In written testimony prior to a joint environment committee hearing scheduled for Wednesday, NJBIA is urging the Legislature to invalidate controversial NJDEP Land Use rules adopted on Gov. Phil Murphy’s last day in office because they are overly burdensome and inconsistent with legislative intent.

The Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee will host a discussion meeting on the DEP’s Resilient Environment and Landscapes (REAL) Rules on Wednesday.

The hearing comes as an increasing number of lawmakers and local officials from both sides of the political aisle have called for the rules to be rescinded or greatly reduced.

Additionally, a bipartisan resolution to repeal the DEP rules based on them being inconsistent with legislative intent was introduced last month by Senate President Nicholas Scutari.

“DEP, under a previous administration, chose a regulatory standard that is going to cost people significant amounts of money and will likely drive some people from their long-held homes and business,” said NJBIA Deputy Chief Government Affairs Officer Ray Cantor.

“The selection of such an extreme flood standard, far beyond what the federal government or any other state has proposed, seems intended to be the first step in DEP’s previously announced desire to start a managed retreat from the Jersey Shore.

“Respectfully, we believe that such a major policy decision should be made by this body, by elected officials, not by a few regulators who sit in their offices on the seventh floor at 401 East State Street,” Cantor said.

The REAL rules, among hundreds of other costly and cumbersome provisions within their 1,200 pages, call for new and some renovated homes in expanded flood zones to build 4 feet above FEMA standards.

In his testimony, Cantor, with decades of land use law experience both in and out of the state DEP, explained NJBIA’s support of a standard that is 2 feet above federal standards would have “been the most protective sea level rise standard of any state in the nation.”

“Unfortunately, the DEP went in a different direction and proposed and adopted an unworkable, extreme sea level rise and flood regulatory standard that if left in place will harm our economy and our residents without providing any meaningful protection from rising sea levels,” he said.

The DEP, under the Murphy administration, initially proposed a 5-foot increased flood standard. It’s based on the most conservative standard on a 2019 STAP report by Rutgers University, a projection of sea level rise based only at a 17% confidence level.

Cantor noted that the STAP report, by its own language, was aimed to be “policy-relevant, not policy-prescriptive.”

“The report does not make recommendations about how decision makers should use projections,” he said.

“This is not how regulatory standards are or should be set. We cannot set standards to cover every possibility even if we don’t have firm scientific evidence to support its occurrence. If we did this across regulatory programs, nothing would ever get done because the standards would be too stringent.

“Regulatory standards need to be reasonable, based on things that are likely to happen, not on what can’t be ruled out,” Cantor said.

The joint hearing is scheduled for 11 a.m. on Wednesday.

On top of the growing number of lawmakers and officials protesting the rules, NJBIA and the New Jersey Builders Association last month announced a legal appeal with the state’s Appellate Division of Superior Court on the rules.

Said Cantor: “Why do we care so much about this rule? It is simple. Real people, real businesses, and real communities will be impacted.

“There will be people who won’t be able to build their homes, businesses who won’t be able to locate down the Shore or rebuild to meet current economic needs.  There will be businesses and homes that will need to buy flood insurance who never have before.  Many of these properties are not currently in federal flood zones and likely will not flood this century.

“There will be families who have owned their homes for generations, who will find it impossible to raise their houses to meet the new regulatory standards.  There will be elderly or disabled people who will not be able to access homes built an additional 4 feet above existing base flood elevations.

“Rather than set up a system of retreat, we should focus on systems of resilience,” Cantor said.

To see Cantor’s full written comments, click here.