                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-1752-12T3

HACKENSACK RIVERKEEPER,
INC. and NY/NJ BAYKEEPER,
                                      APPROVED FOR PUBLICATION
     Appellants,
                                         December 22, 2015
v.                                      APPELLATE DIVISION

NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,

     Respondent.
_______________________________________________

         Argued May 19, 2015 – Decided December 22, 2015

         Before Judges Messano, Ostrer and Tassini.

         On appeal from the adoption of N.J.A.C. 7:7
         by    the   Department   of   Environmental
         Protection.

         Christopher   Len   argued    the  cause for
         appellants (Pringle, Quinn, Anzano, P.C.,
         attorneys; Mr. Len and Edward Bonanno, on
         the    brief;   Andrea     Leshak,   on  the
         supplemental brief).

         Kristina Miles, Deputy Attorney General,
         argued the cause for respondent (John J.
         Hoffman, Acting Attorney General, attorney;
         Melissa   H.   Raksa,   Assistant  Attorney
         General, of counsel; Ms. Miles, on the
         briefs).

         Litwin & Provence, L.L.C., attorneys for
         amicus curiae American Littoral Society,
         Inc. (Gordon N. Litwin and Andrew J.
         Provence, on the brief).
       The opinion of the court was delivered by

MESSANO, P.J.A.D.

       In     Borough       of   Avalon      v.     New     Jersey    Department      of

Environmental Protection, 403 N.J. Super. 590, 595 (App. Div.

2008),       certif.     denied,    199      N.J.     133    (2009)    (Avalon),       we

considered a challenge to certain regulations adopted in 2007 by

the    New    Jersey    Department      of    Environmental       Protection    (DEP),

"referred to as the Public Access Rules, which substantially

expanded [DEP's] authority over public access to beaches and

other tidal waterways."                We found the regulations were "not

statutorily authorized and therefore invalid[]."                           Id. at 597.

In    response,    DEP      embarked    upon      another    round    of   rulemaking,

culminating in the 2012 adoption of new Public Access Rules (the

Rules).      44 N.J.R. 2559(a) (Nov. 5, 2012).

       Hackensack Riverkeeper, Inc., and NY/NJ Baykeeper, two non-

profit organizations (collectively, appellants), quickly filed

this   appeal.         We   granted    a     motion   by    the   American    Littoral

Society, Inc. (ALS), to appear as amicus curiae.                             The three

organizations' professed missions include the conservation of

coastal areas and the promotion of public and community access

thereto and, in the case of appellants, the waters, watersheds

and wetlands of this State.




                                             2                                 A-1752-12T3
       Appellants argue that DEP has again arrogated to itself the

management      of    lands   held    in     public     trust,    which     power      is

reserved to the Legislature and has not been delegated to DEP.

They   also     argue   the   Rules        are   preempted      by,   or   improperly

infringe upon, powers reserved to the State's municipalities.

Appellants further contend that the Rules are not authorized by

the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1

to -21, or any other statute.

       DEP contends that the Rules are authorized pursuant to the

public   trust       doctrine,   and       the     agency   has   been     implicitly

recognized as the proper governmental authority to manage lands

held in public trust.            Alternatively, DEP contends that CAFRA

authorizes promulgation of the Rules.                   The agency also asserts

that the Rules encourage cooperation with municipalities that is

wholly consonant with the Municipal Land Use Law (the MLUL),

N.J.S.A.   40:55D-1      to   -163.          ALS    similarly     argues    that      the

Legislature      has    vested       DEP     with    the    authority      to      adopt

regulations necessary to promote and protect the waterfront.

       Since the appeal was argued, DEP again revised the Rules.

See 47 N.J.R. 1392(a) (July 6, 2015).                   We asked appellants and

DEP to address these revised Rules and their impact, if any, on

the    issues    initially    raised.            Both   sides     assert    that      the




                                            3                                   A-1752-12T3
revisions    merely       re-numbered    the    Rules     and   effectuated        no

substantive changes.

       We have considered the arguments in light of the record and

applicable legal principles.             Some limited provisions of the

Rules     could    fall    "within      the    fair   contemplation         of    the

delegation of [an] enabling statute," CAFRA.                    In re N.J.A.C.

7:1B-1.1 et seq., 431 N.J. Super. 100, 116 (App. Div.) (citation

omitted), certif. denied, 216 N.J. 8 (2013).                However, the Rules

apply to many municipalities that are not subject                       to CAFRA,

because    that    statute    only   applies    to    certain   municipalities.

Moreover,    the     Rules     far   exceed     the     Legislature's       limited

delegation of authority to DEP under CAFRA to regulate "land

uses in the coastal zone."            Avalon, supra, 403 N.J. Super. at

601.      We also agree with appellants that the Rules are not

authorized    by     any     other   legislative       enactment       or   by    the

Legislature's delegation of powers to DEP pursuant to the public

trust doctrine.        We are constrained, therefore, to invalidate

the Rules.

                                         I.

