In Roxbury Township, in Morris County, in a neighborhood adjacent to a new development, homes are being flooded with every heavy rain from stormwater cascading off the recently constructed site.

The developer of Stone Water Village claims the stormwater management system incorporated into the recently built first phase of construction was approved by the Planning Board, so they are off the hook.

The Planning Board is tabling hearings on the next phase of the development until the runoff issue can be solved.

A video is circulating showing muddy stormwater gushing from the top of a retaining wall where sits a newly constructed home built on the steep slopes of a recently cleared forest, cascading into a pond that was once the backyard of an adjacent home.

No one should be surprised by stormwater management systems being overwhelmed by recent storms as the current state Department of Environmental Protection stormwater and flood hazard area regulations were writen in response to the frequency and intensity of storms we were experiencing 25 years ago.

Things have changed. Storms are more frequent and more intense. We have seen catastrophic flooding in places that had not been historically flood prone.

In January 2020, Gov. Murphy issued Executive Order 100, directing the Department of Environmental Protection to “integrate climate change considerations, such as sea level rise, into its regulatory and permitting programs, including but not limited to, land use permitting, water supply, stormwater and wastewater permitting and planning.”

In response to the Governor’s directive, at the beginning of August, DEP proposed sweeping changes to its land use regulations.

Although most of the new rules address sea level rise and the resulting inundation in coastal communities, enhanced protection against inland flooding are also addressed in proposed changes to Freshwater Wetlands, Flood Hazard Areas, Stormwater Rules and other land use regulations.

The new rules were officially proposed on Aug. 2 triggering a 90-day public comment period. Consistent with its rulemaking procedures, DEP will issue a response to comments document when it adopts the proposed new rules.

Because of the scope of the rule changes the volume of comments submited will be huge. It could take DEP up to a year to finally adopt the new rules.
Meanwhile, the flooding in Roxbury will continue, and the intense storms that have wreaked havoc in Roxbury will continue to strike throughout the state.

In Roxbury, the Planning Board wrings its hands and the developer thinks about filing a lawsuit. The people whose houses continue to be flooded are at their wits end.

However, a solution is at hand. The Planning Board and the developer could agree to re-design the next phase of the development to conform to the newly proposed stormwater rules before they are adopted and retrofit the already built phase accordingly.

The new rules were written to regulate development and to design stormwater management systems in response to the kinds of storms we are currently experiencing, updating obsolete regulations from a former era of relative climate stability.

This would not be a perfect solution because some of the newly built homes were probably constructed in places that would be discouraged under the new rules. Reducing flooding caused by the as-built environment has been an on-going challenge in the state that will only increase as new areas become flood prone.

We are hearing much grumbling from development interests and their lobbyists that the proposed new rules are an overreach by the state government.

That is easy for them to say—just look at the developer in Roxbury whose development is causing the flooding, pointing a finger at the Planning Board, saying, “well, you approved the plans!”

Another set of regulations, the Residential Site Improvement Standards, stipulates that the stormwater management requirements a builder is required to incorporate into a development may not be stricter than what is required under state regulations.

But that does not prevent a municipality and a developer from agreeing to an enhanced stormwater management system. If Roxbury and the Stone Water Village developer wish to stay out of the courtroom, this might be the way to go.

Roxbury serves as an unintended and unfortunate illustration of why DEP’s new N.J. Protect Against Climate Threats/Resilient Environment and Landscapes, or NJPACT/REAL Rules are necessary, if a bit late.

DEP’s mandate to regulate land use in order to protect the health, safety and property of New Jersey is the job of the Division of Watershed & Land Management.

With the environmental community pulling it in the direction of better protection and development interests pulling the agency in the direction of less regulation, the division has a tough row to hoe.

But I think they got it right here. And if anyone believes the proposed new land use rules are an overreach, there is a neighborhood in Roxbury you might visit.