TRENTON – In January 2020, Gov. Phil Murphy issued Executive Order No. 100, directing the state Department of Environmental Protection (DEP) to incorporate concerns for climate change and sea level rise into its regulatory structure.
The regulations should “integrate climate change considerations, such as sea level rise and chronic flooding,” as well as “prevent further increase of harmful greenhouse gas emissions and other climate pollutants” that could impede the state from reaching its clean energy goals.
On the same day, DEP Commissioner Catherine McCabe issued an administrative order, directing her agency to produce several climate change reports and begin incorporating climate change projections into the DEP’s land use permitting rules. The result is New Jersey Protecting Against Climate Threats (NJPACT).
Two years later, the public can get a better picture of NJPACT’s changes to land use regulations and their likely impact on development.
A quick look at some of the proposed regulations highlight the magnitude of the changes.
New Inundation Zones
The new NJPACT regulations rely heavily on the 2019 Rutgers University Science and Technical Advisory Panel (STAP) Report that projects a 17% probability that sea level rise in New Jersey will exceed 5.1 feet by 2100. Based on the projections in STAP, the DEP is seeking to establish an inundation risk zone (IRZ) by adding 5 feet to the mean high water elevation.
Today, much of this proposed zone consists of dry land, which the DEP expects to be flooded by tidal waters by 2100. Development, including redevelopment, within the new expansive zone, will be subject to stricter standards than what now exists.
The proposed regulatory changes are based on an 80-year sea level rise projection. As such, the regulations are at odds with the much shorter 20- to 30-year horizons that govern the municipal land use master plans.
Elevation requirements will change, with new and substantially redeveloped residential structures required to construct to 1 foot above the climate-adjusted flood elevation level.
Most roadway construction in the expanded inundation zones will require a hardship exception accompanied by a climate impact statement.
Under NJPACT, the rulemaking relies on future projected expectations of sea level rise rather than past flood event information. The regulations can change based on projections that are likely to make them less friendly to development.
Tidal Flood Hazard Zones
Federal Emergency Management Agency’s (FEMA) current methodology for calculating the existing tidal floodplain would be changed by NJPACT. The FEMA calculations are based on past flood events and thus do not fit with a NJPACT approach that places emphasis on projections of a rapidly altering climate.
The DEP proposals would adjust FEMA’s 100-year floodplain, so that it better approximates rising sea level projections, which requires a redefinition of the tidal and fluvial flood hazard domains.
Under these changes, first floor elevations in residential structures will need to rise to levels that are problematic for the existing size of buildable lots. New roads would be required to meet climate adjusted flood elevation, plus 1-foot regulations.
So Much More
The reach of the proposed rule changes stretches over many other areas, as well.
NJPACT regulations alter stormwater rules, Coastal Area Facility Review Act (CAFRA) and wetland permitting, and potentially new links between the Hazard Area Control Act rules and the National Flood Insurance Program (NFIP), making permitting reliant on minimum NFIP standards.
Mitigation in all land use permitting programs will require formal incorporation of future climate change considerations, the projections of which will themselves be subject to change.
What’s Missing?
One thing lacking in the DEP approach is an examination of the social and economic impacts likely to result from the regulatory overhaul.
In Cape May County, coastal development regulations have a direct and fundamental impact on the county’s economy.
The process underway may be transformative and the right balanced methodology for regulatory change is essential. The DEP is pushing forward with regulatory changes in advance of making public the state’s Coastal Resilience Plan, a document that the DEP website promises will “create consistent guidance.”
The plan’s goal, according to DEP, is “to inform and guide priorities, policies, regulations, resource allocations and funding in the coastal zone to reduce the impacts of coastal hazards.”
Yet, the regulations are being defined in advance of providing the public with access to the plan that should be guiding those regulations.
Given the potentially significant impacts of the proposed regulations, it is important to note that the sweeping regulatory changes are not mandated by legislation and are a direct result of an executive order.
To contact Vince Conti, email vconti@cmcherald.com.
