SENATE ENVIRONMENT AND ENERGY COMMITTEE
SENATE, No. 2490
with committee amendments
STATE OF NEW JERSEY
DATED: JANUARY 9, 2017
The Senate Environment and Energy Committee favorably reports Senate Bill No. 2490 with committee amendments.
This bill would confirm in the statutes the public rights under the public trust doctrine to use and enjoy the State’s tidal waters and adjacent shorelines. The people’s ownership of the tidal waters and adjacent shorelines is held in trust by the State. This bill would ensure that the State, through the Department of Environmental Protection (DEP), protects the public’s right of access to public trust lands in its funding decisions and in the implementation of the “Coastal Area Facility Review Act,” R.S.12:5-3 (the waterfront development law), “The Wetlands Act of 1970,” the “Flood Hazard Area Control Act,” the State’s implementation of the federal “Coastal Zone Management Act of 1972,” or any other law. In addition, the bill requires that the DEP ensure that any public funding issued, and any action taken on a project using public funding, is consistent with the public trust doctrine. The bill also requires the DEP to ensure that any approval, permit, administrative order, or consent decree issued, or other action taken by the DEP pursuant to the above-cited statutes, is consistent with the public trust doctrine. Further, the bill provides that for any application for a permit or other approval issued pursuant to those laws, where the applicant proposes a change in the existing footprint of a structure, or a change in use of the property, the DEP is required to review the public access provided and determine whether to require additional public access consistent with the public trust doctrine and in accordance with the scale of the changes to the footprint or use, the demand for public access, and any adopted municipal public access plan or public access element of a municipal master plan.
In addition, the bill would prohibit the DEP from adopting any rule or regulation pursuant to the “Coastal Area Facility Review Act,” R.S.12:5-3 (the waterfront development law), “The Wetlands Act of 1970,” the “Flood Hazard Area Control Act,” and the State’s implementation of the federal “Coastal Zone Management Act of 1972,” or any other law, that mandates on-site public access to the tidal waters or adjacent shorelines as a condition of any approval, permit, administrative order, or consent decree at any existing structure or facility that requires exclusion of the public for security reasons as designated by the New Jersey Office of Homeland Security and Preparedness pursuant to rules and regulations by which such facilities will be so designated. The bill would also authorize the DEP to restrict public access to tidal waters and adjacent shorelines to protect critical habitat areas from injurious uses, or threatened or endangered species or their habitat areas from injury or injurious uses, but only to the extent necessary according to the needs of the habitat areas or species.
The bill, as amended, would provide that for marinas in existence on the date of enactment of the bill into law, for any application for a permit or other approval issued by the DEP, if the regulated activity that is the subject of the application is on the marina property, the DEP would require the applicant to maintain the degree of the existing public access to the waterfront and adjacent shoreline. If the regulated activity affects or diminishes public access on the marina property, the department must require equivalent access as a condition of the permit or other approval. If no public access was provided to the waterfront and adjacent shoreline, the department could not impose new public access requirements to the waterfront or adjacent shoreline, except as provided in the bill as outlined below regarding beaches.
The bill also provides that for the development of any marina property that proposes to increase the area of existing development (which includes areas covered by structures and asphalt or other paving) by at least 50 percent, or that proposes to develop property that is not within the parcel of the existing marina development, the applicant must provide to the department a public access plan that identifies the location and type of public access to be provided, any areas closed to public access because of permanent obstructions or risks due to hazardous operations, and the operating hours of the marina. The bill provides that as a condition of the permit or other approval, public access to the waterfront and adjacent shoreline as identified in the public access plan and approved by the department must be provided during the marina’s operating hours. Further, the bill, as amended, would require that any changes to an approved public access plan be submitted to the department for review and approval.
If the application for a marina property includes property on which there is a beach, in every case, the department must require public access to the beach and the public’s use of the beach as a condition of the permit or other approval, and activities that have the effect of discouraging or preventing the exercise of public access rights are prohibited. The bill further provides that for the purposes of public access to be provided by marinas, public access includes visual and physical access and includes the following in any combination, as appropriate: (1) a public accessway designed in accordance with rules and regulations adopted by the department, located parallel to the shoreline with perpendicular access to it; (2) a boat ramp, pier, fishing pier, other facilities, or other direct access to the waterway; (3) a waterfront pocket park; (4) public restrooms to accommodate those using the public access; and (5) additional public parking to accommodate those using the public access. In addition, the bill provides that for public access requirements for marinas, the department is required to consider, when determining if public access is sufficient or appropriate, the type of public access available or needed within the area, the compatibility of the proposed public access with the applicant’s proposed use of the site, the square footage of the public access area, and the environmental impact or benefit of the proposed development.
Finally, the bill provides that a public access plan element for tidal waters and adjacent shorelines be included, where appropriate, in a municipality’s master plan under the “Municipal Land Use Law.”
The committee amendments require the New Jersey Office of Homeland Security and Preparedness to adopt rules and regulations establishing the process for the designation of those facilities that, for security reasons, the DEP would not be authorized to mandate on-site public access. The committee amendments also add a new section to the bill that sets forth public access requirements for marinas, remove references to the “Hackensack Meadowlands Reclamation and Development Act” because DEP does not issue permits pursuant to that act, and make technical amendments to the bill.