Commissioners threaten legal action against DEP
CAPE MAY COURT HOUSE — The Cape May County Board of Commissioners led the charge countywide and beyond last year against the state’s proposed building rules revolving around climate threats and rising sea levels.
That opposition combined with other organizations across the state helped convince the state Department of Environmental Protection to approve eased rules this past July in its NJ PACT (Protecting Against Climate Threat) and NJ REAL (Resilient Environments and Landscapes).
However, last week commissioners reiterated their opposition and threatened legal action because they believe the rules remain too onerous and will negatively affect homeowners and businesses in low-lying areas such as the barrier islands and shore communities in Cape May County.
The rules and regulations contained in NJ PACT and NJ REAL revolve around climate change and rising sea levels, something county officials generally do not dispute.
What they do dispute in the time frame.
Local and county officials and state legislators asked the NJDEP to hit the brakes because they were putting in place rules in 2025 based on the fear of what could happen 75 years in the future in 2100.
The county hired Peter Lomax of Lomax Consulting to review more than 1,000 pages of new rules and regulations and to help the county and its municipalities fight their implementation. Lomax made a presentation in October 2024 at the Ocean City Tabernacle. Appearing with local and county officials and state legislators, he called the new rules an onerous burden that would befall New Jersey property owners.
Lomax said the NJDEP was basing its projections on a Rutgers University scientific study done in 2016 and updated in 2019 that estimated there was a 17 percent chance of sea level rise as high as 5.1 feet by 2100.
He presented a chart showing a low-end sea level rise of 1.3 feet (95 percent chance), 2.0 feet (83 percent chance), 3.3 feet (50 percent chance) and as high as 6.9 feet (less than a 5 percent chance.)
The NJDEP decided that any buildings to be constructed now could still be in service at the turn of the next century, hence the new rules and regulations on new construction — and on repairs and renovations.
“They’re looking at 75 years in the future to be regulated in 2025,” Lomax said at the time. “That should get your attention.”
He said the NJDEP flood zones would travel far inland, affecting not just the barrier islands and coastal communities along the shore and Delaware Bay, but also for a number of cities in New Jersey. Lomax said the rules would have a disproportionate effect in Cape May County: it would put 43 percent of the county in the inundation risk zone (IRZ), thus under the new rules. (More than 80 percent of Ocean City.) He compared that to Atlantic County, where the IRZ would cover 17 percent.
“This is not just a barrier island impact,” he said.
Officials asked the NJDEP to take a more gradual approach to the implementation of rules rather than having the new elevations hit as early as 2025.
When initially proposed under Gov. Phil Murphy’s Executive Order 100, the rules would have required homeowners in flood inundation risk zones to raise their homes by 5 feet if they planned repairs or renovations that equaled or exceeded their home’s market value. The rules on elevation also applied to new construction.
In July, the NJDEP backed off somewhat, requiring the home elevations to be 4 feet and revised the extent of the proposed IRZ areas affected.
County officials were not impressed.
The Board of Commissioners voted Nov. 12 to formally oppose the PACT and REAL rules with a resolution calling the rule-making unlawful, economically damaging and not supported by either legislative authority or sound scientific standards.
The resolution authorized the county to take legal action against the state.
“This board and the people we represent are committed to preserving and protecting the precious natural resources that make Cape May County such an amazing place to live, work and vacation,” board Director Len Desiderio said in a statement released to the press Nov. 12. “But the radical and punitive measures set forth in the NJ/PACT regulations go far beyond sensible environmental protection policies.
“We join with many of our fellow N.J. counties to vigorously oppose these draconian and unfunded mandates that would cripple our local economy, stifle responsible development and bury critical infrastructure projects in mountains of regulatory red tape,” Desiderio wrote.
The county cited other opponents, including Ocean and Monmouth counties, the New Jersey Association of Counties, the New Jersey State League of Municipalities and the New Jersey Business & Industry Association.
Commissioners oppose the fact the rules were advanced through the governor’s executive order, providing no legislative oversight and allowing the NJDEP to unilaterally impose the regulations, arguing that action exceeds the NJDEP’s authority.
As Lomax noted in his presentation last year, the projections in the lone scientific study by Rutgers weren’t backed up by additional studies.
The resolution passed Nov. 12 notes current global analyses estimate a sea level rise between 0 and 2 feet by the end of this century.
The resolution concluded, “The PACT/REAL proposal is not aligned with proven, data-driven, practicable and economically balanced coastal resiliency planning in Cape May County,” asserting it threatens not just the communities but also its long-term economic viability.
The resolution authorizes litigation against the NJDEP “in the form and timing deemed appropriate.”
By DAVID NAHAN/Cape May Star and Wave