Land use development in New Jersey, which is already stringently regulated by local and State authorities, will be limited further by new regulations proposed by the New Jersey Department of Environmental Protection (“NJDEP”) under a program entitled “Protecting Against Climate Threats (“PACT”).  These regulations, which will amend existing Flood Hazard Area Control Act regulations, are being adopted by emergency rulemaking which will make them immediately effective, to be followed by additional regulatory proposals to be issued in the Fall of 2022 under the Resilient Environments and Landscapes (“REAL”) initiative. 

Under the PACT regulations, development in flood plains will be more difficult to accomplish.  In part, the following rules have been adopted by the emergency rulemaking:

            1.         The design flood elevation will be raised by 2 feet in fluvial (non-tidal) areas;

            2.         The calculation of the design flood elevation by project engineers will require the use of estimated future precipitation; 

            3.         Stormwater Best Management Practices must be designed to manage runoff from both today’s storms and predicted future storms; and

            4.         Traditionally utilized methods for stormwater calculation are no longer available for use by engineers.

NJDEP justifies this emergency rulemaking by arguing that projects constructed pursuant to current regulations pose an “imminent peril to public health, safety and welfare.”  The Department points to the effects of Hurricane Ida as justification for this finding. 

Some projects will be grandfathered, but the grandfathering exceptions are narrow.  Hence, projects that have relied upon previously issued flood hazard area delineations may find that the regulatory boundaries and elevations have changed, requiring new verifications and revisions to project design unless the applicant has previously obtained a valid permit or submitted an application that has been deemed complete.  Without emergency rulemaking, developers could evaluate and re-evaluate projects based upon draft regulations during public comment periods and dialogue.  With emergency rulemaking, projects that are in the midst of development may require revision and/or may not be feasible. 

These emergency regulations are likely to have a significant impact on development in New Jersey, particularly on the ongoing efforts to revitalize our downtowns, which often include flood hazard areas.  Developers and their consulting and design teams should carefully examine these new rules and the impact of them on their projects.

If you have questions, please contact us 

If you have any questions regarding this notice, please contact William C. Sullivan, Jr. or any member of Scarinci Hollenbeck's Environmental Practice Group, at 201-896-4100.