To: New Jersey Department of Environmental Protection Attn: Melissa Abatemarco, Esq.
Re: New Jersey’s Protecting Against Climate Threats (NJPACT) Resilient Environments and Landscape (REAL) Rules
DEP Docket No. 05-24-05

Dear Ms. Abatemarco:

Thank you for the opportunity to submit written comments on DEP Docket No. 05-24-05, the Resilient Environments and Landscapes (REAL) rule, which seeks to modernize land resource protection rules to increase New Jersey’s resilience.

Regional Plan Association (RPA) is a private, non-profit civic organization dedicated to regional planning and development that, since 1929, has published four comprehensive long-term plans to direct the growth and development of the New York-New Jersey-Connecticut metropolitan area. The ideas and recommendations from these plans have shaped the region’s infrastructure, open spaces, and economic development projects for the past century.

Guided by that mission, and our unique vantage point as vocal advocates for both the built environment and the natural one, RPA strongly supports increased resilience measures and stricter controls on future development in the most at-risk places now, and into the future.

Why the REAL Rule is Important and Necessary

We now live with the difficult reality that climate change is here, and its impacts are worsening. Sea levels are rising, and storms are becoming more frequent and intense, resulting in greater risk to more people. This new reality is forcing the way we plan, invest, and develop in high-risk areas to be completely rethought. What was once certain has become dramatically uncertain. What is the right way for government to respond under these circumstances?

It is widely accepted that one of the primary responsibilities of government is to provide for the welfare of the people it governs. ​”Welfare” can be defined as ​“the state of doing well especially in respect to good fortune, happiness,

well-being, or prosperity.” So, the policies and programs of a government concerned for the welfare of its citizens must be focused on the happiness,

well-being, and prosperity of people. And they must do this in a way that ensures continued welfare into the future. In other words, government must govern in ways that achieve well-being today, while also ensuring that today’s decisions don’t harm the welfare of future citizens.

Precedent-setting

Given the reality of worsening climate impacts, the New Jersey Department of Environmental Protection (NJDEP)’s proposed Resilient Environments and Landscapes (REAL) rule sets an important and nationwide precedent for planning and development in future flood zones, aiming to ensure the welfare of citizens now, and into the future. And while there are inherent risks to setting such a precedent - we don’t know precisely how the rule’s implementation will play out - it is important to establish that a new approach is necessary. This proposed rule offers a framework and positive way forward if carried out with greater clarity, with actions taken in parallel to ensure success and avoid unintended consequences, and with ongoing reflection of updated science and on-the-ground conditions.

Scientifically driven

In response to the climate crisis, governments have been increasingly open to bridging policy and science, which has resulted in better-informed decision-making. This rule is no exception. By choosing a reasonable estimate from a peer-reviewed and vetted sea-level rise forecastthe Inundation Risk Zone and Climate Adjusted Flood Elevation proposals are grounded in the latest science and reflect an acceptable level of risk for the state. The latest science and on-the ground conditions must continue to guide the implementation of this policy as new information is obtained.

Taking action in the face of our unfortunate reality

For too long, governments have been slow or overly conservative in developing policies that directly respond to worsening climate impacts. Despite the increased availability of improved models and forecasts, and the lived experience of worsening storms and more frequent flooding, state policies around development have largely failed to address the challenge of future threats. By establishing an Inundation Risk Zone and putting forward a Climate Adjusted Flood Elevation, NJDEP is reconciling current development practices with the reality of forecasted future conditions across a realistic timeline of development.

It is a relevant critique of this rule that development and redevelopment in the new regulatory zones will be more challenging and expensive. It will. But given the forecasts of future flooding, it would be irresponsible to allow continued development or redevelopment in places that are very likely to be inundated with permanent or twice daily floodwaters in 70 years or sooner - especially without greater scrutiny or the requirement of design adaptations for those impacts. Put another way, this rule does not effectively cease development or redevelopment in current and future flood zones; rather it seeks to establish a new paradigm for the way development occurs there, requiring developers to consider additional factors with a greater responsibility for the long-term viability of their projects, and the people in them. Ultimately, there will be an added burden to develop in these places but given the health and safety risks of floods and the public cost of rebuilding, perhaps there should be.

