By Christina Sartorio Ku - Connell Foley

Reforms contained in a rule proposal to modernize land resource protection rules will significantly impact land use developments throughout New Jersey, making the Garden State’s permit acquisition process even more challenging and difficult to navigate than it is now.

The proposed reforms, known as the Resilient Environments and Landscapes (REAL) rules, are intended to better protect New Jersey communities from coastal flooding, sea-level rise, and other public health and safety risks arising from climate change. Announced by Governor Phil Murphy and Commissioner of Environmental Protection Shawn M. LaTourette in May, and published in the New Jersey Register on August 5, 2024, the REAL rules are a result of the New Jersey Protecting Against Climate Threats (NJ PACT) initiative. If enacted, they would amend New Jersey’s existing flood hazard, stormwater, coastal zone, and freshwater wetland regulations statewide to address climate change impacts, improve water quality, increase flood protections, and address issues specifically impacting overburdened communities.

The REAL rules would amend existing law to increase flood protections in several ways, including by:

• creating an “Inundation Risk Zone” (IRZ) regulated area within tidal flood hazard areas that would encompass land currently above sea level likely to be inundated during high tides during the life of the proposed development. New or improved developments 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.
• redefining the extent of tidal flood hazard areas and replacing the existing “flood hazard area design flood elevation” with a proposed “climate adjusted flood elevation” that is calculated by adding five feet to FEMA’s 100-year flood elevation in tidal flood hazard areas.
• expanding riparian zone buffers and imposing stricter limitations on wetlands and stormwater management, particularly in environmentally sensitive areas. For example, the rule imposes a 3% impervious cover limit in new “Critical Environmental Sites” and enhances the requirements for stormwater management in redevelopment projects.
• aligning New Jersey’s floodplain management efforts with the National Flood Insurance Program’s (NFIP’s) minimum standards, as established in the rule or floodplain ordinance for the community where the site is located.

Other proposed changes include replacing 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 requires applicants to submit compliance information to the New Jersey Department of Environmental Protection (NJDEP) for tracking of regulated activities throughout the State. Under the Freshwater Wetlands Protection Act Rules (N.J.A.C. 7:7A), the proposed rules would require applicants to demonstrate why a project necessitates impacting wetlands, regardless of whether all other criteria under the rules are met; the reforms also require that all proposed activities in transition areas be situated at least 25 feet from any freshwater wetlands.

Finally, pursuant to the Flood Hazard Area Control Act rules (N.J.A.C. 7:13), the REAL rules would regulate isolated waters draining less than 50 acres, removing the exception for work located within 25 feet of a bulkhead, retaining wall, or revetment along a tidal or impounded fluvial water.

The NJDEP is accepting public comments to the proposed rules until November 3, 2024. If the NJDEP does not make any substantive changes to the proposed rules upon review of the public comments, these rules may be adopted and effective as early as the spring or summer of 2025. Pursuant to the regulations, any application submitted to the NJDEP after the effective date of the adopted rules, or any application that has not been deemed administratively complete by that date, will be subject to the new rules.

The Author:

A partner in Connell Foley LLP’s Environmental Law Group, Christina Sartorio Ku is an accomplished litigator who leverages her background in biological sciences and environmental regulation to represent parties in complex environmental cases involving CERCLA, the New Jersey Spill Act, the New York Navigation Law, ISRA/ECRA, RCRA, among other laws. A member of BCONE, Christina regularly provides counsel on regulatory enforcement and compliance matters involving site remediation and hazardous waste, and advises clients involved in federal and state cost-recovery and contribution claims. She works with private clients as well as state and federal regulators to resolve land use issues, including matters related to permits, waterfront development and public access easements. Christina can be reached at CSartorio@ConnellFoley.com Connell Foley LLP's Environmental Law practice is fluent in all federal, state and local environmental regulations. The firm’s Environmental Law team brings decades of experience to bear on behalf of clients grappling with regulatory compliance, intricate litigation, brownfield redevelopment and transactional due diligence issues, as well as spills and other environmental matters. You can learn more about the group here: https://www.connellfoley.com/practices-environmental-law