The NJ Department of Environmental Protection has released a Framework of Potential Amendments to Land Resource Protection Rules as part of NJ Protecting Against Climate Threats (NJ PACT). The rules are expected to be formally proposed this spring. The rules would extend DEP authority to areas that are projected to be partially or completely flooded in coming decades due to sea-level rise.

“The DEP has come out with a proposal that is supposed to Protect Against Climate Threats, but it does not. Their plan has enough loopholes for developers to drive bulldozers through. New Jersey is one of the most flood prone and climate impacted states. DEP is strengthening rules and identifying the problems, but they aren’t coming up with the comprehensive rules we need to address the problems. They need to have the ability to look at the coast holistically to determine where they need buyouts or elevations and where people can build. DEP needs the ability to say no to developments, but instead they are proposing a voluntary program,” said Jeff Tittel, Director of the New Jersey Sierra Club. “DEP is doing a good job at identifying risk zones. The biggest problem is that it is still ‘build at your own risk’, so people will still be building in the wrong places and putting people and property at risk. DEP needs the ability to say no in the most vulnerable or flood-prone areas. Otherwise, we’ll all need snorkels.”

In February 2020, the DEP announced a comprehensive effort to modernize New Jersey’s environmental regulations to protect our communities and economy against the threat of climate change. The announcement included developing new greenhouse gas reduction and environmental land use regulations aimed at reducing the impact of climate change and adapting to the climate impacts like sea-level rise.

“When DEP originally made the announcement about a year ago, they said they would regulate climate impacts for land use. None of that is in this proposal. They are not looking at where you build or how developments increase greenhouse gases by cutting down forests or paving over farmland. They also aren’t considering long commutes or stopping developments that aren’t flood-prone but are still environmentally sensitive. They should be focusing developments in areas near train stations and bus stops to help reduce miles traveled and expand mass transit,” said Tittel. “Any land use changes in New Jersey will be attacked by builders and special interests. We need to have rules that will actually be protective so that the public will come out to support them. We need to get these rules passed, but if they aren’t strong enough they won’t have public support.”

The DEP has proposed Climate Adjusted Flood Elevation (CAFE) that could be based on the highest of the following: FEMA’s 500-year flood + 1 ft, DEP’s flood hazard area design flood elevation + 2 ft, or FEMA’s 100-year + 3 ft. The potential amendments would also get rid of the general permit for horizontal directional drilling (HDD) and require an individual permit (IP) instead.

“DEP needs to use real science but instead they are playing political science with people’s lives and their future. They aren’t doing their job if they can’t stand up to special interests and tell the public what we really need to be doing. They are still pushing a ‘build at your own risk’ approach for risk zones. They are giving up their authority under the law to let developers continue to build wherever they want. This undermines resiliency and fails to protect people from climate change and its impacts,” said Jeff Tittel. “These rules are a step forward, but they don’t go far enough. They include mapping the 500-year flood limits and identifying at risk areas. They are also getting rid of horizontal directional drilling (HDD) general permits from the Flood Hazard Rules and Wetlands Rules, and they want to increase minimum buffers for urban wetlands.”

The proposed amendments include increased mitigation requirements for the Wetlands Rules, Flood Hazard Control Act Rules, and Coastal Zone Management Rules. However, this will not work. Mitigation projects in one community will not make up for new developments in a different area.

“DEP still isn’t dealing with local zoning or even fixing CAFRA. The hardship exemption that new buildings in risk zones would require isn’t defined, so DEP could approve almost any new developments. They are also pushing mitigation projects, but you can’t mitigate for a direct impact. This is a trading scheme that won’t work. The DEP’s mitigation plan doesn’t make up for the localized impact. It doesn’t work if you build in Toms River but try to mitigate the risk in Tuckerton or, even worse, Bay Head,” said Jeff Tittel. “CAFRA still includes mitigation projects like seawalls and beach replenishments. Wasting time on these projects will only give people false hope. These projects provide a false sense of security but they just waste money and time and can actually create more flooding.”

The Federal Emergency Management Agency (FEMA) has raised concerns in the past about New Jersey’s Flood Hazard Rules. New Jersey measures base level flood elevation on the first floor itself instead of on the support structures for that floor. The measure between the height of the flood elevation and the bottom of the support of the structure is 2 ft. under federal law. Under New Jersey rules, the distance is up to the first floor therefore putting more homes at risk of flooding.

“These rules aren’t consistent with the National Flood Insurance Act. FEMA recommends that there should be 2 feet of space between top of the flood elevation and the bottom of the support structure for the floor. NJDEP’s rules only require 1 foot, which is a recipe for disaster. This will not only cause more damage, but could jeopardize people saving 1/3 on their flood insurance.  People are spending thousands of dollars to elevate their homes, but if they follow New Jersey standards, they will not save money on flood insurance,” said Jeff Tittel.

In the past, DEP representatives have said that they do not want the agency to tell people where to build. Instead, they want to make developers assess their risk and recognize the risk they are taking. DEP is not saying you cannot build in a future flood-risk area. They’re saying that in a future flood-risk area, you need to at least do what you do now in an existing flood-risk area, which is: assess the risk, and notice that risk. It will forever live in the deed record of that property.

“We are in a climate emergency and we need real action by the Murphy Administration. If developers build at their own risk, we will be putting more people in harm’s way. First responders risking their lives to save those people will also be put in harm’s way. We will have to pay for the infrastructure, the water, gas and flood insurance. Instead, we need to keep buying out flood prone properties, New Jersey must adapt and mitigate,” said Tittel. “The DEP also needs to reverse many rule rollbacks under Governor Christie. This includes the Flood Hazard Rules that were rewritten, removing important protections for headwaters, increasing permit by rules, and letting a permit by certification process increase development in flood-prone areas.”

According to a new report published by Climate Central and Zillow, Recent housing growth rates are faster in ten-year flood-risk zones in a third of all coastal states. This report was updated in July 2019 with new data. New Jersey is developing risk zones more than 2x faster than safer locations and are top 3 for allowing the most homes in risk zones, more than 9,000 since 2010.

“We need a holistic approach to deal with sea-level rise and flooding, but these rules still look at developments site by site. CAFRA hasn’t been updated, and the state is still tying these rules to the state plan which uses 1996 data. They look like they’re going to do mitigation and resiliency projects, but you can’t really mitigate sea-level rise and climate impacts. DEP is also still exempting redevelopment and existing development from stormwater regulations, but we need to be dealing with stormwater now,” said Jeff Tittel, Director of the New Jersey Sierra Club. “Because of climate change, the world has changed and DEP needs to update that change into their regulatory structure. We are dealing with unprecedented weather, unprecedented storms, and unprecedented damage from climate change. This is the time when we have to take the best science and move us forward to deal with climate change.”