Areas for improvement

Given the degree of flooding that threatens New Jersey in the coming years, RPA supports the REAL proposal as a critical framework that the state can refine over time. We call upon the State to address and provide clarity around the issues highlighted below and adopt the rule in a timely manner. To move forward, the State must offer assurances that the rule’s implementation will not lead to unintended consequences that could unnecessarily harm economic development or hinder redevelopment.

The following summarizes areas where RPA seeks greater clarity around the rule in order to avoid such unintended consequences.

Resolve questions around the ​“dry access” requirement (7:13-12.5o)

If the state is going to allow for continued development and redevelopment in current and future flood zones, it will need to provide greater clarity around the requirement of ​“dry access,” which, as currently written, could result in an unachievable standard for development. In particular, understanding the limits of a developer’s responsibility for dry access is critically important. For example, if a developer is required to provide an elevated access roadway into its development, but that road leads to one that will be inundated, how will the Department handle such a request?

Ensure that there are still incentives for redevelopment

Redevelopment of already developed places has been a key tenet of state environmental and economic policy in New Jersey and has resulted in the reduction of sprawl and the revitalization of communities. While redevelopment in current and future flood zones needs to reflect the conditions that are and will be experienced there, there also need to be assurances from the state that it can still offer favorable conditions for redevelopment over greenfield development throughout the state. In newly regulated flood zones, the state needs to clarify how added restrictions can still ensure that redevelopment is feasible. For example, eliminating preferential impervious coverage standards from stormwater rules could prove to be a disincentive to redevelopment as is, but perhaps other incentives or greater clarity around this provision could lead to better outcomes.

Account for misalignment with local zoning

There are likely many localities where the municipal Master Plan and its related zoning are not in sync with some of the requirements of this rule. For instance, one municipality may have recently identified an area of their town that is not in the current flood zone as an area for redevelopment. They may have also updated zoning to reflect that. What is the process by which the local Master Plan and Zoning are updated to sync with the REAL rule? Similarly, certain municipalities may have in place zoning that does not allow for the type of development that this rule would require (e.g. there may be height restrictions that conflict with requirements to have ground floors 6 feet above BFE). How will the state work with municipalities to resolve these?

Seek clarity around flood mitigation projects

With resilience and adaptation efforts underway - including Resilient NJ, the Army Corps of Engineers’ Backbay and HATS studies, and any number of other local projects - areas prone to flooding are subject to change. How are provisions of this rule impacted if a municipality, the state, or the federal government implement resilience/adaptation projects that change the nature of the flood zone? What is the mechanism by which requirements change?

Request that the rule be amended going forward as science is updated.

Much of the concern about implementing this rule lies in the fact that these regulations are based on forecasts for the future. The state must make assurances that it will amend/update the rule at least every 10 years, as the science behind climate forecasts change.

What needs to happen in parallel:

In order for this rule to achieve its intended shift toward more responsible development without precipitating a number of unintended consequences, a series of other actions must be taken in parallel, summarized below:

Affordable housing obligations must be met.

One of the most pressing needs faced by New Jerseyans and the greater region today is that of affordable housing. Too few have access to good quality, affordable housing. And, as the state continues the process of reaching agreements with municipalities on their new obligations , where and how those required units will be built becomes even more pressing as climate change makes more areas vulnerable to flooding. This brings about a dual responsibility of the government to ensure that affordable housing needs are met, while also ensuring that housing is not developed in areas or in ways that will make those living in them at risk of flooding.

