Breaking Down the NJDEP FHA Emergency Rule

02 June, 2022

What It Means for New Jersey Developers

The New Jersey Department of Environmental Protection (NJDEP) has issued an emergency Fluvial Flood Hazard Area (FHA) Control Act Rule that will become effective late summer to early fall 2022.

NJDEP is invoking its emergency rule-making powers for this regulation change, thus bypassing the traditional review process under the Protecting Against Climate Threats (PACT) act. The emergency rule will be effective for up to 120 days and may be extended. The rule will impact all proposed land development projects in the state of New Jersey, with the exception of the exemptions listed below.

Here is what Bohler’s New Jersey team knows as of this article’s published date.

Fluvial Flood Hazard Rules

  • All Federal Emergency Management Agency (FEMA)-established non-tidal flood elevations will increase by two feet, in addition to the one foot that NJDEP already requires, totaling a three-foot increase.
Note: Tidal flood elevations are not affected.
  • All studied state stream elevations will increase by one foot.
  • Flood Hazard Area (FHA) elevations determined by approximate methods will increase by one foot.

What This Means for Developers

With the new elevations, a property that currently sits outside a floodplain could now fall into a floodplain zone or FHA and be subject to all associated NJDEP permitting requirements.

If a site is in a floodplain, its yield, density, and overall developability may also be limited, depending upon how much of the site falls within the floodplain under the newly enacted rule.

Land Development Projects Are Exempt If:

  • The project is currently under a valid individual permit with the NJDEP. Note that an FHA verification is not a permit and does not exempt a project from having to comply with these changes.
  • The project’s FHA permit application has been deemed substantially and technically complete by the NJDEP according to the agency’s applicable checklist before the new rule takes effect.
  • The project does not require an FHA permit provided that ALL agency, state, county, and municipal approvals are in hand AND construction has commenced before the new rule takes effect.

Stormwater Rules

Additionally, under the Control Act Rule, the design of all stormwater management facilities for all proposed land development projects in the state of New Jersey will be required to account for a higher intensity rainfall.

  • All projects subject to Residential Site Improvements Standards (RSIS) will immediately be subject to these new stormwater requirements, even if they do not require an NJDEP permit. This affects all single-family residential subdivisions, multifamily communities, assisted living communities, and all other residential projects under RSIS.
  • All other projects will be required to follow the new requirements when the applicable municipality adopts them. NJDEP has given municipalities one year from the rule’s publication to adopt the regulation.

What This Means for Developers

Though more specific details will vary by county, the higher rainfall intensities will result in an approximate 20%–50% increase in stormwater basin size. Incorporating larger basins can impact a site’s yield, overall layout and construction and maintenance costs.

If your project is not subject to RSIS, consult your site civil engineering consultant for assistance in evaluating your options. Inquire about the design team’s ability either to obtain stormwater management permits prior to the municipality adopting the new regulations or to reconfigure the design to accommodate the latest regulations.

Projects Are Exempt If:

  • A complete FHA permit application for the project was submitted to NJDEP before the new rule becomes effective; or
  • The project does not need NJDEP approval and has received local approval prior to the emergency rule becoming effective.

This information is fluid and continues to evolve as the state works through this process. Bohler is in frequent communication with state agencies, attorneys, and industry professionals to keep our teams and our clients apprised of the latest information.

If you are concerned that your project may be affected by these changes, please contact our team today. 

This article was revised on June 14, 2022 to reflect NJDEP’s updated effective timeline of the new regulations to late summer–early fall 2022. This timeline was previously referenced as mid-June. 

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