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Flood
Hazard Area Regulations
New
Jersey's Streams and Rivers
New Jersey's streams and rivers provide drinking water for over
half of New Jersey's population as well as providing scenic beauty,
recreational opportunities and wildlife habitat. Stream systems
extend
- Stream
banks (riparian area), immediately adjacent land
- Floodplains,
- Adjacent
wetlands and
- Ecosystems
of important biological diversity.
Protecting
the entire stream system or stream corridor is the best way to
protect the stream's health and water quality.
Regulations
Background
In August, 2004, the US Federal Emergency Management Agency (FEMA)
declared flooding to be New Jersey's number one natural hazard.
Between 1994 and 2003, New Jersey residents filed more than 19,000
flood insurance claims, and residents received nearly $250 million
in flood insurance payments. Between 1996 and 2006, FEMA issued
nine major disaster declarations in New Jersey related to flooding.
As a result, in April 2005 Acting Governor Richard Codey established
the Flood Mitigation Task Force. In August 2006 Governor John
Corzine released the final task force report, recommending sweeping
changes to New Jersey's development in flood hazard areas and
riparian corridors policies.
According
to New Jersey Department of Environmental Protection, approximately
35 percent of New Jersey residents live in floodplains.
The
New Jersey
Flood Mitigation Task Force resulted in a move away from straight
engineering of the past, with a theme of no adverse impact, ensuring
that
- "…the
action of one property owner does not adversely impact the rights
of other property owners, as measured by increased flood peaks,
flood stage, flood velocity, and erosion and sedimentation…"
(Association of State Floodplain Managers, NAI White Paper,
April 29, 2004)
New
Jersey started mapping 100-year flood plains in 1975 and regulating
them in 1976. By 1984, the rules required no net-fill in the Passaic
River Basin and a limit of 20 percent fill statewide. It wasn't
until 1995 that the rules established minimum buffers - 25 feet
generally, 50 feet for trout production waters and streams adjacent
to acid-producing soils.
Application
Process
The new Flood
Hazard Area Regulations, adopted November 5, 2007, now include
an optional Applicability Determination which is valid for a five-year
duration unless regulations change. This determination establishes
whether or not a project is subject to the regulations.
The
application process also includes a provision for verifications
of flood hazard design elevation, floodway limits, and riparian
zone limits, similar to the Freshwater Wetlands Program Letter
of Interpretation. (link to www.state.nj.us/dep/landuse/forms/chkloiex.pdf)
The provision facilitates project planning by establishing clear
parameters before expensive design begins.
Permits-by-Rule
New Jersey Department of Environmental Protection created a comprehensive
Permits-By-Rule list judged to be de minimis activities
that do not require prior NJDEP approval. They are similar to
licenses in that no prior approval is required before initiating
the specified activities as long as they meet specific standards.
There are two general requirements.
- All
proposed structures must be suitably anchored;
- An
activity must not require engineering calculations that the
NJDEP would have to review.
The
complete list can be found at NJAC
7:13-7(link to www.state.nj.us/dep/landuse/7-13.pdf)
General
Permits
Unlike permits-by-rule, applicants for GENERAL PERMITS (GPs) must
obtain prior approvals from New Jersey Department of Environmental
Protection (NJDEP). The applicant knows he has approval if he
doesn't receive comment from NJDEP within 45 days of submission.
NJDEP
has identified 16 activities covered by GPs as having minimal
impacts on flooding and the environment as long as the activities
meet the standards. They include
- Stream
cleaning,
- Scour
protection,
- Various
agricultural activities,
- Relocation
and reconstruction of damaged buildings,
- Maintenance
of stormwater structures and
- Certain
activities along small streams and in tidal flood hazard areas.
The
complete list of GPs can be found at NJAC
7:13-8.
Public
Notice requirements place more responsibility on the municipal
clerk, who, presumably, will distribute them to the appropriate
entities. Applicants are required to send the clerk three application
copies. Previously, the applicant had to send public notice to
the clerk, the environmental commission, planning board, municipal
engineer and to the construction official.
