Bill Text: NJ S919 | 2010-2011 | Regular Session | Introduced
Bill Title: Requires public access to tidal waterfront areas under certain circumstances.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2010-01-19 - Introduced in the Senate, Referred to Senate Environment and Energy Committee [S919 Detail]
Download: New_Jersey-2010-S919-Introduced.html
Sponsored by:
Senator BOB SMITH
District 17 (Middlesex and Somerset)
Senator ANDREW R. CIESLA
District 10 (Monmouth and Ocean)
SYNOPSIS
Requires public access to tidal waterfront areas under certain circumstances.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning public access to tidal waterfront areas, supplementing P.L.1973, c.185, and amending P.L.2008, c.82.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) The Legislature finds and declares that:
a. The public has longstanding and inviolable rights under the Public Trust Doctrine to use and enjoy the State's tidal waters and adjacent shores for recreational uses, including, but not limited to, bathing, swimming, fishing and other shore activities;
b. The policy of the State is to promote and ensure reasonable and meaningful public access to tidal waters and adjacent shores, particularly whenever public monies are expended for capital improvements and acquisitions including, but not limited to, shore protection and beach replenishment projects;
c. Certain existing facilities at or near the tidal waterfront and adjacent shoreline are critical infrastructure for national security purposes; and
d. The need to safeguard public access to the tidal waterfront and adjacent shoreline must be balanced with the imperative to protect facilities for national security purposes while at the same time safeguarding the public's rights to access to the State's tidal waters and adjacent shores.
2. (New section) a. Except as otherwise provided in section 3 of this act, any person proposing to construct a new structure or facility, make an improvement to an existing facility or structure, or perform any other development along a tidal waterway shall provide reasonable on-site public access to tidal waterfront and adjacent shoreline or reasonable off-site public access to tidal waterfront and adjacent shoreline whenever on-site public access is deemed infeasible by the Department of Environmental Protection.
The person proposing the new development or improvement shall develop a public access plan to be approved by the appropriate local government and the Department of Environmental Protection.
b. The Department of Environmental Protection shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B‑1 et seq.) and the provisions of the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.), the Waterfront Development Act, R.S.12:5-3, or "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.), rules or regulations to require any person subject to the provisions of subsection a. of this section to provide reasonable on-site public access to tidal waterfront and adjacent shoreline or reasonable off-site public access to tidal waterfront and adjacent shoreline whenever on-site public access is deemed infeasible by the department.
Notwithstanding the provisions of the "Administrative Procedure Act," the department shall adopt an interim rule within six months after the date of enactment of this act that establishes a formula for determining a person's off-site public access obligation or requirement and the procedures by which this formula may be uniformly implemented, which may include a payment by the person into an escrow or other such account to be used for projects conducted by a local government, non-profit organization or other entity approved by the department to provide reasonable off-site public access in the region. The formula shall take into account parameters including, but not limited to: (1) the length of waterfront that is the subject of the permit application; (2) the projected estimated cost of constructing a walkway along the waterfront that is the subject of the permit application if a walkway were to be constructed on-site; (3) the width of an easement that would accompany a walkway along the waterfront that is the subject of the permit application if a walkway were to be constructed on-site; and (4) the tax assessed value of the land only, equalized by applying the tax assessment to true value equalization ratio as published yearly by the county tax board. The department shall adopt this formula, pursuant to the "Administrative Procedure Act," within one year of the date of enactment of this act. The department shall not require any person to provide reasonable off-site public access until this formula has been adopted, but may issue permits during that time period with a condition requiring that reasonable off-site public access be provided after the formula has been adopted.
c. The Department of Environmental Protection may require, as a condition of receiving monies from the "Shore Protection Fund" created pursuant to section 1 of P.L.1992, c.148 (C.13:19-16.1) or Green Acres funds, that the recipient provide reasonable on-site public access to tidal waterfront and adjacent shoreline or reasonable off-site public access to tidal waterfront and adjacent shoreline whenever on-site public access is deemed infeasible by the department.
d. As used in this act, "person" means an individual, trust firm, joint stock company, business concern, and corporation, including, but not limited to, a partnership, limited liability company, or association; "projected estimated cost" means the cost of constructing a walkway that is consistent in width, design and construction materials to other waterfront walkways located in the county; and "reasonable off-site public access" may include, but is not limited to, creation or enhancement of public access in conjunction with local government.
