Balancing regional planning and home rule – Page 2

New rules

In the aftermath of Sandy, the DEP adopted rules changes, mandating that all new construction and repairs of “substantially damaged” structures (i.e., more than 50 percent damaged) in the coastal flood-hazard zones adhere to the elevations on FEMA’s Advisory Base Flood Elevation Maps. Some environmentalists have been critical of the FEMA maps because they don’t take sea-level rise into account.

In its Climate Change Adaptation Policy adopted last year, FEMA said it’s continuing to study the impact of climate change on the National Flood Insurance Program and will “identify areas where future climate conditions can be included as part of the larger [flood insurance] reform effort.” The timeline is uncertain, though, said FEMA’s regional mitigation director Bill McDonnell, since the agency has had its hands full dealing with the aftermath of Sandy. “Our headquarters is still taking that into consideration,” he said.

In the meantime, he noted that state and local governments can always enact more stringent building requirements than those set by FEMA. “We provide the product. It’s a minimum standard. Obviously, if they are more restrictive, then they are progressing towards a more resilient, safer community, so we would encourage that,” he said.

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In response to calls for the state to enforce building requirements exceeding FEMA’s flood elevations, Deprtment of Environmental Protection spokesman Larry Ragonese noted that individual residents always have the option of going higher than the rules dictate and saving additional money on their flood insurance. He noted that the new amendments to the Flood Hazard Area Control Act do mandate raising structures an additional foot on top of the FEMA height requirements. To be clear, though, the state actually had no choice but to add that additional foot in order to receive aid funding through the federal Community Development Block Grants. To mandate even higher building elevations, Ragonese said, would be unaffordable and unrealistic for many residents.


Pre-Sandy rules

Prior to Sandy, the most significant state regulations governing coastal construction were the DEP’s Flood Hazard Control Act and the Coastal Area Facility Review Act, which put in place a set of basic rules aimed at protecting the ecology of the shore. CAFRA has been effective at limiting construction of large-scale, waterfront developments like industrial facilities and apartment buildings—which is why the Jersey Shore doesn’t look like Miami Beach. But in the minds of many environmentalists and people like John Weingart, who worked on coastal issues at the DEP for close to two decades, CAFRA failed to go far enough.

“There was a reasonable belief among many lawmakers at the time that if you controlled the large developments, you could control the overall development patterns of the shore,” he said, noting that history has proven that assumption was wrong. CAFRA placed few restrictions on developments of fewer than 25 units— including single-family homes—allowing them to be built without applying for DEP permits, as long as they were in compliance with local zoning codes.

As a result, almost half of the development along the Jersey Shore over the past few decades has involved projects with fewer than 25 units. Weingart said his colleagues used to joke that one day archeologists will dig up the Jersey Shore and think the number 24 had religious implications. There was also a sense, he said, that it was nearly impossible to slow the rate of coastal construction, that “this is the way it’s going to be until God re-zones the coast.” He said he thinks Sandy may have been the first of many such moments.

Going forward, the $50 billion of federal aid Congress approved last January for New Jersey and the other states recovering from Sandy came with the stipulation that part of the money should be used “to help the region prepare for future challenges, including future severe storms and coastal flooding, as well as impacts associated with a changing climate.” The largest chunk of this aid—some $16 billion—will be funneled through the U.S. Department of Housing and Urban Development’s Community Development Block Grant program, which requires that recipients promote “sound, sustainable long-term recovery planning informed by a post-disaster evaluation of hazard risk, especially land-use decisions that reflect responsible floodplain management and take into account possible sea level rise.”

So far, the state of New Jersey’s response to all this talk of mitigation and hardening the shore has been mostly focused on its adoption of the new FEMA flood elevations and its plan to have the Army Corps of Engineers build a line of sand dunes along the 127 miles of its Atlantic coast.

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