NJDEP plans delay of REAL climate rules

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The basics:

• NJDEP expected to delay REAL rules compliance until next summer
• REAL rules tied to Murphy-era NJ PACT climate initiative
• Developers warned rules could impact projects statewide
• Industry groups praised Sherrill administration review

The New Jersey Department of Environmental Protection reportedly plans to pause implementation of sweeping REAL/NJ PACT climate change rules promulgated by the previous administration.

Gov. Phil Murphy enacted the wide-ranging Resilient Environments and Landscapes land-use rules in mid-January, on his last day in office. The enactment was initially put on hold thanks to incoming Gov. Mikie Sherrill’s seventh executive order. Signed days into her first term, EO 7 delayed the start of new state rules and regulations for 90 days.

While many saw the window as a reprieve, concerns about what would come next lingered. Now, it appears the period to work through flood and other environmental regulations will last another year.

New Jersey Business & Industry Association said late May 28 that NJDEP intends to propose a new rule extending the legacy period in the REAL rules adopted earlier this year. That same day, Politico also reported on the agency’s intention to delay implementation, citing individuals familiar with the matter.

The NJDEP did not respond to a request for comment and additional information regarding changes to the REAL rules rollout.

A REAL reprieve

REAL is part of the larger Protecting Against Climate Threats, or NJ PACT, intuitive. The effort aimed to reform current regulations by using timely and projected climate-change impacts.

Among the main sticking points of the more than 1,000-page rule set (aside from that volume), is a requirement that would have raised the base height for new construction in impacted areas by 4 feet. That height, along with the data used to determine where it applies, raised questions and concerns among many critics of the plan.

Speaking at the NAIOP I.CON East conference in Jersey City last week, NAIOP New Jersey President and CEO Dan Kennedy said he anticipated good news ahead. The trade association, along with NJBIA and New Jersey Builders Association, have been critical of the REAL rules, in particular, sounding the alarm on adverse effects on development statewide.

Referencing NJDEP Commissioner Ed Potosnak’s remarks during his May 21 confirmation hearing, Kennedy said, “[H]e stated a willingness to review those standards … So stay tuned, I think that one we’re going to win.”

Big deal?

The extensive nature of the REAL rules has been a sticking point for those opposed to their implementation as currently written. And for many, that reach is unclear.

“This is going to govern not just development at the shore, but development anywhere in the riparian areas in the state, this town specifically,” NAIOP NJ President and CEO Dan Kennedy said, speaking in Jersey City.

“So we also built a tool that shows the impact because the state didn’t. The regulation was a thousand pages of words, no maps. So if you wanted to figure it out, you had to be an engineer. What did we do? We basically turned it into a map, turned it live so our members could see it. … And then all the developers or owners realized what was at stake and the pressure raised.”

According to Politico, the Sherrill administration is considering moving the compliance date from this summer to next summer. The rules were expected to take effect July 20.

In March, attorneys from Giordano Halleran & Ciesla PC filed an appeal to stop the regulations from taking effect on behalf of NJBIA and the New Jersey Builders Association.

“NJBA strongly supports climate resilience and environmental protection,” NJBA President and CEO Jeff Kolakowski said at the time, but expressed concerns about the content, rollout and impacts on critical housing development.

“The 1,000-plus page REAL rule goes far beyond sea level rise resilience and is laden with DEP wish list items that do little to nothing to improve resiliency,” he said at the time. “They are inconsistent with the state’s economic growth strategy, redevelopment goals, state plan and overall housing strategy.”

Looking forward

Meanwhile, a bipartisan resolution introduced in the state Legislature in February aimed to address concerns with the overarching Protecting Against Climate Threats rules, on the basis that the regulations adopted in January are inconsistent with legislative intent.

That measure transferred to the Senate State Government, Wagering, Tourism & Historic Preservation Committee in early March. Senate President Nicholas Scutari, D-22nd District, sponsored the measure and has emerged as a proponent for staying and improving the rules.

NJBIA Deputy Chief Government Affairs Officer Ray Cantor expressed gratitude to the Sherrill administration for its plans to extend the REAL legacy period. “And we look forward to working with them over the next year on practical and pragmatic solutions to provide our residents and businesses flood protection,” Cantor’s May 28 statement continued. “While also accounting for affordability, fewer burdens and our overall economy, and well as an emphasis on resiliency.”

Politico reported a formal announcement on the extension is expected next week. Watch this space.