3. (New section) a. The Department of Environmental Protection shall not adopt any rule or regulation pursuant to the provisions of the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.), R.S.12:5-3, "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.), or any other act, having the effect of mandating on-site or off-site public access to tidal waterfront and adjacent shoreline as a condition of receiving approval of a permit for (1) an activity to upgrade existing facilities performed solely to comply with local, State or federally mandated pollution abatement or public health requirements; (2) activities directly related to the remediation of a contaminated site; or (3) a project solely for repair, rehabilitation or reconstruction of an existing facility, structure, bulkhead or pier, except whenever a new use that requires local land use board approval is proposed.
b. The department shall not adopt any rule or regulation pursuant to the provisions of the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.), R.S.12:5-3, "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.), having the effect of mandating on-site public access to tidal waterfront and adjacent shoreline as a condition of receiving approval of a permit for an improvement to an existing structure or facility that is part of a chemical or metallurgical industrial facility, marine terminal or transfer facility for waterborne cargo, airport, railroad yard or nuclear power plant, or any regulated portion of a major facility regulated pursuant to the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.), or any covered process regulated pursuant to the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.).
c. For the purposes of this section:
(1) "Covered process" means a process that has an extraordinarily hazardous substance present pursuant to P.L.1985, c.403;
(2) "Major facility" means a facility, located on one or more contiguous or adjacent properties owned or operated by the same person, having total aggregate, combined storage capacity of:
(a) 20,000 gallons or more for hazardous substances other than petroleum or petroleum products;
(b) 200,000 gallons or more for hazardous substances of all kinds; or
(c) An equivalent measure as defined in this section, for hazardous substances which are not commonly measured by volume.
A transmission pipeline is not a major facility; and
(3) "Regulated portion" means the area, portion, or equipment in a major facility or transmission pipeline in which hazardous substances are routinely refined, produced, stored, held, handled, used, processed, or transferred.
d. For any existing structure or facility included under subsection b. of this section, any person who has previously provided reasonable on-site or off-site public access to the tidal waterfront for a particular lot and block pursuant to a permit issued subsequent to November 6, 2006 shall not be required to provide any additional public access or to further enhance public access as a condition for any permit issued pursuant to the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.), R.S.12:5-3, "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.), or any other act after the effective date of this act, except in circumstances when a change in use is proposed to a use that is not listed in subsection b. of this section.
4. (New section) a. Nothing contained in this act shall be construed to:
a. abrogate or otherwise interfere with any previously agreed to public access obligations or requirements in effect prior to the effective date of this act; or
b. supersede the provisions of the "Public Access and Marina Safety Task Force Act," P.L.2008, c.82 (C.13:19-38 et seq.).
5. (New section) The public access obligations or requirements of any person subject to the provisions of R.S.12:5-3 shall be governed by the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
6. (New section) The public access obligations or requirements of any person subject to the provisions of "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.), shall be governed by the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
7. Section 3 of P.L.2008, c.82 (C.13:19-40) is amended to read as follows:
3. There shall be a moratorium on the implementation of the provisions of N.J.A.C.7:7E-3.50, N.J.A.C.7:7E-7.3 and N.J.A.C.7:7E-8.11, as applied to marinas, as such rules and regulations were adopted by the Department of Environmental Protection on December 17, 2007. During the moratorium the Public Access and Marina Safety Task Force established pursuant to section 4 of [this act] P.L.2008, c.82 (C.13:19-41) shall conduct the study required pursuant to section 5 of [this act] P.L.2008, c.82 (C.13:19-42). The moratorium shall expire [on December 31, 2010] two years after the appointment of the members of the task force.
(cf: P.L.2008, c.82, s.3)
8. Section 6 of P.L.2008, c.82 (C.13:19-43) is amended to read as follows:
6. The task force shall submit its report, including its findings and recommendations, to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature [by December 31, 2010] within two years after the appointment of the members of the task force. Copies of the report shall be provided to the public upon request and free of charge, and the report shall be posted on the department's internet website.
(cf: P.L.2008, c.82, s.6)
9. This act shall take effect immediately.
STATEMENT
This bill would provide that, except as otherwise provided in the bill, any person proposing to construct a new structure or facility, make an improvement to an existing facility or structure along a tidal waterway, or perform any other development along a tidal waterway must provide reasonable on-site public access to tidal waterfront and adjacent shoreline or reasonable off-site public access to tidal waterfront and adjacent shoreline whenever on-site public access is deemed infeasible by the Department of Environmental Protection. The person proposing the new development or improvement must also develop a public access plan to be approved by the appropriate local government and the DEP.