       In their latest iteration, the Rules amend DEP's Coastal

Zone    Management    (CZM)     regulations,      N.J.A.C.      7:7.        The   CZM

regulations "establish[] the rules . . . regarding the use and

development of coastal resources[,]" and "are used in reviewing




                                         4                                  A-1752-12T3
applications       for     coastal       permits   under       [CAFRA]"     and     other

statutes.         N.J.A.C.      7:7-1.1(a)       (emphasis       added).      The     CZM

regulations       list      "eight       broad     coastal       goals,"     including

"[m]eaningful public access to and use of tidal waterways and

their shores."        N.J.A.C. 7:7-1.1(c).           The CZM regulations apply

to   all    DEP      "actions      and    decisions,"        N.J.A.C.      7:7-1.2(a),

regarding    the     "coastal      zone,"    defined      as   including      not    only

geographic areas subject to CAFRA, but also all other coastal

waters and tidal wetlands.           N.J.A.C. 7:7-1.2(b).

     In particular, appellants' challenge focuses on N.J.A.C.

7:7-9.48, the public trust rights rule, and N.J.A.C. 7:7-16.9,

the public access rule (before DEP's July 2015 re-codification,

N.J.A.C.     7:7E-3.50       and     N.J.A.C.       7:7E-8.11,       respectively).1

Pursuant to N.J.A.C. 7:7-9.48(b), public access to "lands and

waters     subject    to    public   trust       rights"     must   be     provided    in

accordance    with       N.J.A.C.    7:7-16.9,      and    any    development       "that

does not comply with N.J.A.C. 7:7-16.9 . . . is discouraged

. . . ."      N.J.A.C. 7:7-16.9, in turn, encourages, but does not

require, municipalities to create Municipal Public Access Plans

(MPAPs) that, among other things, identify current public access

points and corresponding signage, incorporate parking and other

1
  See 46 N.J.R. 1051(a), 1053-57 (June 2, 2014) (DEP's table
cross-referencing the Rules as adopted in 2012 with the changes
proposed in 2014 and adopted in 2015).



                                            5                                  A-1752-12T3
amenities to the maximum extent practicable, and plan for future

public access.       N.J.A.C. 7:7-16.9(c)-(e).

       DEP explained in 2012 that the new regulations

              encourage municipalities to take an active
              role in designing and ensuring public access
              to beaches and tidal waters in ways that
              will   work   best   for    their   respective
              circumstances. . . .      Under the rules in
              place prior to this adoption, the Department
              evaluated   public   access   only    when   an
              applicant applied to the Department for a
              coastal permit and was required to provide
              public access under those rules.            The
              adopted   rules    enhance     public    access
              opportunities by encouraging municipalities
              to work with the Department to develop plans
              to help ensure that the public's access
              needs are met in a comprehensive and
              systematic approach.     The Department will
              work with the municipalities on development
              of their access plan, and the plan will be
              required to meet the goals of the public
              access rules.

              [44 N.J.R. at 2602 (response to comment 234)
              (emphasis added).]

More   than    two   hundred    municipalities    are   eligible     to    submit

MPAPs.2

       A   municipality,       as   part   of    its    MPAP   implementation

strategy, may create its own dedicated Public Access Fund, to

which developers contribute in lieu of providing public access

onsite.       N.J.A.C.   7:7-16.9(f).       The    Rules   provide    formulae


2
  See http://www.state.nj.us/dep/cmp/access/mpamunis.htm                     (list
of eligible municipalities) (last visited Dec. 1, 2015).



                                       6                                  A-1752-12T3
required     to    be     used    for    the        calculation         of     appropriate

contributions based upon the particular development.                              N.J.A.C.

7:7-16.9(f)(1) and (2).

    After        public    notice    and        comment,        and    DEP     review    and

approval,    a    municipality      must    incorporate           its    MPAP     into   its

master   plan,     see    N.J.S.A.      40:55D-5        and     -28.         N.J.A.C.    7:7-

16.9(j).     At five-year intervals thereafter, a municipality must

provide DEP with a report detailing the status of all projects,

an accounting of its dedicated Public Access Fund, and a list of

problems and proposed remedies to assure compliance with the

MPAP.    N.J.A.C. 7:7-16.9(j)(4).                Any changes to the MPAP or to

the terms of a contribution made to the Public Access Fund must

be submitted first to DEP for "review and approval."                              N.J.A.C.

7:7-16.9(l).         In    addition,        if      the       municipality       fails    to

implement or comply with its approved MPAP, DEP must "revoke its

approval."        N.J.A.C. 7:7-16.9(m).

    Once an MPAP is adopted as part of a municipality's master

plan, "public access required to satisfy the conditions of a

coastal permit for development in the municipality for permit

applications      filed    with     [DEP]       .   .     .   shall     be    provided    in

accordance with the [MPAP]."             N.J.A.C. 7:7-16.9(k).                 However, if

a municipality does not adopt an MPAP, "public access along and

use of the beach and the shores shall be provided" in accordance




                                            7                                      A-1752-12T3
with the regulations.         N.J.A.C. 7:7-16.9(n).          Depending upon the

nature    and   size   of    any    particular     commercial   or    residential

development, on-site access must be provided.                    N.J.A.C. 7:7-

16.9(n)(1) and (2).          In addition, a municipality must have an

approved MPAP before DEP will approve a general permit for beach

and dune maintenance.         N.J.A.C. 7:7-6.2(b).

