WolfeNotes.com

Current Laws Provide a “Right To Rebuild” Storm Damaged Property In Same Location

DEP Ignores The Need For A New Policy Of “Strategic Retreat”

Tilting At Windmills On The Jersey Shore

The Murphy DEP’s coastal flooding – climate adaptation rule proposal contains a glaring omission regarding a long avoided policy and plan for “strategic retreat” from the coast and a massive loophole regarding reconstruction of storm damaged property.

This is why NJ is one of the worst States in the Nation for filing repeat flood damage claims.

The DEP proposal quietly discloses some of these massive loopholes under the term “Zane amendment”. At page 25 we find this “InZane” elephant in the room:

Clarifying that structures subject to the Zane exemption must exist at the time of application to qualify for the “repair, replacement, renovation or reconstruction of the preexisting structure” in the rule. A Zane exemption is a limited exemption available under the Waterfront Development Act, N.J.S.A. 12:5-1 to -11, which allows waterfront structures (e.g., docks, wharfs, piers, bulkheads, buildings) that legally existed prior to January 1, 1981 to be rebuilt, repaired, renovated, or reconstructed provided such actions do not increase the size of the waterfront structure and the structure is used for residential, docking, or servicing of vessels.

Similar insane loopholes and exemptions are found in other critical laws, including the Flood Hazard Act, the Waterfront Development Act, and CAFRA, see:

• High Tide Flooding Highlights The Need To Plan For Strategic Retreat NOW!

But instead of developing a policy and plan for “strategic retreat”, the DEP is locked into a policy of  Severe Repetitive Flood Loss Mitigation Strategy.

Real reforms will require legislation to repeal current exemptions and close loopholes.

I wrote to legislators to put them on notice – with a copy to “environmental leaders”.

Yes, I know I’m just tilting at Windmills at the NJ Shore:

———- Original Message ———-

From: Bill WOLFE <b>

To: senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, “senmckeon@njleg.org” <senmckeon@njleg.org>, “asmScharfenberger@njleg.org” <asmScharfenberger@njleg.org>, “senscutari@njleg.org” <senscutari@njleg.org>

Cc: “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>, “tim@littoralsociety.org” <tim@littoralsociety.org>, “zipf@cleanoceanaction.org” <zipf@cleanoceanaction.org>, Mark Lohbauer <mlohbauer@jgscgroup.com>, “ben.spinelli@highlands.nj.gov” <ben.spinelli@highlands.nj.gov>, Anjuli Ramos <anjuli.ramos@sierraclub.org>, “Taylor McFarland, NJ Sierra Club” <taylor.mcfarland@sierraclub.org>, domalley <domalley@environmentnewjersey.org>, “dpringle1988@gmail.com” <dpringle1988@gmail.com>, “emile@njconservation.org” <emile@njconservation.org>, “carleton@pinelandsalliance.org” <carleton@pinelandsalliance.org>, “jonhurdle@gmail.com” <jonhurdle@gmail.com>, Julia Somers <julia@njhighlandscoalition.org>, “Tittel, Jeff” <jeff.tittel@verizon.net>, Jason Howell <jason@pinelandsalliance.org>, Jaclyn Rhoads <jaclyn@pinelandsalliance.org>, MJ King <trhugger@yahoo.com>

Date: 05/11/2024 7:12 AM EDT

Subject: Repeal Exemptions – “Right to rebuild” after storm event

Dear Legislator:

The DEP just announced proposal of regulations to address risks of sea level rise and extreme weather flooding to NJ’s coastal and waterfront development  zone, https://dep.nj.gov/wp-content/uploads/njreal/docs/real-courtesy-copy-5.10.24.pdf

In reviewing that proposal, I again noted numerous loopholes and exemptions in current NJ laws – including the Flood Hazard Act, CAFRA, and the Waterfront Development Act – regarding rebuilding or reconstruction of existing structures damaged or destroyed by storm events. Some call these exemptions an affirmative “right to rebuild”.

DEP has an inventory of some of those exemptions here:

https://dep.nj.gov/wlm/emergency/nonregulated/

In light of current and projected risks due to climate change, it is time to reconsider and repeal those exemptions and replace them with a new policy, strategy, and plan for strategic or “managed retreat”. This would include planning for the relocation of displaced residents and restoration of natural resources.

DEP has even mapped an “inundation zone”. Why should redevelopment occur in such a location?

NJ residents can no longer afford – economically and psychologically – to repeat the failed land use and development patterns of the past.

We must do better.

Current laws do not provide an adequate basis for DEP to effectively plan for and regulate the coastal zone and inland flood risks due to extreme weather and climate change. As they say: “Adapt or die”.

We look forward to your timely and favorable response.

Bill Wolfe

For the First Time Ever, DEP Cites Moody’s

It Is Not DEP’s Job To Protect Wall Street

Today, the Murphy DEP announced an upcoming July proposal of the long delayed climate adaptation regulations dubbed REAL.

The DEP provided a courtesy draft of the comprehensive massive rule proposal.

I am reviewing the proposal now, but felt obliged, after I pulled my jaw up from my desk, to get out an early word on the proposal.

