NJ DEPARTMENT of ENVIRONMENTAL
LAND USE MANAGEMENT
Notice of Rule Proposal
Coastal Zone Management Rules, N.J.A.C. 7:7
Take notice that the NJ Department of Environmental Protection is proposing amendments in the Coastal Zone Management (CZM) Rules, N.J.A.C. 7:7, at N.J.A.C. 7:7-16.9, Public access. The proposed amendments update several provisions in the Department’s requirements to provide public access to tidal waterways and their shores to address the Superior Court, Appellate Division’s decision in Hackensack Riverkeeper, Inc. and NY/NJ Baykeeper v. New Jersey Department of Environmental Protection, Docket No. A-1752-12T3 (App. Div. Dec. 22, 2015) (“Hackensack”) and subsequent amendments to the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 et seq., and the Waterfront Development Act, N.J.S.A. 12:5-3, effectuated by P.L. 2015, c. 260.
The Hackensack decision called into question the Department’s authority to require public access as a condition of a coastal permit and disputed the consistency of the CZM Rules with the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. While the enactment of P.L. 2015, c. 260 reaffirmed the Department’s authority to require public access under CAFRA and the Waterfront Development Act, the Department has determined that it is appropriate to amend N.J.A.C. 7:7-16.9 in several respects in consideration of the Court’s analysis in Hackensack. Among other changes, the proposed amendments clarify that the submission of a Municipal Public Access Plan (MPAP) is entirely voluntary. While the proposed rules continue to encourage municipalities to coordinate with the Department in planning public access through the adoption of MPAPs, the proposed amendments eliminate any misconception that the rules require municipalities to pursue such planning.
The proposed amendments also eliminate the ability of a municipality to require, as part of an MPAP, a monetary contribution to a municipal Public Access Fund as an alternative to providing onsite or offsite public access. The Appellate Division determined that inclusion of establishment of a dedicated municipal Public Access Fund as a mechanism for local utilization of monetary contributions in lieu of onsite public access in the CZM Rules is beyond CAFRA’s jurisdiction and contrary to the Municipal Land Use Law. As such, all provisions related to the establishment of a municipal Public Access Fund are proposed to be deleted.
The proposal is scheduled to be published in the New Jersey Register dated September 6, 2016. A copy of the proposal is available at http://www.nj.gov/dep/rules/proposals/20160906a.pdf and from LexisNexis free public access to the New Jersey Register, www.lexisnexis.com/njoal.
A public hearing concerning the proposal is scheduled as follows:
Wednesday, September 28, 2016 at 6:00 P.M.
Long Branch Municipal Building
Council Chambers, 2nd Floor
Long Branch, NJ 07740
Submit written comments by November 5, 2016 electronically at http://www.nj.gov/dep/rules/comments. The Department encourages electronic submittal of comments. In the alternative, comments may be submitted in hard copy to:
Gary J. Brower, Esq.
ATTN: DEP Docket No. 07-16-07
NJ Department of Environmental Protection
Office of Legal Affairs
Mail Code 401-04L
401 East State Street, 7th Floor
PO Box 402
Trenton, NJ 08625-0402