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On July 21, 2025, the New Jersey Department of Environmental Protection’s Notice of Substantial Change (“NOSC”) to the Resilient Environments and Landscapes (“REAL”) rule proposal was published in the New Jersey Register. A courtesy copy of the NOSC provided by NJDEP is available here.
The NOSC proposes “substantial changes” to the REAL rules that were originally proposed on August 5, 2024, and provides a 60-day public comment period for the changes. NJDEP will be holding a virtual public hearing on September 3, 2025 at 6 PM, and written comments may be submitted to NJDEP by close of business on September 19, 2025. To prevent expiration of the proposal, NJDEP must adopt REAL by February 5, 2026, which is 18 months after the REAL proposal was first published in the Register. NJDEP has indicated that it intends to adopt REAL by the end of this year. While each of the changes may have case-by-case applicability, the proposed changes to the “legacy” protections that create a 180-day phase-in period and enlarges the concept of “complete for review” should benefit anyone seeking approval for immediate projects under current rules.
The “Substantial Changes” Proposed
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180 Day Grace Period For Legacy Protections: The legacy provisions in the Flood Hazard Area (“FHA”), Coastal Zone Management (“CZM”), Freshwater Wetlands, and Stormwater Management rules have been amended to provide additional time to submit an application that would be subject to the pre-REAL rules. An application that is “complete for review” within 180 days after REAL’s effective date will be subject to the current regulations. The effective date is the date that the final rules are published in the New Jersey Register. If NJDEP adopts these rules in December, it is likely that they will not appear in the Register until the first quarter of 2026, meaning that the 180-day deadline would be sometime in July 2026. For most applications, “complete for review” means that it is both administratively and technically complete. For a CAFRA individual permit, “complete for review” means that the application is complete for public comment or public hearing, representing a change from the original 2024 REAL proposal which would have required CAFRA individual permit applications to have finalized the public comment process to be complete for review.
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Sea-Level Rise Projections: The projected sea-level rise by year 2100 has been amended from five feet to four feet. This change in the space of less than a year is demonstrative of the arbitrary nature of these calculations. This results in changes to the tidal climate-adjusted flood elevation and the extent of flood hazard area jurisdiction and the Inundation Risk Zone. Every five years after the effective date of REAL, NJDEP will “take action” to determine whether the sea level rise and precipitation data incorporated into the FHA Rules and the Stormwater Management Rules reflect the most current estimates for New Jersey and will amend the rules as necessary. The five year re-evaluation window will likely create uncertainty in the planning process.
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Inundation Risk Zone Removed As CAFRA Special Area: The Inundation Risk Zone (“IRZ”) has been removed from the list of coastal special areas under the CZM Rules. This change was in response to public comments raising concern that identification of the IRZ as an environmentally sensitive area would subject lands in the IRZ to 3% impervious cover limits in the CAFRA individual permit context and effectively create “no build zones.”
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Affordable Housing Is A Compelling Public Need: The original proposal added “compelling public need” as a new category under N.J.A.C. 7:13-15.1(b) for which a hardship exception for an FHA individual permit can be considered and also added “compelling public need” as a newly defined term in the FHA Rules, which is essentially identical to the definition already included in the current Freshwater Wetlands Protection Act Rules. The NOSC amends the hardship exception provision to specifically state that compelling public need in this context “shall include the need to provide affordable housing.” The NOSC also adds “affordable housing” as a defined term in the FHA Rules and defines it as very-low-income, low-income, or moderate-income housing as defined in the Fair Housing Act. While having a project with a compelling public need may increase the chances of securing hardship exception relief, such relief will not be automatically granted simply because a project constitutes affordable housing. All other requirements for a hardship exception, including the stringent requirements under N.J.A.C. 7:13-15.1(c), must also be satisfied.
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Dry Access: The NOSC clarifies that “dry access” will not be required for construction of a building unless the building is proposed in a flood hazard area. This is consistent with the current FHA Rules and does nothing to alleviate the expansion of dry access requirements under the proposal to single family developments of two or more homes or duplexes or the ratcheting up of dry access conditions, such as requiring a dry access road to accommodate two way traffic and be a foot above the climate adjusted flood elevation and clarifying that safety personnel must be able to reach the building, and occupants must be able to reach a government shelter. However, the NOSC may provide an opportunity for relief in fluvial flood hazard areas where dry access cannot feasibly be provided, but in no event may a required dry access road be located any lower than the 100-year flood elevation. The feasibility factors, among other things, require a study of potential flood conditions to demonstrate “no extraordinary risk is posed to any person” using the proposed building. Strangely, in extending this feasibility analysis to proposed buildings in fluvial flood hazard areas, the Department changed the prior proposal by removing language that had expressly recognized an exemption from dry access road requirements for projects in tidal flood hazard areas. This change creates ambiguity regarding the exemption for such projects, as one must look to the Response to Comment portion of the NOSC for an explanation that buildings in tidal flood hazard areas, which are not also subject to fluvial flooding, would be subject to deed notice requirements if dry access road requirements are not satisfied, suggesting that the exemption is intended to apply to such projects (which was the position taken by NJDEP during its public information session). The proposal also requires dry access to be met where a private roadway or parking area serving a regulated building is constructed in a fluvial flood hazard area. Thus, even if the building is not located in a flood hazard area, dry access may still apply to the project.
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Dry Floodproofing: The NOSC clarifies that dry floodproofing for a building is prohibited only in flood hazard areas in which the flood velocity is greater than five feet per second, Coastal A zone, and the V zone or VE zone. The NOSC also removes the prohibition on dry floodproofing in the IRZ or within flood-prone areas where velocity is unknown.
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Major Development: The original proposal added the “reconstruction of one-quarter acre or more of ‘regulated motor vehicle surface’ or ‘regulated impervious surface’” as a “major development” under the Stormwater Management Rules. The NOSC removes the term “regulated” from the aforementioned category.
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Substantial Improvement That May Alter Building Height: The original proposal included an exemption from the requirement to elevate a building under the CZM and FHA Rules where a substantial improvement results only from maintenance and repair activities that do not alter the building’s height, footprint area, or habitable area. The NOSC extends the exemption to repair and maintenance activities that may alter the height of a building provided the habitable area of the building does not increase.
The above is a summary overview of certain key changes described in the NOSC. Please refer to the complete NOSC for a comprehensive review of the changes to the REAL rule proposal.
If you have questions regarding how the forthcoming rules may affect your project, please contact one of the attorneys in our Environmental Department.
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