Murphy DEP Readopts Christie DEP Rollbacks Of State Flood Hazard Regulations

I highlighted the text on “healthy vegetation” (commonly known as “buffers”) because the Christie DEP flood rules eliminated the ban on disturbance of vegetation in the 300 foot buffers on so called “Category One” “exceptional value waters”, effectively reduced the strictly regulated buffer to 150 feet, and weakened other flood protections (including making it even easier for DEP to issue permits for pipelines crossing streams).

DEP’s notice intentionally diverts attention from that rollback by not mentioning those buffers and instead referring generically to “healthy vegetation”. Orwell lives.

The Christie DEP rollback of these rules was extremely controversial and the rules were vetoed by the Legislature as “inconsistent with legislative intent”. At the time, Senate Environment Committee Chair Bob Smith said:

“Kudos to Bill Wolfe. We heard all kinds of testimony over these three meetings. But the one that stuck in my mind is [Bill’s testimony] that there’s no guarantee that they’ll be no deterioration in the State’s water quality standards if there’s development in the first 150 feet of buffer of C1 streams. That’s the critical missing legislative intent item for me.  (6/16/16 – on vote to pass SCR 66 

The Legislature never followed through with the veto and instead negotiated a corrupt face saving deal with Christie DEP Commissioner Bob Martin.

And this comes after the Murphy DEP weakened DEP’s stormwater regulations, a move that was sharply criticized by FEMA as increasing flooding risks, see:

• FEMA FLAYS MURPHY DEP STORMWATER PROPOSAL

The Christie DEP rollbacks should have been reversed on day one of the Murphy administration. A flat out DEP notice to repeal and replace the Christie rollbacks by the prior rules would have at least restored the status quo and protected stream buffers until DEP could strengthen the rules to address climate science.

The failure by the Murphy DEP to do that has resulted in at least 5 more years of more at risk development in stream buffers and more flooding. (it will take at least 1 more year for DEP’s long delayed new climate rules to come into effect).

The Murphy DEP has already and will likely issue hundreds of “stream encroachment permits” over this period, which have put even more development at risk of flooding and destroyed unknown acres of sensitive category one stream buffers.

A 1990’s era law (ironically known as “EMAP” for “environmental management accountability plan”, or the “Doria bill” name for sponsor former Assembly Speaker Joe Doria) requires DEP to issue an annual Report that provides public information on all permits issued. Because DEP has flouted compliance with this law for over a decade – with no legislative oversight or public criticism – I am unable to tell you how many stream encroachment permits the Murphy DEP issued over this 4 year period, but, based on experience, I can confidently say it was hundreds.

On January 27, 2020, Governor Murphy issued Executive Order No. 100 (2020) (EO No. 100). This order directed the Department to develop rules consistent with applicable law to address climate change, with those regulatory changes to be known as New Jersey’s Protecting Against Climate Threats (NJPACT) rules. On the same day, then Department Commissioner Catherine McCabe issued Administrative Order No. 2020-01 (AO No. 2020-01) requiring the incorporation of climate change considerations including, but not limited to, sea level rise and chronic flooding into the Department’s rules, as part of an effort entitled Resilient Environments and Landscapes (REAL) that includes the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13,  among other land use rules. In accordance with EO No. 100 and AO No. 2020-01, the Department is finalizing a proposal of amendments to the Flood Hazard Area Control Act Rules. The readoption of the rules without change continues the chapter in effect while the proposed amendments are finalized. The proposal of amendments to the Flood Hazard Area Control Act Rules will be the subject of a separate notice in the New Jersey Register.