"Flood Zone Clarification Act"; modifies procedure for delineation of State flood hazard areas.

S3416

SENATE, No. 3416

STATE OF NEW JERSEY

222nd LEGISLATURE

�

INTRODUCED FEBRUARY 9, 2026

Sponsored by:

Senator� JAMES W. HOLZAPFEL

District 10 (Monmouth and Ocean)

Senator� CARMEN F. AMATO, JR.

District 9 (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.