The bill requires the DEP to adopt, pursuant to the "Coastal Area Facility Review Act," the Waterfront Development Act, or "The Wetlands Act of 1970" rules or regulations governing the obligation of any person subject to these public access requirements.
Notwithstanding the provisions of the "Administrative Procedure Act," the DEP must adopt an interim rule within six months after the bill's date of enactment that establishes a formula for determining a person's off-site public access obligation or requirement and the procedures by which this formula may be uniformly implemented, which may include a payment by the person into an escrow or other such account to be used for projects conducted by a local government, non-profit organization or other entity approved by the DEP to provide reasonable off-site public access in the region.
The formula must take into account parameters including, but not limited to: (1) the length of waterfront that is the subject of the permit application; (2) the projected estimated cost of constructing a walkway along the waterfront that is the subject of the permit application if a walkway were to be constructed on-site; (3) the width of an easement that would accompany a walkway along the waterfront that is the subject of the permit application if a walkway were to be constructed on-site; and (4) the tax assessed value of the land only, equalized by applying the tax assessment to true value equalization ratio as published yearly by the county tax board.
The DEP must adopt this formula, pursuant to the "Administrative Procedure Act," within one year after the bill's date of enactment. The DEP could not require any person to provide reasonable off-site public access until this formula has been adopted, but could issue permits during that time period with a condition requiring that reasonable off-site public access be provided after the formula has been adopted.
The DEP may require, as a condition of receiving monies from the Shore Protection Fund or Green Acres funds, that the recipient provide reasonable on-site public access to tidal waterfront and adjacent shoreline or reasonable off-site public access to tidal waterfront and adjacent shoreline whenever on-site public access is deemed infeasible by the DEP.
Section 3 of the bill prohibits the DEP from adopting any rule or regulation pursuant to the provisions of the "Coastal Area Facility Review Act," the Waterfront Development Act, "The Wetlands Act of 1970," or any other act, having the effect of mandating on-site or off-site public access to tidal waterfront and adjacent shoreline as a condition of receiving approval of a permit for (1) an activity to upgrade existing facilities performed solely to comply with local, State or federally mandated pollution abatement or public health requirements; (2) activities directly related to the remediation of a contaminated site; or (3) a project solely for repair, rehabilitation or reconstruction of an existing facility, structure, bulkhead or pier, except whenever a new use that requires local land use board approval is proposed.
The bill also prohibits the DEP from adopting any rule or regulation pursuant to the aforementioned acts having the effect of mandating on-site public access to tidal waterfront and adjacent shoreline as a condition of receiving approval of a permit for an improvement to an existing structure or facility that is part of a chemical or metallurgical industrial facility, marine terminal or transfer facility for waterborne cargo, airport, railroad yard or nuclear power plant, or any regulated portion of a major facility regulated pursuant to the "Spill Compensation and Control Act," or any covered process regulated pursuant to the "Toxic Catastrophe Prevention Act".
For any existing structure or facility included under the foregoing, any person who has previously provided reasonable on-site or off-site public access to the tidal waterfront for a particular lot and block pursuant to a permit issued subsequent to November 6, 2006 shall not be required to provide any additional public access or to further enhance public access as a condition for any permit issued pursuant to the provisions of the "Coastal Area Facility Review Act," the Waterfront Development Act, or "The Wetlands Act of 1970," after the effective date of this bill, except in circumstances when a change in use is proposed to a use that is not listed under the existing structures or facilities included in subsection b. of section 3 of the bill.
The bill clarifies that, in addition to the provisions of the "Coastal Area Facility Review Act," the public access obligations or requirements of any person subject to the provisions of the Waterfront Development Act, or "The Wetlands Act of 1970" would be governed by the provisions of the bill.
Nothing contained within the bill may be construed to abrogate or otherwise interfere with any previously agreed to public access obligations or requirements in effect prior to the bill's effective date. Further, nothing contained within the provisions of the bill may be construed to supersede the provisions of the "Public Access and Marina Safety Task Force Act," P.L.2008, c.82 (C.13:19-38 et seq.).
In addition, the bill amends P.L.2008, c.82 to provide that: (1) the moratorium imposed therein would expire two years after the appointment of the members of the task force; and (2) the task force must submit its report, including its findings and recommendations, to the Governor and the Legislature within two years after the appointment of its members, rather than by December 31, 2010.