The REAL rule is likely to make it more difficult to develop affordable housing in some places by shrinking the amount of land available for development, and likely making development more burdensome. This doesn’t mean that the RULE should be changed to allow more affordable housing development in risky ways or risky places, but it does mean that the State needs to be coordinated in its approach across housing, economic development, and environmental agencies, working closely with municipalities to ensure that affordable housing obligations can be met. The NJDEP and NJDCA should also work together to provide municipalities with the clarity necessary to propose Housing Elements and accompanying ordinance changes on schedule by June 2025 so the process can move smoothly and expeditiously.

Design Guidelines and technical assistance:

If implemented, the REAL rule is likely to dramatically change the way projects are planned for and developed in the new and updated regulatory areas. While necessary, the requirements of the rule will add new burden to multiple stakeholders, from local municipalities working to understand where the rule intersects with their jurisdiction over local land use decisions, to developers (both structural and infrastructural) who will need to navigate new guardrails and requirements around their practice, to land use attorneys who must interpret the rule to understand its legalities and effectively advise on seeking permits, to landowners (public and private), who need to make decisions about what happens on their property, among others.

Given the scale and scope of the rule, technical assistance should be provided by the state to ensure that critical details are understood by all stakeholders and that adequate financial planning is carried out to make projects feasible. DCA should be allocated sufficient resources to grant municipalities the funding they need to best comply with the rule. Additionally, given the shift in how approved projects would be implemented, the state should issue a set of design guidelines to ensure that there is some level of consistency across design, but with flexibility to preserve a given area’s character.

Increase DEP staffing levels and resources.

If this rule is implemented, there will be a need for far greater review of permit applications by DEP staff, and if technical assistance is to be provided, as recommended above, more staff will be required to help different stakeholders understand and abide by the rule. To achieve this, DEP will require a significant influx of resources to hire and maintain staffing levels that meet the additional requirements of this rule. The state should ensure that those resources are available upon adoption of the rule and maintained as implementation begins.

Develop alignment with the State Plan (and other programs and local master plans).

Prior to drafting this rule, New Jersey had been undergoing an update to its State Development and Redevelopment Plan (the State Plan). If implemented, this rule would have a significant effect on the State Plan and its focus on where growth should be encouraged. The State - and its various agencies - should work together internally to identify shared approaches that could be incorporated into the State Plan from this rule, regardless of whether or not the REAL rule ultimately gets adopted. Similarly, other plans that are being developed (from infrastructure plans to local Master Plans) will need to come into alignment with this rule, should it pass. That work should begin now, and regardless of whether the rule is implemented, those plans should also reflect the forecasts for flooding across the state.

Consider a role for sector permits.

New Jersey has a history of using ​“sector permits” as a way of aligning local approval of development with statewide regulations (e.g„ Long Branch redevelopment and CAFRA rules). Sector permits could be a useful strategy in the wake of implementing the REAL rule and should be studied for lessons learned and consideration.

Align with FEMA flood maps and NFIP reform.

FEMA 100-year flood maps are the main source of information that determine whether homes are eligible for/require insurance under the National Flood Insurance Program (NFIP) - federally subsidized flood insurance for homes at significant risk of flooding. Elevating homes typically results in lower fees for insurance. Both the IRZ and updated CAFE will have footprints beyond FEMA’s current 100-year flood zone, creating a mismatch between federal and state policies around flooding for some areas. As FEMA updates flood maps and long-awaited NFIP reforms are enacted at the federal level, alignment between the two flood zones will need to be ensured.

Plan for property value impacts through economic development and support for overburdened communities.

One of the biggest concerns expressed about the REAL rule is the impact it might have on property values and economic development in overburdened communities. By placing additional restrictions/requirements on development in places at risk of flooding now or into the future, economic opportunities that could come from development or redevelopment in those places could be reduced or even impeded altogether. Similarly, expanding the flood zone into areas that don’t currently experience flooding on a regular basis could signal that these areas are less valuable, affecting property values and potentially depressing sales prices of homes for families who might rely on them for retirement or who were intending to pass on a valuable asset for the next generation.

