february 2007

New NJDEP Flood Hazard Area Control Act Rules to Impact Future Development within the State

BACKGROUND

The New Jersey Department of Environmental Protection (NJDEP) has proposed new Flood Hazard Area Control Act (FHACA) rules. If adopted as proposed later this year, the new rules will impact properties near any stream, lake or river, or coastline area in New Jersey, affecting development and redevelopment projects statewide.

The articulated purpose of the new rules is to “better protect the public from the hazards of flooding, preserve the quality of surface waters and protect the wildlife and vegetation that exist within and depend upon such areas for sustenance and habitat.” As it seeks to mitigate the effects of flooding through preservation of flood storage, NJDEP has proposed far-reaching regulatory changes.

A “flood hazard area permit” would replace the current “stream encroachment permit.” Beyond this change in terminology, key provisions of the pending rules include the following:

  • EXPANSION OF REGULATED AREAS AND NJDEP JURISDICTION

    The proposed rules designate a newly-named “riparian zone,” an area comprised of land and vegetation within a certain distance of all regulated waters, as well as the water itself. They significantly expand the requisite buffer area from the existing 25-50 feet to distances of 50-300 feet, dependent upon specific characteristics of the waterbody; for example, waters that flow through threatened or endangered species habitat and waters that flow through areas containing acid producing soils would require a 150 foot buffer.

    The new rules would expand NJDEP’s jurisdiction. Presently, regulated activities in non-tidal (fluvial) flood plains must comport with both the engineering and environmental standards of the FHACA rules, while activities in tidally-influenced flood plains are not subject to the engineering standards of the rules. The new rules would remove this exemption, subjecting both fluvial and tidal flood plains to both the engineering and environmental standards under the FHACA.

  • FLOOD STORAGE DISPLACEMENT (NET FILL)

    Properties in a flood hazard area are periodically inundated by floodwaters. In most non-tidal flood hazard areas, the current rules allow for a maximum of 20% of existing flood storage volume to be displaced by development that redirects floodwaters to adjacent and downstream properties (known as 20% net fill). In the Central Passaic Basin and Highlands Preservation Area, “zero percent net fill” provisions are already in effect. The new FHACA rules would expand the “zero percent net fill” rule to all non-tidal flood hazard areas statewide. This would still allow for displacement of 20 percent of flood storage, but only if the permittee compensates by creating an equal amount of flood storage elsewhere in the same flood hazard or watershed area.

  • GRANDFATHERING PROVISIONS

    NJDEP indicates that adoption of the new rules may be as soon as August 2007. The “grandfathering” provisions are very narrow. In order to be deemed subject to the existing rules, developers would have to establish that prior to the effective date of the new rules, they had already submitted an administratively complete stream encroachment, waterfront development, or CAFRA permit application, or obtained a municipal building permit.

    There are no alternate grandfathering provisions for brownfield projects or sites covered by municipal redevelopment plans, notwithstanding the lengthy planning processes typical to such matters.

    WE RECOMMEND

    If you are considering developing a property that contains or is near a waterbody:

  • Prior to purchasing a site for development, carefully investigate all on-site and nearby waters 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 (“FEMA”) flood map for the property to help determine what areas of the site would be subject to the new proposed FHACA rules.

  • Eligibility within the limited grandfathering provisions requires submission of an administratively complete permit application, but does not require confirmation by NJDEP that the application is administratively complete. Nevertheless, it remains prudent to submit a stream encroachment, waterfront development, or CAFRA permit application by the earliest possible date. In this manner, any deficiencies noted by NJDEP can be corrected prior to the effective date of the new rules.

    • If you have any questions concerning these issues, please contact Jeffrey W. Cappola.