Notice For Review of FHA Actions Due to the New C-1 Waters Adoption
The Department adopted 600 miles of new Category One (C1) waters on April 6, 2020. This adoption increases the width of the riparian zcenterone (RZ) to 300-feet along these waters as well as any upstream tributaries that lie within the same HUC-14 watershed. This adoption does not affect permits issued prior to April 6, 2020, but will impact pending flood hazard area (FHA) actions as follows:
- Complete FHA permit applications that were received prior to April 6, 2020 are exempt from the new C1 designations.
- FHA permit applications that were received prior to April 6, 2020, but were not complete (a deficiency letter was issued and the clock was stopped during the pre-review period) as of April 6, 2020, are not exempt from the new C1 designations. Therefore, when these applications are resubmitted, they must reflect the new 300' RZ.
- Stand alone FHA verifications and FHA applicability determinations (APDs) will reflect site conditions as they exist on the date of issuance. Therefore, FHA verifications and APDs are not exempt and must reflect the new 300' RZ upon issuance.
- If the Department receives a complete joint FHA verification and permit application prior to April 6, 2020, then the application will be reviewed under the old designation (50 or 150-ft RZ), but the FHA verification will reference and depict the current designation (300-ft RZ).
For more information about this adoption, please contact NJDEP’s Division of Water Quality (www.nj.gov/dep/dwq) or view the Department’s rulemaking (www.state.nj.us/rules/adoptions/adopt_20200406b.pdf).
Notice of Rule Adoption
Flood Hazard Area Control Act Rules, N.J.A.C. 7:13
The Department has adopted comprehensive amendments to the Flood Hazard Area Control Act Rules to reduce unnecessary regulatory burden, add appropriate flexibility, provide better consistency with Federal, local, and other State requirements, and address implementation issues identified since the chapter’s repeal and re-promulgation in November 2007. Please see the public notice for more information. Please see the FHA Rule FAQ for answers to common questions about the original rule proposal.
Notice of Rule Proposal
Flood Hazard Area Control Act Rules, N.J.A.C. 7:13
The Department is proposing additional amendments to the Flood Hazard Area Control Act Rules to further increase riparian zone protections, provide additional protections for the 300-foot riparian zone, improve mitigation requirements, and facilitate environmentally beneficial agriculture activities, among other changes. Public notice of the proposal and full text of the proposal are available here.
The New Jersey Flood Hazard Area Control Act
The Flood Hazard Area (FHA) Control Act Rules, N.J.A.C. 7:13, adopted on November 5, 2007 and amended effective June 20, 2016, implement the New Jersey Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq.
Unless properly controlled, development within flood hazard areas can exacerbate the intensity and frequency of flooding by reducing flood storage, increasing stormwater runoff and obstructing the movement of floodwaters.
In addition, structures that are improperly built in flood hazard areas are subject to flood damage and threaten the health, safety, and welfare of those who use them.
Furthermore, healthy vegetation adjacent to surface waters is essential for maintaining bank stability and water quality. The indiscriminate disturbance of such vegetation can destabilize channels, leading to increased erosion and sedimentation that exacerbates the intensity and frequency of flooding. The loss of vegetation adjacent to surface waters also reduces filtration of stormwater runoff and thus degrades the quality of these waters.
The Flood Hazard Area Control Act rules therefore incorporate stringent standards for development in flood hazard areas and adjacent to surface waters in order to mitigate the adverse impacts to flooding and the environment that can be caused by such development.
A Note On Stream Cleaning:
Stream cleaning may require multiple approvals from the Division, depending on the special areas impacted by the project. If you don't know what special areas are on your site
, please check out the before you buy, before you build
, then our Guidance on Stream Cleaning
As defined at N.J.A.C. 7:13-1.2, "channel" means a linear topographic depression that continuously or intermittently confines and/or conducts surface water, not including transient erosional gullies and other ephemeral features that temporarily form after heavy rainfall. A channel can be naturally occurring or can be of human origin through excavation or construction, in which case it is referred to as “manmade.” A channel includes both a stream bed and stream banks.
