A Last Ditch Effort To Avoid Disaster On Christie Flood Hazard Rules

Failure to consider climate change risks is a fatal flaw

NJ should follow NY State’s lead

“an appeal to science, reason, and moral sanity”

Projected Sea Level Rise – these are regulatory standards all permits must comply with  (Source: NYS DEC}

As we last noted, the legislature backed away from taking the final step to veto the Christie DEP’s proposed 900+ page “overhaul” of current flood hazard, storm water management, and coastal management rules, see:

• Senate Committee Blinks In Showdown On Veto of Christie DEP Clean Water Rule Rollbacks

Subsequent to that open Senate hearing, I learned that DEP met behind closed doors and briefed Legislators to defend the original proposal and outline their complex plan to adopt certain provisions of the original proposal and to propose substantive changes in a new “concurrent proposal”.

It is unclear exactly who attended this closed door legislative DEP meeting – including environmental groups – but what is clear is that it confirms exactly the Kabuki I suspected after listening to the Senate hearing.

Additionally, after the closed door meeting with legislators, on March 15, 2016, DEP met with a “by invitation only” group of Stakeholders to present their adoption and re-proposal plan.

Invited environmental groups walked out of that meeting because Delaware Riverkeeper was unable to attend and DEP would not allow their designated representative to attend  (see this link to find list of attendees, hear the walkout discussion, and listen to an audio MP3 of the meeting).

Importantly, 3 representatives of US EPA Region 2 attended the meeting.  EPA officials and their press office refused to comment on EPA’s position when asked several days after the meeting. So, the writing seems to be on the wall that EPA is softening on their original opposition.

I won’t go int detail here – those interested can listen to the audio of the March 15 meeting where DEP made a lengthy and detailed oral presentation – but merely say that it is clear that DEP is committed to moving forward with the bulk of the original proposal, with a few clarifications to resolve what they claim are misunderstandings by environmental groups.

DEP is sticking with their story that the original proposal did not in fact weaken any protections.

The only real substantive improvement the DEP will re-propose seems to be DEP’s concession to the FEMA objections. Based on what I heard, DEP also may have satisfied EPA’s concerns regarding compliance with Clean Water Act requirements.

Given a June 1 legal deadline to adopt the proposal and what I fear is the abandonment of opposition by Legislative Democrats and EPA – curiously,  environmental groups seem to have moved on as well –  adoption of the proposal is imminent.

So, I figured I’d make a last ditch effort to provide a compelling reason to abandon the original proposal.

I sent this note to DEP and Legislative leadership: an appeal to science, reason, and moral sanity:

Hi Vince –

Energy, land use and infrastructure decisions made now will determine how vulnerable our children and grandchildren will be to rising sea-levels.

So, I thought the Department should be aware of the science, regulatory policies, and standards with respect to consideration of climate change adopted by our neighbors at the NY State DEC that are of direct relevance to NJ’s Flood Hazard Area program, including projected sea level rise elevations (for inland and coastal areas).

These standards are far more conservative and protective than NJ’s with respect to flood and wave elevations, design storm, flood hazard area, and volumes:

“This Part applies to consideration of sea-level rise by the Department, other State agencies, and applicants for relevant permits and approvals in the context of programs specified in the Community Risk and Resiliency Act.”

Part 490, Projected Sea-level Rise – Express Terms 6 NYCRR

http://www.dec.ny.gov/regulations/103877.html

Projected Sea Level Rise (Source: NYS DEC}

The technical basis for the NY DEC standards is found in the ClimAID Report (2014 update),

ClimAID: 2011 and 2014

In 2011, Responding to Climate Change in New York State (ClimAID) provided the first projections of sea-level rise specifically along New York’s coastlines and estuaries. The ClimAID 2014 Supplement refined these projections to take into account all known components of sea-level rise, based on advances in physical understanding, climate modeling and computing and reflecting observational data that include Hurricane Irene and Superstorm Sandy. DEC considers these projections to be the best available at this time for New York planners.

see:

http://www.nyserda.ny.gov/About/Publications/Research-and-Development-Technical-Reports/Environmental-Research-and-Development-Technical-Reports/Response-to-Climate-Change-in-New-York

In addition, NY DEC has plans and regulatory policies regarding projected climate impacts and adaptation strategies and requirements for projected increased storm and rainfall frequency, magnitude, and intensity of direct relevance to NJ FHA design storms and flood hazard area delineation, see: Sea Level Rise Task Force Report

http://www.dec.ny.gov/docs/administration_pdf/slrtffinalrep.pdf

While NJ does not have legislation directly analogous to the NY State Community Risk and Resiliency Act,  NJ law does authorize the Department to consider – if not require – consideration of best available science as the basis for regulatory policy and standards.

Equally, the Legislature has recognized the reality of climate change in passing the Global Warming Response Act. It is time for the Department to recognize climate change risks across the board.

I was encouraged recently when the Department proposed NJPDES CSO permits that included design standards for the 500 year storm.

If I were in your shoes, I would write Commissioner Martin a memo ASAP and recommend that the Department withdraw the current proposed FHA rule revisions and re-propose new rules based on the best available science that considers climate change and includes adaptation standards similar to NY DEC.

Finally, if I and many others were able to attend the Department’s “by invitation only” Stakeholder meetings, you would have been advised of this information prior to rule proposal, and we might have avoided the current impasse.

I am copying Senator Smith on this so that the Legislature may be advised of the science and regulatory policies that are relevant to their current ongoing review for consistency with Legislative intent.

Respectfully,