Welcome to Chester, Ploussas, Lisowsky Partnership, www.cplpartnership.com

The New Flood Hazard Area Control Act Rules

By now, most of you should be aware that the new Flood Hazard Area Control Act Rules (FHA Rules) have taken effect as of November 5, 2007. These Rules were fist promulgated by the New Jersey Department of Environmental Protection (NJDEP) on October 2, 2006 as published in the New Jersey Register. After receiving over one thousand comments, the NJDEP adopted the Rules with minor modifications. The new FHA rules provide for two distinct and overlapping areas of jurisdiction, the Flood Hazard Area and the Riparian Zone. The first area is the Flood Hazard Area, which is the area that is inundated by the Flood Hazard Area Design Flood. In tidal areas this design flood is the 100 year flood and in fluvial areas this design flood is equal to the 100 year storm plus a factor of safety of 25%. The Flood Hazard Area is comprised of two (2) corridors, the Floodway and the Flood Fringe. The Floodway conveys the majority of the flood waters and cannot contain any structures or materials which could obstruct the flow or increase flooding. The Flood Fringe area is the portion of the Flood Hazard Area outside of the Floodway, where waters are less deep and move slower than in the Floodway. Structures, fill and other material in the Flood Fringe area would displace available flood storage and increase flooding. Impacts to the Flood Fringe are regulated under the current rules, as they were in the previous rules. Any regulated activity within the Flood Hazard Area will require a FHA Permit, which replaces the previously issued Stream Encroachment Permit.There are now six methods available for determining the Flood Hazard Area. These methods are as follows:

• Method 1 (Department Delineation Method or State Adopted Study)
• Method 2 (FEMA Tidal Method)
• Method 3 (FEMA Fluvial Method)
• Method 4 (FEMA Hydraulic Method)
• Method 5 (Approximation Method) very conservative, do not recommend using
• Method 6 (Calculation Method)

The second area of jurisdiction is the Riparian Zone. This is newly added and replaces the previous 25' and 50' buffers required adjacent to the top of bank of a regulated stream. The Riparian Zone now consists of an area of either 50', 150' or 300' measured from the top of bank of a regulated water. There is no Riparian Zone along the Atlantic Ocean, man-made lagoons, man-made canals, stormwater management basins or any ocean front barrier island, spit or peninsula. The 300' Riparian Zone is required along Category One waters and their upstream tributaries within the same HUC-14 watershed. A 150' Riparian Zone is required along all trout production waters and their tributaries, along all trout maintenance waters and all tributaries within one mile, along waters that flow through an area that contains documented threatened and endangered habitat (if the plant/animal is strictly dependent on the regulated water for survival) and all tributaries within one mile and along waters that flow through an area that contains acid producing soils. The 50' Riparian Zone is required along all other regulated waters.The zero net fill restriction has been expanded to apply statewide. In the new rules you are allowed to displace up to 20% of the flood storage onsite provided the onsite fill is compensated for by a reduction of equal volume of flood storage offsite. The offsite compensation must be along the same waterway and within the same HUC-14 watershed and cannot be separated from the site by a road or dam. The purchase of fill credits to compensate for fill will no longer be allowed (this was commonly used in the Central Passaic Basin). In the Central Passaic Basin fill credits will only be allowed until all existing fill credits are purchased.The new FHA Rules provide for 16 General Permits to cover various minor activities, comparable to Wetlands General Permits. Also, 46 Permits By Rule for very minor activities that will not increase flooding or impact the environment have been established. In most cases for most development projects, very few activities are covered by the Permits By Rule or General Permits. This means for a regulated activity in a regulated area you will probably still require an Individual Permit.Grandfathering (exemption from the new FHA rules) is provided for the following instances:

1. The project already has a Stream Encroachment Permit, the application for which was complete before November 5, 2007.
2. The project already has a CAFRA or WFD permit, the application for which was deemed complete for final review before November 5, 2007.
3. The project did not need any Stream Encroachment, CAFRA or WFD Permit before November 5, 2007 and it has a zoning certification from the New Jersey Meadowlands Commission before November 5, 2007.
4. The project has a municipal approval that allowed construction to commence before November 5, 2007.
5. The project did not need any municipal approval and certain construction activities were completed before November 5, 2007.

Grandfathering is lost if a project is modified and the modification does one (1) of the following:

1. Increases vegetation disturbance in a Riparian Zone.
2. Increases flood storage displacement (net fill).
3. Adds regulated activities that have not been previously reviewed under a CAFRA, WFD or SE Permit.
4. Changes the land use and/or alters the basic purpose or intent of the project (such as converting a residential development into a commercial development).

The new rules allow for an Applicability Determination, which was previously called a Jurisdictional Determination. This is a free application to the NJDEP to verify whether a permit is needed for a particular activity. If the exact limits of the Flood Hazard Area and/or Riparian Zone cannot be determined, the Department will not issue an Applicability Determination. In these cases, the applicant will need to apply for a Verification, a new step provided in the new Rules. The Verification Application to the NJDEP is intended to verify the extent of a Flood Hazard Area and/or Riparian Zone on a site. This is similar to the Wetlands Letter of Interpretation. This Verification Application can be sought without a permit application. The Verification is to be issued within the 90 day review period, and in most cases will be required before the Department can issue an Individual Permit. The verification process is useful to a developer who would just like to determine the extent of the Flood Hazard Areas and Riparian Zones on the property, prior to formulating a development plan. Under the new rules there are no more stream encroachment lines. What is now required is establishment of the Flood Hazard Area, Floodway and Riparian Zone limits.The new rules provide for a process by which the owner of the site who has received a Flood Hazard Area Approval can transfer that Approval at the time of the sale to the new owner. Generally, the new rules provide stricter environmental and engineering standards to ensure that flooding does not increase and to protect the public safety. The benefit of the new rules is that they have been restructured to include previous amendments and clearly define the extent of regulatory jurisdiction. The NJDEP is working on a revised Technical Manual to provide guidance to the engineering community who must implement these Rules. The NJDEP expects the Manual to be available within the next two or three months. Virtually all sites within 300’ of regulated waters will be affected by these Rules.Our office has become thoroughly familiar with the new rules and would happily assist and advise our clients with projects along regulated waters. Please contact either myself or any other Partner to assist you in implementing these Rules on your specific project.

BACK