NJ Flood Law Is Flawed And Murphy DEP Is Abdicating Its Regulatory Role In Flood Protection

58:16A-52 Delineation of flood hazard areas.

3. a. The department shall study the nature and extent of the areas affected by flooding in the State. After public hearing upon notice, and pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), the department shall adopt rules and regulations which delineate as flood hazard areas such areas as, in the judgment of the department, the improper development and use of which would constitute a threat to the safety, health, and general welfare from flooding.

The department may, after public hearing upon notice and pursuant to the “Administrative Procedure Act,” revoke, amend, alter, or modify such regulations if in its judgment the public interest so warrants.

The DEP is authorized to adopt standards, regulations and floodplain maps that are more stringent than federal FEMA maps:

b. (1) The department shall wherever practicable, make flood hazard area delineations at least as protective as the floodplain delineations approved by the Federal Emergency Management Agency for the National Flood Insurance Program. Immediately upon adoption of a floodplain delineation approved by the Federal Emergency Management Agency for the National Flood Insurance Program, the department shall include the federal floodplain delineation as the department’s minimum flood hazard area delineation for that watercourse, provided that the department has determined that the federal floodplain delineation is sufficient to carry and discharge the flood flow of the watercourse and is at least as protective of the public safety, health, and general welfare as the department’s delineation.

There are major flaws in the DEP flood regulations (known as “stream encroachment”, NJAC 7:13). (DEP also has other related regulatory authority, including stormwater management about which I’ve previously written many times, e.g. see this and this).

Ironically, FEMA, whose floodplain maps seriously under-estimate flood risks –  strongly criticized the Murphy DEP stormwater regulations for failing to consider climate change. FEMA wrote: (link)

To highlight, FEMA finds that the abandonment of the nonstructural stormwater management in design and the absence of restrictions in the increase in runoff volume post-development to be significant deficiencies.

FEMA is also concerned that the proposed rule does not consider future conditions of increasingly intense precipitation that is expected with climate change. 

The use of the term Green Infrastructure will not offset the proposed changes to the nonstructural stormwater management strategies and the multiple missed opportunities to reduce riverine and urban flooding impacts.

Let’s repeat that – THE DEP STORMWATER RULE PROPOSAL:

does not consider future conditions of increasingly intense precipitation that is expected with climate change. 

Please note that Murphy DEP cheerleader Jim Waltman praised exactly the DEP “green infrastructure” regulatory rollback FEMA criticized as a “significant deficiency”. Waltman wrote this BS:

But there are ways to mitigate this problem by requiring builders to install green infrastructure systems to catch stormwater runoff. Our state’s stormwater regulations were recently amended to require more such infrastructure, but only on large new developments.

Let me repeat what FEMA wrote about the “green infrastructure” that cheerleader Waltman praises:

Green Infrastructure will not offset the proposed changes to the nonstructural stormwater management strategies and the multiple missed opportunities to reduce riverine and urban flooding impacts.

There also are major flaws in the Flood Hazard Area Control Act statute.

First, it is based on the 100 year storm:

58:16A-55.2. Structure or alteration within area subject to inundation by 100 year design flood of nondelineated stream; approval; conditions

a. No structure or alteration within the area which would be inundated by the 100 year design flood of any nondelineated stream shall be made, rebuilt or renewed by any person without the approval of the department and without complying with such conditions as the department may prescribe for preserving such area and providing for the flow of water therein to safeguard the public against danger from the waters impounded or affected by such structure or alteration.