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Why Are Governor Christie and DEP Ignoring Their Responsibilities?

Why Are Legislators and Media Giving Them A Pass on All That?

Here’s What the Public Needs to Know

One of the objectives of this blog is to provide information to empower the public and hold government officials accountable.

So, because there is a virtual blackout out in media and government circles (and muted private conversations and feel good measures in some environmental group circles), I figured I’d post today on what the federal policy framework says we should be doing in response to Sandy (a particularly important issue, because the feds are providing billions of dollars in taxpayer money, so obviously they want it spent in accordance with federal policy).

This will be a long and in the weeds post that addresses:

• FEMA regulations
• President Obama’s Executive Order on Sandy Rebuild
• HUD Policy, Press Release, and Orders
• FEMA Climate Change Adaptation Policy

There seems to be a combination of misguided priorities, confusion, or lack or knowledge about that.

To respond effectively, I called for the formation of a Coastal Commission, outlined a response strategy, and severely criticized Governor Christie’s failure to learn any lessons from Sandy in terms of global warming or coastal land use planning. I have called Christie’s responses “Rebuild Madness”.

But Gov. Christie is not alone – many NJ Legislators, local officials, business groups, media, and residents either support the Christie agenda or simply are unaware of alternatives or what we should be doing.

Perhaps my harsh rhetoric has obscured the planning and policy issues at stake, or undermined my credibility.

So, I thought I’d lay out, in one place, a more detailed technical summary of what we should be doing –  here it is, so don’t say you don’t understand complex “red tape”:

1. Federal regulations set minimum standards and encourage States to be more stringent

The FEMA ABFE maps are under political attack and so is Gov. Christie’s move to adopt those maps under NJ law as DEP Emergency Regulations.

FEMA regulations explain that FEMA is the minimum standard and encourage states to be stricter.

NJ is highly vulnerable and should be going beyond federal minimums -but Gov. Christie strongly discourages going beyond federal minimums in his “regulatory relief” Executive Order #2.

Here’s the FEMA rule:

Subpart A—Requirements for Flood Plain Management Regulations

§60.1Purpose of subpart.

[(a) – (c)]

(d) The criteria set forth in this subpart are minimum standards for the adoption of flood plain management regulations by flood-prone, mudslide (i.e., mudflow)-prone and flood-related erosion-prone communities. Any community may exceed the minimum criteria under this part by adopting more comprehensive flood plain management regulations utilizing the standards such as contained in subpart C of this part. In some instances, community officials may have access to information or knowledge of conditions that require, particularly for human safety, higher standards than the minimum criteria set forth in subpart A of this part. Therefore, any flood plain management regulations adopted by a State or a community which are more restrictive than the criteria set forth in this part are encouraged and shall take precedence. (FEMA Regs)

2.  Federal regulations discourage infrastructure in flood prone locations

Federal regulations discourage infrastructure in flood prone locations.

But Gov. Christie’s DEP Commissioner Bob Martin issued an Administrative Order that deregulated the rebuilding of infrastructure – a reckless policy Professor Miller described thusly:

‘Hey, if you want to build it back the way it was, go for it, you don’t have to wait for us to approve that,’

Again, here are FEMA  regulations, which are impossible to implement under DEP Commissioner Martin’s Order that deregulates infrastructure rebuilding from DEP permit review:

(5) Require within flood-prone areas new and replacement water supply systems to be designed to minimize or eliminate infiltration of flood waters into the systems; and

(6) Require within flood-prone areas (i) new and replacement sanitary sewage systems to be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters and (ii) onsite waste disposal systems to be located to avoid impairment to them or contamination from them during flooding.

3. Federal Regulations Encourage Comprehensive Planning and Risk Reduction

Gov. Christie wants to “rebuild now!” and has opposed proposed legislation to establish a Coastal Commission to plan for the shore.

At the same time, DEP has been ordered to stand down, and has totally abdicated its lead State agency responsibilities for the critically important planning and regulatory work outlined below.

So, here’s 23 specific things what we should be doing on the planning and regulatory fronts at the State level (a State is defined as a “community” in FEMA regs):

§ 60.22Planning considerations for flood-prone areas.