These are real concerns that need to be addressed by the state. While it would be irresponsible to simply let development and redevelopment occur without adjustments in these places, there needs to be an interagency approach that results in plans and programs to ensure that overburdened communities - who have already been disadvantaged by environmental and economic injustices - are not further disadvantaged. The State Plan can play an important role, as well as programs of the NJEDA. The goal would be to find ways to advance resilient, economic development in at-risk areas while ensuring that homeowners may maintain the value of their home until they are ready to sell, but also be made aware of the potential for value loss due to the flooding impacts that will worsen.

Expand and improve Blue Acres program.

If the REAL rule is implemented as drafted, it would expand the zone considered to be flood-prone (whether currently or into the future). It is possible that changes to rules within the existing flood zone and expanding the flood zone to new areas beyond the existing one could drive increased interest in and demand for the state’s Blue Acres buyout program to ensure that they receive the maximum value for their home before the impacts of flooding reduce it.

The state should ensure and make clear that the expanded, state-designated flood zone ensures eligibility for federal funds for buyouts for those within it. Given the worsening climate impacts and regulatory changes that could come via this rule, the state must plan for an expansion and improvement of the Blue Acres program to ensure that those who seek to leave the flood zone can do so equitably.

In addition to increasing the budget and funding for the program as well as hiring additional staff to administer it, the state should consider updating the program to more comprehensively support both pre- and post-buyout activities, including:

• Provide resources and/or tools to help municipalities assess any tax revenue impacts that could result from participating in buyout programs, so that they can weigh costs and benefits, and preemptively plan for tax revenue gains in other ways;

• Plan for and and support post-buyout land-use interventions with municipalities to ensure that community needs can be met on the land where buyouts are carried out.

Finally, as climate impacts worsen, the state should consider how it might expand its Blue Acres program to support buyouts of commercial properties, in addition to its current focus on residential properties.

Expanding and improving the Blue Acres program will ensure that buyouts are put on the table as a truly viable option for properties at risk of flooding.

What still needs to be addressed:

While this draft rule aims to recalibrate the way development and redevelopment occurs in the current and future flood zone, it is impossible to address all issues in one rule. The following are just three areas of many more that RPA would like to see the state focus on in future rules, programs, and policies.

Finding solutions for existing development in the flood zone that is not built to resilient standards

The REAL rule applies only to new development, redevelopment, and substantial improvements to buildings. That leaves all existing buildings in the current and future flood zone without a regulatory mechanism to encourage greater resilience. An expanded and improved Blue Acres program (as detailed above) is one way that existing homeowners can avoid flooding by being bought out. But there is no such program for commercial properties. Initiatives like Resilient NJ have done good planning work for a number of regions at risk of flooding, but implementation of those plans - and the funding to carry them out - is lacking clear direction and source. Ideas such as a statewide Bond Act, or a dedicated, ongoing funding stream for resilience will likely be required to ensure that similar updates to existing buildings, or buyouts can be achieved. But a comprehensive coastal adaptation plan would be required.

Contaminated sites and the ​“Chemical Coast”:

Far too little attention has been given to legacy contaminated sites in the flood zone, and the large commercial activities involving petrochemical and other chemical productions and storage along the coast in northern New Jersey. The REAL rule does not impact these sites or operations, yet the threat of flooding to them could be catastrophic for humans and ecosystems alike. The state needs to work closely with municipalities and private stakeholders to ensure that these sites are secured in the face of increased flooding.

DOT roadways

State-owned and operated roadways are largely - if not completely - exempt from this rule. Given the critical role they play in connecting the state and providing critical access, these roadways need to be addressed in a separate rule.

Conclusion

RPA appreciates the opportunity to provide comments on DEP Docket No. 05-24-05, the Resilient Environments and Landscapes (REAL) rule. The proposal establishes a critical framework for statewide resilience that, with clarity around the issues described above and added actions in parallel, will help ensure sustainable growth for the decades to come. We look forward to continued public engagement as the rule is finalized and implemented.