Developers, Banks, Insurance Companies, And The Real Estate Industry Can No Longer “Rely” On DEP Wetlands and Flood Hazard Delineations

DEP Wetlands, Coastal & Stream Encroachment Permits Are Vulnerable To Challenge

DEP “Reliance” Policy Dooms All Permits

Regulatory Implosion

The DEP has published scientific findings on climate impacts that effectively legally destroy all prior DEP delineations of regulated wetlands and flood hazard areas (coastal and inland).

Specifically, DEP has published science that says that climate change already has and will continue to significantly alter rainfall patterns, storm frequency and intensity, flood elevations, sea levels, and storm surge, thereby changing the hydrology of wetlands and the elevations of flood hazard areas.

The issuance of DEP’s science and findings were driven by Governor Murphy’s Executive Order #100, which makes similar findings about climate impacts.

The DEP science and Gov. Murphy’s Executive Order provide powerful evidence of changes to environmental conditions and facts on the ground. These facts have huge regulatory significance.

Every single DEP wetlands and stream encroachment (Flood Hazard) permit is based on a DEP jurisdictional determination and a delineation of the regulated wetland and flood hazard area.

Every single one of these DEP delineations – and there are thousands of them – comes with a very specific boilerplate “reliance” provision regarding the wetlands and flood hazard delineation.

That “reliance” provision states that, should conditions change or new facts emerge, that the delineations are subject to revision. Here is a boilerplate example:

• DEP wetlands “reliance” regulations: 7:7A-4.6 Duration of a letter of interpretation
• DEP flood hazard delineation regs: 7:13-3.7 Revision of a Department delineation by application
• DEP coastal hazard delineation regs: 7:7-9.18 Coastal high hazard areas
• 7:7-9.25 Flood hazard areas

Based on DEP’s own published science, every single prior DEP delineation may no longer be “relied” upon by property owners, developers, banks, insurance companies, and real estate firms, because the delineation was “based on inaccurate and incomplete information”.

Environmental groups should attack each and every one of these DEP permits and challenge the jurisdictional and delineations based on “inaccurate or incomplete information”.

They should demand that DEP “void the original letter of interpretation and issue a revised letter of interposition” based on DEP’s own most current science.

And do this on every single DEP permit, wetlands LOI, and flood hazard area delineation!

Perhaps groups can start by challenging every new development they oppose – demand that DEP reopen permits and rescind prior jurisdictional determinations and delineations.

There is no need to wait for DEP to propose those long delayed climate PACT land use regulations.

It is almost certain that any new DEP Climate PACT land use/flood hazard regulations will grandfather (exempt) all prior DEP permits and approvals, as well as those in the pipeline. The reliance issue is the tool to attack these permits and delineations that DEP will exempt (grandfather) from new rules.

It also would make sense to formally put insurance companies, banks, real estate firms, local governments (who issue land use approvals conditioned upon DEP permits), and all related institutions on notice that there can be no “reliance” on prior DEP jurisdictional determinations and delineations.

Of course, environmental groups could also file petitions for rulemaking to demand updates to these regulations to reflect best available science.

The House Of Cards is about to fall.

Let the War begin!

[End Note: an ironic h/t to the Cato Institute, whose US Supreme Court brief attacking EPA CO2 regulation reminded me of the “reliance” issues. Live by the sword, die by the sword!]