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