By Bill Barlow, Atlantic City Press

As promised, three counties filed a notice of appeal of the new state construction rules on Thursday.

Cape May, Ocean, and Monmouth counties filed court papers describing the state rules adopted in January as “unreasonable, arbitrary, and capricious,” and arguing that the state Department of Environmental Protection lacks the authority to adopt the rules.

A spokesperson for the DEP declined to comment Thursday. Typically, the department does not comment on litigation.

The “Protecting Against Climate Threat (PACT)” and “Resilient Environments and Landscapes (REAL)” regulatory package was published at the tail end of Democratic Gov. Phil Murphy’s second term, with the stated aim of protecting people, communities, and structures from rising sea levels and other impacts of climate change.

The rules had been under discussion for years. There are extensive flood regulations in New Jersey’s coastal zones, including federal flood elevation standards. These rules differ, in part because they anticipate future flood levels based on climate change projections, and in part because they were not enacted as a matter of law by the state Legislature but rather through executive action.

In 2020, Murphy signed an executive order under which the DEP was to incorporate the impacts of climate change into rules governing coastal zone management, flooding, and other state regulations. Rather than relying on historical flood data, the rules were based on projected sea-level projections at the end of the century.

The regulations created a new inundation risk zone, a climate-adjusted flood elevation (CAFE) that elevates future home construction above federal levels, expanded flood maps, and called for nature-based flood protection solutions.

“NJDEP modernized land resource protection rules to better support New Jersey communities, residents, and businesses in building their resilience to sea-level rise, extreme weather, chronic flooding, and other impacts of our changing climate,” reads a statement from the DEP on the rules. Almost two-thirds of New Jersey’s coastline is already at high or very high risk of coastal erosion, and 98% of the coastline is projected to be at medium or very high risk of sea level rise. Over half a million acres of New Jersey land are highly vulnerable to coastal hazards.”

Following the initial public comment period, the DEP amended the rules, reducing projected future flood levels by 1 foot. They are still 4 feet above the Federal Emergency Management Agency base flood elevation. They were adopted Jan. 20, the same day the new governor, Mikie Sherrill, was sworn in, and are set to take effect in July.

Some environmental groups welcomed the rules as a needed response to the changes expected by the end of the century. Officials in many shore communities were far more skeptical, including in Cape May County, where the Board of County Commissioners maintained that the rules, if enacted, would be economically devastating and put affordable housing construction out of reach.

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