N.J. Admin. Code § 7:7-9.23

Current through Register Vol. 56, No. 11, June 3, 2024

Section 7:7-9.23 - Filled water's edge

(a) Filled water's edge areas are existing filled water, wetland, or upland areas lying between wetlands or water areas, and either (a)1 or 2 below, whichever is closer to the water:

1. The upland limit of fill; or

2. The first paved public road or railroad landward of the adjacent water area.

(b) Filled water's edge areas shall be determined through analysis of historic data including United States Department of Agriculture soil surveys, Tidelands maps, or aerial photography. Some existing or former dredged material disposal sites and excavation fill areas are filled water's edge.

(c) The "waterfront portion" is defined as a contiguous area at least equal in size to the area within 100 feet of navigable water, measured from the mean high water line. This contiguous area must be accessible to a public road and occupy at least 30 percent of its perimeter along the navigable water's edge.

(d) On filled water's edge sites with direct water access (that is, those sites without extensive intertidal shallows or wetlands between the upland and navigable water), development shall comply with (d)1 through 3 below unless it is demonstrated that a water dependent use is not feasible on the site in accordance with (e) below. Where it is determined that a water dependent use is not feasible, the site may be developed with a non-water dependent use.

1. Except as provided below, the waterfront portion of the site shall be:

i. Developed with a water dependent use;

ii. Developed with an at-grade deck provided:

(1) The deck is open to the general public;

(2) The use of the deck is water oriented;

(3) The deck is not enclosed; and

(4) A public walkway is provided around the deck landward of the mean high water line at the water's edge; or

iii. Left undeveloped for future water dependent uses;

2. On the remaining non-waterfront portion of the site, provision of additional area devoted to water dependent or water-oriented uses may be required as a special case at locations which offer a particularly appropriate combination of natural features and opportunity for waterborne commerce and recreational boating; and

3. On filled water's edge sites where water dependent and water-oriented uses can coexist with other types of development, a greater mix of land uses may be acceptable or even desirable. In these cases, a reduced waterfront portion, that is, less than that provided by a 100-foot setback, may be acceptable provided that non-water related uses do not adversely affect either access to or use of the waterfront portion of the site.

(e) The Department shall consider the following factors when determining whether a water dependent development is feasible on a filled water's edge site:

1. Length of water frontage on the site and the corresponding area of upland to support a water dependent use on the site;

2. Presence of special areas, such as shellfish habitat, submerged vegetation habitat, intertidal and subtidal shallows, or wetlands between the upland and navigable water that would preclude approval of a water dependent development;

3. Incompatibility of a water dependent development with the surrounding development;

4. Land or water contamination such that construction of a water dependent use will pose an ecological risk or endanger public health; and

5. Conditions uniquely affecting the particular property that result in peculiar and exceptional practical difficulties in the development of a water dependent development, such as the depth of water adjacent to the site, unusual current or other natural conditions, or the ability to obtain authority from the State to use tidelands necessary to support a water dependent use on the site.

(f) On filled water's edge sites without direct access to navigable water, the area to be devoted to water related uses will be determined on a case-by-case basis.

(g) On filled water's edge sites with an existing or pre-existing water dependent use, that is, one existing at any time since July of 1977, development must comply with the following additional conditions:

1. For sites with an existing or pre-existing marina, development that would reduce the area currently or recently devoted to the marina is acceptable if:

i. For every two housing units proposed on the filled water's edge the existing number of boat slips in the marina mooring area, as defined at 7:7-9.10, is increased by one, and at least 75 percent of the total number of slips (existing and new) remain open to the general public. Removal of upland to create slips is acceptable;

ii. Marina services are expanded in capacity and upgraded (that is, modernized) to the maximum extent practicable; and

iii. In-water or off site boat storage capability is demonstrated or upland storage is provided to accommodate at least 75 percent of the marina's boats, as determined by maximum slip capacity, 26 feet in length and longer, and 25 percent of the marina's boats less than 26 feet in length.

2. For sites with an existing or pre-existing water dependent use other than a marina, development that would reduce or adversely affect the area currently or recently devoted to the water dependent use is discouraged.

(h) In waterfront areas located outside of the CAFRA area, the water dependent use may be a public walkway, provided the upland walkway right-of-way is at least 30 feet wide, unless there are existing onsite physical constraints which cannot be removed or altered to meet this requirement.

(i) In the area known as Bader Field, a filled water's edge area located in the City of Atlantic City and described on the 2008 Atlantic City tax duplicate as Block 794, Lot 1, the water dependent use shall be provided in accordance with (d) above or an upland public walkway along the water's edge, no less than 20 feet wide, with a 40-foot-wide right-of-way shall be provided.

