Updates: LUR Rulemaking & FEMA Flood Mapping. Vince Mazzei, PE

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1 Updates: LUR Rulemaking & FEMA Flood Mapping Vince Mazzei, PE New Jersey Department of Environmental Protection Division of Land Use Regulation February 11, 2015

2 Today s topics: Brief overview of NJ s rulemaking process Newly adopted Land Use fees Pending CZM rule proposal Impending FHA rule proposal Ongoing FEMA mapping efforts

3 NJ Rulemaking 1. NJDEP holds stakeholder meetings Seeking input from staff, regulated community, State & local governments, etc., on what works and doesn t work in existing rules 2. NJDEP staff writes rule proposal Includes detailed description (summary) of what is proposed to be added, deleted, or amended, why these changes are being made, and what impact they are expected to have

4 NJ Rulemaking 3. Proposal is reviewed & approved by: NJDEP management & attorneys Attorney General s Office Governor s Office NJ Office of Administrative Law 4. Proposal is published in NJ Register 60-day public comment period provided

5 NJ Rulemaking 5. NJDEP staff reviews comments and prepares adoption document Comments/questions are answered Rule is clarified Minor issues/mistakes resolved Major issues require new rulemaking to fix

6 NJ Rulemaking 6. Adoption is reviewed & approved by: NJDEP management and attorneys Attorney General s Office Governor s Office NJ Office of Administrative Law 7. Adoption is published in NJ Register New rules are generally effective upon publication

7 New Land Use Application Fees Effective 2/2/15 Restructures fee calculation for: CAFRA Waterfront development Flood hazard area Freshwater wetlands Stormwater reviews Does not affect: Highlands Tidelands

8 New Land Use Application Fees Applies to any application deemed complete for review on or after 2/2/15 If an application is received prior to 2/2/15, and is determined to be complete, new fees do not apply If an application is received prior to 2/2/15, but is rejected as incomplete, new fees apply

9 New Land Use Application Fees Increasing fees was necessary to help cover cost of running program Represent about 35% increase in fees overall Some application fees are increased more than others, and some not at all, in order to make fees more proportional to NJDEP review time All GPs = $1,000 Any IP for single-family home or duplex = $2,000 CAFRA and waterfront development fees greatly simplified Statutory $30K cap still in place for CAFRA & WFD

10 New Land Use Application Fees Questions?

11 Proposed Coastal Rules Proposed (published in NJR): 6/2/14 Comment period ended: 8/1/14 Download the proposal at: proposals/ a.pdf

12 Proposed Coastal Rules Goals Combine N.J.A.C. 7:7 & 7:7E into one chapter Align permit-processing standards with upcoming flood hazard area (FHA) & freshwater wetlands (FWW) rules Add mitigation & conservation restriction requirements similar to FWW rules Adopt 2 new permits-by-rule, 2 new general permits-bycertification, and 1 new general permit Amend 5 existing general permits Amend certain IP standards

13 Proposed Coastal Rules Amendments Aligns application review process with upcoming FHA and FWW rules: Emergency authorizations Pre-application conferences Application requirements Requirements for an applicant to provide public notice Application review Permit conditions and changes to issued permits Requests for adjudicatory hearings

14 Proposed Coastal Rules Amendments New mitigation subchapter Similar sections as new FHA and FWW rules All mitigation requirements are in one subchapter (SAV, ISS, Wetland, Shellfish, Riparian Zone) Incorporates banking Conservation restrictions Matches new FHA rules

15 Proposed Coastal Rules Two new permits-by-rule 1. Pesticide application in coastal wetlands to control invasive plant species For less than ¼ acre of disturbance Must be conducted in accordance with an NJDEP aquatic pesticide permit 2. Installation of a pool/spa on a bulkheaded lot

16 Proposed Coastal Rules Two general permits-by-certification Instant online application Applicant certifies each standard is met 1. Reconstruction of a legally existing functioning bulkhead in-place or upland of the existing bulkhead 2. Construction of piers, docks, pilings, and boatlifts in manmade lagoons

17 Proposed Coastal Rules New general permit Pesticide application in coastal wetlands to control invasive plant species For projects > ¼ acre Cannot affect T&E species or certain plants Must be conducted in accordance with an NJDEP aquatic pesticide permit

18 Proposed Coastal Rules Amended general permits GP for construction of a single-family or duplex dwelling is amended to apply to one or two single-family or duplex dwellings. GP for construction or reconstruction of bulkheads are amended to allow the beneficial use of the dredged material as fill and to modify the requirements for bulkheads constructed in V zones. GP for investigation, cleanup, removal, or remediation of hazardous substances and geotechnical soil borings are proposed to be amended to reflect changes to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, and the Department s organizational structure.

