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Murphy DEP Claimed They Lack Authority To Protect The Public From Flooding

Following up on my criticisms of the huge holes in the Murphy DEP’s flood rules, I wrote today to demand that legislators close gaps in NJ flood related laws that DEP claims block science based protections.

I was appalled by DEP’s excuses that they lacked legislative authority to regulate, particularly because DEP has never testified to the legislature to explain these gaps and request that bills be introduced to close gaps in law that limit DEP’s ability to protect public health, safety, welfare and the environment.

I previously worked in NJ DEP’s Office Of Legislation for 4 years (1990-1994) and for the Commissioner (2002 – 2004), so I understand how DEP works with friendly legislators when the Gov. or DEP seek to pass a bill to authorize DEP to adopt regulatory protections.

I also know when they don’t want to open a controversial issue to legislative review.

Here’s my letter to Chairman Smith, Vice Chair Greenstein and Assemblyman McKeon – these 5 issues are critical and must be addressed legislatively if the Gov. and legislature are serious about reducing flooding risks.

Perhaps the Gov.’s cheerleaders in the environmental community will start spending time and resources on real advocacy work and back these amendments, instead of crafting quotes for Gov. Murphy and DEP press releases:

Dear Chairman Smith, Senator Greenstein, and Assemblyman McKeon:

In reviewing DEP’s adoption document and response to public comments on the new Flood Hazard Act rules, I came across DEP claims regarding restrictions on their legislative authority on critical environmental, public health, safety, and welfare impacts and risks of flooding. (FYI, here is a link to DEP’s adoption document:

https://dep.nj.gov/wp-content/uploads/rules/adoptions/adopt-20230717a.pdf

I am writing to urge that you introduce legislation to address, among other things, the following legislative authority issues:

1. Repeal DEP restriction on DEP authority to the 100 year flood

In response to many public comments stating that the current 100 year flood design storm statistic (rainfalls, runoff, floodplain elevation) does not reflect the best available current science and urging DEP to adopt the 500 year storm value, the DEP claimed that their legislative authority is limited.

In response to comment #678 on page 319, DEP wrote:

“The Department did not utilize the 500-year flood zone because the basis of jurisdiction under the Flood Hazard Area Control Act is the 100-year flood plain. See, e.g. N.J.S.A. 58:16A-55.2.”

I urge you to revoke this 100 year basis for jurisdiction and update current law to reflect the best available science.

2. Provide DEP authority to compel infrastructure upgrades

In response to public comment #367 (by NJ BIA) on page  172 DEP wrote:

“The Department cannot compel individuals to retrofit or reconstruct stormwater management systems unless improvements are being proposed by their owners.”

Obviously, DEP must have authority to address critical risks to public health safety and welfare and the environment, e.g. if a dam were at imminent risk of failure, DEP has emergency authority to compel corrective action.

I urge you to authorize DEP to compel upgrades to existing infrastructure asa necessary to protect public healthy, safety, welfare and the environment, based on the best available science.

3. Repeal the statutory “Right to rebuild”

The Flood Hazard Area Control Act and CAFRA provide a “right to rebuild” storm damaged properties. This has contributed to NJ’s nationally leading repeat storm damage claims.

I urge you to revoke this right to rebuild provision.

For CAFRA, see former Senator Barnes’ bill, S62 (2014 session):

https://pub.njleg.gov/bills/2014/S0500/62_T1.PDF

For FHACA, see:

NJSA 58:16A-55.1. Repair or rebuilding of lawful preexisting structure within flood hazard area

4. Authorize DEP To Regulate Existing Development

DEP continues to fail to consider existing land use and land cover – including existing development – in regulating water quality, stormwater, and flooding impacts and risks.

It is impossible to adequately manage these critical environmental, public safety, health and welfare issues while continuing to ignore the elephant in the room that is generating the majority of the impacts and risks.

5. Authorize DEP to integrate the State Plan

As you may know, Gov. Florio (correction!!) issued Executive Order #114 that directed DEP to integrate the State Plan in DEP policies, programs, plans, and regulations.

Unfortunately, that Order was never implemented.

In the flood rule adoption, DEP totally abandoned land use considerations in DEP regulations. DEP wrote:

“The adopted rule does not restrict development but rather requires due consideration of flood risk and resilient project design for regulated activities, including new development and reconstruction.” (DEP response to comment, p.97).

This is poor public policy and a reversal of decades of State Planning and DEP policy.

I strongly urge you to restore DEP’s focus on regulating land use and integration of the State Plan in DEP policies, programs, plans, and regulations.

I appreciate your timely and favorable consideration and am available to provide additional information.

Respectfully,

Bill Wolfe