May 2022

NJDEP To Issue Emergency Rule Expanding Flood Hazard Jurisdiction in Riverine Areas And Expanding Storm Water Requirements

In a video conference call with industry stakeholders on May 25, 2022, the New Jersey Department of Environmental Protection (NJDEP) announced that it will be adopting an emergency rule expanding the areas in New Jersey that are subject to flood hazard permitting requirements.  This regulatory action, which also updates stormwater requirements for new developments, is likely to be issued by mid-June and will go into effect immediately upon issuance.

On January 27, 2020, Governor Murphy issued Executive Order 10, which directed NJDEP to adopt Protecting Against Climate Change (“PACT”) regulations.   These rules are intended to address emissions of green house gasses and to incorporate climate change considerations into land use permitting requirements.  Since that time, NJDEP has promulgated changes to air permitting requirements and has been working on drafting the land use portion of the PACT rules.   The full land use rule proposal, which is more than 1,000 pages, is scheduled to be published later this year.

As NJDEP was developing the PACT rules, Hurricane Ida struck New Jersey causing tragic flooding.  The experience of Hurricane Ida further reinforced NJDEP’s determination that existing flood hazard mapping, including flood insurance rate maps issued by the Federal Emergency Management Agency (FEMA), do not accurately reflect current flood risks because they are based upon historic events, not more recent occurrences.  Additionally, NJDEP determined that historic rainfall data is not an adequate basis for predicting future storms.

NJDEP was planning on directly addressing these concerns in the PACT rule proposal that will be published this fall; however, the impacts from Hurricane Ida and recently announced plans to use Hurricane Ida recovery money led NJDEP to issue a portion of the PACT rule on an emergency basis rather that wait the formal adoption of the full PACT rule which is likely to take a year from publication.  NJDEP believes it is important that this rule apply to projects undertaken using Hurricane Ida recovery money.

As described by NJDEP, the emergency rule will include the following:

1. In non-tidal areas, the base flood elevation will be raised by two feet above existing mapped elevations.   This will have the effect of making the first finished floor of any structure three feet above existing elevations.  Tidal areas are not affected by this provision.
2. In determining projected future rainfall to design stormwater best management practices, reliance upon existing NOAA data will not be sufficient.   Instead, projections of increased rainfall amounts through 2100 will need to be considered.  The mechanism for doing so will be provided in the rule.
3. The rule will contain “grandfathering” provisions for those who have received permits or who have submitted technically complete permit applications before the rule is issued.
4. Existing flood hazard area verifications in riverine areas may no longer be valid.
5. Projects that are subject to the Residential Site Improvement Standards, will immediately be subject to the new storm water requirements even if they do no require an NJDEP permit.

NJDEP has not yet provided the full text of the emergency rule, but these are the highlights mentioned on the conference call.

This emergency rule will have a significant impact. Large areas of the state that are not presently subject to NJDEP regulations now will be. Parties that relied upon the existing flood hazard maps in assuming that a property is not subject to permitting requirements may now find that an NJDEP permit is needed prior to construction. Stormwater basins and similar features will now need to be larger.  All of these changes have been predicted to be part of the PACT rule once it is adopted; the big difference is that these requirements will go into effect immediately.

NJDEP is issuing this rule under the emergency provisions of the Administrative Procedures Act, N.J.S.A. 52:14B-4.   An emergency rule can be operative for no more than 120 days.  The agency is required to formally propose the rule concurrent with the emergency adoption and take comments for a minimum of 30 days.   After considering and responding to the comments, the agency can formally adopt the proposal with or without changes, allowing the rule to continue in effect.

NJDEP recognizes that the emergency rule is a significant change that will have broad impacts. NJDEP has offered to work with impacted parties to broadly interpret grandfathering where appropriate and recognize that investments have been made based upon the existing rules. However, the reality is that climate change, prior development and increased rainfall has created a need for building greater protectiveness into future projects. 

Anyone considering development near an existing mapped flood hazard area should be mindful of the emergency rule and consider whether new regulatory hurdles will apply to the property.