This is astonishing. For the first time ever, DEP is explicitly asserting a regulatory objective of protecting financial investors from financial risks of climate change.

That is a radical departure from DEP’s statutory and historic mission.

Need I state the obvious: DEP is NOT the Department of Banking and Insurance. It is not DEP’s job to protect Wall Street investors.

Specifically, the proposal states:

Given this significant financial exposure and the reality that investment in resilience leads to savings in recovery and an increasing awareness of and desire to avoid unmitigated climate risks among investors …

These findings display that past methodologies, and current standards for assessing and managing flood risk, may not capture all areas at risk of flooding and/or may not accurately reflect the severity of flood risk in known flood-prone areas in the wake of a changing climate.  …

This proposed rulemaking will help those making decisions regarding investments in at risk areas have the necessary information to adequately factor that risk into decisions on where they may want their family to reside, where development should occur, and the types of development that are most appropriate in a particular area.” (p.17)

https://dep.nj.gov/wp-content/uploads/njreal/docs/real-courtesy-copy-5.10.24.pdf

With respect to the second paragraph above, which admits that DEP’s standards are not sufficiently protective, we criticized the July 2023 inland flood rules as “obsolete” because they were based on the 100 year storm event – as are the proposed new REAL rules, see:

• Murphy DEP Flood Rules Are Full Of Holes And DEP Responses To Critics Are Based On Lies

• Billions Of Dollars Spent On NJ Infrastructure “Resilience” Is Already Obsolete, As DEP Fails To Update Regulations To Reflect Climate Science

Murphy DEP Deputy Commissioner Returns To Corporate Lobbying Firm

Will NJ Ethics Laws On Post Employment Restrictions Be Enforced?

In another egregious example of revolving door abuse, Murphy DEP’s Deputy Commissioner Sean Moriarty recently left the DEP to return to the corporate lobbying group Archer Public Affairs.

Moriarty serves as Director, Strategic Regulatory Affairs.

After more than a decade of public service, I have returned to the Archer family as a member of Archer Public Affairs. …

In my new role as a strategic advisor and consultant, I hope to bring my broad experience, insight and understanding of complex government systems and policymaker mindsets to help clients meet their goals in the most efficient and effective manner possible.

By his own words, obviously, that position involves regulatory policy work Moriarty was involved in at NJ DEP.

NJ ethics laws establish what are known as “post employment restrictions” on high level government policymaking officials who leave their state jobs for more lucrative work in the private sector: (Ethics Commission):

This memorandum presents a comprehensive overview of the State Ethics Commission’s decisions, policies and guidelines concerning the post-employment provisions of the Conflicts Law.

N.J.S.A. 52:13D-17 provides:

No State officer or employee or special State officer or employee,  subsequent to the termination of his office or employment in any State agency, shall represent, appear for, negotiate on behalf of, or provide information not generally available to members of the public or services to, or agree to represent, appear for, negotiate on behalf of, or provide information not generally available to members of the public or services

But Mr. Moriarty flouted these restrictions, right out of the box: (Archer Public Affairs)

Sean Moriarty, Archer Public Affair’s Director, will serve as the moderator for the panel discussion at the Chamber of Commerce Southern New Jersey’s 2024 Energy & Environmental Outlook Forum. The Forum will feature the region’s leaders in the energy and utility industries, as well as high-level policymakers from the NJBPU and NJDEP. The half-day event will provide the latest news and information from the state, as well as the critical investments and new opportunities energy companies are pursuing across South Jersey.

I referred this abuse to the State Ethics Commission for investigation and appropriate enforcement.

This is another disgusting example of unethical abuse of the public interest by the corporate dominated Murphy DEP.

One of the bright moments in these dark genocidal times was a mother robin’s construction of a nest on the ledge above my front door window.

For weeks, I watched with fascination as she built the nest, which I could observe from my living room couch. Amazing to see the construction materials she used.

I was crushed, when after a week or so, she seemed to have abandoned those efforts.

But a few days later she returned, apparently to lay eggs and sit on the nest constantly.

Sure enough, weeks later 4 chicks were hatched.

I watched mesmerized by the female robin’s constant feeding of 4 hungry chicks.

As they grew, I noticed that the nest was not well constructed like the standard bowl shaped nest. It was deformed on one side and built more like a flat pancake that was tilted towards dumping the chicks onto the sidewalk.

I mentioned that to a wonderful new neighbor, and she suggested a fix. Minutes later, she and her visiting father arrived and drilled a support board across the ledge to protect the chicks from falling out of the nest. How good is that?

This morning, I noticed unusual frantic activity in the nest. Chicks were flapping their wings, strutting, and leaving the nest to walk along the window ledge.

Late this afternoon, as I sat outside for an afternoon beer, a chick dropped down almost my shoulder and landed on my planter box. The chick attempted to fly but couldn’t get airborne. It then hopped to the sidewalk and across the street.

We later went for a walk with Charlie. When I returned, another chick was perched on my chair and rapidly hopped off as we approached.

I looked at the nest and all 4 chicks were gone. Mom was screeching and flying around frantically.

I had an empty feeling – kind of like the feeling I had when my own 2 kids left the nest and set out on their own paths.

