Three Years After Sandy, FEMA Maps Challenge Development

WEST ORANGE, NJ—More than three years after Super Storm Sandy ravaged the New Jersey coast, an overly complicated and bureaucratic set of flood regulations is making shore (and inland) construction difficult, and the economic development that accompanies it, nearly impossible, an environmental lawyer dealing with the situation charges.

"Sandy opened a lot of people's eyes as to how flooding can happen in a worst-possible scenario," says Dennis Toft, co-chair of the Environmental Group at West Orange-based Chiesa Shahinian & Giantomasi. "A lot of areas that previously never flooded ended up being under water."

The Federal Emergency Management Agency developed a series of flood maps for New Jersey that changed the "flood elevations" based on the Sandy data, and also rezoned areas in terms of their risk of flooding. FEMA reclassified some areas previously designated "A-Zone," or normally flooded zones, as "high velocity flood zones," or "B-Zones," Toft says.

"The maps had a couple of effects," he says. "One is that they changed flood insurance rates for many municipalities throughout the state. The way the FEMA process works, it's a flood insurance program, and it gets enforced through municipal ordinances establishing requirements for construction in the FEMA zones. So it has an impact on people financially, it has an impact on towns as they adopt ordinances, and it has an impact on development as to both what can be developed where, and in areas where development is permitted, it has to be done differently now because the flood elevation has changed."

Toft regularly appears before the New Jersey Department of Environmental Protection, the Army Corps of Engineers, the U.S. Environmental Protection Agency, municipal land use boards and the Office of Administrative Law, and in state and federal courts. You can hear an extended audio conversation with Toft about the issues raised by Sandy in the podcast player below.

The FEMA regulations triggered revisions by the New Jersey Department of Environmental Protection to its own regulations as to the elevations required to be above the flood elevation, Toft observes.

"It's still the requirement that for any occupied structure, you have to be one foot above the best available flood elevation number provided by the FEMA maps," he says. "It's changed the way development happens. It has created scenarios where folks need to elevate their properties in order to develop. It's created changes for commercial developers and others regarding flood insurance rates."

Some of the areas redesignated as B-Zones probably are too restrictive, Toft says. And he thinks that municipalities should have some greater leeway to "engineer out of" the flood elevation requirements for these areas.

"FEMA's kind of in a quandary," he says. "They have this data based on Sandy, but the other thing we all need to recognize is that as a result of global warming, the reality is that sea level rise is happening, and other waters are going to rise accordingly, and so there is a reason for them to be conservative and for us to be conservative."

Towns are not bound by the FEMA regulations, but if they don't comply, affordable flood insurance for residents may not be available, Toft says.

"Towns need to look at the maps, they need to get their engineers looking at the maps, and if they feel that FEMA was off by some degree, they need to go through the process to challenge it," he says. "Long-term, they need to take into account what's going to happen in the future, and recognize that the maps are based on Sandy information, and not necessarily taking sea level rise into account."