Regulating Stream and River Flooding
- New Jersey’s Streams and Rivers
- Regulations Background
- Application Process
- General Permits
- Riparian Zones
- Tools for Municipal Action
- Presentation on Flood Hazard Area Regulations ( 1.9mb)
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
- 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.
In August, 2004, the US Federal Emergency Management Agency (FEMA) declared flooding to be New Jersey’s number one natural hazard. From 1993 until April 2010, New Jersey experienced 1, 241 floods causing more than $1.25 billion in property damage and resulting in 14 deaths and 197 injuries. Between 2010 and 2012, FEMA issued 10 major disaster declarations in New Jersey related to storms or flooding.
The 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 ( 117kb). The provision facilitates project planning by establishing clear parameters before expensive design begins.
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 ( 1.1mb)
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 ( 1.1mb).
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.
The Flood Hazard Area Regulations, adopted November 5, 2007 ( 1.1mb), 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.
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 ( 1.1mb), Winter 2008.