This question is similar in nature to this one, however, my focus is on environmental law which is typically enforced via civil penalties.
Recently, the State of NJ passed something called the Protecting Against Climate Threat (PACT) rules and a key element of it was notably increasing the magnitude of the 100-year storm for design purposes. The impacts of this extended to both the evaluation of flood hazard area modeling as well as stormwater designs.
Without getting into the technical details, an area that's been persistently nebulous in my field is exactly what the New Jersey Department of Environmental Protection (NJDEP) is allowed to do with regards to these rules which went into effect on July 17, 2023.
To exemplify, NJDEP can issue a flood hazard verification and per the relevant rules that verification is good for a five year period. So assume in 2020, I received a verification which stated that the flood hazard area elevation for my property was at elevation 59.0 and that I could not build anything below that elevation. In 2024, I get my funding together and whatever permits remain and I proceed to build on the lot at any elevations above 59.0 because that would be in violation of the verification that NJDEP gave me for 5 years.
In this example, can NJDEP void the permit that they issued due to the passage of the new rules and impose the PACT rules on the site? To exemplify, the PACT rules might raise the flood elevation from 59.0 to 63.0 and render much of the site unbuildable.
Given that construction in a flood hazard area is illegal and subjects you to penalties per NJAC 7:13, it would seem that altering the criteria by which flood hazard areas are calculated could be considered an effort by the NJDEP to retroactively invalidate previously valid permits. Furthermore, this has significant financial implications for landowners whom previously might have had several acres of buildable land with a prior verification now suddenly reduced to a sliver.
Can a State environmental agency retroactively change the terms of permits that have been previously issued? Or would they be subject to the ex post facto clause as well?