(j) The development shall comply with the requirements for impervious cover and vegetative cover that apply to the site under N.J.A.C. 7:7-13.

(k) Along the Hudson River and in other portions of the Northern Waterfront and Delaware River Region, where water dependent uses are deemed infeasible, some part of the waterfront portion of the site may be acceptable for non-water dependent development under the following conditions:

1. The development proposal addresses, as a minimum, past use of the site as well as potential for future water dependent, commercial, transportation, recreation, and compatible maritime support services uses;

2.The developed land uses closest to the water's edge are water oriented;

3. Currently active maritime port and industrial land uses are preserved;

4. Adverse impacts on local residents and neighborhoods are mitigated to the maximum extent practicable; and

5. All other coastal rules are met.

(l) On all filled water's edge sites, development must comply with the lands and waters subject to public trust rights rule, 7:7-9.48, and the public access rule, 7:7-16.9.

(m) The construction of a restaurant at a marina facility is acceptable within the filled water's edge portion of a site provided it meets the standards of 7:7-15.3(d)8.

(n) Rationale: The water's edge along New Jersey's shore, bays and rivers is a highly valued, yet limited, resource. Waterfront locations offer a rare combination of natural features and opportunities for waterborne commerce and recreational boating. Though an estimated 37 percent of the State's 753 miles of shoreline along navigable waterways is filled water's edge, two-thirds of these locations are already developed. The particular requirements for an average sized marina or port facility further narrow the filled water's edge potentially suitable for such development to approximately 3 percent, or 19 miles, of the State's entire water's edge (NJDEP, Policy Assessment 1983).

Filled water's edge areas, though relatively scarce, are less environmentally sensitive than undisturbed water's edge areas. The buffering functions of the water's edge have already been lost through excavation, filling, and the construction of retaining structures. The filled water's edge, therefore, provides the best opportunity for intense use of the waterfront. Accordingly, certain kinds of development are allowed up to the limit of fill.

The rule seeks to promote both the marine trades as an important sector of the State's economy and uses that enhance public access to, and use of, the water's edge. Uses that require a waterfront location in order to function (that is, water dependent uses) and uses that serve the general public and derive economic benefits from a waterfront location (that is, water-oriented uses) are favored over non-water related uses such as housing and offices. These non-water related uses can be situated away from the water. The rule permits the construction of decks for a water oriented use such as a restaurant, with appropriate awnings, seating, food and beverage areas because they serve the general public yet are not such substantial structures that would preclude their removal for a water dependent use.

However, there are situations where the development of a filled water's edge site with a water dependent use is not feasible due to proportion of waterfront to non-waterfront portions of the site, the presence of special areas that would preclude approval of a water dependent development, incompatibility of a water dependent use on the site with the surrounding uses, land or water contamination such that the construction of a water dependent use would pose an ecological risk or endanger public health, and/or other site-specific conditions that result in peculiar and exceptional practical difficulties in the development of a water dependent development. In such cases, development of the site with a non-water dependent use is acceptable.

Since many existing water dependent uses are being lost, or more often, constricted by housing and other non-water related uses, and since few excellent sites remain for recreational and commercial boating, it is desirable to restrict redevelopment of sites currently or recently occupied by a water dependent use. Further, preserving slips open to the general public is necessary to protect the public's common law right to use tidal waters for navigation. Although housing at the water's edge can in some situations ensure the long term viability of a marina, it generates additional boating demand, which further aggravates limited marina space. Accordingly, in defining "Slip open to the general public," slips leased only to owners of associated housing or only to residents of a certain municipality would be excluded, unless any member of the general public could join by paying a reasonable fee. Marinas warrant special attention for several reasons. They benefit the State by attracting tourists and associated revenues and by serving the residents who go boating in New Jersey's coastal waters. Where consolidation of a marina's land based facilities is justified, the existing marinas services and boat slips must be maintained or, where possible, expanded. Upland boat storage is an exception. Upland storage for most (75 percent) of a marina's large boats, which cannot be easily trailered off-site, must be accommodated. However, space for only a small portion (25 percent) of boats that can be trailered off-site for winter storage must be retained.

Along the Hudson River, Delaware River, Raritan River, and Passaic River, and in other portions of the developed urban waterfront, potential for future water dependent and maritime support services is also of concern. On these sites, economic revitalization must be balanced against the need to preserve and provide for water dependent and water-oriented uses.

N.J. Admin. Code § 7:7-9.23

Renumbered from 7:7E-3.23 by 47 N.J.R. 1392(a), effective 7/6/2015

Amended by 50 N.J.R. 361(a), effective 1/16/2018