On August 5, 2024, the New Jersey Department of Environmental Protection (“NJDEP” or the “Department”) published its long-awaited Resilient Environments and Landscapes (“REAL”) rule proposal in the New Jersey Register. NJDEP had released a pre-publication copy of the anticipated REAL rule proposal earlier this year, on May 10.  The REAL proposal is the latest of the Department’s ongoing efforts to respond to and prepare for the impacts of climate change. While the 2023 Inland Flood Protection Rules focused on impacts related to precipitation increase and stormwater in fluvial areas (i.e., areas around rivers and streams), the REAL proposal “considers increased precipitation as well as sea level rise predictions particular to the State.” Thus, one of the major provisions of the REAL proposal is the adjusted coastal flood hazard areas. The proposal further aims to address expected climate change impacts throughout the state by requiring local communities to use “reliable climate science” to better prepare for climate related impacts. The 1,044-page proposal includes substantive changes to the Coastal Zone Management  Rules, the Freshwater Wetlands Protection Act Rules, the Flood Hazard Area Control Act Rules and the Stormwater Management Rules. Through the REAL rule, the Department seeks to increase protections for flooding and natural resources  while encouraging renewable energy and adding “administrative process improvements.”

Under the Flood Hazard Area Control Act Rule and the Coastal Zone Management Rule, the REAL proposal would create an Inundation Risk Zone (“IRZ”) within tidal flood hazard areas. In the IRZ, there are added standards and required analyses for new and improved residential and critical buildings (as redefined under the Flood Hazard Area Control Act Rule)  and  critical infrastructure (i.e., roadways and utilities) to account for increased flood risk from expected sea level rise and greater intensity storm events. For example, a project applicant in an IRZ will be required to provide data specific to the likelihood and frequency at which the site could be inundated by 2100. The applicant must provide the elevation of the mean highwater line nearest to the site and the minimum amount of inundation that would cause the lowest portion of the site to be inundated. This and other required data submitted to the Department will purportedly allow Department staff to “evaluate the relative risk associated with the proposed activity and the risk to end users of the proposed development.”

Other measures aimed at increased flood protections include that the existing “flood hazard area design flood elevation” is proposed to be replaced with the “climate adjusted flood elevation,” which will add five (5) feet to the Federal Emergency Management Agency’s (FEMA) 100-year flood elevation in tidal flood hazard areas. This significant change will effectively require flood hazard area permits for areas of many sites that were previously not in any flood hazard designation and may make many sites less developable or even undevelopable.

The proposal also includes regulatory changes in response to the increasing prevalence of renewable energy projects. The proposal would add standards addressing the installation of submerged cables specifically for offshore wind development and would expand the exceptions to the development prohibition in shellfish habitat to allow submerged cables for offshore wind and associated infrastructure. On the other hand, the proposal would discourage the installation of solar panels in open waters or forested areas through amendments to the Flood Hazard Area Control Act Rules. However, there would be incentives for the development of solar panels where there would be minimal environmental impact.

There is a significant focus on improved stormwater management. For instance, the proposal seeks to incorporate climate resilience planning in municipal and regional stormwater plans, including by requiring municipalities and regional planning agencies to evaluate sea level rise and increased flooding and rainfall in stormwater management planning. There are several proposed specific amendments to the Stormwater Management Rules, which will apply statewide, not only within the new IRZ or in areas subject to the new climate adjusted flood elevation. For example, the proposal includes amended or new definitions of important terms such as “major development,” “public roadway or railroad limits,” “reconstruction,” and “retention” that will increase, or at least clarify, the type of projects that trigger application of the Stormwater Management Rules. The proposal further requires the reduction of runoff volumes from major developments to account for smaller, more frequent storm events but includes an alternative to meet volume reduction standards where technically impracticable. There is also added flexibility for public transport entities in complying with green infrastructure requirements and for variances for offsite mitigation. Regarding downstream impacts, which can be an unforeseen impediment in obtaining municipal or agency approvals, the proposal would clarify when such downstream analysis of flooding impacts is not required because a change in runoff timing is the result of a proposed Best Management Practice (BMP) installation.

Other notable provisions under the proposal include administrative process improvements under the Flood Hazard Area Control Act Rules and the Coastal Zone Management Rules that would, among other things, eliminate permits-by-rule and readopt these permits either as limited categorical exceptions, general permits-by-registration, permits-by-certification, or general permits. The proposal’s facilitation of nature-based solutions includes an amendment of the term “living shoreline” to clarify that a living shoreline cannot be purely structural in nature and adding allowable substrate for living shoreline construction. There is also greater flexibility provided in the footprint of restored shorelines and an expanded general permit for habitat creation and living shoreline projects. There is a new general permit proposed for nature-based solutions involving the creation, restoration or enhancement of wetlands. Additionally, there are amended restrictions regarding the time periods during which activities permitted to introduce sediment to a stream are prohibited from doing so to protect fishery resources under the Freshwater Wetlands Protection Act Rules applicable to trout waters, non-trout “warm water species” waters and waters supporting anadromous fish.

The REAL rule proposal is expansive in its efforts to protect residences, critical infrastructure and land and water resources from climate change and flooding impacts. Once enacted, the rule will impact a wide range of projects and permit applications in the state’s coastal and affected inland areas. For one example, the creation of the Inundation Risk Zone and the climate adjusted flood elevation will add to the already challenging permitting requirements for regulated sites and many that were previously not subject to regulation or permitting requirements. For another, the proposed amendments to the Stormwater Management Rules will likely increase the number of projects subject to these rules and make it more difficult or expensive, in some instances, for projects to comply with those Rules.

The Department will hold an in-person public hearing concerning the proposal on September 5, 2024, at 6:00 pm in Toms River, and virtual public hearings on September 12 at 2:00 pm and September 19 at 10:00 am. Written comments are due by November 3, 2024.

For more information, please contact the author, Jordan Asch, at jasch@riker.com or any attorney in our Environmental Practice group.