NJDEP Land Resource Protection Program to Focus on Climate Change Rules in 2023
2023 promises to be a very active year for climate change rules under the NJDEP’s Land Resource Protection Program under NJDEP’s Protecting Against Climate Change (PACT) initiative:
- The Inland Flood Protection Rule, which was issued in proposed form on December 5, 2022, with finalization expected as soon as May 2023. This rule would revise both the Flood Hazard Area rules as applied to inland flooding by non-tidal streams and rivers and the Stormwater Management (SWM) Rules to address more severe rainfall events caused by climate change.
- The Resilient Environments and Landscapes (REAL) Rule, which NJDEP expects to propose in the second quarter of 2023 and finalize by the first or second quarter of 2024. This rule will incorporate climate change considerations, like sea level rise, into a wide variety of regulatory programs including Coastal Zone Management, Freshwater Wetlands, Flood Hazard Area, and SWM rules.
We previously summarized the salient aspects of the Inland Flood Protection Rule here. Major changes would include use of future precipitation estimates in calculating flood and SWM requirements, expanding flood hazard areas, and increasing design flood elevations (DFE) by two feet above current requirements for future construction. Grandfather provisions are included.
The major elements of the REAL Rule were revealed by Vince Mazzei, Assistant Commissioner for Watershed and Land Management, in a late December webinar. Five feet would be added to the current DFE requirements for future shore construction, based on NJDEP’s estimate of a five-foot sea level rise by 2100, combined with an estimated life of most new buildings of approximately 75 years. Flood hazard areas would expand, and the rule would add a new regulatory area – an inundation risk zone (IRZ) – including the area between the current shoreline and the projected year 2100 shoreline. Building would not be prohibited in the IRZ (assuming that flood hazard area and other applicable requirements were met), however, a new risk assessment and alternatives analysis would be required together with a deed notice of building risks based on this analysis.
Other changes would correct inconsistencies between the state program and the National Flood Insurance Program, address renewable energy (especially habitat and infrastructure issues raised by wind energy), encourage nature-based solutions for SWM and water quality, remove SWM exemptions for urban redevelopment, impose new riparian zone protections for headwaters and barrier island baysides, and add wetlands, transition area and wildlife habitat protections. Finally, the proposal would modify the land use permitting process for coastal and inland areas, including replacement of permits-by-rule with a new permit-by-registration process, eliminate or combine some permits-by-certification with general permits, require that certifications be completed by a licensed engineer or architect, and add or modify various permit notice requirements. Mazzei offered to meet with interested parties in January to provide pre-proposal comments