19 Proposed Coastal Rules Amended general permits GP for construction of piers, docks (including jet ski ramps), pilings, and boatlifts in man-made lagoons is proposed to be modified to allow for alternative design rather than the currently prescribed plank spacing requirements. GP for dredging and management of material from a marina deposited as a result of a storm event for which the Governor declared a State of Emergency is proposed to be amended to provide that the Department will make an acceptable use determination for the beneficial use of the dredged material.

20 Proposed Coastal Rules Other amendments Marinas Amendments allow expansion of existing marinas and the construction of new marinas in infill situations within shellfish habitat Amendments allow construction of a restaurant at certain new or existing marina facilities

21 Proposed Coastal Rules Other amendments Dredging The definition of maintenance dredging is amended to provide flexibility in demonstrating that a proposed dredging activity qualifies as maintenance dredging. Amendments recognize environmental dredging, which is dredging to remove contaminated sediments from a waterbody for remediation purposes.

22 Proposed Coastal Rules Other amendments Dredging (cont.) A new special area rule addressing existing dredged material management areas is being proposed Recognition that these areas serve a critical function as management areas for sediments removed from existing navigation channels and marinas to maintain recreational and commercial boating and marine commerce in the State s waters Portions of the Department's dredging technical manual are incorporated in the CZM rules as a regulatory appendix

23 Proposed Coastal Rules Other amendments High rise rule clarified: applies only to the portion of a building above 60 feet

24 Proposed Coastal Rules Questions?

25 FHA Rulemaking Schedule File with OLA: March 2015 Proposal published: April day comment period ends: June 2015 Adoption: Fall 2015

26 FHA Anticipated Amendments 1. Delete all references to acid-producing soil deposits Eliminate special requirements for work in areas with acid soils Reduce riparian zone along streams with acid soils from 150 feet to 50 feet Defer to local soil conservation districts for review of impacts to areas with acid soils

27 FHA Anticipated Amendments 2. Delete special water resource protection area from stormwater management rule No more Functional Value Analysis No reliance on USGS maps or soil surveys to determine location of SWRPA No prohibition on development within inner 150 Rule will rely on riparian zone requirements for determining allowable disturbance

28 FHA Anticipated Amendments 3. Delete prohibition on stormwater discharges within 150 & 300 riparian zone Water quality design storm must be infiltrated outside the RZ where possible Where not possible, require 95% TSS removal for discharges within 300 riparian zone Allow discharges directly into surface waters This will address significant concerns raised by SCD regarding erosion at discharges

29 FHA Anticipated Amendments 4. Add flexibility to riparian zone standards Increase allowable area of RZ disturbance Remove hardship exception requirement if limits under an IP are exceeded Add flexibility for projects in actively disturbed areas (lawns, meadows, agricultural fields) Remove setback requirement along impounded fluvial waters and tidal waters, where the bank has a bulkhead or revetment

30 FHA Anticipated Amendments 5. Incorporate riparian zone clarifications Clarify what a top of bank is and how to determine its location Clarify that temporary disturbance to actively disturbed areas does not count against overall RZ disturbance limits Clarify that there are no limits to disturbance of areas occupied by structures

31 FHA Anticipated Amendments 5. Riparian zone clarifications (cont.) Clarify what can and cannot be built within 25 feet of top of bank Clarify that piped streams do not have a RZ Clarify that the RZ arcs at end of a stream, but not at a pipe entrance

32 FHA Anticipated Amendments 6. Total of 13 general permits

33 FHA Anticipated Amendments 6. General permits (cont.)

34 FHA Anticipated Amendments 6. General permits (cont.)

35 FHA Anticipated Amendments 7. Total of 15 general permits-by-certification

36 FHA Anticipated Amendments 7. General permits-by-certification (cont.)

37 FHA Anticipated Amendments 7. General permits-by-certification (cont.)

38 FHA Anticipated Amendments 8. Expand/clarify/combine 47 existing permits-byrule and increase to a total of 63 permits-by-rule Solar panels In-kind replacement of certain culverts ROW maintenance Docks & piers Handicap ramps/access Repairing septic systems Monitoring wells and soils borings Invasive vegetation removal & enhancement activities Forestry activities approved under a forestry management plan Variable message signs, light poles, etc.

