N.J. Admin. Code § 7:13-12.6

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:13-12.6 - Requirements for a railroad, roadway, and parking area

(a) This section sets forth specific design and construction standards that apply to any railroad, roadway or parking area proposed in a flood hazard area.

(b) The Department shall issue an individual permit to construct or reconstruct a railroad or public roadway only if one of the following requirements is satisfied:

1. The travel surface of the railroad or public roadway is constructed at least one foot above the flood hazard area design flood elevation; or

2. The applicant is a public transportation entity and any of the following apply:

i. The project is limited in scope and consists solely of safety or state of good repair improvements to a lawfully existing railroad or roadway, such that there is no reasonable opportunity to meet (b)1 above as part of the project's overall scope and purpose;

ii. Prior to July 17, 2023, the project reached a milestone in its development and design, such that meeting (b)1 above would necessitate reevaluation of the selected preferred alternative or equivalent milestone, a significant redesign, or significant modifications or additions to private land acquisition plans, whether in fee or easement; or

iii. Strict compliance with (b)1 above would result in one of more of the following:

(1) Prohibitively high construction costs or construction costs that are disproportionately high compared with any benefit that would be obtained by strict compliance with (b)1 above;

(2) A design that necessitates excessive volumes of fill that exceed the flood storage displacement limits, for which flood storage cannot feasibly be created in compensation either onsite or offsite;

(3) A design that does not meet necessary transportation safety, geometric design, or access point requirements, such as those adopted by the American Association of State Highway and Transportation Officials;

(4) A design that causes unavoidable adverse impacts to the environment (including, but not limited to, impacts to the channel, riparian zone, or aquatic or terrestrial resources) that cannot be adequately mitigated; or

(5) A design that exacerbates flooding or causes unavoidable adverse impacts to offsite properties or preexisting drainage patterns .

(c) An applicant seeking authorization pursuant to (b)2ii or iii above shall :

1. Demonstrate through a certification from a licensed professional engineer and supporting documentation that:

i. Every reasonable effort has been taken to construct or elevate as much of the railroad or roadway as close as practicable to the elevation required at (b)1 above given the scope of the project.

(1) Access to railroads or roadways that are lower than the elevation requirements of this section will be considered in the evaluation of reasonable effort ;

ii. The railroad or roadway is designed to the maximum extent practicable to resist damage, displacement, and loss of service due to anticipated flooding based on the projected rainfall depths used in this chapter ;

iii. No extraordinary risk is posed to any person using each proposed railroad or roadway that is constructed at an elevation less than required at (b)1 above; and

iv. The project meets the requirements at (b)2ii or iii above, as applicable; and

2. Provide an adequate number of permanent signs that are posted in prominent locations along any new, reconstructed, or expanded section of railroad or roadway that does not meet (b)1 above, alerting the public to the likelihood of flooding based on the projected rainfall depths used in this chapter.

(d) The Department shall review and identify any deficiencies in the information provided at (c) above during completeness review pursuant to N.J.A.C. 7:13-21.2.

(e) The Department shall issue an individual permit to construct or reconstruct a private roadway or parking area in a fluvial flood hazard area, which serves a critical building or serves a multi-residence building that is not part of a redevelopment project, only if one of the following requirements is satisfied:

1. The travel surface of each private roadway and parking area is constructed at least one foot above the flood hazard area design flood elevation; or

2. The applicant demonstrates that the critical building or multi-residence building is already served by one or more roadways and/or parking areas having a travel surface at least one foot above the flood hazard area design flood elevation, which is of adequate size and capacity to serve the building, and instead constructs the travel surface of each additional private roadway and parking area as close to this elevation as feasible.

(f) The Department shall issue an individual permit to construct or reconstruct a private roadway or parking area not covered by (e) above, only if one of the following requirements is satisfied:

1. The travel surface of each private roadway or parking area is constructed at least one foot above the flood hazard area design flood elevation; or

2. The applicant demonstrates that each building or group of buildings is already served by one or more roadways and/or parking areas having a travel surface at least one foot above the flood hazard area design flood elevation, which is of adequate size and capacity to serve the building or group of buildings, or that it is not feasible to construct the travel surface of each private roadway or parking area at least one foot above the flood hazard area design flood elevation pursuant to (g) below, and instead constructs the travel surface of each private roadway and parking area as close to this elevation as feasible.

