NJ Flood Law Is Flawed And Murphy DEP Is Abdicating Its Regulatory Role In Flood Protection
Legislature Must Repeal 100 Year Storm and “Right To Rebuild” Flood Damaged Structures
DEP Must Update Flood Hazard Regulations And Maps To Consider Climate Change
After another cheerleading Op-Ed and set of misleading stories today by NJ Spotlight that miss the point and – by citing FEMA standards – divert attention from NJ DEP regulatory failures, I thought I’d provide some legislative text to improve the press coverage and stop the cheerleading by environmental groups.
If Gov. Murphy and DEP Commissioner LaTourette are serious about “resilience”, protecting the public, and adapting to climate change, they must make the following reforms immediately.
Here are the DEP’s statutory responsibilities under the NJ Flood Hazard Area Control Act:
58:16A-50. Short title; declaration of policy
a. This act shall be known and may be cited as the “Flood Hazard Area Control Act.”
b. It is in the interest of the safety, health, and general welfare of the people of the State that legislative action be taken to empower the Department of Environmental Protection to delineate and mark flood hazard areas, to authorize the Department of Environmental Protection to adopt land use regulations for the flood hazard area, to control stream encroachments, to coordinate effectively the development, dissemination, and use of information on floods and flood damages that may be available, to authorize the delegation of certain administrative and enforcement functions to county governing bodies and to integrate the flood control activities of the municipal, county, State and Federal Governments.
DEP is delegated authority to set standards, adopt flood hazard maps, and regulate land use to prevent or reduce flood risks:
58:16A-52 Delineation of flood hazard areas.
3. a. The department shall study the nature and extent of the areas affected by flooding in the State. After public hearing upon notice, and pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), the department shall adopt rules and regulations which delineate as flood hazard areas such areas as, in the judgment of the department, the improper development and use of which would constitute a threat to the safety, health, and general welfare from flooding.
The DEP is given the authority to adopt and update flood protections and floodplain maps:
The department may, after public hearing upon notice and pursuant to the “Administrative Procedure Act,” revoke, amend, alter, or modify such regulations if in its judgment the public interest so warrants.
The DEP is authorized to adopt standards, regulations and floodplain maps that are more stringent than federal FEMA maps:
b. (1) The department shall wherever practicable, make flood hazard area delineations at least as protective as the floodplain delineations approved by the Federal Emergency Management Agency for the National Flood Insurance Program. Immediately upon adoption of a floodplain delineation approved by the Federal Emergency Management Agency for the National Flood Insurance Program, the department shall include the federal floodplain delineation as the department’s minimum flood hazard area delineation for that watercourse, provided that the department has determined that the federal floodplain delineation is sufficient to carry and discharge the flood flow of the watercourse and is at least as protective of the public safety, health, and general welfare as the department’s delineation.
There are major flaws in the DEP flood regulations (known as “stream encroachment”, NJAC 7:13). (DEP also has other related regulatory authority, including stormwater management about which I’ve previously written many times, e.g. see this and this).
Ironically, FEMA, whose floodplain maps seriously under-estimate flood risks – strongly criticized the Murphy DEP stormwater regulations for failing to consider climate change. FEMA wrote: (link)
To highlight, FEMA finds that the abandonment of the nonstructural stormwater management in design and the absence of restrictions in the increase in runoff volume post-development to be significant deficiencies.
FEMA is also concerned that the proposed rule does not consider future conditions of increasingly intense precipitation that is expected with climate change.
The use of the term Green Infrastructure will not offset the proposed changes to the nonstructural stormwater management strategies and the multiple missed opportunities to reduce riverine and urban flooding impacts.
Let’s repeat that – THE DEP STORMWATER RULE PROPOSAL:
does not consider future conditions of increasingly intense precipitation that is expected with climate change.
Please note that Murphy DEP cheerleader Jim Waltman praised exactly the DEP “green infrastructure” regulatory rollback FEMA criticized as a “significant deficiency”. Waltman wrote this BS:
But there are ways to mitigate this problem by requiring builders to install green infrastructure systems to catch stormwater runoff. Our state’s stormwater regulations were recently amended to require more such infrastructure, but only on large new developments.
Let me repeat what FEMA wrote about the “green infrastructure” that cheerleader Waltman praises:
Green Infrastructure will not offset the proposed changes to the nonstructural stormwater management strategies and the multiple missed opportunities to reduce riverine and urban flooding impacts.
There also are major flaws in the Flood Hazard Area Control Act statute.
First, it is based on the 100 year storm:
58:16A-55.2. Structure or alteration within area subject to inundation by 100 year design flood of nondelineated stream; approval; conditions
a. No structure or alteration within the area which would be inundated by the 100 year design flood of any nondelineated stream shall be made, rebuilt or renewed by any person without the approval of the department and without complying with such conditions as the department may prescribe for preserving such area and providing for the flow of water therein to safeguard the public against danger from the waters impounded or affected by such structure or alteration.
Second, it gives far too much recognition to property rights:
No such approval by the department shall impair or affect any property rights otherwise existing which might be invaded by the construction or maintenance of any such structure or alteration.
Third, it provides a “right to rebuild” flood damaged properties:
58:16A-55.1. Repair or rebuilding of lawful preexisting structure within flood hazard area
No rule or regulation adopted pursuant to section 4 or 7 of P.L.1972, c. 185 (C. 58:16A-55 or 58) shall prevent the repair or rebuilding within a flood hazard area of any lawful preexisting structure which was damaged by a flood or by any other means.
If Governor Murphy is serious about resilience” and adaptation to climate change, he would:
1) direct DEP to strengthen DEP stream encroachment regulations as outlined above, and
2) seek immediate legislative amendments to rescind the 100 year design flood standard, repeal the right to rebuild, and reduce the priority afforded property rights.
Thus far, Gov. Murphy and DEP Commissioner LaTourette have not been serious.