Riparian
Zones
The new Flood
Hazard Area Regulations, adopted November 5, 2007, provide
more protection for stream buffers through new riparian zone protections.
The regulations establish maximum disturbance and include vegetation
replacement and mitigation for various activities. The NJDEP
program, also known as Stream Encroachment Program issues,
permits if a proposal meets the regulations.
The
regulations establish the following new regulated riparian zones.
- 300
feet on both sides of Category One water and upstream tributaries
within the same HUC-14 watershed; (Hydrologic Unit Codes for
970 sub-watersheds);
- 150
feet on both sides of
-
An upstream tributary to a trout production water not in
the HUC-14 watershed;
-
A trout maintenance water body and all upstream tributaries
within one mile;
-
Any segment of water flowing through an area containing
documented habitat for a threatened or endangered species
of plant or animal;
-
Any segment of water flowing through an area containing
acid producing soils.
- 50
feet along both sides of all other waters.
The
riparian zone regulations limit the area of vegetation that can
be disturbed for various regulated activities. An applicant can
obtain a flood hazard area permit for disturbance of the riparian
zone only if he/she meets very stringent conditions. They must
establish that
- The
basic purpose of the project cannot be accomplished on site
without disturbing vegetation in the riparian zone;
- Disturbance
to the riparian zone is eliminated where possible and minimized
where not possible by relocating the project, reducing the size
of the project, or situating the project in portions of the
riparian zone where previous development or disturbance has
occurred;
- Any
temporarily cleared area of vegetation must be replanted with
indigenous, non-invasive vegetation;
- An
applicant must also meet the additional requirements for the
specific proposed activity. The riparian zone regulations also
set a limit on the amount of disturbance allowed for 69 specific
activities.
The
allowed riparian zone disturbances range from 300 square feet
for reconstruction of a driveway in a 50-foot riparian zone to
5,000 square feet for construction of a private residence in a
300-foot buffer that received preliminary or final subdivision
approval before October 2, 2006 and that meets the Stormwater
Management Regulations. A number of permits allow disturbance
in the riparian zone only 25 feet from the top of bank, including
- New
private residences on a lot that received preliminary or final
approval before October 2, 2006;
- An
addition to an existing building or construction of a building
appurtenant to an existing building;
- A
public access way along a tidal water;
- Construction
of a water dependent project that requires clearing, cutting,
removing vegetation in the riparian zone.
The
New Jersey Department of Environmental Protection (NJDEP) will
issue hardship waivers for projects that go beyond the limits
set for riparian zone projects. The applicants must
- Provide
2:1 compensation in the form of revegetation;
- Place
a deed restriction on the compensation area.
Tools
for Municipal Action
Municipalities can enact ordinances that are stronger than
the state flood hazard area rules. In these areas, development
could not commence even with a state permit.
- Stream
Corridor or Buffer Ordinances establishing larger buffers than
state regulations strictly control the types of activities allowed.
Existing municipal ordinances allow only the following kinds
of activities in stream corridors.
-
Wildlife sanctuaries, fishing, unpaved paths, maintenance
of existing roads, farming, without structures and passive
open space;
-
Some stream corridor ordinances
- Prohibit
impervious cover and no alteration of the natural terrain
in the stream corridor.
- Require
placement of conservation easements on the stream corridor
when a tract with a stream comes in for subdivision
or site plan approval.
-
A number of towns define the stream corridor as the stream
channel, 100 year flood plain and a minimum of 100 feet
from the edge of the flood plain. If there is no delineated
flood plain, the 100-foot corridor is required and measured
from the top of bank. If there is an area of steep slopes,
it includes 15 percent abutting the outer boundary of the
stream corridor.
-
Streams and the New Flood Hazard Area Regulations,
outlines the New Jersey Flood Hazard Area Regulations, adopted
November 2007. See page 14 in ANJEC
Report, winter 2008.
6/08
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