Bill Text: NJ A5115 | 2024-2025 | Regular Session | Introduced
Bill Title: "Flood Zone Clarification Act"; modifies procedure for delineation of State flood hazard areas.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced) 2024-12-12 - Introduced, Referred to Assembly Environment, Natural Resources, and Solid Waste Committee [A5115 Detail]
Download: New_Jersey-2024-A5115-Introduced.html
Sponsored by:
Assemblyman PAUL KANITRA
District 10 (Monmouth and Ocean)
SYNOPSIS
"Flood Zone Clarification Act"; modifies procedure for delineation of State flood hazard areas.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the delineation of flood hazard areas and amending and supplementing P.L.1962, c.19.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 3 of P.L.1962, c.19 (C.58:16A-52) is amended to read as follows:
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.) and the provisions of this section, the department [shall adopt] may propose rules and regulations [which] to 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. These delineations shall identify the various subportions of the flood hazard area for reasonable and proper use according to relative risk, including the delineation of floodways necessary to preserve the flood carrying capacity of natural streams. The department shall, within the limits of funds appropriated or otherwise made available therefor, update delineations of flood hazard areas as appropriate as provided in subsection b. of this section. The department shall update its delineations of flood hazard areas within three months of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), and at least once every 15 years thereafter and shall prioritize the preparation of updates based upon flood risk. The department may, after public hearing upon notice and pursuant to the "Administrative Procedure Act," propose to revoke, amend, alter, or modify such rules and regulations if in its judgment the public interest so warrants subject to the requirements of this section.
b. (1) (a) 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 prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), 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.
(b) On and after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the department shall, wherever practicable, delineate flood hazard areas which are more protective than the floodplain delineations approved by the Federal Emergency Management Agency for the National Flood Insurance Program in accordance with the provisions of this subparagraph. Within three months following the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), with regard to a floodplain delineation for a watercourse approved by the Federal Emergency Management Agency for the National Flood Insurance Program on or prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), and within three months following each Federal Emergency Management Agency approval of a floodplain delineation for a watercourse under the National Flood Insurance Program thereafter, the department shall set the State's flood hazard area delineation for that watercourse at not more than one foot above the 100-year flood elevation delineated for that watercourse by the Federal Emergency Management Agency for the National Flood Insurance Program.
(2) Notwithstanding any other provision of law, or rule or regulation adopted pursuant thereto, to the contrary, on and after the first day of the fourth month next following the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), a person shall apply for a permit or other approval or authorization issued by the department pursuant to the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.), for a site based upon a [floodplain] flood hazard area delineation [safety] that is one foot above the 100-year flood elevation delineated and approved for that watercourse by the Federal Emergency Management Agency for the National Flood Insurance Program [, provided that (a) the federal floodplain delineation is more recent than the department's delineation for the same watercourse, and (b) 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].
c. The department shall establish a procedure for reducing any delineated flood hazard area when a change has been made which increases the flood carrying capacity of the concerned stream at that location.
d. (1) Notwithstanding other provisions of this section, this chapter, or the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to the contrary, on and after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the department shall neither implement nor adopt, prior to June 1, 2038, the rules and regulations proposed by the department and published in the New Jersey Register on August 5, 2024, which are known as New Jersey's Protecting Against Climate Threats (NJPACT) Rules, nor shall the department implement or adopt, prior to June 1, 2038, a rule or regulation that is substantially similar to one or more provisions set forth in the department's NJPACT rule proposal, unless, prior to that date, the Legislature has authorized the department, by concurrent resolution, to adopt those rules and regulations.
(2) On and after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), and prior to June 1, 2038, the department may submit to the Legislature a request for authorization to adopt a rule or regulation that was either set forth in the department's NJPACT rule proposal, or is substantially similar to a provision set forth in the department's NJPACT rule proposal. The Legislature may authorize the department to adopt a rule or regulation that was either set forth in the department's NJPACT rule proposal, or is substantially similar to a provision set forth in the department's NJPACT rule proposal, by adoption of a concurrent resolution specifically approving the proposed rule or regulation, in which case, the department may adopt the proposed rule or regulation in accordance with the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). The department shall not adopt a rule or regulation that was either set forth in the department's NJPACT rule proposal, or is substantially similar to a provision set forth in the department's NJPACT rule proposal, unless the Legislature adopts a concurrent resolution authorizing the department to adopt the proposed rule or regulation.
e. When filing a notice of rule proposal or adoption with the Office of Administrative Law for a rule or regulation described in subsection d. of this section, the department shall submit a copy of the concurrent resolution passed by the Legislature pursuant to paragraph (2) of subsection d. of this section.
