NJDEP Announces Substantial Changes to and Delayed Adoption of New Flood Rules

To our clients and colleagues:

On August 5, 2024, the New Jersey Department of Environmental Protection (“NJDEP”) proposed amendments to its existing flood hazard regulations.  The amendments were intended to address climate change and sea level rise by overhauling its approach to addressing flooding and associated challenges in New Jersey’s coastal areas.  Among the more noteworthy components of the proposed rules (entitled the “Resilient Environments and Landscapes,” or “REAL,” rules) was the addition of five feet to the existing flood elevation for new and substantially improved structures in tidal flood areas.  The proposal also called for the creation of an inundation risk zone (“IRZ”) in tidal flood hazard areas in which new standards, including a 3% impervious cover limit, would need to be met by applicants seeking to construct most new or improved residential buildings, critical infrastructure, and critical buildings (defined by the existing Flood Hazard Area Control Act rules as buildings that are essential to supporting vital government operations, such as emergency response, or that serve large numbers of people who may be unable to leave the facility through their own efforts). 

Now, after months of pushback from municipalities, the development community, and other stakeholders, NJDEP is revamping its proposal.  On July 21, 2025, NJDEP will be publishing a Notice of Substantial Changes to the REAL proposal in the New Jersey Register that meaningfully alters the proposed rules and delays their adoption.  Proposed changes to the REAL rules in the Notice include the following:

• Flood elevation – The proposal will reduce the flood elevation requirement for new or substantially improved buildings and infrastructure from five feet to four feet above FEMA’s 100-year flood elevation. NJDEP initially proposed the addition of five feet to FEMA’s 100-year flood elevation, relying on a 2019 Rutgers University study.  The study predicted only a 17% chance of five feet of sea level rise in New Jersey by 2100, but NJDEP nevertheless chose to use this number.  The agency alleges that this newly proposed one-foot reduction is the result of updated climate data that became available after REAL was first proposed in August 2024. 
• Data – The proposed rules will require that NJDEP revisit the precipitation and sea level rise data incorporated into the REAL rules every five years and amend the regulations if appropriate.
• Inundation Risk Zones – The proposed 3% impervious cover limit for development in IRZs, which some stakeholders criticized as effectively creating “no build zones,” is being dropped.
• Affordable housing – The proposal attempts to clarify that applications are eligible for relief under the Hardship Exception provisions of the Flood Hazard Rules at N.J.A.C. 7:13-15.1 if there is a “compelling public need” for the project, and expressly provides that affordable housing projects automatically qualify as serving a “compelling public need” for purposes of Hardship Exception eligibility.
• Dry access – The current flood hazard regulations require new multifamily residential development in flood hazard areas to have at least one point of ingress or egress that is elevated above flood elevation. This is known as the dry access rule. The new REAL proposal introduces criteria for evaluating requests for flexibility with respect to providing vehicular access for emergency personnel to reach buildings and their occupants during floods, thereby providing more certainty to applicants and curbing the number of hardship exceptions that would have been sought under the original REAL proposal.  Notably, this change will apply in both tidal and fluvial areas.
• Legacy/Grandfather Period – The original REAL proposal called for the new standards to apply to any NJDEP application that was deemed complete after the rules’ effective date. But under the new changes proposed by NJDEP, the current (pre-REAL) standards will apply to applications that are deemed complete within 180 days of the rules’ effective date.

The official publication of the Notice of Substantial Changes in the New Jersey Register on July 21, 2025 will kick off a new 60-day public comment period.  NJDEP will also be hosting a virtual hearing in September to allow for the submission of both oral and written comments from the public.  Finally, NJDEP has signaled its intention to adopt the REAL rules in late 2025 or early 2026, which will start the clock for the 180-day legacy period identified above.

If you have questions about how you will be impacted by the REAL rules once finalized or would like to learn more about submitting an effective comment to NJDEP, please contact Amie C. Kalac (AKalac@cullenllp.com) or Neil Yoskin (NYoskin@cullenllp.com).

Please note that this is a general overview of the law and no content within this excerpt constitutes legal advice. Nothing herein creates an attorney-client relationship between the authors and the reader.