What Developers Need To Know About NJDEP’s Proposed Resilient Environments and Landscapes Rule

What Developers Need To Know About NJDEP’s Proposed Resilient Environments and Landscapes Rule

New Jersey developers will soon have to account for climate change risks when proposing development and redevelopment projects along the State’s shoreline. On May 10, 2024, the New Jersey Department of Environmental Protection (NJDEP) unveiled a package of regulations amending the State’s land use rules to account for rising sea levels and increased flooding risks. The rule package, which will likely be finalized next summer, includes amendments to the state’s existing flood hazard, stormwater, coastal zone, and freshwater wetland regulations.

The rule proposal, known as Resilient Environments and Landscapes (REAL), is part of New Jersey’s efforts to modernize its regulations and improve the State’s resilience to climate change. As set forth in the rule proposal, nearly two-thirds of New Jersey’s coastline is already at high or very high risk of coastal erosion, and 98% of the coastline is projected at medium or very high risk of sea level rise Additionally, scientists predict that sea levels along the Jersey coastline will rise by five feet by the end of the century.

REAL is part of the New Jersey Protecting Against Climate Threats (NJPACT) initiative directed by Governor Phil Murphy’s Executive Order 100 (Jan. 2020). In proposing the rules, New Jersey became the first state in the nation to initiate a comprehensive update of land resource protection regulations to address the current and future impacts of a changing climate.

“The Resilient Environments and Landscapes reforms are a critical component of our Administration’s comprehensive strategy to bolster New Jersey’s resilience amid the worsening impacts of climate change,” Governor Phil Murphy said in a press statement. “A product of scientific study and robust stakeholder engagement, the REAL reforms reflect the best available climate science specific to New Jersey and will better protect homes and businesses from current and future climate threats, including sea-level rise, extreme weather, and chronic flooding.”

The NJDEP’s REAL rule proposal spans 1,507 pages and amends several key land use regulations, including the Coastal Zone Management (CZM) rules, N.J.A.C. 7:7, Freshwater Wetlands Protection Act (FWPA) rules, N.J.A.C. 7:7A, Flood Hazard Area Control Act (FHACA) rules, N.J.A.C. 7:13, and Stormwater Management (SWM) rules, N.J.A.C. 7:8. To fully understand how you may be impacted, we strongly encourage you to consult with a member of Scarinci Hollenbeck’s Environmental Law Group.

In the meantime, below are several key initiatives that the NJDEP has targeted in its rule proposal:

• Adjust Coastal Flood Hazard Areas to account for rising sea levels and attendant storm surges, extending jurisdictional areas further inland, requiring higher first-floor elevations or floodproofing for buildings and higher roadways. ​
• Create an Inundation Risk Zone to address risk for residential buildings and critical structures proposed in areas of permanent or daily inundation due to sea level rise.
• Improve water quality and reduce flooding by adding sound stormwater management practices in areas where stormwater is not adequately managed.
• Encourage nature-based solutions by working with nature to protect the State’s communities and resources.
• Support renewable energy by balancing habitat conservation with novel infrastructure demands. ​
• Improve State alignment with FEMA’s National Flood Insurance Program (NFIP) through clarifying amendments to the FHA rules.​
• Improve the NJDEP permitting processes to better track authorizations and permits from the start of construction to project completion.

The REAL rules will not impact existing development. Rather, the proposed amendments will apply to new development, redevelopment, and substantial improvements to buildings. According to the NJDEP, pending development projects would also not be affected if the developer submitted applications to the department that are complete for review prior to the adoption of final rules.

A formal rule proposal is expected to be published in the New Jersey Register in July. Upon publication of the proposal, a 90-day public comment period will commence. Comments may be submitted electronically at www.nj.gov/dep/rules/comments.

Three public hearings will also be announced upon publication, and four webinars are scheduled for the public to hear about the proposed rule. Based on this timeline, it is likely that final rules would be adopted in summer of 2025. Information about the webinars is listed below:

Session 1: Sea Level Rise & Inundation Risk Zone
Monday, May 20, 1 to 2:30 p.m.
Microsoft Teams: Click here to join the meeting
Phone (audio only): 1-856-338-7074, use conference ID 152 933 236#
Session 2: Environmental Enhancements
Wednesday, May 22, 11:30 a.m. to 1 p.m.
Microsoft Teams: Click here to join the meeting
Phone (audio only): 1-856-338-7074, use conference ID 626 469 920#
Session 3: Coastal Climate Protection
Thursday, May 23, 2 to 3:30 p.m.
Microsoft Teams: Click here to join the meeting
Phone (audio only): 1-856-338-7074, use conference ID 940 915 513#
Session 4: Stormwater
Wednesday, May 29, 1 to 2:30 p.m.
Microsoft Teams: Click here to join the meeting
Phone (audio only): 1-856-338-7074, use conference ID 610 015 833#