The Department discourages activities within the channel, unless absolutely necessary. This is because the Department promotes projects which preserve aquatic habitat and fish passage. In addition, the Department also limits work closely adjacent to the channel, to minimize flood damage by minimizing erosion along stream banks. For additional information, please refer to N.J.A.C. 7:13- 11.1, Requirements for activities in a channel
For more information on channels, and the methods for determining their limits, please visit the Channel webpage.
The Flood Hazard Area Control Act
The Flood Hazard Area Control Act Rules generally prohibit disturbance to channels. However, if this is not possible, then the applicant must demonstrate that the basic purpose of the project cannot be accomplished without the disturbance to the channel. The Department recognizes that complete avoidance of disturbing the channel is sometimes impossible for certain classes of projects. For times such as these, disturbance to the channel must still be minimized. N.J.A.C. 7:13-11.1 establishes requirements for activities in a channel.
Additional activity-specific requirements may apply to reduce impacts to the channel. For example, disturbance to the channel can be minimized by constructing all channel crossings such as roadway or railroad crossings under N.J.A.C. 7:13-12.6 and utility lines under N.J.A.C. 7:13-12.8 , as nearly perpendicular to the channel as possible. In addition, a bridge could be constructed instead of a culvert crossing to further protect aquatic habitat and preserve aquatic passage. In any case, the length of channel covered by the crossing should be the minimum needed.
Disturbance to the channel may be permissible when stabilizing existing erosion or scour along stream banks in accordance with N.J.A.C. 7:13-12.14 or scour along existing bridges or culverts pursuant to N.J.A.C. 7:13-12.7. Also, disturbance to the channel may be permissible when stabilization measures within the channel are proposed for any stormwater outfall structure in accordance with N.J.A.C. 7:13-12.9. All stabilization measures proposed must be embedded in the channel in such a way as to provide low-flow aquatic passage.
When proposing work in a channel, note that there are other rules implemented by the Division that may apply. Such rules that may need to be addressed include the Freshwater Wetlands Protection Act rules (N.J.A.C. 7:7A) , the Coastal Zone Management rules (N.J.A.C. 7:7), the Highlands rules (N.J.A.C. 7:38), and the Stormwater Management rules (N.J.A.C. 7:8).
The rules referenced above can be found on our "Rules and Regulations" webpage.
Flood Hazard Area
- Flood Fringe
The Flood Hazard Area is the land, and the space above that land, which lies below the flood hazard area design flood elevation. The flood hazard area design flood elevation is a flood equal to the 100-year flood plus an additional amount of water in fluvial areas to account for possible future increases in flows due to development or other factors. This additional amount of water also provides a factor of safety in cases when the 100-year flood is exceeded. Structures, fill, and vegetation that are situated on land that lies below the flood hazard area design flood elevation are described as being "in" or "within" the flood hazard area. The inner portion of the flood hazard area is called the floodway and the outer portion of the flood hazard area is called the flood fringe. There are two types of flood hazard areas:
- Tidal flood hazard areas, in which the flood hazard area design flood elevation is governed by tidal flooding from the Atlantic Ocean. Flooding in a tidal flood hazard area may be contributed to or influenced by stormwater runoff from inland areas, but the depth of flooding generated by the tidal rise and fall of the Atlantic Ocean is greater than flooding from any fluvial sources; and
- Fluvial flood hazard areas, in which the flood hazard area design flood elevation is governed by stormwater runoff. Flooding in a fluvial flood hazard area may be contributed to or influenced by elevated water levels generated by the tidal rise and fall of the Atlantic Ocean, but the depth of flooding generated by stormwater runoff is greater than flooding from the Atlantic Ocean.
Pursuant to N.J.A.C. 7:13-2.3, a flood hazard area and a riparian zone exist along every regulated water that has a drainage area of 50 acres or more. If a regulated water has a drainage area of less than 50 acres, the water does not have a flood hazard area that is regulated under the Flood Hazard Area Control Act rules. However, it may still have a riparian zone. The flood hazard area is comprised of a flood fringe and a floodway, except for the Atlantic Ocean and other non-linear tidal waters such as bays and inlets, which do not have a floodway. Therefore, the entire flood hazard area along these tidal waters is considered to be a flood fringe. The methods for determining the limits of the flood fringe and floodway are described at N.J.A.C. 7:13-5.1 et seq.
