New Jersey Passes Strong Coastal Protection Legislation

On June 20, 1973, New Jersey Governor William Cahill signed into law the Coastal Area Facility Review Act,¹ a strong coastal zone protection measure designed to control industrial development along the Jersey coast. According to the terms of the law, permits must be issued by the State Commissioner of Environmental Protection before any industrial facilities may be constructed in the coastal area. Praised by its principal sponsor Assembly Speaker Thomas H. Kean as "an enormous step toward developing comprehensive, long-range planning for the orderly growth" of the coastal region, the Act authorizes the Commissioner to stop construction with might jeopardize "the delicately balanced environment of that area." The law is scheduled to take effect ninety days from the date of enactment.

The Act defines the coastal area as encompassing one-seventh of the state, ranging from Raritan Bay down through most of the Delaware Bay section. Conspicuously absent from this definition is the highly industrialized northern half of the state, exempted because of the advanced deterioration of its environment.

Under the Act neither manufacturing plants nor housing developments of twenty-five dwelling units or more [3 ELR 10129] may be constructed in the designated area without prior application for a permit to the State Commissioner of Environmental Protection, who is empowered to issue or deny permits according to the projected effect of the proposed construction of the environment. On-site construction of facilities already in process prior to the effective date of the Act are not affected by the law.

An application for a permit to construct a manufacturing plant or a large housing development must include an environmental impact statement which describes existing environmental conditions, the probable effect on the environment of the project to be undertaken, unavoidable damage to the environment, and measures to be taken which would minimize environmental damage. Within sixty days after the application has been found to be complete by the Commissioner, a public hearing must be held to provide an opportunity for interested parties to present their positions regarding the application and information related to the environmental impact of the proposed construction. After reviewing all applications and related information presented at public hearings, the Commissioner may then issue a permit only if the proposed construction conforms with air, water and radiation emission standards, provides for an efficient method of waste disposal and poses minimal harm to the environment.

The Act also creates a Coastal Area Review Board, which is empowered to hear appeals from the decisions of the Commissioner. The Coastal Area Review Board must consist of three voting members — the Commissioner of Environmental Protection, the Commissioner of Labor and Industry, and the Commissioner of Community Affairs, or their appointed representatives.

Finally, the Act directs the State Commissioner of Environmental Protection to prepare a comprehensive environmental plan for the coastal region within four years. The plan must indicate those areas along the coast suitable for the development of industrial and residential facilities, "depending on the sensitivity and fragility of the adjacent environment to the existence of such facilities."

Hailed as an important new approach to environmental protection and land use management, the Coastal Area Facility Review Act does not, according to its principal sponsor, set a precedent of encroaching upon local jurisdiction. In more and more instances, Kean states, it has been necessary for the state to enact legislation concerning problems usually reserved for the jurisdiction of local governments under the principle of home rule. During a hearing on the bill before the Committee on Air and Water Pollution and Public Health on December 11, 1972, Kean emphasized the inadequacy of local environmental protection measures, citing as evidence the "keen competition which existed between municipalities to lure the ever-larger tax ratables represented by industrial facilities." The result of local mismanagement, he concluded, was unrestrained industrial development and the devastation of much of the Jersey coast: "Phrases such as 'dead sea' and 'salt water dumps' have become accepted terminology in describing the waters of the Atlantic Ocean off the New Jersey coast."

The original form of the Act² closely resembled coastal protection legislation passed by Delaware in 1971.³ Like the Delaware Coastal Zone Act, the earlier bill (A-722) proposed outright prohibition of heavy industry, which is defined as manufacturing plants utilizing smoke stacks, fuel storage tanks, distillation or reaction columns, chemical processing equipment, scrubbing towers, pickling equipment, or sumping and waste treatment lagoons. And like the Delaware law, the original legislation also contained a ban on off-shore bulk product transfer facilities.

