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SESI Learning Series: Upcoming NJDEP Flood Hazard Area Regulation Changes
July 23, 2015

Construction site surrounded by trees

New terms were added to the New Jersey land development vocabulary with the 2004 Stormwater Management and 2007 Flood Hazard rule changes. Riparian Zone, Category One, and the acronym SWRPA have become part of the vernacular, alongside old "favorites" such as Net Fill and Floodway. Since their wide­spread usage began, the development community has sought a clear understanding of these words due to their potential impacts to projects statewide. Based on a read of the recently proposed Flood Hazard rule changes, it appears that NJDEP looks to clarify and provide some "flexibility to disturb" in regulated areas.

Currently, there are Riparian Zones of 50, 150, or 300 feet around regulated waters. NJDEP currently limits Riparian Zone vegetation disturbance based on the ecological functions that the Riparian Zone provides. The existing Riparian Zone development standards have resulted in unanticipated difficulties for both the development community and NJDEP. Projects that do not meet the standards require that a developer seek hardship waivers. This has resulted in increased application preparation time, approval uncertainty, and higher application costs because of the additional documentation needed for submission. NJDEP proposes to address this by increasing Riparian Zone vegetation disturbance limits for areas such as lawns, gardens, and actively disturbed areas. Under the new proposal, Riparian Zone compensation and preservation will be added as compensation alternatives, similar to freshwater wetlands and transition area disturbance.

Presently, Category One waters have two overlapping 300 foot wide buffers. The first is the SWRPA, found in the Stormwater regulations. The second is a Riparian Zone in the Flood Hazard Area regulations. NJDEP has found that when these buffers apply to the same project, implementation issues have occurred due to regulatory differences. As a result, NJDEP proposes to delete the SWRPA from the stormwater regulations and clarify the 300 foot Riparian Zone standards for Category One waters.

NJDEP proposes to remove standards that pertain to acid­producing soils in the new regulations. Soil Conservation Districts will be the regulatory authority for development projects in these areas. A regulated water, traversing acid producing soils, will generally have a 50 foot Riparian Zone unless a condition exists that would require a wider one, such as the designation as a Category One water.

The methodologies for determining both the Floodway and Flood Hazard Area limits on properties would be expanded to allow for the use of recently updated FEMA studies prepared in response to Superstorm Sandy. Also, hydraulic studies that show streams exhibiting "supercritical flow" will result in the entire flood hazard area being considered as Floodway. The rationale of the NJDEP is that this approach is appropriately protective of public safety and is consistent with their practice.

The public comment period for regulatory changes is about to expire, and the changes will become official soon thereafter. We are keeping close tabs on these changes and are always available to discuss how they will affect the New Jersey development community and answer any questions you may have.

Please contact Anthony Castillo, PE at 973­-808­-9050 for more information about the upcoming NJDEP regulation changes and how it may affect your business.
*Information based on regulations as of 7/23/2015