On July 17, 2023, the NJDEP adopted changes to its Stormwater Management (SWM) rules and Flood Hazard Area Control Act (FHACA) rules, labelled the Inland Flood Protection Rule. These changes are part of a broader initiative of the state to address climate impacts, NJ Protecting Against Climate Threats (NJ PACT), including adjusting flooding standards to confront recent extreme rainfall events and anticipated future rainfall up until 2100.
Key Changes
As part of SWM and FHACA, the Inland Flood Protection Rule was adopted. The key changes include:
- The elevation standard for habitable first floors of buildings, the New Design Flood Elevation (DFE), was raised by two feet for fluvial (non-tidal) areas indicated in NJDEP current flood maps.
- When calculating flood elevations, permit applicants will be required to use future anticipated precipitation data (based on projections for the year 2100).
- Flood Hazard Area permits from the NJDEP will have to conform to NJ Uniform Construction Code standards and meet or exceed minimum FEMA National Flood Insurance Program requirements.
- Stormwater Best Management Practices (BMPs) are to be designed to manage runoff for both present and future storms.
- The use of Rational and Modified Rational methods, which were previous methods for calculating stormwater impacts, has been discontinued.
Developments Exempt from the July 17, 2023 Changes
Certain developments may be grandfathered into the new Rule, instead relying on the regulations in place at the time of application submission.
SWM Exemptions
- If requiring a permit from the NJDEP, “technically complete” applications for major developments submitted after or on March 2, 2021, but before July 17, 2023 will be subject to the prior March 2, 2021 ruleset. “Technically complete” means that the application has enough information for the NJDEP to declare the application complete for review, public comment, or public hearing.
- If not requiring a permit from the NJDEP, complete applications submitted after or on March 2, 2021, but before July 17, 2023 will be subject to the prior March 2, 2021 ruleset.
FHACA Exemptions
- Developments which previously did not need a Flood Hazard Area (FHA) permit and already began construction before July 17, 2023.
- Developments which need an FHA permit but have already submitted a complete application for review before July 17, 2023.
- Developments which already have an FHA permit and had acquired it before July 17, 2023.
Conclusion
As of July 17, 2023, the NJDEP has adopted changes to the SWM and FHACA in the form of the Inland Flood Protection Rule in order to address future climate impacts, particularly anticipated increased precipitation. The new standards will require developers to use the year 2100 as reference for flood elevations, comply with more stringent standards, and rely on new calculation methods when applying for the relevant permits.
If you have any questions or would like to discuss this matter, please reach out to one of our environmental attorneys.