Bill Text: NJ S1236 | 2010-2011 | Regular Session | Introduced
Bill Title: Prohibits DEP from mandating public access to tidal waterfront areas adjacent to critical infrastructure or requiring the purchase or improvement of off-site locations for this purpose.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2010-02-08 - Introduced in the Senate, Referred to Senate Environment and Energy Committee [S1236 Detail]
Download: New_Jersey-2010-S1236-Introduced.html
Sponsored by:
Senator ANDREW R. CIESLA
District 10 (Monmouth and Ocean)
Senator JEFF VAN DREW
District 1 (Cape May, Atlantic and Cumberland)
SYNOPSIS
Prohibits DEP from mandating public access to tidal waterfront areas adjacent to critical infrastructure or requiring the purchase or improvement of off-site locations for this purpose.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning public access to tidal waterfront areas adjacent to critical infrastructure, and supplementing P.L.1973, c.185.
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 coastal permit program rules 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 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, and "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.); and the proposed amendments 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 amendments to the regulations, which were adopted on December 17, 2007, would require, as a condition of any permit issued by the department pursuant to the authority of the "Coastal Area Facility Review Act," the Waterfront Development Act or "The Wetlands Act of 1970" 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 the amendments would apply the requirement to all existing military installations, industrial facilities, including chemical manufacturing facilities, commercial ports and harbors, including international container ports, and energy facilities, including nuclear and fossil-fired power plants;
c. Many existing facilities affected by the regulations 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, energy and port facilities by restricting access to such facilities and adjacent waters;
d. The regulations seek to balance these interests by demanding operators of such facilities applying for a permit pursuant to the "Coastal Area Facility Review Act," the Waterfront Development Act or "The Wetlands Act of 1970" acquire off-site tidal waterfront property and construct restrooms, parking areas and other amenities for the public's enjoyment; and the amendments effectively demand that military, industrial, energy and port facilities provide off-site public access to the tidal waterfront as a condition of obtaining permits necessary to replace bulkheads, repair docks and otherwise maintain their existing facilities; and
e. Existing military, industrial, energy and port facilities presently provide innumerable public benefits, including but not limited to, State and local taxes 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, energy 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, energy 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 regulations 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 the "Coastal Area Facility Review Act," the Waterfront Development Act or "The Wetlands Act of 1970."
2. 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.), the Waterfront Development Act, 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 public access to tidal waterfront and adjacent shoreline at existing military, industrial, energy 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, energy or port facility.
3. This act shall take effect immediately and shall apply to any applicable rule or regulation adopted by the Department of Environmental Protection on or after September 1, 2007.
STATEMENT
This bill would prohibit the Department of Environmental Protection (DEP) from mandating public access to tidal waterfront areas adjacent to critical infrastructure or requiring the purchase or improvement of off-site locations for this purpose.
On November 6, 2006, the DEP proposed amendments to the coastal permit program rules 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 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, and "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.).
The proposed amendments were adopted on December 17, 2007 and would require, as a condition of any permit issued by the DEP pursuant to the authority of the aforementioned acts 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. The requirements would apply to all existing military installations, industrial facilities, including chemical manufacturing facilities, commercial ports and harbors, including international container ports, and energy facilities, including nuclear and fossil-fired power plants.
Many existing facilities affected by the regulations 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.
Since 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, energy and port facilities by restricting access to such facilities and adjacent waters, this bill would prohibit the DEP from mandating public access to tidal waterfront areas adjacent to critical infrastructure or requiring the purchase or improvement of alternative off-site locations.
