By: Andrew B. Robins
Anyone with a pending or planned project that involves either an area near a non-tidal river or stream or a project that is subject to DEP’s stormwater rules will likely need to reassess the scope of the project if approvals are pending.
The “emergency rule” is the first salvo of the Department of Environmental Protection (DEP)’s Protection Against Climate Threat (PACT) regulatory initiative. DEP will be side-stepping the normal rule making requirements and adopting changes to rules covering Fluvial (river system) Flood Hazard Areas (FHAs) and Stormwater Rules.
The new “emergency” rules will be published in mid-June and will take effect immediately. The rules will affect all but a limited number of projects as outlined below. In many instances, the new rules will require redesign of projects being planned, even if planning is well advanced but approvals remain pending.
DEP’s use of the “emergency” rule process represents a clear policy decision by the current administration to push a climate change agenda on an expedited basis without regard to economic impact. A number of trade associations are considering challenges to the use of the “emergency” rule approach.
Changes to Fluvial FHA Rules
Under the Fluvial FHA Rules, the Design Flood Elevation (DFE) will be changed to include an additional 2 feet of flood elevation. Applicants utilizing their own flood projections will be required to use year 2100 rainfall data for calculating an alternative DFE. If your project is not currently in a floodplain, it is crucial you determine if you may be impacted by the additional 2 feet of flood elevation.
Changes to Stormwater Rules
Under the Stormwater Rules, stormwater designs will be required to manage runoff for both today’s storms and future storms utilizing year 2100 county-based rainfall projections, which are up to 50% higher than current totals (link to DEP rainfall projections). Municipalities will have one year to update municipal stormwater ordinances; however, the stormwater rules will be immediately effective under the Residential Site Improvement Standards. (RSIS has a 6-month delay to any technical change becoming effective; DEP has acknowledged they are examining this legal technicality.)
Grandfathering
The following were identified by DEP as criteria for grandfathering:
FHA Rules:
- the activity is part of a project with a valid FHA permit, or
- the activity is part of a project that needs an FHA permit and a complete application was submitted to DEP prior to the emergency rule filing, or
- the activity is part of a project that did not need an FHA permit prior to the rule filling where: (a) the project has received all federal, state, and local approvals and (b) construction commenced prior to the rule filing.
Stormwater Rules:
- the project needs an FHA, Coastal Zone Management, Freshwater Wetlands or Highlands approval and a complete application was submitted prior to the emergency rule filing, or
- the project does not need DEP approval and has received local approvals pursuant to the MLUL prior to the emergency rule filing.
Our team of environmental, regulatory and government relations attorneys are monitoring this fast-moving action in Trenton and will update this blog from time to time.