Environmental Groups, Citizens File Legal Action Against Finalized NJDEP Coastal Rules

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Environment New Jersey Research and Policy Center

Trenton –  An array of citizens, state and local environmental groups filed a lawsuit against the New Jersey Department of Environmental Protection (NJDEP) for promulgated regulations on coastal development –the first since Hurricane Sandy – that were finalized last summer. Environment New Jersey, Save Barnegat Bay and residents from Eagleswood along the Barnegat Bay filed a notice of appeal with the state Superior Court to challenge the NJDEP’s omnibus coastal regulations, which amended coastal permit program rules and the Coastal Zone Management Rules. The NJDEP overhaul received vociferous public opposition.

Hurricane Sandy should have been our wake up call to realize unchecked development along our coast will only be costlier in the future due to sea level rise,” said Doug O’Malley, director of Environment New Jersey. “Instead, DEP’s coastal zone rules will only greenlight more development in vulnerable coastal communities. DEP’s arbitrary and capricious rules don’t make sense to keep residents in our coastal communities safe.”

The rewriting of the coastal zone rules were the beginning of a deluge of regulatory revisions by NJDEP, including recent rule proposals of flood hazard regulations and water quality management plans, that have drawn extensive public opposition for their relaxing of environmental rules. The coastal zone rules, proposed in June 2014, and finalized in July 2015, eased protective standards around coastal development as well as dredge spoil dumps in vulnerable communities.

“With its massive rewriting of coastal zone policies covering nearly 1,000 pages, the DEP has attempted to do through regulation what it cannot accomplish through legislation — namely, to open up the coastal area to more at-risk development where there should be less.  Among the more problematic rule changes, the DEP has made it easier to construct landfills dedicated to dredge spoils, called confined disposal facilities or CDFs, on freshwater and coastal wetlands,” said Bill Potter, the lead attorney for the plaintiffs, representing Potter & Dickson.

The finalized coastal zone regulations do not take into account the impact on water quality and ecological areas, and create an arbitrary and capricious process for greenlighting development in some of the state’s most vulnerable areas, including Barnegat Bay, by merging individual permit processes, creating a permit by rule process, and exempting development on piers and marinas from CAFRA review, all which were cited by the plaintiffs as NJDEP overreach.

“Barnegat Bay’s critical natural resources will be negatively impacted by the proposed coastal zone rule change. There will be more development and population growth which is the driver for most adverse impacts to land use and water quality along our coast. Critical habitat loss, more polluted runoff, considerable adverse impacts to shellfish beds, loss of additional submerged aquatic vegetation and fishery resources,” said Britta Wenzel, executive director of Save Barnegat Bay. “The rules are less protective of our Shore communities and the Barnegat Bay’s critical natural resources. The revisions do not take sea level rise and climate change into account and promote additional development in the coastal zone.”

The regulations had been blasted during the public hearing process, by members of the public and environmental organizations. Advocates criticized the regulations as failing to account for climate change’s impacts, including sea level rise and increased storm surges, allowing more high-density development and expanding coastal centers. Environment New Jersey alone delivered more than 19,400 comments from New Jersey citizens across the state, opposing the new rules.

“DEP has chosen fast and expansive development over smart coastal protection policies,” said Mike Pierro, a citizen plaintiff and Eagleswood resident who lives along the Barnegat Bay.  “DEP should have taken this opportunity after Sandy to try and protect the Shore, restore natural systems, and improve our resilience against future storm surges and sea level rise. Instead, this is a lost opportunity that sticks DEP’s head in the sand.”

The NJDEP coastal development rule claimed the regulations only worked to eliminate red tape and increase governmental transparency. However, the rules retreated from NJDEP’s statutory responsibility to protect coastal communities, which the lawsuit details, including:

  • The NJDEP Coastal Zone Management Rule created a system called “permit certification.”  This system allows developers to automatically receive permits via an online system without any governmental review or public comment.
  • There are new loopholes for marinas, which allow for restaurants, hotels and commercial establishments to be built in high hazard areas. 
  •  The rule accepts surfaces that are non-porous such as lawns, crushed stone, and compacted shells as permeable, which leads to increased storm runoff and flooding.
  • There are no vulnerability assessments to reconsider growth centers at all, which would slate locations that were flooded during Hurricane Sandy for increased development, including Mystic Island, Eagleswood Twp. and Tuckerton, as well as communities along the Delaware Bay Shore.