       During   argument,      we    asked   the    Deputy    Attorney    General

representing DEP whether municipalities that did not adopt an

MPAP   could    suffer      other    negative    consequences,       specifically

eligibility for Green Acres funding.                See 44 N.J.R. at 2630-32

(comments and responses 464-83).                 We were assured that they

would not.       However, we note that DEP's current Green Acres

regulations provide:

                 (a) The following are ineligible                    to
            apply for Green Acres funding:

                  . . . .

                 4. Any local government unit that does
            not currently provide, or have active plans
            to provide, public access to the waterfront
            and to tidally-flowed and dry sand areas
            subject   to  the   Public   Trust Doctrine,
            consistent with the requirements of the
            Coastal Zone Management Rules at N.J.A.C.
            7:7E–8.11 and governing law.

            [N.J.A.C. 7:36-3.2(a)(4) (emphasis added).]

       This "carrot-and-stick" approach to secure submission of

MPAP     applications       for     approval     and   municipal      compliance




                                         8                                A-1752-12T3
thereafter was publicly acknowledged by DEP.             When the Rules

were first issued in 2012, the agency declared that there were

"adequate incentives for municipalities to want to develop and

seek   Department   approval    of    [MPAPs]."    44    N.J.R.   at   2631

(response to comments 465-68).        DEP explained that it was

           not penalizing municipalities which do not
           have a [MPAP].     These municipalities will
           still be able to conduct beach and dune
           maintenance pursuant to an individual permit
           if they choose to not prepare a Municipal
           Public Access Plan. The Department believes
           that   this    differential   treatment   is
           appropriate to encourage the public access
           benefits that can be achieved through the
           cooperative planning effort reflected by a
           Department-approved [MPAP].

           [44 N.J.R.   at     2606   (response   to    comment
           261).]

DEP's Commissioner called the consequences for municipalities

not participating in the MPAP scheme "'the club if we need it.'"3

                                     II.

       We set some well-known guideposts that inform our review.

"Judicial review of agency regulations begins with a presumption

that the regulations are both valid and reasonable[,]" and "the

party challenging a regulation has the burden of proving that


3
  Jacqueline L. Urgo, N.J. sets in motion letting local decisions
rule on beach access, The Philadelphia Inquirer (Apr. 5, 2011),
http://articles.philly.com/2011-04-05/news/29384729_1_beach-
access-public-access-long-beach-township.      The  document   is
contained in DEP's appendix.



                                      9                           A-1752-12T3
the agency's action was arbitrary, capricious or unreasonable."

N.J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 548 (2012)

(citations and internal quotation marks omitted).                             "[W]e must

give    great     deference        to    an        agency's       interpretation          and

implementation of its rules enforcing the statutes for which it

is responsible."         In re Freshwater Wetlands Prot. Act Rules, 180

N.J.   478,     488-89    (2004)     (citing        In    re    Distrib'n      of    Liquid

Assets, 168 N.J. 1, 10-11 (2001)).

       Accordingly,        a      challenger          must        "demonstrat[e]            an

inconsistency      between        the    regulation            and   the     statute       it

implements, a violation of policy expressed or implied by the

Legislature,      an     extension       of    the       statute     beyond    what       the

Legislature intended, or a conflict between the enabling act and

other statutory law that cannot be harmonized."                            N.J. Ass'n of

Sch. Adm'rs v. Cerf, 428 N.J. Super. 588, 596 (App. Div. 2012),

certif. denied, 213 N.J. 536 (2013).                      "While findings of ultra

vires actions are disfavored, [o]ur role is to enforce the will

of   the   Legislature         because    [s]tatutes           cannot   be    amended      by

administrative         fiat."           In     re     Agric.,        Aquacultural,           &

Horticultural Water Usage Certification Rules, 410 N.J. Super.

209, 223 (App. Div. 2009) (alterations in original) (citations

and internal quotation marks omitted).                     "[I]f the regulation is




                                              10                                    A-1752-12T3
plainly at odds with the statute, we must set it aside."                        In re

Freshwater Wetlands, supra, 180 N.J. at 489.

       With   these    standards     in     mind,   we    consider    the    specific

arguments raised on appeal.

                                           A.

       Appellants      argue   that,        by   invoking     the    public     trust

doctrine, DEP has again arrogated to itself the regulation of

public access to the State's waterways and shorelines.                             They

contend that unless we are prepared to contradict our decision

in Avalon, the result must be the same, and the Rules must be

stricken.      DEP argues that Avalon has limited application to

this case because there we only considered a specific as-applied

challenge to two particular provisions of the 2007 regulations

that are no longer contained in the Rules.                    However, we agree

with   appellants      that,   absent       express      authorization      from   the

Legislature,     the    public      trust    doctrine      alone    cannot    justify

DEP's adoption of the Rules.

       The public trust doctrine encompasses the "legal principle

that the State holds 'ownership, dominion and sovereignty' over

tidally flowed lands 'in trust for the people.'"                      City of Long

Branch   v.   Jui     Yung   Liu,    203    N.J.    464,    474    (2010)    (quoting

Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 316-17,

cert. denied, 469 U.S. 821, 105 S. Ct. 93, 83 L. Ed. 2d 39




                                           11                                A-1752-12T3
(1984)).      Accord Raleigh Ave. Beach Ass'n v. Atlantis Beach

Club, Inc., 185 N.J. 40, 51 (2005); Borough of Neptune City v.

