Matter of Flood Hazard Area Verification & Flood Hazard Area Individual Permit, 1113-22-0002.1 LUP220002

The New Jersey Superior Court, Appellate Division, rejected most challenges to project approvals issued by the New Jersey Department of Environmental Protection (DEP) for the 645-acre site of a planned warehouse facility. The approvals were a Flood Hazard Area Verification for four on-site waters and a Flood Hazard Area Individual Permit for work in regulated areas. The court concluded that DEP “properly carried out its flood hazard area delineation responsibility,” rejecting the appellant’s contention that DEP should have considered recent studies showing that precipitation levels in New Jersey had been rising and would likely continue to rise at significant rates. The court said DEP properly approved the permit on December 1, 2022 without incorporating the studies’ findings, which were not adopted into the inland flood protection regulations through formal rulemaking until 2023. The court also found that DEP properly conducted its Water Quality Management Plan consistency assessment and that DEP was not required to delineate floodways on the site. The court agreed with the appellant, however, that under New Jersey regulations the developer had an obligation to demonstrate that it was not feasible to construct a bridge rather than a culvert as a channel modification. The court therefore vacated the permit “without prejudice to the outcome of a remand, to enable the agency to reconsider an amplified application” that addressed the bridge infeasibility issue.