What You Need to Know

• NJDEP’s REAL rule amendments are now final and in effect, changing coastal permitting standards across New Jersey’s land use programs.
• A limited 180-day “legacy” window (through July 20, 2026) allows certain technically complete applications to proceed under pre-REAL standards.
• Tidal flood elevations are now climate-adjusted to four feet above FEMA’s 100-year flood elevation, significantly expanding regulated areas and affecting project design.
• New Inundation Risk Zones and hardship provisions, including recognition of affordable housing as a “compelling public need,” create both new compliance obligations and potential relief pathways.

In January, the New Jersey Department of Environmental Protection (“NJDEP”) adopted the Resilient Environments and Landscapes (“REAL”) rule amendments to its coastal permitting rules, moving the REAL framework from merely a “proposed” rule to the operative permitting standards going forward.  As discussed in our prior post, this adoption followed a Notice of Substantial Change, whereby many of the key provisions of the original rule proposal were modified in response to public comments.  But with the final rule now adopted, owners and developers in affected areas now must consider: (i) whether a project can qualify for “legacy” treatment, and (ii) if not, how the project should be designed to meet the new standards. These adopted amendments apply statewide across NJDEP’s land-use programs, but for coastal development, they chiefly affect projects located in NJDEP-mapped tidal flood hazard areas and, within those, newly mapped Inundation Risk Zones.

Effective Date and “Legacy” Transition Window

Although REAL is now in effect, NJDEP has provided a limited “legacy” window whereby applications deemed technically complete within 180 days can be reviewed under the pre-REAL standards.  Developers of current or contemplated coastal projects should determine whether their projects can be positioned for a technical completeness determination before the legacy deadline of July 20, 2026.  If not, then the new flood elevation, access, and related standards will apply.

Climate-Adjusted Flood Elevations in Tidal Areas

Under the adopted rules, NJDEP will evaluate tidal flooding using a “climate-adjusted flood elevation” that is four feet above FEMA’s 100-year flood elevation.  This greatly expands the number of sites that fall within NJDEP’s flood standards, impacting finished floor elevations, access design, grading, and other technical elements of projects in those areas.  Projects already designed according to prior flood elevations should be re-evaluated to determine whether they now fall within a regulated flood zone.

Inundation Risk Zones

With REAL comes the creation of so-called Inundation Risk Zones, which are areas that NJDEP has determined are likely to be subject to regular tidal inundation by the end of the century.  Residential buildings, critical buildings, and infrastructure projects within these zones must now make additional demonstrations as part of their coastal permitting applications.  For example, these projects must now undertake inundation risk assessments that address how projected future tidal inundation will affect the proposed development’s safety and long-term functionality.  The new IRZ rules do not apply to non-critical commercial, industrial, hospitality, gaming, or recreational structures.

Hardship Relief and “Compelling Public Need”: Affordable Housing

The new rules include a hardship exception that may allow deviation from certain flood standards when the rules’ other criteria are met and public safety is not unreasonably compromised.  The adopted REAL amendments expressly recognize affordable housing as a category that may satisfy the “compelling public need” component of a hardship request. That recognition, however, should not be viewed as guaranteeing approval – NJDEP can still require additional mitigation and will closely scrutinize the hardship application for life-safety, emergency access, and other risk-reduction measures.

Access and Emergency Services: “Dry Access” Flexibility

“Dry access” is the requirement that a building within a flood area must have at least one access route (road or walkway) that remains passable during the design flood, which often requires that route to be constructed above the applicable flood elevation. The adopted REAL rules have added some flexibility by allowing relief from strict dry access requirements where the applicant can demonstrate, among other things, that every reasonable effort has been taken to provide primary access to affected buildings and that no extraordinary risk is posed to any person using such buildings.

Planning for Regular Updates

REAL also requires periodic re-evaluation of the underlying precipitation and sea-level rise projections at least every five years, which may result in adjustments to the regulations as needed. This means that today’s +4 feet benchmark, for example, is not necessarily the end state.  Accordingly, parties that might seek NJDEP permits in five years or more should treat REAL compliance as a moving target subject to change.

Going Forward

Developers should start new projects with an early REAL compliance review to identify which of the new requirements govern the site and the proposed work, and what design standards or additional analysis will be required.  For projects already in progress, assess promptly whether a technically complete application can be submitted within the legacy window.  If not, assume REAL will apply and adjust the design and permitting approach accordingly.

For more information, please contact the author, Michael Antzoulis, or any attorney in Riker Danzig’s Environmental Practice Group.