Borough of Avon-By-The-Sea, 61 N.J. 296, 304-05 (1972).                        The

doctrine's    principles    appear   in     English   common    law,    and    its

roots can be traced back to Roman civil law.                    Raleigh Ave.,

supra, 185 N.J. at 51-52; State v. Vogt, 341 N.J. Super. 407,

422 (App. Div.), certif. denied, 170 N.J. 206 (2001).                         As a

result, a "'State can no more abdicate its trust over property

in   which   the   whole   people   are    interested   . . .    than    it    can

abdicate its police powers.'"             Matthews, supra, 95 N.J. at 319

(quoting Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 453, 13 S.

Ct. 110, 118, 36 L. Ed. 1018, 1043 (1892)); E. Cape May Assocs.

v. State, Dep't of Envtl. Prot., 343 N.J. Super. 110, 142 (App.

Div.) ("the sovereign never waives its right to regulate the use

of public trust property"), certif. denied, 170 N.J. 211 (2001).

      As the Court has reiterated:

                  Like many common-law principles, the
             public trust doctrine has adapted to the
             changing conditions and needs of the public
             it was created to benefit.     Today, public
             rights in tidal lands are not limited to the
             ancient   prerogatives  of   navigation  and
             fishing, but extend as well to recreational
             uses, including bathing, swimming and other
             shore activities.

             [Long Branch, supra, 203 N.J. at 475
             (citations and internal quotation marks
             omitted).]




                                      12                                A-1752-12T3
"Whether natural, or man-made, the beach is an adjunct to ocean

swimming      and    bathing       and     is        subject    to    the     Public       Trust

Doctrine."          Van    Ness    v.    Borough       of    Deal,    78     N.J.   174,     180

(1978).       Therefore, "reasonable access to the sea is integral

to    the   public        trust    doctrine[,         because]       without    access      the

doctrine has no meaning."                 Raleigh Ave., supra, 185 N.J. at 53

(citation omitted).               The Court has held that, pursuant to the

public trust doctrine, the public's right to access the beach

includes "access to and use of privately-owned dry sand areas as

reasonably      necessary."              Matthews,          supra,     95    N.J.    at      326

(emphasis added).

       In Avalon, we considered a municipality's challenge to two

provisions of the 2007 rules that required public access to

municipal beaches "at all times," and conditioned eligibility

for appropriations from the "'Shore Protection Fund,'" N.J.S.A.

13:19-16.1,         upon      a     municipality's             agreement       to      provide

additional parking spaces and restrooms, and acquire the land

for   these    facilities         by     condemnation          if   necessary.         Avalon,

supra, 403 N.J. Super. at 595.                        Regarding the requirement of

public access at all times, we noted that the Legislature had

specifically granted municipalities the authority to exercise

their   police       powers       over    publicly-owned            lands.     Id.     at    598

(citing     N.J.S.A.        40:48-2).           We      further      observed       that    the




                                                13                                   A-1752-12T3
Legislature had "recognized that seashore municipalities have

'exclusive control' over municipally-owned beaches."   Id. at 599

(citing N.J.S.A. 40:61-22.20).4    We held:

               In contrast to the express legislative
          delegation   of   broad  general    powers  to
          municipalities to exercise exclusive control
          over     municipally-owned     beaches,    the
          Legislature has not delegated any authority
          to the DEP to preempt or supervise a
          municipality's operation of its beaches.
          Moreover, we perceive no basis for implying
          such authority. It is the municipality, not
          the   DEP,   that   owns   and   operates  and

4
  N.J.S.A. 40:61-22.20(a) (emphasis added), entitled "Municipal
control over beaches, etc.; fees," provides in pertinent part:

               The governing body of any municipality
          bordering on the Atlantic Ocean, tidal water
          bays or rivers which owns . . . lands
          bordering on the ocean, tidal water bays or
          rivers, or easement rights therein, for a
          place of resort for public health and
          recreation and for other public purposes
          shall have the exclusive control, government
          and care thereof and of any boardwalk,
          bathing    and    recreational    facilities,
          safeguards and equipment, . . . and may
          . . . make and enforce rules and regulations
          for the government and policing of such
          lands,    boardwalk,   bathing    facilities,
          safeguards and equipment; provided, that
          such power of control, government, care and
          policing shall not be construed in any
          manner to exclude or interfere with the
          operation of any State law or authority with
          respect   to   such   lands,   property   and
          facilities.

DEP has not asserted that the exercise of municipal authority
under this statue is pre-empted by other legislation or by
application of the public trust doctrine.



                                  14                       A-1752-12T3
           therefore   bears  responsibility              for    the
           management of its beaches.

           [Ibid.]

Distinguishing    "public   trust     doctrine    cases    the    DEP   relie[d]

upon," we concluded "the . . . doctrine does not provide any

basis for a DEP rule that preempts the statutory authority of

municipalities to regulate municipally-owned beaches, including

deciding when they shall be open to the public."                Id. at 600.