(a) The flood plain management regulations adopted by a community for flood-prone areas should:

(1) Permit only that development of flood-prone areas which (i) is appropriate in light of the probability of flood damage and the need to reduce flood losses, (ii) is an acceptable social and economic use of the land in relation to the hazards involved, and (iii) does not increase the danger to human life;

(2) Prohibit nonessential or improper installation of public utilities and public facilities in flood-prone areas.

b) In formulating community development goals after the occurrence of a flood disaster, each community shall consider—

(1) Preservation of the flood-prone areas for open space purposes;

(2) Relocation of occupants away from flood-prone areas;

(3) Acquisition of land or land development rights for public purposes consistent with a policy of minimization of future property losses;

(4) Acquisition of frequently flood-damaged structures;

(c) In formulating community development goals and in adopting flood plain management regulations, each community shall consider at least the following factors—

(1) Human safety;

(2) Diversion of development to areas safe from flooding in light of the need to reduce flood damages and in light of the need to prevent environmentally incompatible flood plain use;

(3) Full disclosure to all prospective and interested parties (including but not limited to purchasers and renters) that (i) certain structures are located within flood-prone areas, (ii) variances have been granted for certain structures located within flood-prone areas, and (iii) premium rates applied to new structures built at elevations below the base flood substantially increase as the elevation decreases;

(4) Adverse effects of flood plain development on existing development;

(5) Encouragement of floodproofing to reduce flood damage;

(6) Flood warning and emergency preparedness plans;

(7) Provision for alternative vehicular access and escape routes when normal routes are blocked or destroyed by flooding;

(8) Establishment of minimum floodproofing and access requirements for schools, hospitals, nursing homes, orphanages, penal institutions, fire stations, police stations, communications centers, water and sewage pumping stations, and other public or quasi-public facilities already located in the flood-prone area, to enable them to withstand flood damage, and to facilitate emergency operations;

(9) Improvement of local drainage to control increased runoff that might increase the danger of flooding to other properties;

(10) Coordination of plans with neighboring community’s flood plain management programs;

(11) The requirement that all new construction and substantial improvements in areas subject to subsidence be elevated above the base flood level equal to expected subsidence for at least a ten year period;

(12) For riverine areas, requiring subdividers to furnish delineations for floodways before approving a subdivision;

(13) Prohibition of any alteration or relocation of a watercourse, except as part of an overall drainage basin plan. In the event of an overall drainage basin plan, provide that the flood carrying capacity within the altered or relocated portion of the watercourse is maintained;

(14) Requirement of setbacks for new construction within Zones V1-30, VE, and V on a community’s FIRM;

(15) Requirement of additional elevation above the base flood level for all new construction and substantial improvements within Zones A1-30, AE, V1-30, and VE on the community’s FIRM to protect against such occurrences as wave wash and floating debris, to provide an added margin of safety against floods having a magnitude greater than the base flood, or to compensate for future urban development;

(16) Requirement of consistency between state, regional and local comprehensive plans and flood plain management programs;

(17) Requirement of pilings or columns rather than fill, for the elevation of structures within flood-prone areas, in order to maintain the storage capacity of the flood plain and to minimize the potential for negative impacts to sensitive ecological areas;

(18) Prohibition, within any floodway or coastal high hazard area, of plants or facilities in which hazardous substances are manufactured.

(19) Requirement that a plan for evacuating residents of all manufactured home parks or subdivisions located within flood prone areas be developed and filed with and approved by appropriate community emergency management authorities.

4. Federal regulations encourage states to prevent harms

Gov. Christie has not even mentioned directing development away from hazardous locations (strategic retreat), and opposes buyouts of flood prone properties, unless an entire community has reached a consensus.

That is totally inconsistent with federal policy.

§ 60.24 – Planning considerations for flood-related erosion-prone areas.

The planning process for communities identified under part 65 of this subchapter as containing Zone E or which indicate in their applications for flood insurance coverage pursuant to § 59.22 of this subchapter that they have flood-related erosion areas should include –

(a) The importance of directing future developments to areas not exposed to flood-related erosion;

(b) The possibility of reserving flood-related erosion-prone areas for open space purposes;

(c) The coordination of all planning for the flood-related erosion-prone areas with planning at the State and Regional levels, and with planning at the level of neighboring communities;

(d) Preventive action in E zones, including setbacks, shore protection works, relocating structures in the path of flood-related erosion, and community acquisition of flood-related erosion-prone properties for public purposes;

(e) Consistency of plans for flood-related erosion-prone areas with comprehensive plans at the state, regional and local levels.

5. Federal regulations encourage State leadership

Here is the State role under the federal framework – is Governor Christie and DEP doing any of this?

§ 60.25 – Designation, duties, and responsibilities of State Coordinating Agencies.

(a) States are encouraged to demonstrate a commitment to the minimum flood plain management criteria set forth in §§ 60.3, 60.4, and 60.5 as evidenced by the designation of an agency of State government to be responsible for coordinating the Program aspects of flood plain management in the State.