(cf: P.L.2015, c.270, s.1)
2. (New section) a. Notwithstanding any provision of law to the contrary, the Department of Environmental Protection shall neither implement nor adopt, prior to June 1, 2038, the rules and regulations proposed by the department and published in the New Jersey Register on August 5, 2024, which are known as New Jersey's Protecting Against Climate Threats (NJPACT) Rules, nor shall the department implement or adopt, prior to June 1, 2038, a rule or regulation that is substantially similar to one or more provisions set forth in the department's NJPACT rule proposal, unless, prior to that date, the Legislature has authorized the department, by concurrent resolution, to adopt those rules and regulations.
b. The Legislature may authorize the department to promulgate the proposed NJPACT rules and regulations, or rules and regulations that are substantially similar to one or more provisions set forth in the department's NJPACT rule proposal, if, prior to June 1, 2038, the Legislature, by concurrent resolution, authorizes the department to adopt those rules and regulations. To satisfy the requirements of this subsection, a concurrent resolution shall set forth not more than one proposed rule to be voted upon. Adoption of a concurrent resolution that fails to comply with this single object requirement shall be understood to violate the provisions of Article IV, Section VII, paragraph 4 of the New Jersey Constitution, however, nothing in this subsection shall be construed as interfering with the power of the Legislature, by law, to repeal or modify this requirement.
c. Notwithstanding any provision of law to the contrary, should one or more provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), which subject the adoption of the NJPACT rules, and rules substantially similar thereto, to the Legislature's oversight and approval authority, be held unconstitutional, then the department may promulgate the NJPACT rules, or rules substantially similar thereto, on and after June 1, 2038.
d. Notwithstanding the limitations imposed by this section, the department may transmit a request to the Legislature for it to legislatively adopt specific rules, although the adoption of the rules by the department is prohibited under this section.
3. This act shall take effect immediately.
STATEMENT
This bill prohibits the Department of Environmental Protection (DEP) from implementing or adopting, prior to June 1, 2038, the rules and regulations proposed by the DEP and published in the New Jersey Register on August 5, 2024, which are known as New Jersey's Protecting Against Climate Threats (NJPACT) Rules. The bill also prohibits the DEP from implementing or adopting a rule or regulation that is substantially similar to one or more provisions set forth in the NJPACT rule proposal, unless, prior to that date, the Legislature has passed a concurrent resolution authorizing the DEP to adopt those rules and regulations.
Additionally, the bill limits the DEPs current discretion over the delineation of the State's flood hazard areas by requiring the DEP to set the State's flood hazard area delineation for each watercourse at no more than one foot above the 100-year flood elevation delineated for that watercourse by the Federal Emergency Management Agency (FEMA) under the National Flood Insurance Program (NFIP). Current law requires the DEP to make flood hazard area delineations at least as protective as floodplain delineations approved by the FEMA for the NFIP. This bill would not change that requirement, but would remove the unlimited discretion current law affords the DEP in determining the height of a flood hazard area.
Specifically, the bill requires the DEP, within three months following the bill's effective date, to set the State's flood hazard area delineation for each watercourse at one foot above the 100-year flood elevation delineated for that watercourse by the FEMA. The bill also requires the DEP, within three months following each subsequent FEMA delineation of a floodplain for a watercourse, to set the State's flood hazard area delineation for that watercourse at one foot above the 100-year flood elevation delineated for that watercourse by the FEMA.
The bill provides that a person applying to the DEP for a permit or other approval, pursuant to the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.) on and after the first day of the fourth month next following the bill's effective date, would be subject to the State's flood hazard area delineation of one foot above the FEMAs delineation of the 100-year flood elevation for that watercourse.
The bill also provides that after the bill's effective date, the DEP may not adopt a rule or regulation relevant to delineating an area as a flood hazard area unless the DEP first submits the proposed rule or regulation to the Legislature, and the Legislature passes a concurrent resolution authorizing the DEP to adopt the rule or regulation. The bill requires the DEP to submit to the Legislature each rule or regulation it proposes to delineate an area as a flood hazard area, and prohibits the DEP from adopting a proposed rule or regulation unless the Legislature passes a concurrent resolution specifically approving the proposed rule or regulation.
The bill is introduced in response to the DEPs recently proposed NJPACT Rules. The proposed NJPACT Rules, in relevant part, propose to establish a "climate-adjusted flood elevation" of five feet above the FEMA 100-year flood elevation for each New Jersey watercourse. The DEP's justification for proposing the rule is to adjust flood-hazard development thresholds to take into account projected sea level rise due to climate change.
The adoption of the DEP's proposed NJPACT rules would be detrimental to New Jersey, and particularly to our State's coastal communities. The DEP has failed to conduct a proper cost-benefit analysis to justify adoption of the proposed rules. The adoption of the rule proposal would cause large portions of New Jersey's coastal area as being improper for development and use.
The DEPs assertions that development of these areas would constitute a threat to the safety, health, and general welfare from flooding due to projected climate change are not accurate. The DEP used an outdated and flawed 2019 Rutgers report to justify its proposed establishment of a "climate-adjusted flood elevation" of five feet above the FEMA 100-year flood elevation. Rather than protect the general welfare, adoption of the rule proposal would significantly harm the general welfare, which the DEP is responsible to protect.
Adoption of the DEP's rule proposal would limit the ability of middle- and lower-income families to own, improve, or restore coastal properties, and thereby incentivize many of those families to sell their coastal properties to the wealthy or to the government. Adoption of this bill would set a standard delineation mechanism in State law, and thereby prevent the DEP from setting the State's flood hazard area delineation at more than one foot above the FEMA-delineated 100-year flood elevation.