    We   also    rejected   DEP's     assertion    that    the    public    trust

doctrine justified adoption of the second regulation at issue.

Id. at 605.

           The essential thrust of the cases dealing
           with   application   of  the   public trust
           doctrine to municipally-owned beaches has
           been that a municipality must provide non-
           residents with the same access to its
           beaches as its own residents . . . .

                However, the Court has never held that
           the   public    trust  doctrine  requires a
           municipality that owns and operates a beach
           to provide a specified number of parking
           spaces and restrooms in proximity to the
           beach or that the DEP has the authority to
           impose     such     requirements   upon   a
           municipality. Therefore, we conclude that
           the public trust doctrine does not provide
           authorization for the DEP rules imposing
           these requirements.

           [Ibid.]

    In this case, DEP correctly notes that the Rules do not

compel   municipalities     to   do    anything,    but    rather       encourage




                                      15                                 A-1752-12T3
affected municipalities to cooperate with DEP in planning for

access through adoption of an MPAP.                    DEP argues that the public

trust    doctrine,      as    interpreted        by    the   Court,      authorizes    the

agency    to   act   as      steward   of    the       State's    coastal      resources,

including      assuring      public    access.          See,     e.g.,    N.J.A.C.     7:7-

16.9(aa) (describing DEP as "the State entity managing public

access along the shore," with "an obligation to ensure" access

under the public trust doctrine).                     However, consistent with our

assessment in Avalon, the cases DEP relies upon do not persuade

us that the public trust doctrine can serve as the fount of the

agency's regulatory power.

      For example, DEP claims that in Lusardi v. Curtis Point

Property Owners Ass'n, 86 N.J. 217 (1981), the Court recognized

the   agency     "was     one     of   three     State       entities     charged      with

promoting      the   State's      interest       in     public     access      under   the

[p]ublic [t]rust [d]octrine."               DEP further asserts that Lusardi

and Matthews demonstrate that "even where the State as a whole

holds title to public trust lands, the ability to regulate it

has been passed to [] DEP."             We disagree.

      The Court in Lusardi considered whether a municipal zoning

ordinance that prohibited recreational use of privately-owned

oceanfront property was "an unreasonable exercise of the zoning

power    in     light        of   judicial,           legislative        and   executive




                                            16                                   A-1752-12T3
pronouncements establishing a statewide policy of encouraging

recreational use of dry sand beach areas."                          Lusardi, supra, 86

N.J. at 222.           The Court found expressions of this "statewide

policy"     in       the    public      trust    doctrine,       legislation       and     the

coastal development policies promulgated by DEP.                          Id. at 227-28.

However, the Court made clear that "the public trust doctrine

[wa]s not directly applicable to th[e] case, which concern[ed]

the exercise of zoning power."                    Id. at 228.        To the extent the

Court found DEP's regulations were "the most detailed expression

of   this      State's      policies     concerning        the    appropriate       uses      of

shoreline       resources,"        it    did     so   with      reference    to    specific

statutory powers under CAFRA.                   Id. at 229.

       Similarly, DEP's reliance upon Matthews is misplaced.                                  In

Matthews, supra, 95 N.J. at 326, the Court relied exclusively

upon     the     public      trust      doctrine      to     conclude     that     "private

landowners may not in all instances prevent the public from

exercising its rights under the public trust doctrine[,]" and

"[t]he      public         must   be    afforded      reasonable        access      to     the

foreshore as well as a suitable area for recreation on the dry

sand."         The    Court's     only      mention     of      DEP's   role      was    in    a

footnote,       recognizing          that   pursuant       to    CAFRA,     the    agency's

regulations supported unrestricted access to beaches.                                   Id. at

325 n.8.




                                                17                                  A-1752-12T3
      Lastly,        we    reject     DEP's       claim      that    Raleigh     Avenue

recognized       the       agency's        independent       regulatory       authority

pursuant to the public trust doctrine.                        Without reciting the

tangled facts of the case, it suffices to say that the Court

rejected     the       property       owner's       claim     that    DEP     "lack[ed]

jurisdiction to approve any fees charged" to the public for

services associated with the beach.                     Raleigh Ave., supra, 185

N.J. at 60.          However, the Court made clear that it was "the

boardwalk pathway over the dunes to the . . . beach [which]

qualifies as a development, thereby triggering the DEP's CAFRA

jurisdiction over related use of the beach and ocean."                          Id. at

61.

      The Legislature spoke clearly regarding municipally-owned

beaches      when         it     enacted      N.J.S.A.        40:61-22.20(a),        and

municipally-owned property in general, when it enacted N.J.S.A.

40:48-1    (providing          that   "every      municipality"       may    adopt   and

enforce ordinances to "[m]anage, regulate and control the . . .

property    .    .   .    of    the   municipality").          Case    law    that   has

developed regarding the public trust doctrine, including those

which have expanded its reach to privately-owned property, do

not   support     DEP's        contention    that    the    Legislature      implicitly

delegated       regulatory        powers    to    the      agency.     DEP     was   not




                                             18                                A-1752-12T3
authorized    to    promulgate     the    Rules       under    the   public     trust

doctrine.

                                         B.

