On May 6, 2013, the New Jersey Department of Environmental Protection (“DEP”) will publish emergency coastal permitting rules that were adopted and became effective April 16, 2013.1 These rules, which are now open for a 30-day public comment period, specifically amend the Coastal Permit Program and Coastal Zone Management (“CZM”) rules codified in Chapters 7 and 7E, respectively, of Title 7 of the New Jersey Administrative Code to address reconstruction and repair of the coastal areas impacted by Superstorm Sandy. With these emergency rules, DEP promulgates eight new Permits-By-Rule (“PBRs”), five new General Permits, amends one PBR and two General Permits, and amends numerous corresponding rules.
Waivers Aim to Expedite Recovery
The New Jersey Shore encompasses 127 miles of ocean beaches from Sandy Hook to Cape May. Immediately after Superstorm Sandy, DEP issued an Administrative Order conditionally waiving certain permitting requirements to allow local governments to replace and repair public infrastructure.2 These emergency rules are intended to facilitate the expeditious rebuilding of more resilient coastal communities and coastal-related industries and facilitate the recovery of the coastal ecosystem. The amendments, repeals and new rules fall into five broad categories:
- rebuilding of residential and commercial developments;
- renovation or reconstruction of existing marinas and construction of new marinas;
- restoration of New Jersey’s shellfish aquaculture industry;
- maintenance of engineered beaches and dunes and establishment of living shorelines; and
- removal of sand and other materials, as well as the availability of dredged material disposal/placement areas.
Overall, the emergency rules aim to simplify permitting procedures for reconstruction activities that are occurring largely on the same footprint or involve minimal additional environmental impacts. Environmental advocacy groups, such as the New Jersey Sierra Club, however, have criticized the emergency rules as perpetuating existing problems that will leave New Jersey coastal communities vulnerable to devastation from future storms.
Permits-By-Rule Address Reconstruction, Relocation and Expansion
To facilitate the rebuilding of residential and commercial developments in coastal areas, DEP promulgated two PBRs to address reconstruction, relocation and expansion. The Coastal Area Facility Review Act (“CAFRA”) requires a permit for certain development activities within the coastal zone.3 Under the previous rules, one hurdle to reconstruction after a storm was that the PBR at N.J.A.C. 7:7-7.2(a)7 for reconstruction of a legally constructed residential or commercial development in the CAFRA or upland waterfront development areas of the coastal zone was limited to undamaged structures. Reconstruction of damaged structures in the same coastal zone areas required a general or individual CAFRA permit. The emergency rules modify this PBR to authorize reconstruction of any legally constructed structure (damaged or undamaged) so long as the reconstruction complies with certain requirements listed in the rule. The amendments further modify the PBR to include requirements that the reconstruction comply with all municipal, state, and federal requirements in addition to New Jersey’s CZM rules and that the development must have been or could have been legally occupied within the most recent five-year period prior to reconstruction.
DEP also promulgated a new PBR at N.J.A.C. 7:7-7.2(a)8 for expansion and/or relocation of the footprint of a residential or commercial development landward or parallel to the high water line. As required for reconstruction of damaged structures, this PBR only applies to residential or commercial developments that have been or could have been legally occupied within the most recent five-year period. Similarly, the relocation and/or expansion must comply with New Jersey’s CZM rules.
The PBR also limits the scope of the expansion and/or relocation. For example, the relocation and/or expansion cannot be proposed on a beach, dune or wetland, except if the expansion includes structures which are constructed only for access to a residential or commercial development required to be elevated pursuant to other New Jersey rules, and if there is no feasible alternative, these access structures can be located within a special area, such as a beach, dune or wetland. Additionally, the expansion and/or relocation cannot result in an increase in the number of dwelling units (for a residential development) or parking spaces (for a commercial development) or an increase in the surface area of the development by a cumulative total of more than 400 square feet on property constructed after July 19, 1994.
Help For State’s Marinas
With these emergency rules, DEP also sought to address the loss of marinas in New Jersey. DEP found that marinas are an essential component of the state’s waterfront communities, as they provide necessary infrastructure and services. Over the past five years, New Jersey has lost more than 500 marina slips and 17 marinas to residential development, resulting in a loss of jobs, revenue and services. Several of the new and amended PBRs and General Permits (including those discussed above) and amendments to the design criteria for marinas are intended to assist in the rebuilding of storm-damaged marinas, preserve existing marinas and the services they provide, and encourage development of new marinas by making them more economically viable while addressing environmental concerns. DEP found that failing to take action to help facilitate rebuilding and enhancing this industry in light of the economic impacts caused by Superstorm Sandy may result in this industry not being able to recover.
Help For Shoreline Ecosystems
One of the most ubiquitous amendments to the Coastal Permitting Program and CZM rules is the addition of living shorelines to the coastal General Permit for habitat creation and enhancement. DEP found that significant amounts of tidal wetlands were lost as a result of Superstorm Sandy and that living shorelines are a means to building a more resilient shoreline. To address this loss, the emergency rules encourage the establishment of living shorelines as a shoreline management practice that adds diversity to other shore protection measures.
Living shorelines address the loss of vegetated shorelines and habitat in the littoral zone by providing for the protection, restoration or enhancement of these habitats. This is accomplished through the strategic placement of vegetation, sand or other structural and organic materials. DEP also found that living shorelines are a less expensive shore protection method (DEP estimates that the installation costs associated with living shorelines are approximately one-fifth to one-seventh the installation cost of bulkhead or revetment) and require almost no maintenance once installed. Furthermore, DEP found that assessments by other Atlantic coastal states show living shorelines remained intact and the upland development adjacent to them also fared better during Superstorm Sandy. Corresponding amendments were made throughout the CZM rules to reflect the amendments to the General Permit.
Some Dredging Allowed
Three new coastal General Permits were promulgated at N.J.A.C. 7:7-7.32 through 7.34 to authorize certain dredging activities after storm events for which the Governor declares a state of emergency. These new General Permits are intended to facilitate dredging of materials deposited by a storm event including in special areas such as wetlands. Specifically, the General Permits authorize dredging of sand from a man-made lagoon, dredging of material from a waterway at a residential or commercial development deposited as a result of the failure of a bulkhead, and dredging and management of material from a marina. These General Permits do not, however, authorize dredging below pre-storm elevations. Additionally, because these authorized dredging activities would be considered restoration activities, they would not be eligible for maintenance dredging. Corresponding amendments were made to the CZM rules to authorize additional land applications of dredged materials as beneficial uses.
Public Comment Period Lasts for 30 Days
The emergency rules are effective for 60 days and were concurrently proposed for re-adoption pursuant to the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1. The public comment period runs for 30 days from publication, or through June 6, 2013, and a public hearing is scheduled for May 22, 2013, at 5:30 p.m. at the City of Long Branch Municipal Building, 344 Broadway Long Branch, NJ 07740.