SENATE CONCURRENT RESOLUTION No. 43
STATE OF NEW JERSEY
INTRODUCED FEBRUARY 5, 1996
By Senator CIESLA
A Concurrent Resolution concerning legislative review of Department of Environmental Protection regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.
Be It Resolved by the Senate of the State of New Jersey (the General Assembly concurring):
1. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Legislature may review any rule or regulation adopted by an administrative agency to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.
2. a. In 1978 Congress enacted section 502 of the National Parks and Recreation Act of 1978 (16 U.S.C.§471i). The federal act designates approximately one million acres as the Pinelands National Reserve. The New Jersey "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.) was enacted to implement the federal act. However, the State act does not give the Pinelands Commission, created by the Pinelands Protection Act, regulatory authority over the entire Pinelands National Reserve, but rather restricts its jurisdiction to the specifically designated pinelands area. As a result, approximately 221,000 acres of the Pinelands National Reserve were excluded by the State law from the pinelands area. Most of the land in the Pinelands National Reserve but outside the pinelands area was intended to be regulated by the Department of Environmental Protection (DEP) under the statutory jurisdiction of the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.)(CAFRA).
b. When the Legislature enacted the Pinelands Protection Act it included a provision specifically addressing the area of overlap between CAFRA and the Pinelands National Reserve. Specifically, section 22 of P.L.1979, c.111 (C.13:18A-23) requires the DEP to review its implementation of CAFRA within 18 months and make any necessary revisions to "effectuate the purposes of" the State and federal pinelands protection acts. The department undertook this review, made certain minor changes, and found that the CAFRA program would adequately effectuate the purposes of the State and federal pinelands protection acts.
c. In 1988, the DEP and the Pinelands Commission entered into a Memorandum of Agreement (MOA) whereby applications in the area outside the pinelands area but inside the CAFRA boundaries would be given to the commission for review and comment. It was understood that the substantive CAFRA regulations would continue to govern development decisions in this area, as was the intent of the Legislature. Reference to this agreement was subsequently incorporated into the CAFRA regulations at N.J.A.C.7:7E-3.44. Despite the clear legislative intent to have CAFRA regulations govern development decisions in this overlap area, the department, at times, has decided to deny development applications that meet all the relevant CAFRA regulations, but which do not meet certain provisions of the Pinelands Comprehensive Management Plan (CMP). The use of the MOA process to incorporate substantive provisions of the CMP into the CAFRA regulations is in direct conflict with the express intent of the Legislature that once the initial review of the CAFRA program was completed and changes made to the regulations, the substantive CAFRA regulations, not the CMP, would govern development decisions in the overlap area. Additionally, the use of the MOA in this manner is not reflected in the CAFRA regulations, causes uncertainty and conflicting decision making in contravention of legislative intent that CAFRA regulations lead to more predictable and consistent decision making, and has been held by an administrative law judge to violate due process requirements.
3. The Legislature finds that the manner in which the DEP implements the provisions of N.J.A.C.7:7E-3.44, which provides that coastal development decisions are to be "consistent with the intent, policies and objectives of the National Parks and Recreation Act of 1978 . . . and the State Pinelands Protection Act of 1979" and which provides that the "Department's Land Use Regulation Program and the Pinelands Commission will coordinate the permit review process through the procedure outlined in the February 8, 1988 Memorandum of Agreement," has the effect of (1) delegating regulatory power over development decisions in the Pinelands National Reserve/CAFRA overlap area from the DEP to the Pinelands Commission, and (2) changing the substantive provisions for the review of development applications by applying the provisions of the Pinelands Comprehensive Management Plan rather than the substantive provisions of the CAFRA regulations. The Legislature therefore finds that N.J.A.C.7:7E-3.44 is not consistent with the intent of the Legislature as expressed in the language of the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.) and the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.), which the regulations are intended to implement.
4. The Secretary of the Senate and the Clerk of the General Assembly shall transmit a duly authenticated copy of this concurrent resolution to the Governor and the Commissioner of Environmental Protection.
5. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Commissioner of Environmental Protection shall have 30 days following transmittal of this resolution to amend or withdraw the regulations codified in N.J.A.C.7:7E-3.44 or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the regulations codified in N.J.A.C.7:7E-3.44, in whole or in part.
STATEMENT
This concurrent resolution embodies the finding of the Legislature that the regulations of the Department of Environmental Protection concerning the review of development applications in the area subject to the "Coastal Area Facility Review Act," that is inside the Pinelands National Reserve but outside the pinelands area, is not consistent with legislative intent pursuant to Article V, Section IV, paragraph 6 of the State Constitution.
The concurrent resolution finds that the CAFRA regulations requiring developments to be consistent with the State and federal pinelands protection acts and requiring permit review by the Pinelands Commission in accordance with a 1988 Memorandum of Agreement between the department and the commission results in the incorporation of the Pinelands Comprehensive Management Plan into the CAFRA regulations in conflict with the clear legislative intent that development decisions in those areas be governed solely by the CAFRA regulations.
Determines that CAFRA regulations relating to development applications in the Pinelands National Reserve are inconsistent with legislative intent.