       Appellants   next   argue    that       DEP    lacks    the   authority    to

promulgate the Rules pursuant to CAFRA or any other statute,

and,    as   already   noted,    that         the    Rules    conflict   with     the

Legislature's specific grant of authority to municipalities to

regulate municipally-owned land.                DEP counters by arguing the

Rules were authorized pursuant to CAFRA.5                The agency also argues

that the Rules do not conflict with the MLUL.




5
  We note, however, that DEP's only stated "rationale" for
adoption of the Rules was the public trust doctrine.         See
N.J.A.C. 7:7-9.48(c); N.J.A.C. 7:7-16.9(aa).    Additionally, at
two points in its brief, in single sentences without any legal
argument, DEP cites N.J.S.A. 13:1B-3(e) and N.J.S.A. 13:1D-9 as
providing the statutory authority for promulgating the Rules.
We have refused to consider such "cursory discussion[s]" of
legal arguments not properly raised in separate point headings.
Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J.
Super. 499, 508 (App. Div.), certif. denied, 207 N.J. 190
(2011).   In any event, neither cited statute provides support
for DEP's argument. N.J.S.A. 13:1B-3(e) simply provides that as
part of his powers, the Commissioner may "[a]dopt, issue and
promulgate . . . such rules and regulations as may be authorized
by law[.]"     N.J.S.A. 13:1D-9 vests DEP with broad powers
primarily   linked   to  general   functions  of   conservation,
education, environmental and ecological protection and pollution
control. There is no mention of DEP's authority to plan for or
implement public access to coastal areas.




                                         19                               A-1752-12T3
                                              (1)

        Some    additional       standards          govern    our    consideration       of

whether the Rules are authorized by CAFRA.                      "[W]hen a regulation

is challenged as contrary to the agency's statutory authority[,]

.   .   .    the     issue    turns    on     statutory      construction."         In    re

Adoption       of    N.J.A.C.    7:15-5.24(b),         420    N.J.    Super.     552,    564

(App. Div.) (citing N.J. State League of Municipalities v. Dep't

of Cmty. Affairs, 158 N.J. 211, 222 (1999)), certif. denied, 208

N.J. 597 (2011).             "[O]ur task in statutory interpretation is to

discern and effectuate the Legislature's intent."                        N.J. Dep't of

Envtl. Prot. v. Huber, 213 N.J. 338, 365 (2013) (citing Hubner

v. Spring Valley Equestrian Ctr., 203 N.J. 184, 194 (2010)).

        We begin by looking at the statute's "plain language," read

"sensibly [and] in the context of the overall scheme in which

the     Legislature         intended    the    provision      to     operate."       Ibid.

(citations omitted).             "[A]n agency's legislative authority can

be implied by the statute or by 'the entire legislative scheme

of which it is a part.'"                    In re Adoption of N.J.A.C. 7:15-

5.24(b), supra, 420 N.J. Super. at 564 (quoting In re Stormwater

Mgmt.       Rules,    384    N.J.     Super.    451,    461   (App.    Div.),     certif.

denied, 188 N.J. 489 (2006)).                       "A court will imply powers to

enable the agency to effectuate the intent of                            the statute."

Ibid.




                                               20                                 A-1752-12T3
      "The primary purpose of CAFRA is to protect the unique and

fragile coastal zones of the State."             In re Egg Harbor Assocs.

(Bayshore Centre), 94 N.J. 358, 364 (1983).              "Although CAFRA is

principally    an     environmental    protection     statute,      the    powers

delegated to DEP extend well beyond protection of the natural

environment.        Succinctly stated, the delegated powers require

DEP to regulate land use within the coastal zone for the general

welfare."     Ibid.

      By    enacting    CAFRA,   the    Legislature      intended    to      limit

potential     adverse     environmental     impacts      while      encouraging

development of compatible land uses in the coastal zone.                   Seigel

v. N.J. Dep't of Envtl. Prot., 395 N.J. Super. 604, 615 (App.

Div.) (citing N.J.S.A. 13:19-2), certif. denied, 193 N.J. 277

(2007).     Thus, "[e]ach agency decision involving an application

for   development      under   CAFRA   invokes   these    'competing       policy

considerations.'"        Ibid.   (quoting   In   re   Cape   May     Cty.      Mun.

Utils. Auth., 242 N.J. Super. 509, 516 (App. Div. 1990)).                    CAFRA

specifically was intended to "preserve[] the most ecologically

sensitive and fragile area from inappropriate development and

provide[] adequate environmental safeguards for the construction

of any developments in the coastal area."                  N.J.S.A. 13:19-2

(emphasis added).




                                       21                                 A-1752-12T3
       We have previously discussed at length CAFRA's permitting

process and DEP's regulatory authority under the statute.                            See,

e.g., Dragon v. N.J. Dep't of Envtl. Prot., 405 N.J. Super. 478,

494-97        (App.    Div.),      certif.     denied,    199    N.J.    517     (2009).

Succinctly          stated,        "CAFRA     expressly       requires        that    any

development within the State's specified 'coastal area' either

(1) be conducted under a permit issued pursuant to                              N.J.S.A.

