CSG Law Alert: Senate Environment and Energy Committee Passes S-1074 (1R)

In the latest chapter on the issue regarding public access to beaches and waterfronts, on February 5, 2018, the Senate Environment and Energy Committee passed a bill that attempts to codify public access requirements as it applies to NJDEP coastal permitting programs. S-1074 (1R) sponsored by Senators Smith and Bateman, requires that NJDEP issue any permits, approvals, administrative actions or consent decrees under the Coastal Area Facilities Review Act (CAFRA), the Wetlands Act of 1970 (Coastal Wetlands Act), the Flood Hazard Area Control Act or the Coast Zone Management Act consistent with the public trust doctrine. In sum, any party taking action pursuant to these coastal programs that provides for a change in the existing footprint of a structure, or a change in use of the property, must review the existing public access to tidal waters and adjacent shorelines and require that additional public access be provided.

If enacted, the bill would also amend the Municipal Land Use Law to require municipalities to include, as part of their master plan, a public access plan for tidal areas and adjacent shorelines. The bill would require a public access to inventory public access points and facilities (i.e., parking, boat ramps, etc.); assess the need for additional public access; include a statement of goals and administrative mechanisms to ensure that access will be permanently protected; and provide strategy and implementation schedule addressing forms of access necessary to satisfy the municipality’s need. These provisions would codify NJDEP’s prior efforts to provide for planning at the municipal level. After a significant stakeholder process, NJDEP adopted Public Access Rule amendments in 2012 providing for municipalities to adopt Municipal Public Access Plan as a mechanism to determine public access requirements. Those provisions were struck down by the Appellate Division in 2015 being considered beyond the scope of both the “public trust doctrine” and current law.

Notably, the bill provides certain exemptions for facilities that are subject to certain site security or safety situations. The excluded facilities include the following: (1) facilities required to submit a facilities security plan under the “Maritime Transportation Security Act of 2002;” (2) facilities required to develop and adhere to a transportation security plan for hazardous materials pursuant to the regulations adopted by the federal Pipeline and Hazardous Materials Safety Administration; (3) facilities required to participate in the US Department of Homeland Security’s Chemical Facility Anti-Terrorism Standards program; (4) facilities located at any airport, railroad yard or nuclear power facility; or (5) facilities requiring exclusion of the public for security reasons pursuant to rules issued by the New Jersey Office of Homeland Security and Preparedness.

After being referenced by the Senate Environment and Energy Committee, S-1074(1R) has been referred to the Senate Budget and Appropriations Committee.

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