The enacted legislation also differs from its initial form in three other respects. First,it omits the provision creating a three-member Coastal Area Protection Board to consider applications for permits. Second, whereas the earlier bill divided the coastal area into three different zones, each subject to different land use regulations, the act as passed establishes a single area and standard. Lastly, the final form of the legislation delineates inland boundaries differently from the original version. A-722 defined the coastal area's inland boundaries as the line of ten-foot mean-high tide, later discovered to be very difficult to determine accurately. Instead, the enacted legislation designates roadways along the coasts as the inland boundaries.

Despite this metamorphosis from the original coastal protection measure, the new Coastal Area Facility Review Act, along with the Delaware Coastal Zone Act, remain unique along the East coast for stringent regulation of land use and protection of state beaches, hub of a lucrative tourist industry. Both the New Jersey and the Delaware Acts stand as models to be emulated by other Eastern seaboard states concerned with protecting beaches increasingly threatened by uncontrolled industrial and residential development.

1. P.L. 1973, Chapter 185; 1972 Assembly No. 1429.

[Editors note. Because a generous portion of the statute is devoted to the geographical delineation of coastal area boundaries, only significant sections of the Act are printed below]:

5. No person shall construct or cause to be constructed a facility in the coastal area until he has applied for and received a permit issued by the commissioner; however the provisions of this act shall not apply to facilities for which on-site construction, including site preparation, was in process on or prior to the effective date of this act.

6. Any person proposing to construct or cause to be constructed a facility in the coastal area shall file an application for a permit with the commissioner, in such form and with such information as the commissioner may prescribe. The application shall include an environmental impact statement as described in this act.

7. The environmental impact statement shall provide the information needed to evaluate the effects of a proposed project upon the environment of the coastal area.

The statement shall include:

a. An inventory of existing environmental conditions at the project site and in the surrounding region which shall describe air quality, water quality, water supply, hydrology, geology, soils, topography, vegetation, wildlife, aquatic organisms, ecology, demography, land use, aesthetics, history, and archeology; for housing, the inventory shall describe water quality, water supply, hydrology, geology, soils and topography;

b. A project description which shall specify what is to be done, during construction and operation;

c. A listing of all licenses, permits or other approvals as required by law and the status of each;

d. An assessment of the probable impact of the project upon all topics described in a.;

e. A listing of adverse environmental impacts which cannot be avoided;

f. Steps to be taken to minimize adverse environmental impacts during construction and operation, both at the project site and in the surrounding region;

g. Alternatives to all or any part of the project with reasons for their acceptability or nonacceptability;

h. A reference list of pertinent published information relating to the project, the project site, and the surrounding region.

10. The Commissioner shall review filed applications including the environmental impact statement and all information presented at public hearings. He shall issue a permit only if he finds that the proposed facility:

a. Conforms with all applicable air, water and radiation emission and effluent standards and all applicable water quality criteria and air quality standards.

b. Prevents air emissions and water effluents in excess of the existing dilution, assimilative, and recovery capacities of the air and water environments at the site and within the surrounding region.

c. Provides for the handling and disposal of litter, trash, and refuse in such a manner as to minimize adverse environmental effects and the threat to the public health, safety, and welfare.

d. Would result in minimal feasible impairment of the regenerative capacity of water aquifers or other ground or surface water supplies.

e. Would cause minimal feasible interference with the natural functioning of plant, animal, fish, and human life processes at the site and within the surrounding region.

f. Is located or constructed so as to neither endanger human life or property nor otherwise impair the public health, safety, and welfare.

g. Would result in minimal practicable degradation of unique or irreplaceable land types, historical or archeological areas, and existing scenic and aesthetic attributes at the site and within the surrounding region.

The full text of the Act is available through ELR Digest Facsimile Service, Digest [11-A].

2. 1972 Assembly No. 722.

3. ELR 43015, Ch. 175, Vol. 58 Laws of Del. (June 28, 1971), adding 7 Del. Code §§ 7001 et seq.