13:19-5       or    -5.1,     or   (2)   be   an   activity     that    is    explicitly

exempted from the permitting requirement by N.J.S.A. 13:19-5.2

or -5.3."          Id. at 494.

       In Avalon, we rejected DEP's argument that CAFRA authorized

the 2007 rule requiring public access to beaches at all times.

Avalon, supra, 403 N.J. Super. at 601.                          We held that "even

though CAFRA delegates authority to the DEP to regulate certain

land uses within the coastal zone, it does not preempt municipal

regulation under the [MLUL]."                  Ibid.     (citing Bubis v. Kassin,

184    N.J.     612,    630    (2005);      Lusardi,   supra,    86    N.J.    at    229).

Therefore, DEP's regulatory powers under CAFRA extended to "land

uses     in     the    coastal      zone,     [but]    the    Legislature      did    not

authorize [] DEP to preempt the basic municipal power to manage

and control municipally-owned beaches, including deciding when

those areas should be open to the public."                    Id. at 601.




                                              22                                A-1752-12T3
    As to the requirement of additional parking and bathroom

facilities       contained       in    the   2007    version       of    the    Rules,   we

recognized       that         "CAFRA    does      not     include        any     provision

authorizing [] DEP to condition the issuance of [] a permit upon

a municipality agreeing to provide additional parking spaces or

restrooms in order to facilitate public access to the beach."

Id. at 606.       We rejected the agency's claim that because Raleigh

Avenue recognized DEP's jurisdiction to monitor beach fees, the

agency "ha[d] implied authority to impose whatever additional

obligations      []     DEP    deem[ed]      appropriate     to     facilitate        public

access to the beach."            Id. at 607.        We noted, DEP's authority to

review beach fees "can be viewed as 'incidental' to the powers

the Legislature expressly granted to [] DEP under CAFRA," but

prescribing parking and bathroom facilities involved important

policy     questions          within     the      "exclusive       province       of     the

Legislature."         Id. at 607-08.            "The Legislature could of course

delegate     authority         for     making     these    decisions       to    []     DEP.

However, CAFRA does not contain such a delegation of authority."

Id. at 608.

    The only connection we discern between CAFRA's permitting

process    and    the    most     recent     iteration      of     the   Rules    is    that

applicants for CAFRA permits in municipalities that have adopted

approved     MPAPs      may     satisfy      public       access    requirements         "in




                                             23                                   A-1752-12T3
accordance with the [MPAP]."6                 N.J.A.C. 7:7-16.9(c) and (k).                  As

already mentioned, in towns without approved MPAPs, an applicant

must    comply      with    other   provisions            of    the     Rules    that   place

significant        restrictions        upon     him       or     her.      N.J.A.C.       7:7-

16.9(c)(2)         and   (n).       For       example,          pursuant        to   N.J.A.C.

7:7-16.9(u), public access areas must be clearly marked by signs

approved by DEP, and, pursuant to N.J.A.C. 7:7-16.9(z), "areas

set aside for public access to tidal waterways and their shores

shall    be     permanently     dedicated           for    public        use    through    the

recording of a Department approved conservation restriction."

       Perhaps DEP could choose to adopt a different permitting

process    in      municipalities       that       have        adopted    an    MPAP.      The

precise question is not before us, nor do we need to decide the

issue.        We   conclude     that    any        nexus   between        CAFRA's    general

statutory purposes, its permitting processes and the Rules is

limited at best, and it cannot justify the broad and pervasive

regulatory regime imposed by the Rules taken as a whole.

       Lastly, we note that CAFRA applies only to a well-defined

"coastal area."            N.J.S.A. 13:19-4.           That "coastal area" is not


6
  The record included DEP's template for formulating an MPAP, as
well as one MPAP submitted by a municipality. Given the lack of
specificity contained in these documents, it is unclear how a
private landowner applying for an individual permit under CAFRA,
for example, would necessarily satisfy his or her "public access
requirements" by simply relying on the approved MPAP.



                                              24                                     A-1752-12T3
co-extensive            with    the     "coastal         zone,"      to    which    the      Rules

specifically apply.               In short, CAFRA does not serve as explicit

or implicit authority for DEP to promulgate the Rules.

                                                (2)

       For     the       sake     of    completeness,           we    address      appellants'

argument that the Rules conflict with provisions of the MLUL and

other statutes that embody the Legislature's express delegation

of    powers       to    municipalities.                Specifically,       they        argue    DEP

cannot require that a municipality wishing to adopt an MPAP

incorporate same in its master plan, nor can DEP authorize the

creation of municipal Public Access Funds.

       The     MLUL        is     "a     comprehensive            statute         that     allows

municipalities to adopt ordinances to regulate land development

'in   a   manner         which    will       promote      the   public      health,       safety,

morals       and        general       welfare'          using   uniform      and        efficient

procedures."            Rumson Estates, Inc. v. Mayor & Council of Fair

Haven,    177      N.J.        338,    349    (2003)       (quoting       Levin    v.     Twp.    of

Parsippany-Troy Hills, 82 N.J. 174, 179 (1980)).                                    However, a

municipality's           power     "must      be    exercised        in   strict    conformity

with the delegating enactment — the MLUL."                            Toll Bros. v. Bd. of

Chosen Freeholders of Burlington, 194 N.J. 223, 243 (2008).

