DEP official defends land-use plan against attack by business group

Official says state must protect public from climate change effects, rejects criticism that potential rules are ‘fundamentally flawed’
Credit: (AP Photo/Mike Groll, File)
DEP official says state has an obligation to plan for higher seas and bigger storms even if that means it will be harder to build in flood-prone areas in future. In this Oct. 30, 2012 file photo, a firehouse is surrounded by floodwaters in the wake of Superstorm Sandy in Hoboken.

A top environmental official defended a preliminary outline of new regulations designed to better protect New Jersey’s land and property from the effects of climate change, saying the state has an obligation to plan now for higher seas and bigger storms even if that means it will be harder to build in flood-prone areas in future.

Shawn LaTourette, deputy commissioner at the Department of Environmental Protection, said the DEP has a responsibility to extend its authority over areas that are expected to be partially or completely flooded in coming decades, according to widely accepted forecasts by climate scientists.

In an interview with NJ Spotlight News on Tuesday, he rejected accusations by a leading business organization that the potential rules would damage the economy by making it harder to develop flood-prone areas, and are based on sea-level rise forecasts that are too far in the future to be credible now.

LaTourette was commenting on a so-called road map that will underpin regulations on land use, as part of a process called Protecting Against Climate Threats (NJ PACT). The rules will implement an executive order by Gov. Phil Murphy and are expected to be formally proposed in spring next year.

Ray Cantor, vice president of government relations at the New Jersey Business & Industry Association criticized the plan as “fundamentally flawed” and economically damaging.

New flooding ‘Risk Zone’

Among other things, the rules would establish a new Inundation Risk Zone under which significant areas of the Atlantic and Delaware Bay shores would be flooded daily or permanently by the end of century because of seas that Rutgers University scientists have forecast will be 5 feet higher than they were in 2000. By 2050, seas are predicted to rise by about 2 feet.

In the Risk Zone, new buildings would require a “hardship exemption” under which applicants for a building permit would have to prove that there is no other reasonable use for the site and that preventing construction would constitute an exceptional and undue hardship. Existing homes in the zone that are substantially damaged or need construction would have to be elevated a foot above a new standard called the Climate Adjusted Flood Elevation (CAFE), while non-residential and non-critical buildings would have to be flood-proofed if elevation is impractical. The DEP defines “substantial” as that which would cost at least 50% of the market value of the building.

In tidal areas, the CAFE standard would be 5 feet above the level set by the Federal Emergency Management Agency for a 100-year storm — that which has a 1% chance of occurring in any given year. The state is proposing the new standard to anticipate future climate effects, replacing the widely criticized federal standard that is based on a historical pattern.

The document was presented to an online meeting of about 200 stakeholders on Dec. 22. The meeting included a presentation by the DEP’s Deputy Assistant Commissioner for Watershed and Land Management, Vincent Mazzei, who said the possible rule changes could increase the floodplain area to as much as 45% of the state’s land.

Growing the floodplains

“As a result of climate change, existing floodplains have already grown and this trend will continue,” Mazzei said in a statement released by the DEP on Tuesday. “To help New Jersey residents and businesses more effectively respond to the current and future risks of climate change, the rule amendments being developed by DEP could extend flood hazard areas by under 5 percent, bringing added protections to vulnerable areas of the state.”

Cantor of the New Jersey Business & Industry Association, said, “We’re going to take an area that is not flooding now and regulate it as if it does, and prevent development in that area,” adding, “You’re going have areas that have never flooded before and may not flood in 50 years being denied permits or being told to elevate their structures.”

He argued that the plan is “fundamentally flawed” by being based on a sea-level rise forecast by the Rutgers panel that calculates only a 17% probability of sea-level rise of 5.1 feet from the 2000 level, assuming moderate global carbon emissions.

“We accept climate change is happening but the prediction of what’s going to happen in the future is still highly speculative,” he said. “It’s not hard science; the longer out you go, the less certain those projections are.”

Decisions that should not be left to bureaucrats?

What DEP appears to be proposing, Cantor argued, is a retreat from flood-prone areas like Hoboken or Atlantic City, and if any such seismic change is ever necessary, it should be required by the Legislature “rather than in a backroom by bureaucrats at the DEP.”

But LaTourette rejected the argument that making it harder to build in future flood zones would be economically damaging. In fact, he said, property owners could enhance values if they can show that they have conformed with new rules requiring a higher degree of protection against rising waters.

“There’s nothing about this proposal that diminishes our ability to have robust economic development; quite the contrary,” he said. “Folks in the development community can say they have a value proposition to their clients. They can say, ‘We’ve looked at the risks in the long term, and you can feel confident buying a new home from us.’”

Despite the potential new restrictions on coastal development, the DEP will not be telling people where they can and cannot build houses, LaTourette said.

“It does not mean, absolutely no way you can’t build in that area; it means that you have to meet certain standards,” he said. “We’re going to help people protect themselves, their assets and each other from what the future risks are.”

He rejected the attacks by the business community, saying DEP has a responsibility to protect the whole state.

Anticipating ‘a major battle’

“There are some, because they are concerned with a shorter risk-profit paradigm, might think that any additional requirement is just another step too much,” he said. “But our job is to protect everyone and our natural resources, and so perpetuating an environment in which we go for the lower bar effectively displaces future risk on someone else.”

Tim Dillingham, executive director of the New Jersey-based American Littoral Society, said the proposals in the framework document are firmly rooted in environmental laws including the Coastal Area Facility Review Act and the Flood Hazards Control Act, which give the DEP broad authority to protect public health and welfare by setting the potential new regulations.

“The state is on very firm ground; they clearly have both the responsibility and the obligation to anticipate what flooding looks like in the future,” said Dillingham, who has participated in the DEP’s stakeholder process, and attended the Dec. 22 meeting.

The new rules would also cover nature-based responses to climate change such as dunes to defend coastlines from higher seas, and coastal marshes to absorb their impact — both of which are examples of the measures advocated by his group, Dillingham said.

New Jersey Sierra Club director Jeff Tittel welcomed the expansion of flood zones and increased protection for wetlands proposed in the document, but predicted that the new rules will be strongly contested by parties opposing new development restrictions.

“Any time you try to change land use in New Jersey, it’s going to be a major battle,” he said.

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