On October 2, 2006, the New Jersey Department of Environmental Protection proposed sweeping new requirements to obtain a stream encroachment permit. It is very likely that the new rule will be adopted in substantially the same form as proposed in the autumn of 2007. Most important immediately, to be grandparented and not subject to the new rule, certain actions must be taken by property owners before the effective date of the rule. In the longer term, to the extent the rule overhaul is intended to prevent flooding and urban sprawl, it is not clear that it will further either goal. The rule proposal contains no estimates of how much property will be affected statewide and no meaningful discussion of the rule’s economic impact. Property owners should assume that the rule will be adopted shortly and plan accordingly. A meaningful discussion of possible legal challenges is better left until after the final rule is published and adopted.
The main impetus for the rule proposal was recent flooding along the Delaware River. Over several days in September 2004, the remnants of Hurricane Ivan produced heavy rain across northwestern New Jersey and the Catskill Mountains in New York. A river gauge at Riegelsville, Pennsylvania, recorded a peak of 30.94 feet on Sept. 23, 2004 (flood stage is 22 feet).
