, principal zoologist, New Jersey DEP Fish and Wildlife Endangered and Nongame Species Program in Woodbine, called Rossbach “a great partner,” indicating a good relationship between Fish and Wildlife and Ocean City on endangered species protection.
“It will not feel very different for you. It’s going to very much be continuing to follow the beach management plans,” she said. “The rule does give us the opportunity and ability to restrict intertidal zones, which is something new that the beach management plans don’t currently have.”
Davis said they also don’t anticipate closing the intertidal zones on every single beach. “There are a lot of practical considerations” with their partners (such as Ocean City) that will be taken into account.
“For the Atlantic coast folks, a lot of this is going to be what your beach management plan says. It is what we’ll continue to do as well as what you’ve seen in the past,” Davis said.
“Ocean City is a great example. North end is a protected zone. We pre-fence that because we know those birds (piping plover) will be back. That’s what happened this year,” Davis said. “Right in the center of town we had that surprise pair, so we put up that fencing for them.” She noted there were two pairs of plover in the stretch between 15th and 17th streets and in the twenties, but only the one near 16th stuck around so Fish and Wildlife continued management there. The fences were pulled down when the other pair left.
“We will be following a similar pattern to what you’ve been used to,” Davis said.
Rossbach asked if once the symbolic fencing (not an actual fence but markers to designate the protected area) is up and the birds are there, would the beaches above the high tide line be closed?
“No,” Davis responded. “That’s an important thing for people to understand. … The wording sounds very dramatic, that the whole beach is closed. That’s not what we’re anticipating” with the adjacent shoreline.
She said the restrictions would “be what you’re used to. Area fenced off for the nesting habitat, and the potential for restricting intertidal zone access if we think it is something that can help the birds, that meets the criteria ….”
“This is not the need to worry that 16th Street beach is totally closed now to the public. That is not what the rule is trying to accomplish,” Davis said.
Hajna said the rule has not been formally proposed via publication in the New Jersey Register. Members of the public can be notified when the public comment period is opened asking to be added to an email list (send an email to nongame@dep.nj.gov).
–By DAVID NAHAN/Sentinel staff