Legal Updates

The New Jersey Department of Environmental Protection (NJDEP) has announced changes to the anticipated Resilient Environmental and Landscapes (REAL) coastal flood rules, which were previously anticipated to take effect later this year. Originally published in the New Jersey Register on August 5, 2024, the REAL Rules are expected to significantly impact land use developments throughout New Jersey, especially in areas subject to coastal flooding and potential sea-level rise.

One critical change to the rule proposal includes the revision of the elevation requirement for new or substantially improved buildings and infrastructure to four feet above base flood elevations. NJDEP has also expanded existing legacy provisions to allow applicants to continue to rely on the current regulations and requirements provided complete applications are submitted by July 2026.

Once in effect, the rules will amend New Jersey’s existing flood hazard, stormwater, coastal zone, and freshwater wetland regulations to address climate change impacts, improve water quality, increase flood protections, and address issues specifically impacting overburdened communities.

While originally anticipated to take effect in or around August 2025, the NJDEP has published a Notice of Substantial Changes in the New Jersey Register on July 21, 2025. As a result, the adoption of the regulations is now expected in January of 2026.

A non-exhaustive list of the proposed substantive changes follows:

• The revision of the elevation requirement for new or substantially improved buildings and infrastructure from the originally proposed five feet to four feet above FEMA’s base flood elevation.
• The revision of the extent of the proposed inundation risk zone to reflect the projected four-foot increase in sea levels.
• The clarification that NJDEP will revisit the sea-level rise and precipitation data incorporated into the rule every five years and amend the regulations as appropriate.
• The expansion of a legacy provision, allowing projects to be reviewed under current regulations so long as applicants submit a complete application to the DEP within 180 days of REAL’s effective date (or by July 2026).
• The clarification that New Jersey studio partners and New Jersey film-lease partner facilities are excluded from the REAL amendments prior to their effective date.
• The clarification that projects need to be allowable within an existing right-of-way or easement, rather than permitted as a condition of the right-of-way or easement.

Flood Hazard Control Act Rules, N.J.A.C. 7:13-1.1, et seq.

• The exemption of the installation, replacement or repair of underground utility lines constructed within a previously recorded easement from deed notice requirements applicable to permits-by-certification, general permits, or individual permits.
• The exemption of repair and maintenance activities 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’ “hardship exception” process.
• The exemption of certain isolated waters that have no surface or subsurface hydrological connection to regulated waters from the definition of “regulated waters” under the Flood Hazard Control Act Rules.
• The exemption of placement of underground utility lines pursuant to existing impervious surfaces under the Flood Hazard Control Act Rules, even within a regulated water or 25 feet of a top of bank.
• The revision of Flood Hazard Control Act permits by registration, permits by certification, and general permits to make fencing requirements consistent with the Uniform Construction Code.
• The revision of the Flood Hazard Control Act to clarify proposed requirements for dry access for railroads, roadways, parking areas, or airport runways or taxiways.
• The clarification that dry flood-proofing 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 or VE zones.
• The revision of the Flood Hazard Control Act Rules to clarify that portions of existing buildings being converted to another use must meet the requirements applicable for the proposed use.
• The revision of standards for evaluating the feasibility and location of proposed building sites to require demonstration that every practicable effort has been made to locate the building on portions of the site where higher ground exists unless doing so would result in more environmental disturbance.

Coastal Zone Management Rules, N.J.A.C. 7:7-1.1, et. seq.

• The removal of the inundation risk zone from the list of critical environmental sites pursuant to CAFRA.
• The revision of standards for submerged transmission cables pursuant to the Coastal Zone Management Rules, including clarification that a burial depth of 2.0 meters for submerged transmission cables is required only in certain areas; that cable depth measurements are to be made from the tops of cables; and that cable depth requirements may be modified when required; provided that the depth is no shallower than 1.2 meters.
• The revision of certain provisions of the Coastal Zone Management Rules to be consistent with the Flood Hazard Area Control Act Rules, including the deletion of two existing exemptions to the list of regulated waters that do not possess a riparian zone and the revision of language relating to critically dependent species.

Stormwater Management Rules, N.J.A.C. 7:8-1.1, et. seq.

• 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 stormwater runoff.

Freshwater Wetlands Protection Act Rules, N.J.A.C. 7:7A-1.1, et. seq.

• The revision of General Permit 1 under the Freshwater Wetlands Protection Act Rules to allow for temporary impacts to human-made wetlands around stormwater basins in certain situations.

The public comment period for this substantial change is open until September 19, 2025. A virtual public hearing is scheduled for September 3, 2025.

If you have any questions as to how the proposed rules, or the intended revisions, may impact your project, please contact our land use and environmental law teams.