The Floodway is defined as land, and the space above that land, which lies within the inner portion of the flood hazard area, and which is mathematically determined to be required to carry and discharge floodwaters resulting from the 100-year flood under certain conditions. The floodway always includes the channel and often includes land adjacent to the channel. The floodway is normally characterized by faster and deeper flows than the flood fringe, which is the portion of the flood hazard area outside the floodway.
For additional guidance on development restrictions within this area and information on how to determine where this area is relative to a stream and/or river, please visit the Floodway Guidance webpage.
The flood fringe is the part of the flood hazard area that is outside of the floodway. The flood fringe is normally characterized by shallower water with little or no visible flow.
Development within the flood fringe is restricted, but to a lesser degree than the floodway. Generally, most development projects can occur within the flood fringe as long as the project causes little or no adverse impacts to the on-site flood storage and new structures have a lowest floor elevated to at least 1 foot above the flood hazard design flood elevation.
For additional guidance on development restrictions within this area and information on how to determine where this area is relative to a stream and/or river, please visit the Floodfringe Guidance webpage.
Research has shown that the vegetated areas adjacent to a watercourse provide a variety of significant functions and values, such as reducing adverse effects to water quality by removing nutrients and pollutants from storm runoff, moderating storm flows to streams providing flood storage capacity (which reduces downstream flooding), and stabilizing soils and stream banks naturally.
With a few exceptions, a riparian zone exists along every regulated water. The riparian zone is the land and vegetation within a regulated water and extending either 50 feet, 150 feet or 300 feet from the top of bank along both sides of the regulated water, depending on the environmental sensitivity of the water.
For more information on riparian zones, and the methods for determining their limits, please visit the Riparian Zone webpage.
Types of Flood Hazard Area Permit Authorizations
Verification: In addition to authorizing construction activities through permits, the Flood Hazard Area Control Act Rules include verifications at N.J.A.C. 7:13-6, which determine the limits of regulated areas on-site. A verification only determines the limits of the regulated areas and does not authorize any construction. For more information about verifications please go to the Verifications webpage.
Permit-by-Rule: A Permit-by-Rule "PBR" is a permit whose terms and conditions are set forth in the Flood Hazard Area Control Act rules and for which no prior written approval from the Department is necessary in order to undertake the specified regulated activity, provided all conditions of the permit-by-rule are satisfied. The Department has determined that if the regulated activities are undertaken as prescribed in the respective permits-by-rule, the impact on flooding and the environment will be de minimis. For information on a particular PBR, please go to the Permits By Rule webpage.
General Permits: The Flood Hazard Area Control Act rules include General Permits "GP" for 16 specific construction activities set forth at N.J.A.C. 7:13-8. These general permits are designed to facilitate various activities that have been identified as having minimal impacts to flooding and the environment. For information on GP's, including information on particular GP's, please go to the General Permits webpage.
Individual Permits: For many of the simpler and low impact projects, the 46 Permit by Rules and 16 General Permits noted above are sufficient. Applicants are encouraged to modify their project to fit the criteria for these simpler and faster authorizations. However, for projects that are more complex in nature, a Flood Hazard Individual Permit "IP" would be required. For more information on IP's, please go to the Individual Permits webpage.
Emergency Permits: If there is a threat that a severe environmental degradation will occur and/or there is an immediate and extraordinary risk to property or the public health, safety and welfare and
there is a high probability that the environmental degradation or impact to property or the public health, safety and welfare will occur before a flood hazard area individual permit or general permit authorization could be obtained, then an Emergency Permit may be issued. For information on Emergency Permits, please go to the Emergency Permits webpage.
General Permit-by-Certification (GPBC) allows an applicant to apply for and receive a permit utilizing the Department’s “DEP Online” system. Currently, there are 15 Flood Hazard GPBC’s available through this system. For more information on these permits, including information on the online permitting process, please go to the Flood Hazard General Permit-by-Certification webpage.