Murphy DEP Flood Rules Are Full Of Holes And DEP Responses To Critics Are Based On Lies
Current Rainfall And Flood Elevations Already Exceed DEP’s Obsolete Standards
DEP Failed To Consider And Restrict Land Use In Flood Hazard Areas
Lambertville, NJ. Along Swan Creek – Irene flooding (8/28/11) (Bill Wolfe)
The DEP openly admits that they have abdicated and violated statutory mandates (“shall”) to study, delineate flood hazard areas based on best available science, and regulate land use and development.
Gov. Murphy touted DEP’s adoption of controversial flood regulations in a typical over-the-top press release, with praising quotes from friendly environmentalists designed to mislead the public and the press.
As usual, the press fell for it.
So, let’s drill down on a few of DEP’s own formal statements about those rules, to highlight some of the significant flaws I’ve previously flagged, e.g. see:
Let’s start with a fundamental issue of DEP’s role in planning and regulating land use (a preventative approach, versus what I’ve criticized as DEP’s “engineering” based risk mitigation slogan based “myth of resilience” approach).
In responding to public comments, 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).
Did you get that? Repeat: “The adopted rule does not restrict development”.
The Murphy DEP has now abandoned even any pretense of sound land use planning and regulation and put the final nail in the coffin of the NJ State Development and Redevelopment Plan.
The Murphy DEP now has officially ended any attempts at integrating the NJ State Plan and land use issues in DEP regulatory programs, an enlightened planning and policy initiative that began with Gov. Florio’s 1994 Executive Order #114 and revived by Gov. McGreevey’s Highlands Act and failed “Big Map” initiative.
It’s over. The fat lady is singing.
And a former corporate lawyer now DEP Commissioner did it. So own that, Gov. Murphy and his cheerleaders.
The NJ Builders Association and real estate development lobby are cheering. (NJ Spotlight):
“While we still need to review the adopted rule in greater detail, we are pleased to see that the DEP listened to the concerns of the business and development community regarding the unfair application of new standards to projects that were previously outside the flood hazard area,” said Ray Cantor, a spokesman for the business group. “The changes that were made on adoption will allow numerous projects that have been designed, obtained financing, and received local approvals to now move forward, bringing affordable housing and economic benefits to the state.”
In terms of all the hype about considering climate risks and extreme weather, feel free to review my detailed demolition of that spin in the above highlighted post, see again:
Here’s how DEP misleadingly and superficially summarized this detailed substantive criticism.
With respect to the DEP’s use of the obsolete 100 year flood statistic (buried in comment #678 on page 319):
678.COMMENT: There have been numerous “500-year” floods recorded. The proposed rule is based on an obsolete standard and a heightened 500-year storm standard should be implemented. (27)
RESPONSE TO COMMENTS 671 THROUGH 684: Knowing how flooding is expected to change in the future and that buildings and infrastructure being built today will be impacted by future flooding, the Department could not delay the Inland Flood Protection Rule until new mapping was produced. 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. Therefore, it was necessary and appropriate for the Department to regulate to a projected 100-year flood plain, rather than a 500-year published flood plain map that relies on data that is backward looking.
Gov. Murphy and DEP have never gone to the legislature to recommend and request that this obsolete alleged restriction to the 100 year flood be repealed and replaced by a science based standard. Never.
Compounding this failure to seek science based legislative reforms to obsolete legislative standards, the DEP directly contradicted this alleged restriction to the 100 year flood in response to my comment criticizing their use of a 25% “safety factor”:
687. COMMENT: The 25 percent safety factor is insufficient to protect against the now heightened “500-year” severe weather events. (27)
Directly contradicting the alleged statutory restriction to the 100 year flood, the DEP here claims that they have discretion to determine the appropriate science based standard “in the judgement of the Department”. DEP also admits that they have land use powers that they refuse to implement and enforce: “the improper development and use”) (emphasis mine)
RESPONSE TO COMMENTS 685 THROUGH 690: The 25 percent factor of safety that the Department has added to its delineations and which is required by individuals utilizing Method 6 at N.J.A.C. 7:13-3.6, has been utilized since the 1970s as a means of approximating the effect that development has on the hydrologic conditions of a watershed. It is well known that new development and added impervious surface increases the volume of runoff that is received and ultimately conveyed by surface waters. While the Department’s SWM rules help to ameliorate the impact of this increased volume, the cumulative effect of development within a watershed can result in dramatic impacts to the peak rate of flow during flood events. Further, as noted in response to comment 655 above, N.J.S.A 58:16A-52a provides that, “the department shall study the nature and extent of the areas affected by flooding in the State… [and] 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 the welfare from flooding.” The 25 percent factor of safety discussed above, which has been used for almost 50 years in New Jersey, meets this requirement.
In this response, the DEP openly admits that they have abdicated and violated statutory mandates (“shall”) to study, delineate flood hazard areas based on best available science, and regulate land use and development.
So which is it? Does the law limit DEP’s flood protection regulatory authority to the 100 year flood, or does the law provide DEP with discretion to determine the flood standard required to restrict development that would “constitute a threat to the safety, health, and general the welfare from flooding”? Obviously, it’s the latter.
DEP similarly buried my land use criticisms in comment #622 on page 294: (I am commenter #27)
622. COMMENT: The commenter asserts engineering cannot be a sufficient solution to increasing severe weather and stormwater flooding hazards. Additionally, the commenter casts skepticism and doubt on resilience, particularly with how the Department has chosen to pursue rulemaking through a lens of resilience and not land use planning. Further the Department should analyze existing development and analyze retrofitting applications. (27)
Here’s how DEP responded to that criticism – DEP tacitly confirms my criticisms and openly admits that planning and land use are “beyond the scope of the rules” (emphases mine):
RESPONSE: The overall intent of the FHACA rules and of this rulemaking is to establish areas of the state where flooding is likely to occur and to help ensure that development and redevelopment within these flood hazard areas are designed and constructed to be safe for residents while not adversely impacting other properties. Flooding is a complex issue that requires a suite of strategies to effectively combat. While protective regulations are an important component in achieving this goal, comprehensive land use planning, additional infrastructure investment, targeted buyouts, and relocation and elevation of repetitively flooded structures, are all equally necessary. Such complementary strategies are beyond the scope of these rules, but can include targeted buyouts of repetitive loss structures under the Department’s Blue Acres program, flood mitigation funding through the FEMA’s Community Development Block Grant Mitigation Program, and flood mitigation projects through the U.S. Army Corps of Engineers.
This post has already gotten too long and in the weeds (and we haven’t even talked about 1) grandfathering loopholes, 2) failure to address the so called “right to rebuild”, 3) failures to apply to all the existing development that is contributing to all the repeat flooding, and 4) repealing Christie DEP regulatory rollbacks.
Each one of these issues is a massive problem.)
I encourage reporters and all folks who want accurate information to read the entire DEP adoption document’s response to public comments.
Please don’t swallow the spin and lies of the Murphy DEP and their lame cheerleaders in the environmental community.