Legal Blogs and Updates

Reforms contained in a forthcoming 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 forthcoming proposed reforms, known as the Resilient Environments and Landscapes (REAL) reforms, 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 late last week, the REAL reforms 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 reforms 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 the proposed “climate adjusted flood elevation.” The proposed climate adjusted flood elevation is calculated by adding five feet to FEMA’s 100-year flood elevation in tidal flood hazard areas.
• Aligning the State’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 the 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 now requires applicants to submit compliance information to the New Jersey Department of Environmental Protection for tracking of regulated activities throughout the State. Under the Freshwater Wetlands Protection Act Rules (N.J.A.C. 7:7A), the reforms would require applicants to justify the necessity of impacting wetlands in order to execute a project, 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 reforms would now 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.

A draft of the proposed rule is currently available on this page of the New Jersey Department of Environmental Protection’s website. The formal rule proposal is expected to be published in the New Jersey Register in July; the DEP will announce details concerning three public hearings at this time. Public comments will be accepted for 90 days following this publication.

If you have any questions regarding the scope of this proposed rule or its potential impact on a proposed project or development, contact Connell Foley's Environmental Law Group.