New Jersey-2010-ACR137-Introduced

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 General Assembly of the State of New Jersey (the Senate concurring):

1. Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey provides that the Legislature may review any rule or regulation adopted or proposed 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. The Legislature enacted the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.), R.S.12:5-3, commonly known as the Waterfront Development law, and "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.) without establishing, as a condition of a permit issued pursuant to those laws, that access to the tidal waterways and their adjacent shoreline be provided.

3. On November 6, 2006, the Department of Environmental Protection proposed amendments to the Coastal Zone Management rules, N.J.A.C.7:7E-1.1 et seq., to expand opportunities for the public to access the tidal waterways and their adjacent shoreline in the areas of the State subject to the jurisdiction of the "Coastal Area Facility Review Act," R.S.12:5-3, or "The Wetlands Act of 1970."

4. The department subsequently adopted the amendments to the Coastal Zone Management rules, effective December 17, 2007. The rules require, as a condition of any permit issued pursuant to the authority of the aforementioned acts that an applicant provide on-site, permanent, unobstructed public access to the tidal waterways and their adjacent shoreline at all times, including both physical and visual access. The rules also require that certain facilities that must restrict access for security purposes acquire off-site tidal waterfront property as a condition of obtaining a permit pursuant to those acts.

5. The "Coastal Area Facility Review Act," R.S.12:5-3, and "The Wetlands Act of 1970," do not provide the department with the statutory authority to require, as a permit condition, public access to the tidal waterways and their adjacent shoreline or that off-site access to tidal waterfront and their adjacent shoreline be provided.

6. For the above reasons, the Legislature therefore finds that the Department of Environmental Protection rules and regulations adopted at N.J.A.C.7:7E-1.1 et seq. as they pertain to the requirement of requiring public access to the tidal waterways and their adjacent shoreline are not consistent with the intent of the Legislature as expressed in the "Coastal Area Facility Review Act," R.S.12:5-3, or "The Wetlands Act of 1970."

7. 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.

8. 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 rules and regulations adopted at N.J.A.C.7:7E-1.1 et seq. or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.

STATEMENT

This concurrent resolution embodies the finding of the Legislature that the adopted regulations of the Department of Environmental Protection (DEP) at N.J.A.C.7:7E-1.1 et seq. as they pertain to requiring public access to the tidal waterways and their adjacent shoreline are not consistent with the intent of the Legislature as expressed in the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.), R.S.12:5-3, commonly known as the Waterfront Development law, or "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.).

In 2007, the DEP adopted, under its authority to issue permits pursuant to the "Coastal Area Facility Review Act," R.S.12:5-3, and "The Wetlands Act of 1970," rules and regulations at N.J.A.C.7:7E-1.1 et seq. requiring, as a condition of a permit issued pursuant to those laws, that access to the tidal waterways and their adjacent shoreline be provided. The rules require, as a condition of any permit issued pursuant to the authority of the aforementioned laws that an applicant provide on-site, permanent, unobstructed public access to the tidal waterways and their adjacent shoreline at all times, including both physical and visual access. The rules also require that certain facilities that must restrict access for security purposes acquire off-site tidal waterfront property as a condition of obtaining a permit pursuant to those laws.

The "Coastal Area Facility Review Act," R.S.12:5-3, and "The Wetlands Act of 1970" do not provide the department with the legal authority to require, as a permit condition, public access to the tidal waterways and their adjacent shoreline.

The Commissioner of Environmental Protection will have 30 days to amend or withdraw the rules and regulations, or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.