(g) An applicant, other than a public transportation entity, seeking to demonstrate that it is not feasible to construct the travel surface of a railroad, roadway, or parking area at least one foot above the flood hazard area design flood elevation, or a public transportation entity seeking to demonstrate that it is not feasible to construct the travel surface of a parking area at least one foot above the flood hazard area design flood elevation, as is required for various activities in this section, shall:

1. Demonstrate that strict compliance with the elevation requirements of this section would result in one or more of the following:

i. Prohibitively high construction costs;

ii. Construction costs that are disproportionately high compared with any benefit that would be obtained by strict compliance;

iii. A design that necessitates excessive volumes of fill that exceed the flood storage displacement limits at N.J.A.C. 7:13-11.4, for which flood storage cannot feasibly be created in compensation either onsite or offsite; or

iv. A design that causes unavoidable and adverse impacts to the environment (such as to the channel, riparian zone, or fishery resources), or which would cause unavoidable and significant increases in flooding;

2. Demonstrate that every reasonable effort has been taken to situate portions of each proposed railroad, roadway, or parking area at least one foot above the flood hazard area design flood elevation so that vehicles can move to higher ground during a flood;

3. Demonstrate that no extraordinary risk is posed to any person using each proposed railroad, roadway, or parking area that is constructed at an elevation less than one foot above the flood hazard area design flood elevation. This demonstration shall include:

i. An analysis of the depth and frequency of floodwaters that will inundate the railroad, roadway, or parking area. In no case shall the travel surface of a private roadway or parking area that serves a multi-residence building in a fluvial flood hazard area be situated greater than 12 inches below the flood hazard area design flood elevation;

ii. The number of people that will be adversely impacted when the railroad, roadway, or parking area is inundated; and

iii. Measures being proposed to ameliorate the anticipated adverse impacts described at (g)3i and ii above, such as the establishment of evacuation plans for individuals that would be trapped during a flood, provisions for emergency electrical service during an outage, and floodproofing measures; and

4. Provide an adequate number of permanent signs are posted in prominent locations indicating which proposed roadways and parking areas are subject to flooding in the following cases:

i. The roadway and/or parking area serves a critical building, a multi-residence building or a residential subdivision of two or more single-family home or duplexes; or

ii. The parking area has 10 spaces or more.

(h) Where a private roadway or parking area is proposed to be constructed less than one foot above the flood hazard area design flood elevation pursuant to (e), (f), or (g) above, the following requirements shall apply:

1. The deed for each lot on which the private roadway or parking area is constructed, as well as any lot served by the private roadway or parking area, and each lease or rental agreement for a unit within a multi-residence building served by a private roadway or parking area that lies below the flood hazard area design flood elevation, shall be modified to:

i. Explain that the private roadway or parking area is likely to be inundated by floodwaters, which may result in damage and/or inconvenience; and

ii. Disclose the depth of flooding that the private roadway or parking area would experience during the FEMA 100-year flood, if available, and the flood hazard area design flood; and

2. Each deed modified in accordance with (f)1 above shall be recorded in the Office of the County Clerk or the registrar of deeds and mortgages of the county in which each lot served by the private roadway or parking area is located, and proof that the modified deed has been recorded shall be provided to the Department prior to the sooner of either:

i. The start of any site disturbance (including pre-construction earth movement, removal of vegetation or structures, or construction of the project); or

ii. The date that is 90 calendar days after the issuance of the individual permit.

N.J. Admin. Code § 7:13-12.6

Amended and recodified from 7:13-11.6 by 48 N.J.R. 1067(a), effective 6/20/2016

Adopted by 50 N.J.R. 361(a), effective 1/16/2018

Amended by 55 N.J.R. 1385(b), effective 7/17/2023