(b) State participation in furthering the objectives of this part shall include maintaining capability to perform the appropriate duties and responsibilities as follows:

(1) Enact, whenever necessary, legislation enabling counties and municipalities to regulate development within flood-prone areas;

(2) Encourage and assist communities in qualifying for participation in the Program;

(3) Guide and assist county and municipal public bodies and agencies in developing, implementing, and maintaining local flood plain management regulations;

(4) Provide local governments and the general public with Program information on the coordination of local activities with Federal and State requirements for managing flood-prone areas;

(5) Assist communities in disseminating information on minimum elevation requirements for development within flood-prone areas;

(6) Assist in the delineation of riverine and coastal flood-prone areas, whenever possible, and provide all relevant technical information to the Federal Insurance Administrator;

(7) Recommend priorities for Federal flood plain management activities in relation to the needs of county and municipal localities within the State;

(8) Provide notification to the Federal Insurance Administrator in the event of apparent irreconcilable differences between a community’s local flood plain management program and the minimum requirements of the Program;

(9) Establish minimum State flood plain management regulatory standards consistent with those established in this part and in conformance with other Federal and State environmental and water pollution standards for the prevention of pollution during periods of flooding;

(10) Assure coordination and consistency of flood plain management activities with other State, areawide, and local planning and enforcement agencies;

(11) Assist in the identification and implementation of flood hazard mitigation recommendations which are consistent with the minimum flood plain management criteria for the Program;

(12) Participate in flood plain management training opportunities and other flood hazard preparedness programs whenever practicable.

6. President Obama’s Executive Order Governs Federal Policy

On December 7, 2012, the President issued an Executive Order establishing the Hurricane Sandy Rebuilding Task Force.

Among other provisions, the Executive Order directed the Secretary of Housing and Urban Development to chair the Task Force and, to the extent permitted by law, align relevant programs and authorities with a long-term rebuilding plan that supports the region’s economic vitality, enhance infrastructure, and ensure appropriate accountability.    HUD Order (2/12/13) 

7. HUD is the new lead agency on disaster recovery 

HUD is taking the federal lead, instead of FEMA.

Why don’t we know any of this? Could it be because NJ’s new coverage follows Governor Christie’s press releases?

Maybe we don’t know this in NJ because NY State Governor Cuomo was once Secretary of HUD?

As a former HUD Secretary, Cuomo obviously has a huge advantage in securing discretionary funds from the Obama Administration.

Here is HUD’s interpretation of the Obama Executive Order

First, and most importantly, it will coordinate with all stakeholders to deliver cohesive, rebuilding strategies— creating a comprehensive regional plan within six months. We will gather and share the best practices of recovering communities, creating a vision for long-term rebuilding by State and local stakeholders—a vision that will be supported by more thoughtful planning and a focus on resilience and sustainability.

Second, it will reduce regulatory burdens and cut red tape.

Third, it will manage the flow of federal recovery funds and make sure that the resources the federal government provides are aligned with local priorities.

Fourth, we will monitor the progress and strengthen accountability measures. We know that at a moment like this, because Americans are anxious about the recovery, they have little patience for waste. The structure of the task force and the ability to monitor funds allow us to deliver this kind of accountability.

Finally, more than a checkbook, it will allow us to offer technical assistance and tools—providing critical support as those on the ground realize their vision for redevelopment and revitalization.  We will develop and track clear metrics to monitor and communicate progress, capture best practices and set standards for long-term disaster recovery.

This task force is not and cannot be simply federal oversight or mandate.  Rather, it must provide leadership and connections that actively support local visions. And with the expertise of virtually the entire cabinet represented, we are prepared to make those visions of this recovery a reality.  (HUD Press release (1/2/13)

8. Climate Change, Seal Level Rise, and Extreme Weather Must Be Considered

We repeatedly have written about and criticized Gov. Christie for climate change denial on influencing Sandy or considering it in planning for rebuild.

9. The federal law that appropriates $50+ billion requies a Plan from New Jersey

Here is language in the HUD appropriation:

“That as a condition of eligibility for receipt of such funds, a grantee shall submit a plan to the Secretary detailing the proposed use of all funds, including criteria for eligibility and how the use of such funds will address long-term recovery, restoration of infrastructure and housing, and economic revitalization in the most impacted and distressed area”

Why do we know virtually nothing about this?

Where is the Christie Plan?

Why is the Christie Plan not subject to Legislative oversight and public hearings?

NJ law requires a public hearing for things like converting a gas station to a coffee shop, building a deck on a home, or connections to a sewer line – are you telling me we get nothing – nothing – no public input on multi-billion dollar plans for the entire shore region?