NJDEP to Propose Emergency Flood Hazard and Stormwater Rulemaking

May 31, 2022
Bruce S. Katcher and Jonathan H. Spergel
MGKF Special Alert

NJDEP announced to stakeholders last week that it intends to take the extraordinary action of issuing an emergency rulemaking in mid-June to amend its flood hazard area and stormwater management rules, which would become effective immediately upon publication in the New Jersey Register and remain valid for 60 days.  NJDEP will also file a concurrent proposal to enable the emergency rules to remain valid after 60 days.  This action is part of NJDEP’s Resilient Environments and Landscapes (REAL) Reforms, which are intended to increase resiliency throughout the state by addressing the impacts of climate change, such as sea-level rise, extreme weather, and chronic flooding.

The REAL Reforms and the planned Emergency Rule are an outgrowth of NJDEP’s Protecting Against Climate Threats (PACT) initiative and will include revisions to rules under the Flood Hazard Area Control Act (FHCA), the Freshwater Wetlands Protection Act (FWPA), the Coastal Zone Management (CZM) Rules, as well as to existing Stormwater Management Rules.  In order to issue the Emergency Rule, NJDEP will have to make a finding of imminent peril to public health, safety and welfare.  NJDEP has indicated that the concurrent rulemaking proposal will include a 30-day comment period.  Based on prior NJDEP statements, it is anticipated that a comprehensive REAL Rule will also be proposed the third quarter of 2022.

The details of the Emergency Rule are not yet available from NJDEP, but NJDEP has stated that the rule will be premised on the presumed threats of higher energy storms, increased levels of precipitation and flooding, and higher temperatures attributed to climate change.  According to NJDEP the data used to evaluate rainfall and flooding potential is significantly outdated.  NJDEP has indicated that the Emergency Rule will include the following changes:

  1. Raise fluvial (non-tidal) design flood elevations by two feet above current standards.
  2. Require use of future projected precipitation when calculating design flood elevation.
  3. Provide that permits and authorizations issued under the FHCA rules meet minimum National Flood Insurance Program (NFIP) standards and relevant sections of the Uniform Construction Code.
  4. Require stormwater Best Management Practices (BMPs) to be designed to manage runoff for both today’s storms and future storms.

According to NJDEP, the Emergency Rule will not apply to existing developments that already have a FHCA permit or complete permit application when the rule goes into effect. The stormwater requirements will apparently be triggered if an FHCA, CZM, FWPA or Highlands approval is required.

NJDEP’s planned use of an emergency rulemaking where changes become effective immediately is a very unusual step and may foreshadow increased use by NJDEP of similarly aggressive strategies in connection with other controversial rulemakings.

For more information about the planned Emergency Rule, as well as how this may impact your business or development project, please contact MGKF’s Jonathan Spergel at 484-430-2309 or Bruce Katcher at 484-430-2320.