“These recently adopted rules are a bigger disaster to our coast than Hurricane Sandy. With these rules, the Christie Administration has clearly sided with developers and special interests. These rules will not only fail to protect us from future storms and sea level rise, they will actually put more people and property in harm’s way. They are even adding growth areas that will be under water. The Christie Administration has clearly ignored the science of climate change and sea level rise,” said Jeff Tittel, director of the New Jersey Sierra Club. The New Jersey Sierra Club is looking to get approval from their national organization to join the lawsuit, which takes time and they hope to join at a later date. “Instead of strengthening coastal protections, they are actually allowing developers to write their own special permits and adding close to fifty loopholes, which will be enough to let storm surges come through. It will allow paving over our environmentally sensitive coastal areas, while building behind sea walls that won’t work.  This is going to increase flooding, water pollution, and actually hurt water quality in our bays and beaches. We can choose to protect our coast, clean up our storm water, restore natural systems. Instead of protecting us from the next disaster, it will make the next storm’s impacts worse.”

Other allied organizations, although not officially plaintiffs on the case, expressed concern with the rules and support for the goals of the litigation.

“The Surfrider Foundation is deeply concerned about these rules concerning coastal development and unfortunately, we see this lawsuit as the only way to stop the negative impact these rules would have on our coast,” said John Weber, Mid Atlantic Regional Manager for the Surfrider Foundation.   

New Jersey has seen the effects of climate change and will continue to see changes in sea level rise and increased storm surges for decades to come.  Heavy precipitation events in the Northeast have increased dramatically in the past two decades, occurring more than twice as often in recent years than during the past century.  This trend is expected to continue and will undoubtedly lead to increased floods within the region.  New Jersey’s sea level is also rising faster than the global average.  The latest Rutgers climate research predicts that by 2050, New Jersey’s coast will have already experienced a 1.5-foot sea level rise.  As a result, the damages felt by floods will nearly double. The NJDEP rules fail to take steps to help protect coastal regions from flooding and weaken requirements controlling the creation of stormwater.

NJDEP’s finalized coastal rules simply ignore the science of sea level rise. Other Sandy-hit states such as New York, Delaware, and Maryland are rebuilding higher based on predicted sea level rise. They are rebuilding an additional 2 feet higher than what is federally recommended – the same height that Rutgers scientists recommended for New Jersey.   However, New Jersey has failed to place such requirements on houses along the Shore and Barnegat Bay.

While not the primary focus of the regulation, the final rule does relax the siting of dredge spoil dumps in coastal communities, which resonates for the Eaglewood citizen plaintiffs, who have been battling a proposed dredge spoil dump abutting the Barnegat Bay and their own homes.

“Especially troubling is DEP’s stealth relaxation of siting controls on Confined Disposal Facilities (CDF),” said Bill Potter, the plaintiff’s lead attorney. “A CDF is a kind of open air landfill for dumping frequently toxic dredge spoils. Due to their environmental harms, no CDF should be allowed anywhere near residential or recreational areas, but that is exactly what these new regulations allow.  Before a CDF is permitted anywhere along New Jersey’s coastline, DEP should require strict compliance with the Coastal Area Facility Review Act (CAFRA), including submission of an EIS that discloses the full range of cumulative and secondary impacts, such as those caused by the DEP plan to promote ‘mining’ of dewatered dredge spoils for so-called ‘beneficial reuse.’ The finalized rules fail that test.”

The legal action comes days after the New Jersey Senate Oversight Committee took testimony on the Christie Administration bungled HUD loans for flood relief projects.

“These DEP rules show that the Christie Administration is still denying climate change in practice,” said O’Malley. “These rules deregulate and increase sprawl across the Shore. By allowing for unchecked development along our coastline, we are only placing New Jerseyans at risk and setting ourselves up for future body blows from extreme weather.”