Officials claim it is gov’t overreach layering onto existing protections
OCEAN CITY — Ocean City Council is opposing a new state rule to protect endangered species at the shore, calling it government overreach.
The 35th of 35 resolutions on council’s March 14 consent agenda was the only one to draw significant comment, both from the public and city officials. It was to oppose the New Jersey Department of Environmental Protection’s Shore Protection Rule.
The rule, NJAC 7:25-4A under NJDEP Fish and Wildlife, aims to restrict access to tidal waters and adjacent shorelines to protect threatened or endangered species of wildlife and their critical habitat areas.
Adjacent shoreline is defined as the land above the high-water mark and critical habitat area are those 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.
According to a Sept. 19, 2023 public stakeholder presentation on the rule by NJDEP Fish and Wildlife, examples of restrictions include seasonable closure of selected beaches to protect migrating shorebirds such as red knots and those that nest on beaches and seasonally fenced beach areas to protect endangered birds such as piping plovers and sea turtles nesting on the beach.
NJDEP Fish and Wildlife notes that management has been in practice for more than 20 years under Beach Management Plans and some CAFRA permits.
Three conditions would need to be met:
— 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.
Ocean City Council’s resolution opposing the rule “recognizes and understands the importance” of protecting habit, but it was concerned how that would affect seasonal closures of beaches, waterways and beach entrances during the prime tourist season.
The resolution points out the importance of tourism to Cape May County’s economy and the adverse financial effect the closures could have. It also notes concern about limiting emergency response from police, fire and beach patrol personnel, asserting the rule could put life and safety at risk.
The resolution asks for time for the county’s environmental consultant, Lomax Environmental, to prepare a detailed report on potential effects the rule could have on the county and local communities and that the state Legislature has oversight to review and approve the shore protection rule.
During public comment at the council meeting before the resolutions came up, resident Donna Moore, an advocate for environmental issues, asked council to table the resolution, saying what it was doing was in opposition to protecting endangered species.
Moore said there aren’t many endangered nesting birds on Ocean City’s coast.
“We are lucky when we have the rare occurrences each season to actually see some of the birds that are endangered,” she said, suggesting the resolution is an overreaction and a contentious way to deal with the NJDEP because it’s not a really valid threat to public safety.
Ocean City Business Administrator George Savastano said he didn’t believe the resolution was contentious because it is asking that Lomax Environmental “engage” with NJDEP Fish and Wildlife to question its fundamental need and to amend provisions in it. (The resolution is titled “Opposing the State of New Jersey’s New Proposed Shore Protection Rule.”)
However, he was also blunt in his assessment of the rule.
“Quite frankly … this is government overreach,” he said.
Savastano said the city works for months and years with the NJDEP, U.S. Army Corps of Engineers and the Division of Fish and Wildlife to come up with beach management plans that are prepared cooperatively.
The new rule would add a duplicate layer of restrictions for municipalities with beach permits and beach management plans and the NJDEP should recognize there must be a balance between the protections within those plans and the routine and costly municipal operations, Savastano said.
The new rule would give the NJDEP sole discretion to implement restrictions even though it is without legislative authority.
He said there are “a lot” of plans, laws and regulations in place to protect threatened and endangered species.
“Our beaches could be shut down if somebody sees some footprints in the beach where there’s threatened or endangered species that not only is nesting there but they think could nest there,” he said.
The Sentinel reached out to the division of Fish and Wildlife for clarification, but did not receive the response in time for the newspaper’s deadline. However, Mary Monteschio, Esq., regulatory officer for NJDEP Fish and Wildlife, addressed the question during the public stakeholder presentation about what makes the new rule different from other means used to protect endangered species.
Monteschio said the majority of beach restrictions for endangered species have been put in place because of a permit, CAFRA or beach management plan.
“This is a little different in that those are on the other side of the department under land use or resource protection area. This is the first Fish and Wildlife regulation,” she said.
“We are going to be closing or restricting areas that in the past may not have had a permit, or do not have a beach management plan or some other mechanism whereby Fish and Wildlife would get in the door through that permit or management plan,” Monteschio said. “It’s a little different for us. This is our first rule in this area.”
Councilmen Tom Rotondi and Jody Levchuk agreed with Savastano before council unanimously approved the consent agenda, including the resolution in question.
“We have a well-run city. I think there should be a symbiotic relationship with the state. You also want it to be smart,” Rotondi said. “You don’t want them to be able to shut something down on a whim without working with us, the local government.
“Any time government can come in with unelected bureaucracy and do what they want, they’re going to do it and I would rather not put Ocean City into that situation,” he added.
Levchuk said he heard from members of the public concerned about protecting birds and understood their fears.
“I couldn’t agree with George more or Tom,” he said. “I have highest faith if there were a nesting issue or endangered issue going on we would do everything to take care of it. We don’t need the DEP to tell us.”
If the rule is approved, it would take effect at some point in 2025.
By DAVID NAHAN/Sentinel staff
