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Lesson #1: Make it Easier to Build, at Higher Density, Closer to the Water, In High Risk Areas 

Given conflicts with FEMA and NFIP regulations, the Obama Administration must intervene to block the adoption and implementation of these rules

My “Top 10″ list of the most absurd DEP “lessons learned” from Sandy

This story is so bizarre and so outrageous, it really needs Jon Stewart or Steve Colbert to tell it –

Or maybe Matt Taibbi could create a jersey shore variant of his giant vampire squid metaphor (Barnegat Bay jellyfish perhaps?)

DEP just proposed a massive 1,000 page rewrite of decades of coastal management rules.

DEP Commissioner Bob Martin explains why in a June 10, 2014 press release:

The changes were borne of DEP’s knowledge and experience concerning coastal development issues accumulated over decades, as well as specific lessons learned in rebuilding from Superstorm Sandy and other severe weather events.

So, just what lessons did DEP learn and how did they strengthen regulations to address those issues?

John Miller of the New Jersey Association of Flood Plain Management summed it up nicely – according to Miller, a nationally recognized expert, the DEP’s proposed rules would increase public safety risk and are inconsistent with federal FEMA and National Flood Insurance Program requirements.

Miller testified at the final public hearing in Tuckerton earlier this week – here’s Kirk Moore APP story quoting Miller:

On a larger scale, the rules will have public safety implications, warned John A. Miller of the New Jersey Association of Flood Plain Management, a group that includes engineers and emergency planners. Critics say the rules consider as coastal centers for future development places such as nearby Mystic Island, a lagoon area that was inundated with many older homes totaled during Sandy. …

“We know the flood rule has inconsistencies with the National flood Insurance Program” that could surprise owners of rebuilt, elevated homes when they go to buy flood insurance, he said, adding flood-plain managers would be glad to help the DEP fix that.

No wonder Miller complained that although he and his members were “subject matter experts”, that DEP failed to invite them to the Stakeholder negotiations used to develop the rule. Critics need not apply.

But while shutting out subject matter experts who honor their licensed mandate to protect the public’s safety, the DEP does accommodate special interests:

Most recently, the Department made presentations regarding the rules to the Commerce and Industry Association of New Jersey, the New Jersey Builders Association, and the League of Municipalities. (@ page 5)

At a minimum, given the inconsistencies with FEMA and NFIP regulations, the Obama Administration must intervene to block the adoption and implementation of these rules.

Congress should be involved as well – they pony up billions of federal taxpayer dollars to bail NJ out after Sandy and Gov. Christie responds by making the risks to people and property even worse, and in violation of federal requirements? Are you kidding me?

Getting back to the Tuckerton meeting – Jeff Tittel of Sierra Club, Helen Henderson of Littoral society, NJ Surfrider, and retired US Fish and Wildlife Service professional Robert Burr – a Little Egg Environmental Commission member – also testified and flagged bizarre flaws.

Here’s my “Top 10″ list of the most absurd DEP “lessons learned” from Sandy:

• make it easier to build, closer to the water, at higher density, in flood hazard areas
• reduce DEP oversight and public participation in development decisions that effect us all
• allow private marina’s to expand into shellfish habitat, which was previously prohibited
• dredge up more toxic sediments and make it easier to dispose of them, without knowledge of surrounding homeowners

(a new special area rule addressing existing dredged material management areas)

• make it easier to apply more pesticides

(permit-by-rule for the application of pesticide within coastal wetlands to control invasive plant species at proposed N.J.A.C. 7:7-4.21;  general permit for the application of pesticide within coastal wetlands to control invasive plant species at N.J.A.C. 7:7- 6.32 

• make it easier to destroy dunes
• allow built structures to destroy submerged aquatic vegetation (SAV), which was previously prohibited. SAV is crucial habitat needed to assure fish and shellfish survival.
• promote “riparian restaurants” by allowing their construction closer to the water

(7:7-9.26 (h) The construction of a restaurant at a marina facility is acceptable within the riparian zone provided it meets the standards of N.J.A.C. 7:7-15.3(d)8. 

• ignore projected sea level rise and climate change and the need for adaptation plans
• ignore the need for any kind of regional shore plan to guide regulatory policy and development

(and I didn’t mention them all – bizarro stuff like encouraging building on piers, promoting Hudson River waterfront development in places blasted by Sandy, and reducing waterfront buffer and setbacks).

The public comment period closes on August 1 – here is information on how to submit comments. (the electronic comment form is here)

But, honestly, I wouldn’t waste my time – DEP only listens to hand picked “by invitation only” friendly and supportive Stakeholders.

Best to contact your legislator and demand that these rules be struct down as “inconsistent with legislative intent”.

[Update: 7/12/14  -To illustrate the regulatory games DEP is playing, here is an example of a loophole – allowing developers an alternate demonstration to determine whether a forest exists. This invites abuse and are the kind of vague regulatory standards that create technical disagreements that consume resources and delay permit processing.

Clear enforceable standards that clarify expectations and give DEP a strong basis to say “NO” to developers are what can make permit review more efficient, not the kind of  bureuacratic “streamlining” that DEP has done, i.e. permit by rule, certificates, GP’s, etc. DEP knows tis based on yeas of experience in the land use programs, wetlands, and C1 stream buffer field delineations – all prone to abuse.

7:7-13.5 Determining if a site is forested or unforested

[a) – b)]