       Two goals of the MLUL are:

                    To   provide   sufficient                         space        in
               appropriate locations for a                           variety       of



                                                   25                                     A-1752-12T3
           agricultural,   residential,   recreational,
           commercial and industrial uses and open
           space, both public and private, according to
           their respective environmental requirements
           in order to meet the needs of all New Jersey
           citizens.

                    . . . .

                To promote the conservation of historic
           sites and districts, open space, energy
           resources and valuable natural resources in
           the State and to prevent urban sprawl and
           degradation   of  the   environment  through
           improper use of land . . . [.]

           [N.J.S.A.        40:55D-2(g)       and     (j)     (emphasis
           added).]

N.J.S.A. 40:55D-28(b) requires that a master plan must include

"[a] statement of objectives, principles, assumptions, policies

and standards" and "[a] land use plan element . . . ."                      N.J.S.A.

40:55D-28(b)(1)       and     (b)(2).     The       statute     then    sets    forth

fourteen other discretionary elements.

    The     land     use    plan   element      requires       consideration       of

"topography,      soil     conditions,    water      supply,     drainage,      flood

plain    areas,     marshes,     and    woodlands[.]"           N.J.S.A.       40:55D-

28(b)(2)(a).       Discretionary elements include a "recreation plan

element," that includes "a comprehensive system of areas and

public    sites     for     recreation[,]"      and    a      "conservation      plan

element" that provides "for the preservation, conservation, and

utilization    of    natural     resources,     including       .   .   .   marshes,




                                         26                                 A-1752-12T3
wetlands, harbors, rivers and other waters . . . ."                          N.J.S.A.

40:55D-28(b)(7) and (8).

       Given this extensive list of a master plan's permissible

contents,     we    reject     appellants'     argument     that,    by   permitting

municipalities        to     adopt   an     MPAP     and    requiring       them    to

incorporate it as part of their master plans, the Rules violate

this portion of the MLUL.              Adopting an MPAP seems consistent

with these required and permitted portions of a master plan.7

       However, we note that the MLUL provides that a master plan

must    be    periodically       re-examined,        N.J.S.A.       40:55D-89,     the

reexamination report must include specific recommendations as to

amendments to the master plan, N.J.S.A. 40:55D-89(d), and the

failure      to    adopt   a    re-examination       report     "constitute[s]        a

rebuttable         presumption       that      the     municipal          development

regulations are no longer reasonable."                     N.J.S.A. 40:55D-89.1.

We express substantial doubt that those provisions of the Rules

requiring the regular update of MPAPs and prohibiting amendment

without DEP approval can be harmonized with these provisions of

the MLUL.




7
  We note that the Legislature anticipated that a master plan
could designate private property for anticipated public use, and
the Planning Board could reserve those locations for one year,
subject to just compensation to an affected developer.       See
N.J.S.A. 40:55D-44.



                                          27                                 A-1752-12T3
       We do agree with appellants that the creation of municipal

Public Access Funds by which participating municipalities may,

pursuant     to    the    Rules,     receive    monetary         contributions        from

permit applicants is, absent a specific legislative grant of

authority, ultra vires.            In New Jersey Shore Builders Ass'n v.

Township of Jackson, 199 N.J. 449 (2009), the Court concluded

that the municipal appellants lacked the authority to promulgate

ordinances that required developers to set aside open space or

make   payments      in    lieu    thereof.       Id.       at    452.      The      Court

recognized        that    the     "statutory    authority          that     permits        a

municipality to require contributions for off-tract improvements

is limited."        Id. at 453 (citing N.J.S.A. 40:55D-42 ("referring

to   contributions        for   off-tract     improvements        to     water,    sewer,

drainage, and street improvements only")).

       DEP cites no statutory authority by which municipalities

may accept monetary contributions from permit applicants simply

by adopting an MPAP, and no such authority is provided by the

MLUL or any other statute that we located.                       Those provisions of

the Rules that empower a municipality to create a Public Access

Fund lack any statutory authority and are ultra vires.

                                        III.

       In   sum,    we    conclude   that     absent    a    specific      legislative

grant of authority, DEP was not authorized by the public trust




                                         28                                       A-1752-12T3
doctrine to promulgate the Rules.     We further conclude that

CAFRA's permitting provisions might implicitly authorize limited

portions of the Rules, but it is not our task to identify which

limited portions of the Rules could be so authorized.      Given

their 1) application beyond CAFRA's territorial limits, and 2)

their extensive scope, the Rules exceed any implied grant of

legislative authority under the statute.    Lastly, we conclude

that the creation of a municipal Public Access Fund would be an

ultra vires exercise of municipal power, and, while the MLUL

could authorize adoption of a MPAP as part of a municipal master

plan, the provisions of the MLUL that govern amendment of the

master plan leave no room for DEP's pervasive involvement in the

process as set forth in the Rules.

    We therefore conclude that the Rules must be stricken, and

we invalidate N.J.A.C. 7:7-9.48, the public trust rights rule,

and N.J.A.C. 7:7-16.9, the public access rule, as well as any

other provisions of the regulations that rely upon those two

sections.




                               29                       A-1752-12T3
