DEP has adopted new Inland Flood and Stormwater rules effective upon publication in either the July 3, 2023 or July 17, 2023 New Jersey Register. We will post an update when the exact date is known. A courtesy copy of the rule adoption document can be found here.
As summarized in our June 3, 2022 post regarding the initial proposals, anyone with a pending or planned project that involves either an area near a non-tidal river or stream or a project that is subject to DEP’s stormwater rules, will likely need to reassess the scope of the project if approvals are pending.
After extensive comments from the regulated community were received, the Department revised the various “grandfather” provisions from the initial proposal. The following categories of “activities” would be subject to the current rules:
– the “regulated activity” (each building or improvement) is part of a project for which all “regulated activities” that were subject to the prior rule received a valid FHA permit issued prior the publication date and the permit remains valid at the time the activities is undertaken; or
– the “regulated activity” is party of a project for which an application was received by the DEP prior to the rule publication date, and “was complete for review” as of the rule publication date, and the permit remains valid at the time the activities is undertaken. However, the rule adoption does not clarify whether the phrase “complete for review” is limited to applications for which the determination as being “complete for review” as made before the rule publication date;
– the “regulated activity” is part of a project that did not need an FHA permit under the current or prior rules and either:
- the “regulated activity” received one or more of the following:
- Preliminary or final site plan approval,
- Final municipal building or construction permit,
- Minor subdivision approval where no subsequent site plan approval is required,
- Preliminary subdivision approval where no subsequent site plan approval is required.
- the “regulated activity” does not require any of the approvals listed above and the work has “commenced” prior to the rule publication date (to be considered as “commenced” there must be work performed beyond grading or excavation such as foundations, piles, roadway subsurface improvements, or placement of bedding materials for utilities).
Note: in responses to comments the Department acknowledged that applications are pending that cannot be processed if Water Quality Management Plan (WQMP) amendments are being tied up within the Department. The response to comments noted that “for any site-specific WQMP amendment application that has been pending with the Department for a prolonged time as of the date of this rule’s adoption, the Department will make every effort to work with the applicant to issue a determination or otherwise address the issue in a timely manner.” No writing has yet been issued to confirm that an otherwise complete application for a project with a pending WQMP amendment application, will receive grandfather status.
– The project (“major development”) needs an FHA, Coastal Zone Management, Freshwater Wetlands or Highlands approval and a complete application (including all documents required by local ordinance was submitted prior to the rule publication date July 3 or July 17); or
– The project does not need DEP approval and has received local approvals pursuant to the MLUL prior to the emergency rule filing; or
– A “public roadway or railway project conducted by a public transportation entity” has rash reached certain milestones.
Our team of environmental, regulatory and government relations attorneys are monitoring this fast-moving action in Trenton and will update this blog from time to time.