TRENTON – Gov. Phil Murphy signed Executive Order 100, in January 2020, calling for “Sweeping Regulatory Reform to Reduce Emissions and Adapt to Climate Change.”
The state Department of Environmental Protection (DEP) is close to releasing amendments to state regulations under its Protection Against Climate Threats (PACT) initiative.
The effort is creating controversy in the state’s business community, where counter studies claim the state is relying on outlier data and pushing unnecessary adaption rules that will harm the economy.
The DEP said its approach is “targeted regulatory reforms focused on increasing resiliency through the state.”
Vincent Mazzei, assistant commissioner for Watershed and Land Management, DEP, said, “Responsible development today will result in savings in the long term.”
Much depends on what the price is to be paid today in return for the prospect of long-term savings.
The Climate Forecast Applications Network (CFAN), a consulting company that developed an opposing report, said the price is too high and based on misguided science.
In its report commissioned by New Jersey Business and Industry Association (NJBIA), CFAN said New Jersey is basing its amended regulations on Rutgers sea–level projections that are at odds with those of the intergovernmental panel of the United Nations.
“Reliance on an outlier perspective on sea-level rise scenario outcomes from a single research group does not provide a sound basis for adaptation decision making,” the report states.
What is the DEP Doing?
The DEP said it is developing regulatory standards that are commensurate with the anticipated level of risk produced by climate change. The agency maintains that new proposed land use rules will reflect science and consider future conditions informed by it.
The framework for DEP amended regulations takes in stormwater management, flood mitigation, the protection of critical infrastructure, renewable energy, and the use of nature-based solutions to protect endangered wetlands and defend against sea-level rise.
In a presentation to the Cape May County Chamber of Commerce, Mazzei said the rule changes would establish a new regulatory area in the inundation risk zone, redefining the tidal flood hazard zone and the fluvial flood hazard areas.
It is here that CFAN’s study has its greatest criticism of the DEP effort.
The DEP is relying on its commissioned Rutgers study, from which the agency elected to center these new definitions on a projection of sea-level rise of 5.1 feet by 2100.
The impact of added 5.1 feet to the elevation of the mean high water mark increases significantly the areas that will be subject to more protective standards. This, according to Mazzei, adds 5 feet to the Federal Emergency Management Agency’s (FEMA) 100-year flood elevation levels.
The NJBIA argues that reliance on the one projection in the Rutgers study means that coastal adaption may be “prematurely forced” into unnecessary, expensive and disruptive directions.
DEP planning continues to expand, with prospective changes to erosion hazard areas and new requirements for pre-storm activities on beaches. Mazzei said future proposed mitigation projects would have to contemplate changing climate to determine their viability.
He envisions expanding the definition of regulated water to include new areas, placing riparian zones on the non-oceanfront side of barrier island complexes, and adding concerns for wetland impacts beyond current criteria.
Stormwater management rules, Mazzei said, would require onsite water retention to reduce offsite pollution. Also, stormwater management rules would be added to freshwater wetlands permit requirements for major developments.
The agenda is ambitious and likely to come with significant impacts for coastal development.
Is Legislation Required?
For Cape May County, the DEP proposals will force major adaption.
The use of 5.1 feet, as a measurement criterion, produces a larger projected inundation zone, the difference between the current shoreline and the future shoreline. It would place a larger area of the county in future flood zones.
DEP’s choice of 5.1 feet was selected because, as Mazzei said, the state “cannot afford to miss the mark and leave its citizens too exposed to climate risk.”
While Mazzei sees “ugly things on the horizon,” some state business associations see them now.
When asked how the DEP could impose such sweeping changes based on an executive order, Mazzei replied that the PACT rulemaking falls within the agency’s existing authority, under the Flood Hazard Area (FHA) Control Act. The DEP said it does not require enabling legislation.
Rulemaking Process
Rulemaking is a long process, but it is also one that seldom leaves the state government’s executive branch. The process begins with stakeholder meetings. DEP staff write a rule proposal. The proposal is reviewed and approved by DEP management, the state Attorney General’s Office, the governor’s office and the Office of Administrative Law.
The proposal is published in the New Jersey Register, providing a 60-day public comment period. DEP staff review comments and prepare an adoption document unless new rulemaking is required.
The adoption is reviewed and approved by the same entities, and the adopted rule is published in the New Jersey Register. The process takes about a year.
The DEP said it is engaged in reducing the negative impact of climate change by protecting resources now, while encouraging “safe” development and redevelopment.
CFAN’s study and various business groups claim the state is resting its rulemaking on flawed data, risking significant unnecessary harm to the economy.
While that argument continues, so does the rulemaking process.
To contact Vince Conti, email vconti@cmcherald.com.
