The N.J. Department of Environmental Protection announced on Thursday that it will propose a rule extending the legacy period in the recently adopted PACT/REAL Land Use rules for another year, while taking the following year for meaningful stakeholder engagement to determine next steps for the state’s flood protection rules.
It is the latest step in a major dispute regarding the rules, signed into effect on the final day of the Murphy administration.
Environmentalists and developers have been at odds regarding the PACT/REAL Land Use rules since the concept was introduced two years ago, debating on whether they will make the state a leader in ensuring development is done in an environmentally conscious way – or whether the state is imposing overly extreme regulations that will have an oversized impact on residents and business without meaningful cost-benefit analysis or legislative involvement.
When adopted, the Murphy administration said the rules are designed to protect coastal communities from sea level rise and major flooding by setting new flood zone development standards. One mandates that new and rehabilitated buildings be built four feet higher than flood projections set by the Federal Emergency Management Agency.
The N.J. Business and Industry Association has been working to half the rules from the beginning. On Thursday, its Deputy Chief Government Affairs Officer, Ray Cantor, praised the extension of the legacy period.
“We are grateful to the Sherrill administration for its plans to extend the legacy period in these rules and we look forward to working with them over the next year on practical and pragmatic solutions to provide our residents and businesses flood protection, while also accounting for affordability, fewer burdens and our overall economy, and well as an emphasis on resiliency,” he said.
It is unclear how the Sherrill administration view the rules, the members of both parties in the Legislature have raised serious questions.
State Sen. President Nicholas Scutari previously said the adopted rules “are inconsistent with legislative intent.”
Many elected officials from the Shore are opposed to the rules.
Manasquan Mayor Mike Mangan (D) and Assemblyman Paul Kanitra (R-Ocean) backed Scutari in a joint interview with Joanna Gagis of NJ PBS in March, said as much.
“They’re not necessary. New Jersey is going above and beyond what FEMA has called for in its projections, and the impacts of this are devastating,” he told Gagis. “And Manasquan believes, along with a lot of other shore communities, there’s a better way to deal with coastal resilience.
“I’ve lived in Manasquan my whole life. I know what flooding can do firsthand. But this proposal is not the right answer. It puts a huge onus on the back of homeowners, it wildly disrupts planning for building and, in the end, doesn’t achieve the goal that we’re looking to achieve, which is to increase coastal resilience.
“Myself and a lot of other local mayors are proposing other ideas and really asking the state of New Jersey to take another look at what it’s doing, because this will have devastating impacts to not just Manasquan, but all communities up and down the coastline, as well as any towns along rivers.
Kanitra agreed.
“The levels that these houses are getting proposed to get built to simply is not realistic; the data is not showing that,” he said. “And we’re on very small lot sizes here, too. It’s almost impossible to accomplish what the state is looking for.
“What we think is happening here is simply ideology is superseding common sense.”
The DEP has pushed back, arguing the REAL rules make
New Jersey the first state in the nation to initiate a comprehensive update of land resource protection regulations focused on impacts of a changing climate.
It even produced a ‘Myth vs. Facts’ document on the issue, noting these key views.
REAL Facts: The REAL rules in no way create “no-build” zones or added prohibitions on construction.
Where development is proposed within flood-prone areas, the adopted rules require, to the extent practicable, that buildings and infrastructure are constructed above flood levels that incorporate sea-level rise, which is four feet higher than required under current standards.
REAL Facts: There is NO prohibition on any type of development.
Residential buildings in flood-prone areas will need to be constructed in compliance with new standards to help ensure that current and future flood risk is minimized for occupants. It is well known that investing in resilience measures, such as elevation, represents a marginal cost that pays high dividends in terms of reducing flood insurance costs and potential for loss of life and property throughout the lifetime of the structure, as well as avoiding disruption to business and the entire community.
REAL Facts: The REAL rules WILL NOT in any way prevent or discourage redevelopment after a storm.
In fact, the Flood Hazard Area Control Act, which is one of the enabling statutes for the new rules, states at N.J.S.A. 58:16A-55.1 that “No rule or regulation adopted [under this statute] shall prevent the repair or rebuilding within a flood hazard area of any lawful preexisting structure which was damaged by a flood or by any other means.” The REAL rules are consistent with this requirement and will not in any way prevent new development or redevelopment before or after a storm.
This debate is far from over.
