September 6, 2022

The NJDEP to Adopt Portions of the Protecting Against Climate Threats (PACT) Rules via its Emergency Rulemaking Powers

For many in the field of real estate development, including developers, builders, engineers, planners and land use attorneys, on May 25th, a bell was tolled.

The New Jersey Administrative Procedures Act (N.J.S.A. 52:14B-1 et seq.) permits an agency such as the New Jersey Department of Environmental Protection (the “NJDEP”) to make emergency amendments to the New Jersey administrative code upon a finding of imminent peril to public health, safety, and welfare. N.J.S.A. 52:14B-4(c).  On May 25th, the NJDEP announced that it would be adopting portions of the Protecting Against Climate Threats (PACT) Rules pursuant to these emergency rulemaking powers, meaning that these emergency PACT rules would take effect the day they are filed with the Office of Administrative Law and would be valid for sixty (60) days from that date.  In addition, the NJDEP has announced its intention to file not only the emergency PACT rules, but also a concurrent proposal which would enable the rules to remain in effect for a period longer than 60 days.  Once the emergency rules (along with the concurrent proposal) are published in the New Jersey Register, a thirty (30)-day comment period will begin, to run concurrently with the 60-day validity period.

Why is this important?  In the simplest terms, the emergency PACT rules will have a significant and sustained impact on development in New Jersey, as the emergency PACT rules to be adopted include, among other things, changes to the Fluvial Flood Hazard Area (FHA) rules and the Stormwater Rules.  The term “fluvial” generally means “of or relating to a river or stream”, and as such, the changes to the Fluvial FHA rules will be limited to projects located in fluvial areas.  In other words, they will not be applicable to tidal areas.

Under the current Fluvial FHA rules, the Design Flood Elevation (the “DFE”) is the higher of: (1) Flood elevation mapped by the NJDEP (where applicable); or (2) the FEMA 100-year flood elevation, plus one foot.  However, under the proposed emergency Fluvial FHA Rules, the fluvial DFE will be raised by two feet.  As such, applicants utilizing their own flood projections will be required to use rainfall data for the year 2100 in order to calculate an alternative DFE.  If an applicant’s project is not currently located in a floodplain, it must determine whether its application for development will be impacted, and to what degree, by the additional two feet of flood elevation.

As another example, and with respect to stormwater, the emergency rules will require that stormwater designs manage runoff for both today’s storms and future storms, again utilizing county-based rainfall projections for the year 2100, which projections are up to 50% higher than current totals.  The emergency rules will also remove the use of Rational and Modified Rational methods for stormwater calculations.  Furthermore, municipalities will have only one year to update their municipal stormwater ordinances to account for the new rules.

Thankfully, there are certain exceptions to the applicability of the emergency rules.  With respect to the Fluvial FHA rules, applicants will not have to comply with the new standard if:

  1. The regulated activity is part of a project that already has a valid FHA permit. See J.A.C. 7:13-2.1(c)1; or
  2. The regulated activity is part of a project that requires an FHA permit and a complete application for the project was submitted to NJDEP prior to the emergency rulemaking; or
  3. The regulated activity is part of a project that does not require an FHA permit prior to the emergency rulemaking, and:
    • The project has received all necessary Federal, State and local approvals prior to emergency rulemaking; and
    • Construction has commenced, also prior to the emergency rulemaking. See J.A.C. 7:13-2.1(c)4.

Note, however, that obtaining a flood hazard area verification or applicability determination, as opposed to a permit, prior to the emergency rulemaking does not automatically exempt a new project from the new standards.

Regarding stormwater, developers will not have to comply with the emergency rules if:

  1. The project needs FHA, Coastal Zone Management, Freshwater Wetlands, or Highlands approval and a complete application for such was submitted to NJDEP prior to the emergency rulemaking. See J.A.C. 7:8-1.6(b)2; or
  2. The project does not require any NJDEP approval and has already received certain local approvals pursuant to the Municipal Land Use Law (“MLUL”) (J.S.A. 40:55D-1 et seq.) prior to the emergency rulemaking. See N.J.A.C. 7:8- 1.6(b)1.

As mentioned, municipalities will only have one year to amend their stormwater ordinances to account for the new rules.  However, the emergency stormwater rules will be effective immediately under the Residential Site Improvement Standards (“RSIS”), unless covered by N.J.A.C. 7:8-1.6(b)1, which supersede any municipal ordinance to the contrary and apply strictly to residential development (as opposed to non-residential development).

The NJDEP has already delayed filing the emergency portion of the PACT rules with the Office of Administrative Law at least once, and it is rumored it might happen again due to public outcry from entities such as the New Jersey Builders Association.  Others hear that the emergency rules will be filed sometime after Labor Day of this year.  In any event, those in the business of developing real property, including developers, builders, engineers, planners, and land use attorneys, must be aware of these emergency rules in order to anticipate how they will affect development projects moving forward and be able to swiftly adapt to avoid project delays.

The contents of this article are for informational purposes only and none of these materials are offered, nor should they be construed, as legal advice or a legal opinion based on any specific facts or circumstances.

Leave a Reply

Your email address will not be published.