NJDEP Issues Delayed Inland Flood Protection Rule Proposal; Schedules Webinar on NJPACT REAL Regulatory Package

December 6, 2022
Bruce S. Katcher, Esq.
MGKF Special Alert

In a follow-up to its decision not to issue its new climate change flood hazard area and stormwater regulations as an emergency rule as originally announced back in May, the New Jersey Department of Environmental Protection (NJDEP) formally issued a proposed regulatory package entitled the Inland Flood Protection (IFP) Rule in the December 5, 2022 New Jersey Register. The proposed IFP Rule is subject to a virtual public hearing on January 11, 2023 and remains open for public comment under standard rulemaking procedures until February 3, 2023.

The proposed IFP Rule, would modify both the fluvial (non-tidal) flood hazard area and stormwater requirements applicable to future development (key aspects and grandfather provisions are described below) to take account of current and future rainfall projection studies prepared for the Department by Cornell University. These projections relied on by NJDEP are for the 2050 – 2099 timeframe (to encompass the lifetime of buildings and infrastructure being built today) and reflect increased anticipated precipitation over that period on account of climate change.  In contrast, the current rules reflect precipitation data collected in the 1970s and 80s which NJDEP believes does not take account of the significant increase in extreme precipitation events occasioned by changing climate conditions.

Importantly, the IFP Rule does not address other aspects of the NJDEP’s Land Resource Protection program that were intended to be part of the agency’s Resilient Environment and Landscapes (REAL) Protecting Against Climate Threats (PACT) regulatory package. That package was supposed to address climate change induced sea level rise, propose new inundation risk zones, modify tidal flood hazard areas, adjust the freshwater wetlands rules, enhance coastal zone planning to address climate change, encourage nature-based solutions to land resource protection and balance marine habitat maintenance and renewable energy development. These proposed rules are anticipated sometime in 2023 and NJDEP has scheduled a webinar to update the interested public on the subject of the REAL rules for December 15 and December 19 (identical sessions). More information is available here.  

Key Aspects of the IFP Rule

Flooding:  The major proposed flood hazard revisions are as follows:

  • The new design flood elevation (DFE) would raise the 100-year fluvial flood elevation NJDEP mappings by two feet and expand flood hazard area designations accordingly.
  • Consistent with the above, where FEMA flood insurance maps are used to estimate the DFE, a three feet safety factor would be added to FEMA’s 100 year fluvial flood elevation—currently a one foot additional safety factor is used - and flood hazard area designations would be expanded accordingly.
  • Where neither the NJDEP nor FEMA flood elevations are used, the applicant may have a licensed professional engineer calculate the flood level based on future projected precipitation.
  • Flood hazard area permits will have to conform to the New Jersey Uniform Construction Code Requirements and meet or exceed minimum FEMA National Flood Insurance Program requirements.
  • Public transportation entities are afforded special flexibility in demonstrating regulatory compliance with respect to public roadways and railroads
  • Grandfather provisions:
    • Activities that were outside the flood hazard area and riparian zones prior to the effective date of the new proposal but would now be within the expanded flood hazard area and considered regulated activities are exempt if the activity received all necessary federal, state and local approvals such that construction could have lawfully commenced prior to the effective date and the activity has commenced.
    • Regulated activities that fall within the currently regulated area are exempt if they part of a development for which a complete flood hazard area application was submitted prior to the effective date of the new rules provided the application was subsequently approved.
  • A hardship exemption may also be available upon application.

Stormwater: The major proposed modifications to the stormwater regulations are as follows: 

  • Stormwater Best Management Practices for major developments subject to the stormwater rules will have to be designed to manage runoff for both current and future 2-, 10- and 100-year storms using county by county precipitation update and change factors developed based on the Cornell studies. These factors will be applied to NOAA published precipitation data to get updated and future rainfall projections.
  • Use of the Rational and Modified Rational Methods for calculating peak runoff rates would no longer be allowed – NJDEP considers these methods to be too “oversimplified” to achieve consistent uniform estimates of runoff flow rates.
  • Similar to the flood area regulations, public transportation entities are afforded special flexibility in demonstrating regulatory compliance for stormwater with respect to public roadways and railroads
  • Grandfather provisions – When a proposed major development triggers compliance with the stormwater rules either because compliance with the stormwater rules is required under a particular NJDEP permit program (flood hazard, freshwater wetlands, waterfront development, CAFRA, or Highlands) or compliance is required to obtain a municipal land use approval (e.g., preliminary or final site plan, building permit, or the various subdivision approvals), certain projects are grandfathered as follows:
    • Where compliance with the stormwater rules is triggered under a NJDEP permit requirement, if a technically complete application was submitted to the NJDEP for the NJDEP permit prior to March 2, 2021 or after March 2, 2021 but prior to the effective date of the new rules, the project will be subject to the stormwater management requirements in effect on March 2, 2021.
    • Municipal projects subject to the stormwater regulations for which a complete municipal application has been submitted prior to March 2, 2021 or after March 1, 2021 but before the effective date of the new rules will be subject to the stormwater management requirements in effect on March 2, 2021.

These proposed regulations promise to have significant impacts on projects developed in floodplains and/or otherwise subject to the stormwater regulations.  If you have any questions concerning the proposal, feel free to contact Bruce Katcher or 484-430-2320.