Murphy DEP Denies Climate Wildfire Risk Petition

DEP Claims To Lack Legislative Authority To Regulate Land Use To Prevent And Reduce Wildfire Risks

DEP Doubles Down On Flawed Strategies of Burning and Logging Forests

DEP Abdicates State Responsibility Via Delegation To Local Governments

DEP actually supports new development in extreme wildfire hazard areas

On the heels of the Highlands Council’s denial, in a Friday afternoon news dump, today the DEP denied my petition to force the Department to address climate induced wildfire risks in various DEP regulatory programs, including the land use programs.

As I wrote yesterday, the main objectives of filing the petition were, among other things, to:

to raise public awareness of the issues of climate, wildfire, and land use.

to pressure the [DEP] to adopt a policy of managing wildfire risk – primarily if not exclusively – through land use and development controls and fireproofing existing structures, instead of the damaging “active management” of prescribed burns, “thinning” and forest “treatments” (logging).

Finally, I had hoped to generate some pushback to DEP’s attempts, in their Forest Action Plan, Natural And Working Lands Strategy, and other “Forest stewardship” initiatives, to using wildfire risks as pretext for logging. (for recent examples of that abuse, see:

• Murphy DEP “Forest Action Plan” Sparks Controversy Over Conflicts With Climate Goals And Logging State Land

• Murphy DEP Caught Blowing Smoke On Wildfires

In denying the petition, the Department failed to engage the land use issues and instead doubled down on and defended exactly the flawed management strategies I opposed.

I was stunned that the Department wrote to deny legislative authority to consider wildfire risks in DEP’s land use regulatory programs:

While the Department has considerable authority to regulate certain activities in particular environmentally sensitive areas, the Department does not possess the sort of master land use planning or regulatory authority alluded to by Petitioner. In the particular areas over which the Department has regulatory authority, the development of many land areas that may be susceptible to wildfire is already minimized under the Department’s regulation of impacts to natural resources such as wetlands, threatened and endangered species habitat, coastal areas, riparian areas, and certain forested areas. As discussed below, the Department is engaged in an ongoing analysis of wildfire risk in the state and is developing information and tools to reduce wildfire risk and mitigate wildfire hazards to the maximum extent possible. 

DEP expressly limited their jurisdiction to:

regulation of impacts to natural resources such as wetlands, threatened and endangered species habitat, coastal areas, riparian areas, and certain forested areas.

Perhaps DEP failed to understand that the petition explicitly linked wildfire risks to impacts on DEP “regulated features“, i.e. the natural resources DEP noted above.

Clearly, there are scientific and legal nexus between land use, wildfire risks, and DEP regulated features. DEP is simply in denial about those linkages.

Later, the Department contradicted this denial of legislative authority to regulate land use, and concluded that land use restrictions are “unnecessary”

As such, the Department has determined that the requested rulemaking to prohibit or restrict development and mandate building retrofits is unnecessary. Nevertheless, the Department remains committed to continued research, as well as monitoring and reducing wildfire risk through both direct action and work with community partners.

I immediately wrote DEP to request that they clarify this fundamental legal issue, with a copy to Senator Smith requesting that he sponsor legislation to close that legal gap.

The Department then doubled down on controversial flawed, destructive, and ineffective DEP management strategies that rely exclusively on burning and logging forests to prevent and reduce wildfire risks:

Among the available forest management techniques are treatments to remove hazardous fuels and brush by thinning overstocked forests or creating fire breaks, as well as prescribed burning.  Id. at 35-36. The Department also utilizes prescribed burning for public safety and wildfire control.  See Forest Action Plan at 134-135.  

The Department admitted the huge risks of new and existing development in extreme wildfire risk areas.

But DEP then defended their current policy, which effectively abdicates State responsibility by delegating primary risk reduction strategies to local government.

Notably worse, the local strategies do not include land use controls under the NJ Municipal Land Use Law.

Thus, while DEP is fully aware of risks, by regulatory abdication DEP effectively actually supports new development in extreme wildfire hazard areas.

DEP wrote:

The Forest Action Plan recognizes that “[a]s the population in New Jersey continues to spread into the wildland or increase the amount of Wildland Urban Interface (WUI), community planning or the protection of both lives and property from wildfire is an unremitting challenge.”  Forest Action Plan at 133. One effective tool to address this challenge is a network of Community Wildfire Protection Plans (CWPPs).  Ibid. CWPP development focuses on restoring and maintaining landscapes that are resilient to fire-related disturbances, fire-adapting communities so that human populations and infrastructure can withstand a wildfire without loss of life and property, and engaging all jurisdictions to “participate in making and implementing safe, effective and efficient risk-based wildfire management decisions.” Ibid.

I need to do additional research on how DEP responded to the air pollution related issues, which are complex. I will note now, however, that DEP failed to mention recent NJ State legislation that exempted prescribed burns from DEP air permit requirements, as well as recent EPA Guidance regarding emissions inventory and reporting of controlled burn and wildfire emissions.

So, to summarize:

While the Governor and Murphy DEP tout their “climate resilience” leadership and regularly emphasize the risks of wildfires and the significant increase in those risks due to the climate emergency – and DEP even admits the significant increase in those risks due to existing development and burgeoning new development in extreme wildfire hazard areas – they are unwilling to regulate land use and development to mandate reductions in those risks.

Similarly, they abdicate the State responsibility and role in wildfire risk reduction strategies via delegation to their local government “partners”.

We’ll have more to write about this after we more thoroughly digest the DEP denial document (I hav an email version, no links, provided upon request)