Public Comment Period Starts on DEP’s New Land Use Rules

New coastal land management rules being proposed by the state Department of Environmental Protection were published in the New Jersey Register on Monday, Aug. 5, starting a 90-day public comment period.

The clock also started on the one-year period the state has for adopting the new regulations, developed under DEP’s Resilient Environments and Landscapes (REAL) program, before the process would have to begin again.

The 1,044-page compendium of changes to a broad swath of existing land use and water management rules is a product of Gov. Phil Murphy’s Executive Order 100, issued in January 2020. In that order Murphy directed the DEP to integrate future expectations of climate change into the state’s land use and water management regulations.

Among the major changes in the new rules are the creation of a new “inundation zone,” which takes land currently above sea level and puts it in a zone that the climate science adopted by DEP says will be inundated permanently or twice daily during high tides over the planning horizon of the regulations.

The regulations also adjust the tidal flood hazard area to reflect the DEP’s expectation of a 5-foot rise in sea level by 2100, impact stormwater management regulations, modify freshwater wetlands rules and make changes to coastal zone management regulations.

They establish a new Climate Adjusted Flood Elevation level that adds 5 feet to FEMA’s 100-year flood elevation level.

A Cape May County-commissioned report by the Lomax Consulting group goes into depth on the expanse of land that would now be subject to DEP regulations.

The Controversy

The scope of the modifications to existing rules is voluminous. It is the vast array of changes in regulations that is the subject of much opposition from those who call it premature at best.

For supporters of the regulations, the move was overdue. The American Littoral Society said in an Aug. 5 statement, “Through amendments to existing land resource protection rules, REAL will strengthen New Jersey’s resilience to the growing impacts of climate change.”

The Sierra Club of New Jersey said, “Today is a major step forward for protecting our frontline coastal communities in New Jersey who are facing rising sea levels and unprecedented flooding even on sunny days. The NJPACT REAL rules will keep people and property safe and out of harm’s way, and most importantly will update our flood zones to reflect modern climate science.”

Coastal communities almost universally disagree. Cape May County government is asking the state to take a more measured and phased approach to any land use regulatory changes.

Cape May City Manager Paul Dietrich said, “It does not make sense.” Dietrich was referring to making rules now for conditions the DEP says will exist in 2100. He scoffs at a planning horizon of 75 years for property development.

The Middle Township Chamber of Commerce feels everyone in the county needs to be aware of the drastic changes proposed in the new regulations. In an email to its members, the chamber points to the fact that 43% of Cape May County land, including mainland communities, will be in the new inundation risk zone, meaning more county land will be subject to stricter DEP regulations for new development, redevelopment and substantial renovations.

The New Jersey Business and Industry Association said it “is strongly opposing the new land use rules.” The association claims the rules as written will “ultimately force a retreat from the Jersey Shore.”

Both sides to the controversy are placing the adoption of the new regulations in an existential context. On April 31 environmental groups pushed Murphy to publish the new regulations so they could be adopted while he is still governor; he is ineligible to seek reelection. The groups claimed that “N.J. is in desperate need of bold action.”

A Cape May County-developed resolution criticizes the DEP rules, saying, “These new rules as currently written do not consider the economic impact these new standards may have on the ratables, real-estate development, and redevelopment statewide, but especially in Cape May County.”

The opposition to the new regulations makes note of the long planning horizon, the use of a 2019 scientific study that many argue is dated, and the lack of any underlying legislation as a basis for the rulemaking.

Public Comment

A 90-day public comment period began with the publication of the regulations. Three public hearings are planned.

One, on Sept. 5 at 6 p.m., is an in-person hearing at Ocean County College, College Drive, Toms River.

The other two are virtual hearings with full remote participation. They are on Thursday, Sept. 12, at 2 p.m. and Thursday, Sept. 19, at 10 a.m.

Residents can also submit comments electronically, at https://dep.nj.gov/njreal/hearings/, or on paper by Nov. 3 to

Melissa Abatemarco, Esq.
Attention: DEP Docket No. 05-24-05
Office of Legal Affairs
New Jersey Department of Environmental Protection
401 East State Street, 7th Floor
Mail Code 401-04L
PO Box 402
Trenton, NJ 08625-0402

The DEP web page at https://dep.nj.gov/njreal/hearings/ lets residents learn more about the hearings and provides a link for joining them when they are held.

Contact the reporter, Vince Conti, at vconti@cmcherald.com.