The New Jersey Department of Environmental Protection (“DEP”) has pre-released proposed amendments to its flood hazard and stormwater management rules. These amendments relate only to fluvial flood hazard areas, and are being proposed by DEP in place of the emergency flood hazard rules that were anticipated, but never released, in June 2022. DEP will proceed with formal rulemaking subject to notice and opportunity for public comment, and announced it is targeting the second quarter of 2023 for the amendments to be adopted and made effective. Tidal flood hazard areas will be addressed in a separate rule proposal.
Some of the most significant proposed changes are outlined below.
1. New increased rainfall projections must be used for designing stormwater management facilities and determining calculated base flood elevations. These rainfall numbers are based on projections of rainfall for the year 2100 and a 17% chance that this rainfall will occur.
2. The design flood elevation for any State studied stream or calculated base flood elevation must be increased by 2 feet in addition to the 25% increase that previously determined the design flood elevation and three feet for any FEMA mapped flood elevation.
3. The amendments continue the practice of grandfathering for existing projects if certain conditions are met.
a. For major development projects requiring stormwater review, whether in the context of projects requiring DEP approvals with a stormwater review or projects that only require municipal approval, the proposal emphasizes the need for submission of an administratively and technically complete application prior to the effective date of the amendments. Greater flexibility is provided to public roadway or railroad projects by a “public transportation entity” (any governmental entity, independent State authority, or a statutorily authorized public-private partnership program that builds, expands, reconstructs, or improves a public roadway). Such public transportation projects are not subject to the complete application limitation and must only have “determined a preferred alternative or reached an equivalent milestone” prior to the effective date of the amendments.
b. Grandfathering will apply to any Flood Hazard Area Control Act Permit issued under the existing rules or to projects for which a complete application is submitted prior to the effective date of the new rules.
c. If no Flood Hazard Area Control Act approval was required for the project under the existing rules, all Federal, State and Local approvals must be obtained and the regulated activity commenced prior to the effective date of the new rules. “Commencement of regulated activities” does not include land preparation such as clearing, grading and filling, or excavation, but involves placement of above or below ground structures.
4. All construction in a flood hazard area must comply with construction standards under both the Uniform Construction Code and the Federal Flood Reduction Standards.
5. The proposal leaves unchanged the existing requirement for an access roadway 1 foot above applicable design flood elevation for multi-residence buildings and critical buildings (e.g. – schools, day care, assisted living). The proposed flood elevation increases will make efforts to satisfy this requirement even more challenging, particularly in developed areas with existing roadway networks. However, public transportation entities are provided an off-ramp from the roadway elevation requirements.