A2954 1R

An Act concerning public access to tidal waterfront areas adjacent to critical infrastructure, and supplementing ¹[P.L.1973, c.185] Title 13 of the Revised Statutes¹ .

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The Legislature finds and declares that:

a. On November 6, 2006, the Commissioner of the Department of Environmental Protection proposed amendments to the ¹[coastal permit program] Coastal Zone Management¹ rules ¹, N.J.A.C.7:7E-1.1 et seq., and subsequently adopted those amendments, effective December 17, 2007,¹ to expand opportunities for the public to access the tidal waterfront and its adjacent shoreline in the areas of the State subject to the jurisdiction of ¹[the “Coastal Area Facility Review Act,” P.L.1973, c.185 (C.13:19-1 et seq.), the Waterfront Development Act,]¹ R.S.12:5-3, ¹[and]¹ “The Wetlands Act of 1970,” P.L.1970, c.272 (C.13:9A-1 et seq.) ¹, and the “Coastal Area Facility Review Act,” P.L.1973, c.185 (C.13:19-1 et seq.)¹ ; and ¹[the proposed amendments] these rules¹ express the department’s view that the public trust doctrine, as interpreted by the New Jersey Supreme Court, demands the public be given permanent, unobstructed physical access to all tidal waterfront and adjacent shoreline at all times;

b. The ¹[proposed amendments would] rules¹ require, as a condition of any permit issued by the department pursuant to the authority of ¹[the “Coastal Area Facility Review Act,” the Waterfront Development Act or] R.S.12:5-3,¹ “The Wetlands Act of ¹[1970”] 1970,” or the “Coastal Area Facility Review Act”¹ that an applicant provide on-site, permanent, unobstructed public access to the tidal waterways and its shores at all times, including both physical and visual access; and ¹[the proposed amendments would apply the] this¹ requirement ¹applies¹ to all existing military installations, industrial facilities, including chemical manufacturing facilities, commercial ports and harbors, including international container ports, ¹[and]¹ energy facilities, including nuclear and fossil-fired power plants ¹, and airports and railroads¹ ;

c. Many existing facilities affected by ¹[the proposed amendments] this requirement¹ are classified as critical infrastructure for national security purposes and subject to various requirements under State and federal law to restrict facility access and monitor surrounding areas; and public access to the tidal waterfront and adjacent shoreline must be balanced with the imperative to protect and defend against a terrorist attack on military, industrial, ¹transportation,¹ energy ¹,¹ and port facilities by restricting access to such facilities and adjacent waters;

d. The ¹[proposed amendments seek] rules seek¹ to balance these interests by demanding operators of such facilities applying for a permit pursuant to ¹[the “Coastal Area Facility Review Act,” the Waterfront Development Act or] R.S.12:5-3,¹ “The Wetlands Act of ¹[1970”] 1970,” or the “Coastal Area Facility Review Act”¹ acquire off-site tidal waterfront property and construct restrooms, parking areas ¹,¹ and other amenities for the public’s enjoyment; and the ¹[proposed amendments] the requirement¹ effectively ¹[demand] demands¹ that military, industrial, ¹transportation,¹ energy ¹,¹ and port facilities provide off-site public access to the tidal waterfront as a condition of obtaining permits necessary to replace bulkheads, repair docks ¹,¹ and otherwise maintain their existing facilities; and

e. Existing military, industrial, ¹transportation,¹ energy ¹,¹ and port facilities presently provide innumerable public benefits, including but not limited to, State and local ¹[taxes] tax¹ revenue, employment in high-paying jobs, and national security, and the public trust doctrine is not so rigid and has not been construed by the New Jersey Supreme Court so as to require all persons to have permanent, unobstructed physical access to all tidal waterfront and adjacent shoreline at all times, but rather the public’s right to access the tidal waterfront must be carefully balanced with national security interests and the significant economic benefits the public presently derives from existing military, industrial, ¹transportation,¹ energy ¹,¹ and port facilities located on the tidal waterfront.

The Legislature therefore determines that it is not in the public interest to require on-site public access to facilities classified as critical infrastructure for national security purposes, including but not limited to, military, industrial, ¹transportation,¹ energy ¹,¹ and port facilities, nor is it in the public interest to demand such facility operators purchase and improve off-site facilities for this purpose; and the off-site alternative provided in the ¹[proposed amendments] rules¹ does not recognize the significant public benefits presently provided by existing facilities; and it is more appropriate to consider expanded opportunities for public access to the tidal waterfront and adjacent shoreline at the time a permit applicant seeks approval for a new development under ¹[the “Coastal Area Facility Review Act,” the Waterfront Development Act or] R.S.12:5-3,¹ “The Wetlands Act of ¹[1970.”] 1970,” or the “Coastal Area Facility Review Act.”¹

2. The Department of Environmental Protection shall not adopt any ¹new¹ rule or regulation ¹, or implement any existing rule or regulation adopted prior to the effective date of this act,¹ pursuant to the provisions of ¹[the “Coastal Area Facility Review Act,” P.L.1973, c.185 (C.13:19-1 et seq.), the Waterfront Development Act,]¹ R.S.12:5-3, “The Wetlands Act of 1970,” P.L.1970, c.272 (C.13:9A-1 et seq.) ¹, the “Coastal Area Facility Review Act,” P.L.1973, c.185 (C.13:19-1 et seq.),¹ or any other act, having the effect of mandating public access to tidal waterfront and adjacent shoreline at existing military, industrial, ¹transportation,¹ energy ¹,¹ or port facilities, or requiring the purchase or improvement of off-site locations for this purpose.

Nothing contained herein shall be construed to prohibit the department from requiring public access to the tidal waterfront and adjacent shoreline to be provided for any new development that is not part of an existing military, industrial, ¹transportation,¹ energy ¹,¹ or port facility.

3. This act shall take effect immediately ¹[and shall apply to any applicable rule or regulation adopted by the Department of Environmental Protection on or after September 1, 2007]¹.