New NJ Flood Maps and Regulations Pose Challenges and Opportunities

On January 24, 2013, Governor Chris Christie and the NJ Department of Environmental Protection (“NJDEP”) announced emergency regulations that adopted the Federal Emergency Management Agency (“FEMA”)’s updated Advisory Base Flood Elevation (ABFE) maps. 

The new regulations also amended the Flood Hazard Area Control Act (“FHACA”) regulations in light of the devastation caused by Superstorm Sandy.  In summary, these regulations accomplish the following:

1. The State adopted the height and construction requirements in FEMA’s ABFE maps as a State standard for reconstruction.
2. The State adopted new Permits by Rule that allow property owners with damage exceeding 50% of the property’s value who rebuild to the ABFEs (plus one additional foot) to do so without applying for permits.  Regulations for General Permits and Individual Permits were also amended to ease rebuilding, if the building is elevated.
3. The State will allow “wet floodproofing” for non-residential buildings, meaning that the building may flood but it can structurally withstand the impact, where elevating the building or dry floodproofing would be difficult or very expensive.

As explained by the Governor’s Office, elevating buildings out of the “A” or “V” zones as depicted on these maps will save the average property owner tens of thousands of dollars in flood insurance premiums.

Although these maps are advisory from FEMA’s perspective and are to be finalized within the next year, they are being used by the State as the foundation for these new regulations.  The maps can be viewed at www.region2coastal.com.

NJDEP did not amend the existing regulatory prohibition of multi-family residential development or the discouragement of commercial development in the “V zone.”  The new maps include significant areas of new “V zone” in places as diverse as downtown Jersey City and Bay Head.  This new linkage between the existing limit on development and the FEMA maps could affect waterfront redevelopment and downtown business recovery from Sandy, unless the regulation or the maps are modified.  Property owners can petition FEMA informally, before the maps are final, to alter the V-zone boundary as to their property on the grounds that site-specific conditions would prevent a three-foot wave from striking their building; e.g. if there is another structure between the petitioner’s building and the water body.   FEMA has acknowledged that they have not yet fully vetted the V-zone boundaries – it was one of the reasons why FEMA has not finalized the map adoption.

The emergency rules were effective on January 24, 2013 and will be published in the February 19, 2013 New Jersey Register.  Nevertheless, because they are intended to be adopted as final regulations, a public hearing is scheduled for March 7, 2013 at the Council Chambers in Long Branch at 5:30 p.m and written comments will be due 30 days from publication in the Register.

These new regulations and maps could have a dramatic effect on rebuilding and other development in New Jersey.  Property owners and municipalities should immediately review the maps and evaluate how to best protect their interests under these unprecedented circumstances.