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On December 5, 2022, NJDEP published notice of its intent to adopt new rules in connection with Stormwater Management and the Flood Hazard Area Control Act (“FHA”). Given the impacts of increased flooding and stormwater runoff caused by climate change NJDEP argues that stricter requirements for controlling stormwater and development in flood-prone areas are needed. Therefore, the new rules propose to eliminate existing methods of calculating stormwater impacts and instead require that stormwater best management practices (“BMP’s”) be based on current and anticipated future precipitation data. In addition, the rules raise the design flood elevation two feet higher than currently indicated on NJDEP state flood maps and three feet higher than indicated on FEMA maps. Where an applicant instead retains a licensed professional engineer to calculate the design flood elevation, the rules require the engineer to use future projected precipitation data from the year 2100 as a basis for the calculation. Permits issued under the FHA will also be required to conform with Uniform Construction Code (“UCC”) standards and meet the requirements of FEMA’s National Flood Insurance Program (“NFIP”).

The impact of these rule changes will be considerable for development projects in New Jersey. Larger stormwater maintenance footprints may decrease the size of the developable portion of a property. The raised flood elevations may restrict development in areas that currently do not fall within the flood hazard area and builders may find it difficult and costly to obtain permits.

NJDEP is, however, allowing certain projects to be “grandfathered,” although the criteria to qualify is stringent. To be “grandfathered” from the FHA requirements, the project must have a valid FHA approval or have already submitted a complete FHA application before the new rules are adopted. If the project did not need a FHA permit prior to rule adoption, the project must receive all necessary Federal, State and local approvals prior to the rule adoption date and construction must commence prior to the rule adoption date.

To be “grandfathered” from the stormwater requirements, if the project needs a FHA approval, Coastal Zone Management approval, Freshwater Wetlands approval, or Highlands approval, a complete application for such must be submitted to NJDEP prior to rule adoption. If the project does not need an NJDEP approval list above, complete municipal applications pursuant to the Municipal Land Use Law must be submitted to the local municipality prior to rule adoption.

A virtual public hearing on the new rules will take place on January 11, 2023 and written comments may be submitted to NJDEP electronically or on paper until February 3, 2023.

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