december 2007

NJDEP Adopts Final Flood Hazard Area Control Act Rules

BACKGROUND

On November 5, 2007, the New Jersey Department of Environmental Protection (NJDEP) adopted new Flood Hazard Area Control Act (FHACA) rules which will impact properties near any stream, lake or river, or coastline area in New Jersey, thereby affecting development and redevelopment projects statewide. It is noteworthy that the FHACA rules have been adopted with a few important revisions following extensive public comment.

The new FHACA rules will:

  • Designate areas comprised of land and vegetation within a certain distance of regulated bodies of water as ‘riparian zones’

  • Significantly expand the requisite buffer area adjacent to regulated bodies of water

  • Expand NJDEP’s jurisdiction with regard to the standards used to regulate development in tidal and non-tidal flood zones

  • Expand the ‘zero percent net fill’ rule to all non-tidal flood hazard areas statewide (with an exception in instances where new flood storage is created in the flood hazard area)

    • The circumstances under which development projects can be ‘grandfathered’ under existing rules are extremely narrow, with no alternate provisions for brownfields redevelopment or sites covered by municipal redevelopment plans.

    REVISIONS FOLLOWING PUBLIC COMMENT

    NJDEP has modified portions of the grandfathering and riparian zone provisions as follows:

  • The grandfathering provisions are expanded to include issuance of a zoning certificate by the New Jersey Meadowlands prior to November 5, 2007 for developments within the Hackensack Meadowlands District.

  • NJDEP has clarified that there are no riparian zones along stormwater management basins

    • WE RECOMMEND

    If you are considering developing a property that contains or is near a body of water:

  • Prior to purchasing a site for development, carefully investigate all on-site and nearby bodies of water to assess the potential regulatory impact of the proposed rules.

  • Obtain a state delineated flood hazard area map, if one exists, or a Federal Emergency Management Agency flood map for the property to help determine what areas of the site would be subject to the new FHACA rules.

    • If you have any questions concerning these issues, please contact Keith P. McManus.