39 FHA Anticipated Amendments 9. Bridges & culverts Facilitate minor road widening and bridge/culvert replacement projects Clarify when bridges and three-sided culverts are required Clarify which flood events need to be analyzed for new and reconstructed structures Encourage preservation/placement of terrestrial crossings within bridges and culverts

40 FHA Anticipated Amendments 10. Verifications Expand types of calculations that can be used to determine flood hazard area Allow footprint of disturbance verifications (similar to a FWW letter of interpretation) Allow verification of RZ or FHA alone Stop requiring verifications for work by public entities in existing right-of-way, such as for a bridge replacement

41 FHA Anticipated Amendments 11. Provide additional riparian zone mitigation options Creation: day-lighting streams (removing structures that enclose a stream, such as a culvert) Restoration: removing structures and planting trees Enhancement: planting trees to upgrade ecologic benefits of area devoid of trees Preservation: placing a conservation easement on forested land Banking: credit system, like FWW rules, for riparian zones planted with trees

42 FHA Anticipated Amendments 12. Align administrative procedures with FWW & Coastal rules Definitions Contact information General provisions for PBRs and General permits Mitigation Conservation restrictions Emergency authorizations Pre-application conferences Application requirements Public notice Application review Permit conditions The modification, transfer, suspension and termination of approvals Requests for adjudicatory hearings Enforcement provisions

43 FHA Anticipated Amendments Questions?

44 FEMA flood mapping FEMA is replacing advisory maps by developing preliminary maps, which are more accurate Preliminary maps will eventually be published in the Federal Register and FEMA will hold public meetings in affected communities Once adopted by FEMA, maps will become effective ADVISORY PRELIMINARY EFFECTIVE

45 FEMA flood mapping Effective Flood Insurance Rate Maps Preliminary Flood Insurance Rate Maps Source: FEMA

46 FEMA preliminary mapping is now available for all eastern/coastal counties in NJ, as well as portions of New York

47 Incorporating FEMA maps NJDEP is working with FEMA to remap the State s flood hazard areas People will easily see NJDEP & FEMA mapping online FEMA is putting NJDEP s design flood elevation on its maps

48 Incorporating FEMA maps If FEMA adopts a map showing NJDEP design flood elevation, it will automatically become a NJDEP map and replace any old flood maps FEMA recently adopted such mapping along the Delaware River in Hunterdon, Warren & Sussex Counties

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53 Determining NJ design flood elevation In tidal areas DFE = FEMA 100-year flood Use FEMA effective map or preliminary map, whichever has the higher flood elevation

54 Determining NJ design flood elevation In fluvial areas: DFE = 100-year flood + factor-of-safety NJDEP flood maps are based on 125% of 100-year flow Use: Highest FEMA elevation above + 1 foot or Design flood elevation from NJDEP mapping whichever is higher or Self-calculate flood using 125% of 100-yr flow

55 Determining NJ design flood elevation Option 1: Use the higher of: Method 1 (Department delineation method) Method 2 (FEMA tidal method); or Method 3 (FEMA fluvial method) Option 2: Calculate the flood hazard area: Method 4 (FEMA hydraulic method); or Method 6 (Calculation method) Option 3: If no NJDEP or FEMA map exist: Method 5 (Approximation method)

56 Determining NJ design flood elevation Exception: If NJDEP has incorporated a FEMA map that depicts the NJ design flood elevation, then you must use that map or else apply to NJDEP to amend the map. Currently this only applies to the Delaware River in Hunterdon, Warren & Sussex Counties Will apply to more waters as NJDEP continues to adopt more FEMA mapping

57 Recent Executive Order Signed by President Obama 1/30/15 Establishes a Federal Flood Risk Management Standard to reduce the cost of future flood disasters Requires Federally funded projects that impact floodplains to meet higher flood risk standards Does not affect flood insurance rates

58 Recent Executive Order FEMA also released draft guidelines for implementing the standard for public comment Agencies will be able to implement the standard in a number of ways and seek input from the public and stakeholders before doing so Fact Sheet: data/ a155bb3c12bd7bdbe7f8d8aaf2c30eb5/ flood-standards-fact-sheet.pdf

59 Recent Executive Order Three options: 1. Use data and methods informed by best-available, actionable climate science 2. Build: 2 feet above the 100-year flood elevation for standard projects 3 feet above the 100-year flood elevation for critical buildings like hospitals and evacuation centers 3. Build to the 500-year flood elevation

60 Questions?

61 For More Information: Vince Mazzei, PE Supervising Environmental Engineer NJDEP Division of Land Use Regulation Trenton, NJ Phone: (609) Website: