Breaking Down the Latest NJDEP FHA and Stormwater Rules

07 December, 2022

What It Means for New Jersey Developers

On December 5, 2022, the New Jersey Department of Environmental Protection (NJDEP) published the long-awaited Flood Hazard Area (FHA) Control Act Rule and Stormwater Management Rule, which is anticipated to be adopted in the second quarter of 2023.

This is a departure from the initial timeline for the rules, invoked using the NJDEP’s emergency rule-making powers. The agency is now following the traditional regulation change review process and the rules are currently open for public comment and review.

The new rules, once adopted, will impact all proposed land development projects in the state of New Jersey, with a few exceptions, listed below.

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

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Inland and Fluvial Flood Hazard Rules

All Federal Emergency Management Agency (FEMA)-established non-tidal flood elevations will increase as follows:

  • Flood elevations mapped by NJDEP will increase by two feet
  • FEMA’s 100-year flood elevations will increase by three feet.
Note: Tidal flood elevations are not affected.
  • Flood Hazard Area (FHA) elevations determined by approximate methods will increase by one foot.

When calculating flood elevations, the new rules will require the use of projected precipitation volumes for the calculations. Projected volumes are typically greater than current volumes, and therefore will likely increase the flood elevations.

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 new 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 is deemed substantially and technically complete by the NJDEP according to the agency’s applicable checklist before the new rule takes effect.
  • The project needs Coastal Zone Management (CZM), Fresh Water Wetlands (FWW), or Highlands approval and a complete application is submitted to NJDEP prior to adoption of the new regulations.
  • The project does not require NJDEP approval and receives local approvals pursuant to Municipal Land Use Law (MULL) prior to adoption.

Stormwater Rules

Under the Control Act Rule, the design of all stormwater management facilities for all new proposed land development projects in the state of New Jersey will be required to account for a higher intensity rainfall. Additionally, the NJDEP is amending the Groundwater Recharge Standards, which will require infiltration areas to also be calculated using the new 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 to either 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 is submitted to NJDEP before the new rule becomes effective.
  • The project is not subject to the regulated area of the chapter prior to the effective date of these rules.
  • The project is outside of the flood hazard and riparian zone.
  • The project receives all necessary federal, state, and local approvals, such that construction could have lawfully commenced prior to the effective date of this rulemaking.
  • Construction of the project has commenced prior to the effective date of these rules.
  • The project does not need NJDEP approval and has received local approval prior to the 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.

About Ahmad Tamous, PE, PP
Ahmad Tamous, PE, PP, Branch Manager of Bohler's Southern New Jersey office

Ahmad serves as Associate and Branch Manager of Bohler’s Mount Laurel, NJ office, guiding a team of ambitious land development consultants who move projects forward across the state of New Jersey. Through Ahmad’s 25-year career, he has acquired extensive design and permitting experience with the New Jersey Department of Environmental Protection (NJDEP) for freshwater wetlands, stream encroachment, treatment works, and the Bureau of Safe Drinking Water. Ahmad is leading Bohler’s efforts to stay ahead of the NJDEP’s regulation changes and help clients navigate the impacts on their projects.

 

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