Posted on August 29, 2022
No one paid much attention to paragraph 1C of the executive order New Jersey Gov. Phil Murphy signed on Jan. 27, 2020.
Its directive for state environmental officials to “integrate climate change considerations” into regulations seemed vague. The deadline — two years — was remote.
But New Jersey officials since have made clear they are contemplating massive restrictions on development in flood-prone areas, including the creation of a restricted zone along the state’s iconic Jersey Shore.
The upcoming regulations in one of the most flood-scarred states could set a new national standard for how state officials control development and protect against the intensified flooding that researchers say climate change portends.
And now everyone is watching.
“This is a big philosophical change,” said Mark Gallagher, a founder of Princeton Hydro, a New Jersey-based environmental consultant. “They’re trying to do the right thing and really look into the future to come up with protective strategies.”
The New Jersey Department of Environmental Protection (DEP) is using projections of how climate change will increase flooding into the next century to develop regulations that would vastly enlarge flood zones where development is restricted and would require new buildings in the zones to be elevated well above current flood levels.
The flood projections shaping DEP policy extend to 2150, when sea levels in New Jersey are likely to be 5.2 feet higher than they were in 2000 and could be as much as 19.6 feet higher.
The DEP process is a notable departure from decades of policymaking nationwide that has relied on historic patterns of flooding and rainfall to guide development.
“A lot of folks can learn from what we’re doing here,” said Dennis Toft, an environmental attorney with CSG Law in New Jersey.
New Jersey’s approach is a tacit repudiation of the federal government’s flood data — its flood maps and rainfall projections — as out of date and inaccurate in an era of climate change.
State and local planners widely use the flood maps and rainfall projections to guide development and require features such as detention ponds. But the federal documents have come under criticism for failing to account for future conditions based on climate change — and, as a result, allowing unfettered development in areas that will be at risk of flooding.
“We’re trying to anticipate where climate impacts are going to occur and not where we’ve been, which is useless because so much is going to be changed under climate,” said Tim Dillingham, executive director of the American Littoral Society, a coastal-protection group. “That’s way ahead of what a lot of folks are doing.”
Murphy’s executive order was applauded by Moody’s Investors Services, which rates state finances. It said the plan “will put New Jersey at the forefront of states comprehensively rewriting land-use rules to reduce climate risk vulnerability” (Climatewire, Feb. 20, 2020).
But the state’s ambition also has been its hindrance.
“Land use is one of the toughest issues in New Jersey,” Dillingham said.
The DEP has blown past the two-year deadline set by Murphy, a Democrat, to adopt new flood regulations and has given no indication when it will publish its proposals. The agency said in May that it would issue emergency regulations in June that would be in place for hurricane season.
But that plan was scuttled amid protests from business groups that questioned the use of emergency authority, which lets state agencies put regulations in effect immediately and bypass review and public comment.
“There’s no emergency,” said Raymond Cantor, vice president of government affairs for the New Jersey Business & Industry Association. “If you consider this to be an emergency, then everything is an emergency.”
The DEP told E&E News that the new regulations “are a matter of ongoing deliberations, and the administration will provide additional stakeholder engagement opportunities soon.”
Although New Jersey has not sustained the repeated storm damage of states such as Louisiana, Florida and Texas, it has suffered some of the nation’s worst flooding.
The state ranks third in payments property that owners have received from the federal government’s flood insurance program, behind only Louisiana and Texas and ahead of Florida and New York, both of which have more than twice as many residents as New Jersey.
The nation’s fourth-smallest state by size and one of the wealthiest, New Jersey also is the most densely populated. Development is extensive and intense on the coast, where storm surge overwhelms dunes and swells inlets.
In heavily populated northern New Jersey, a network of rivers and bays has caused extensive flooding in cities such as Newark and Elizabeth and in leafy suburbs such as Wayne and Pequannock Township.
“We have more concrete and pavement per square mile than anybody else,” said Ed Potosnak, executive director of the New Jersey League of Conservation Voters. “These hardened surfaces are causing flooding.”
The development patterns make New Jersey vulnerable to both coastal flooding such as the devastation caused by Hurricane Sandy in 2012 and to rain-driven flooding, such as the surprising damage caused by the remnants of Hurricane Ida in September.
Although Ida had weakened to a tropical storm by the time it crossed into New Jersey, it killed 30 people in the state and created searing images of pedestrians being swept into storm drains and killed.
“That was an eye-opening event. People lost their homes that weren’t even in floodplains,” said Gallagher, the consultant.
State officials have incorporated Ida into their narrative about the threat of climate change and the need for action.
“New Jersey is Ground Zero for some of the worst impacts of climate change,” DEP Commissioner Shawn LaTourette said at a state legislative hearing on Saturday. “It’s the single greatest threat we face to our communities, our economies, our way of life.”
LaTourette stressed the importance of the “unsexy work of local land-use planning” even as Murphy has moved aggressively to expand solar and wind power and push the state toward generating 100 percent of its power from clean sources.
“It doesn’t matter if we go all-solar or all-wind or all-nuclear. We could have every train electrified, every car electric — and we should. We could do all that tomorrow, and the conditions will still only get worse, a product of the emissions we’ve already placed in the atmosphere,” LaTourette told state lawmakers.
“We have no choice but to build our resilience,” he added. “We have to be willing to build a little higher.”
On the Jersey Shore, the DEP is contemplating a new Inundation Risk Zone that would be preserved for parks, trails and boardwalks. The zone would cover areas just inland from the beach that are now dry but which the state projects will be inundated by tidal waters by 2100.
According to a DEP presentation, “new buildings and critical infrastructure would generally be prohibited.”
The proposal has struck a nerve.
“They are basically calling for a retreat from the Jersey Shore,” said Cantor of the New Jersey business association, which urges caution in restricting development.
“Barrier islands would all be considered to be underwater. If you want to build there it becomes tremendously difficult to do because you’re basically building castles in the sky at that point,” Cantor said, referring to elevation requirements that could apply to new buildings.
For many New Jerseyans, the shore is sacrosanct — a 130-mile stretch of beaches and boardwalks made famous by Bruce Springsteen and reality TV star Snooki.
“The Jersey Shore is part of the heart and soul of the state of New Jersey,” Cantor said. “It’s not just the beach. It’s the bays, the boardwalks. There is a whole psyche in New Jersey about their coastal areas and boating and fishing and living down there and vacationing that comes along with it.”
Climate advocates recall the speed with which people rebuilt homes on the shore after Hurricane Sandy and say restrictions are needed.
“The idea of prohibiting development in higher hazard areas is the most effective response but is a really aggressive approach for the state to take,” said Dillingham of the American Littoral Society.
Advocates such as Dillingham who applauded Murphy’s plan in 2020 have grown nervous and frustrated with delays.
In June, a group of 30 environmental organizations wrote Murphy a letter saying they were “sorely disappointed by your administration’s continued delays in adopting strong land use regulations to protect New Jersey from climate change.”
Toft, the environmental attorney, said the delays are not surprising in light of the Covid-19 pandemic, which hindered in-person meetings, and the complexity of the issue.
“When you’re trying to fix a problem that exists by a regulatory process, it’s very hard to do,” Toft said.