State Proposes Revisions to Rules Governing Flood-Zone, Coastal Construction

Scott Gurian | June 2, 2015 | Sandy
Critics say changes could make Garden State more vulnerable, but supporters praise reduced bureaucracy

As residents and business owners continue to rebuild more than two-and-a-half years after Sandy, a series of changes to key state regulations governing construction in coastal area and inland flood zones, as well as stormwater management, have been made by the NJ Department of Environmental Protection in a 936-page document released Monday.

The new rules aim to “reduce complexity, correct conflicting regulations, and streamline the permitting process for project applicants while continuing New Jersey’s high standards for flood mitigation and ecological protection of river and stream corridors.”

A statement posted on DEP’s website billed the revisions as “part of the Christie Administration’s ongoing effort to add common sense and predictability to overly burdensome state rules and regulations.”

Critics like NJ Sierra Club Director Jeff Tittel had a different take.

“I’ve done 20 years of work to keep people out of harm’s way, and they’ve just killed all of it,” he said, noting that measures to simplify the building permit process could reduce state oversight and make more people vulnerable to future storms.

“Christie said he wants to eliminate red tape. The problem here is that the red tape he wants to eliminate is protecting people from flooding,” he added.

Others were frustrated that these latest revisions failed to address longstanding discrepancies between certain state building regulations and National Flood Insurance Program rules, potentially putting homeowners at risk if they unknowingly build to the wrong standard.

State officials say they’re open to feedback and criticism — which they’ll accept over the next two months — and that they’ll consider making changes and clarifications before adopting the final version later this summer.

To Vincent Mazzei, the 27-year veteran of the DEP who authored the latest revisions, the mission was to incorporate lessons learned since the last substantial rule update he drafted during the Corzine administration back in 2007 (not including emergency rules that were temporarily adopted after Sandy).

“We could see what worked and didn’t work,” he said. “We could see that there were some areas that we had some room to be more stringent and to clarify things and explain things better. And there were other cases where the rules just didn’t work in a certain area or actually sometimes had an ironic effect and made things worse.”

Based on those observations as well as meetings with stakeholders, Mazzei explained, “We basically adjusted a lot of the standards to make sure that in the real world they work, but at the same time, have the same level of protection that we always intended.”

“We’re not changing our flood zone protection standards at all,” he said. “If anything, we’ve increased it in some cases where we noticed there were some problems before.”

The standards he’s referring to are the Flood Hazard Area Control Act, the Coastal Zone Management rules and the Stormwater Management rules, three state regulations governing construction in flood-prone areas.

With these latest modifications, Mazzei said, the state has sought to reduce paperwork requirements for residents and business owners, in part by making it easier for people to get permits by self-certifying that they’re meeting all the state requirements.

He used the example of his own home — which is built near a river — to demonstrate how the state is using a carrot-and-stick approach to encourage certain behavior.

“If I wanted to put an addition on my house, one side is lawn, and the other side is forested area. If I wanted to build an addition today under the current rule, I would need a permit from the state. And it wouldn’t matter if I was in the grass or the trees,” he said. “There’s no incentive for me to stay in the grass. But this proposal — the way we did it — we created a permit-by-rule that allows a 400 square foot addition to a house as long as you’re on a lawn. So now I have a great incentive to stay on the lawn, because I don’t even need to go to DEP. I don’t need to pay a fee.
All I need to do is show my town building official, ‘Hey, look. I qualify for this permit-by-rule” and I’m good to go.
But if I wanted to cut down the trees and build it on the other side of the house, I’d have to come in to DEP and get a $2,000 permit. I’d have to justify why I’m doing it, and I might have to plant trees somewhere else to offset the trees I’m cutting down. So by making a lot of changes like that in the rules, we’re giving people incentives to stay out of areas that we want to protect.”

But the Sierra Club’s Tittel said the new process raises serious concerns.

“There is no public input, and there is no DEP oversight. And that to me is very troubling in a state that has a history of both corruption and flooding,” he said.

While state officials could potentially catch errors by conducting inspections and audits later on, Tittel explained, “the problem is that you can’t fix the environment after the fact. Once you do something wrong, they’re not going to come after you because then it’s like the DEP picking on a family that wanted a bigger kitchen or something. That’s why you have to do it ahead of time.”

Among his other concerns is a provision that would permit new construction on piers in the Hudson River, similar to a bill Gov. Christie vetoed back in 2013. The measure was sharply criticized at the time by floodplain managers on both the state and national level, who pointed out that such buildings would be extremely vulnerable to flooding, would be in violation of National Flood Insurance Program rules, and could lead to sanctions from the federal government.

But Mazzei said the federal prohibition only applies to buildings in so-called “velocity zones” that are susceptible to waves and surges during storms. As the governor indicated by his veto, the state agrees that that’s a bad idea, he said. What the DEP is proposing here is an exception to permit such construction over areas of the river that are not in federally-declared velocity zones.

Other concerns were expressed by John Miller of the New Jersey Association for Floodplain Management, who worried that the rule changes still fail to address contradictions between state and federal construction standards that became apparent during Sandy recovery efforts. In some cases, state regulations remain out of compliance and set a lower threshold for homeowners than the FEMA rules, he said, creating the potential for confusion among homeowners and the threat of potentially costly mistakes if they build to the wrong standards.

The problem has drawn the attention of FEMA, which most recently sent a letter to DEP Commissioner Bob Martin in April, urging the state to rectify the code discrepancies.

“To ignore FEMA’s repeated letters is kind of blatant to me,” Miller said. “It’s more than disregard. It’s almost like they’re trying to give the message that the federal government doesn’t belong. I don’t think that they have the awareness and the knowledge of how they fit into a larger context. They’re saying, ‘We have a state statute, and our rule is based on that, and we don’t have to be consistent with any federal agency or program.’ And I just think that’s extremely dangerous. It’s something that’s very frustrating to me.”

Mazzei downplayed the concerns, saying that the state has been talking to FEMA and continues to work on a resolution acceptable to both parties. Such resolution can still be adopted at a later date, concurrently with the rest of these amendments, he said.

While Miller and Tittel raised concerns, other interested parties were far more optimistic about what they saw.

The NJ Business and Industry Association (NJBIA) said it was “supportive of the DEPs commitment to streamline regulations that allow for continued economic growth while protecting the environment.”

And the state Builders Association released a statement applauding the revisions. “The proposal is another initiative by the Department to organize, align, and standardize the underlying permitting rules for a significant and complex land use program,” the group said, citing “improvements and efficiencies to the permit submission and review process” and “much needed clarification of technical regulations.”

The rule changes will have a 60-day comment period, including two public hearings, scheduled June 22 in Trenton and June 25 in Long Branch. Comments can be submitted by mail or electronically. The DEP says it will reply to all comments and consider changes and clarifications to all valid points that are raised.