Joni Mitchell’s Circle game came to mind.

Sierra Club Takes Credit For Killing Pipeline

NY Gov. Cuomo Killed The Pipeline 4 Years Ago By Enforcing NY Climate Law

Sierra Club Obscures Toothless NJ Climate Law & DEP Lax Regulation

Sierra Club Misleading Implies That The FERC Process Killed Pipeline

A friend just forwarded a press release issued yesterday by the NJ Chapter of the Sierra Club.

The release took credit for killing the proposed Northeast Supply Enhancement (NESE) pipeline under Raritan Bay, see:

• NESE Mess is Finally Cleaned Up- Williams Transco Project is Dead 

Williams Transco decided not to renew their FERC extension for their Northeast Supply Enhancement Project, which expired on Friday, May 3, 2024. The New Jersey Chapter, including the Raritan Valley Group and Central Jersey Group, has been fighting this fossil fuel project for the past eight years. The New Jersey Chapter celebrated this incredible victory with environmental organizations in Keyport, NJ.

There are at least 4 major errors in this press release.

Let’s drill down on a few.

I’ve written numerous times about pipeline regulation. I wrote specifically about the NESE pipeline, see:

• Murphy DEP “Denial” Of Raritan Bay Pipeline Permits Exposes Huge Gaps In DEP Regulations On Climate And Water Quality Impacts

In all those efforts, I’ve tried to make 2 fundamental points in order to correctly focus the efforts of pipeline activists and media reporters:

1) the NJ DEP has strong statutory and regulatory authority under Section 401 of the federal Clean Water Act to deny the “water quality certificates” (WQC) to kill proposed pipelines, but the DEP refused and failed to enforce this authority.

To illustrate this failure, I have cited NY State DEC’s denial of WQC’s to kill permits.

The Williams NESE proposed pipeline was killed by NY DEC on May 5, 2020 by denying the WQC. You can read the NY DEC’s regulatory basis here.

The NY DEC’s decision provides a model for enforceable State climate laws and State environmental regulatory leadership.

It also exposes major flaws in NJ’s toothless, unenforceable, and aspirational Global Warming Response Act and the total failure of leadership by the Murphy DEP.

2) The NJ Global Warming Response Act is toothless and does not provide authority to NJ DEP to deny permits based on the aspirational greenhouse gas emission reduction goals of the Act, see:

• Senate Environment Committee Chairman Smith Introduces Legislation To Put Regulatory Teeth In The Global Warming Response Act

In contrast, the New York State Climate law does provide authority to NY DEC to deny permits for proposed projects that would violate greenhouse gas emissions reduction goals, see:

• What A Difference A State (Law) Makes

In fact, the NY DEC relied on this NY climate law to deny the NESE permits back on May 15, 2020.

You can read the media coverage here: (Politico):

• Cuomo administration cites new climate law in denying controversial New York, New Jersey pipeline

Gov. Andrew Cuomo’s administration denied a permit for a pipeline to supply natural gas to Long Island and New York City in a landmark decision citing the state’s sweeping climate law.

You can read the NY DEC regulatory basis here (scroll to page 14 to get to the climate analysis).

So, assuming the goals are to kill pipelines and enforce climate goals:

•  Why would the NJ Sierra Club not tell the truth about what really killed the project?
• Why would they let NJ DEP off the hook for failure to enforce Section 401 of the Clean Water Act?
• Why would they ignore and thereby allow loopholes to persist if NJ’s toothless Global Warming Response Act?

This is way beyond a simple oversight or even gross incompetence.

It amounts to intentionally providing cover for the Murphy DEP and Senator Smith’s failure to put teeth in the NJ Global Warming Response Act.

3) The Sierra press release states that: “Williams Transco decided not to renew their FERC extension for their Northeast Supply Enhancement Project, which expired on Friday, May 3, 2024.

This falsely implies that Williams made the decision, when it was Governor Cuomo’s NY DEC that made the decision by killing the project back in May 2020.

Why would an environmental group give a fossil energy company credit for a decision that really was the result of a government environmental permit denial?

It also falsely implies that the FERC review process is what killed the NESE pipeline (instead of NY DEP WQC and climate regulatory review).

This an egregiously misleading claim, because it not only diverts focus from the real regulatory sources of the kill, but the FERC rubber stamps virtually every pipeline project and the FERC standards are lax and the FERC review process is a waste of time and resources.

4) Sierra Club activists served as cheerleaders to Gov. Murphy and his DEP and the NJ Global Warming Response Act.

• “Green” Sycophants Provide False Praise To NJ Gov. Murphy For Killing Raritan Pipeline

The NJ DEP had nothing to do with killing this pipeline. Just the opposite: they failed to enforce Section 401 of the CWA while NY DEC did to deny the WQC and kill the project.

The NJ GWRA is toothless, but the NY climate law provides regulatory teeth that NY DEC used to kill the NESE pipeline.

Accordingly, Sierra Club activists were misguided and misfocused and were totally ineffective and had zero impact.

It is grossly unethical to take credit for the work of others.

Worse, they now continue those misguided efforts and intentionally mislead and lie to the public.

Shame on them.