USA – NEW JERSEY Trends and Developments Contributed by: Christina Sartorio Ku, Nicole Dory, Meredith Rubin and Camryn Goldstein, Connell Foley LLP
Resilient Environments and Landscapes Rules Finally, New Jersey Governor Phil Murphy and NJDEP Commissioner of Environmental Protection Shawn M LaTourette announced the proposal of the Resilient Environments and Landscapes (REAL) rules in May 2024, and the rules were published in the New Jersey Register on 5 August 2024. A result of the New Jersey Protecting Against Climate Threats (the “NJ PACT”) initiative, the REAL rules are intended to better pro- tect New Jersey communities from coastal flooding, sea-level rise, and other public health and safety risks arising from climate change. Changes originally proposed in the REAL reforms included the following. • The expansion of the scope of tidal flood hazard areas and the replacement of the existing “flood hazard area design flood elevation” with the pro- posed “climate adjusted flood elevation,” which would be calculated by adding five feet to FEMA’s 100-year flood elevation in tidal flood hazard areas. • The creation of an “Inundation Risk Zone” (IRZ) newly regulated area which would encompass land currently above sea level which is expected to be inundated during high tides during the life of the proposed development. New or improved devel- opments within the IRZ will need to meet specific standards intended to address the increased flood risk that people and property are exposed to due to expected sea level rise and more intense storm events. • Replacement of the term “permit-by-rule” under the Coastal Zone Management Rules (N.J.A.C. 7:7) with the new term “permit-by-registration,” which would require applicants to submit compli- ance information to the New Jersey Department of Environmental Protection for tracking of regulated activities. • Addition of a requirement for applicants to justify the necessity of impacting wetlands in order to execute a project and a requirement that all pro- posed activities in transition areas be situated at least 25 feet from any freshwater wetlands. • Amendment of the Flood Hazard Area Control Act rules (N.J.A.C. 7:13), to now include regulation of isolated waters draining less than 50 acres, remov- ing the exception for work located within 25 feet
of a bulkhead, retaining wall, or revetment along a tidal or impounded fluvial water. While these amendments were expected to be formal- ly adopted and take effect in the summer of 2025, on 21 July 2025, the NJDEP published a Notice of Sub- stantial Changes in the New Jersey Register, describ- ing a number of revisions to the proposed REAL rules. One of the most impactful changes was the revision of the elevation requirement for new or substantially improved buildings and infrastructure from five feet to four feet above base flood elevations. Other chang- es described in the Notice of Substantial Changes include the following. • The exemption of repair and maintenance activi- ties that may alter the height of a building from the requirement that such buildings, when substantially damaged, be elevated to meet NFIP standards under the Flood Hazard Control Act individual permit process. • The clarification that low- and moderate-income housing projects are eligible for consideration under the Flood Hazard Control Act rules’ “hard- ship exception” process. • The exemption of certain isolated waters that have no surface or subsurface hydrological connection to regulated waters from the definition of “regu- lated waters” under the Flood Hazard Control Act Rules. • The clarification that dry flood-proofing is pro- hibited only in flood hazard areas in which the flood velocity is greater than five feet per second, Coastal A zone, and the V or VE zones. • The removal of the inundation risk zone from the list of critical environmental sites pursuant to the Coastal Area Facilities Review Act. • The revision of the stormwater management rules to include reconstruction of any motor vehicle or other impervious surface, not just regulated surfaces, as a “major development” and to require 80% total suspended solids removal for stormwa- ter runoff. The new regulations and amendments are expected to be adopted and take effect in January of 2026.
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