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The basics:

• New Jersey unveiled plans to revise environmental land use rules through the REAL reforms in response to the effects of climate change.
• The proposed reforms would impose new requirements such as higher first-floor elevations and stormwater management.
• Experts advise developers and landowners to start planning early, as the changes will add costs and alter project designs.

In May, the state unveiled plans to revise environmental land use rules in response to the effects of climate change. At the time Gov. Phil Murphy described the Resilient Environments and Landscapes reforms as “a critical component” of the administration’s strategy.

“A product of scientific study and robust stakeholder engagement, the REAL reforms reflect the best available climate science specific to New Jersey and will better protect homes and businesses from current and future climate threats, including sea-level rise, extreme weather, and chronic flooding,” Murphy said.

The state Department of Environmental Protection held three public hearings in September covering the 1,000-page proposal, which was published in the New Jersey Register in August. The update aims to address concerns including sea level rise, green infrastructure, coastal protections and stormwater.

In a blog post, Giordano Halleran & Ciesla attorneys Steven Dalton and Michael Gross wrote, “The proposal is extensive and will implement sweeping regulatory changes across various regulatory permitting programs, affecting new development and redevelopment, and substantial improvements to existing development.”

Against that background, strategic planning and early engagement with consulting teams can be crucial for navigating regulations and ensuring project feasibility.

“I think it’s just our new reality. It depends on your lens, of course. So, I wouldn’t characterize it as a concern, because it’s just – this is what it is,” James Thaon, principal and branch manager at Bohler‘s office in Red Bank, told NJBIZ.

He was pragmatic about the coming changes, adding that, “If this is what the regulations are here … our job is to figure out, well, how do we help our clients still realize what their goals are on a project or not?”

Awareness is key to achieving that end—especially since the change will add considerably to the area subject to NJDEP’s jurisdiction.

According to the agency, beyond modernizing land use rules, REAL puts a focus on increasing resiliency throughout the state. In development for several years, the rule is part of the New Jersey Protecting Against Climate Threats – or NJPACT. On its website, the NJDEP explained, “The proposed rules address sea-level rise, coastal storm surge, flooding, and stormwater management concerns while improving water quality, protecting natural resources, and streamlining permitting processes that will expedite resilient investments in New Jersey’s communities and economy.”

Thaon said the impending rules are “not dissimilar” in scope when compared to other recent updates. He cited new green infrastructure regulations from 2021, as well as 2023’s Inland Flood Protection rule.

“They’ve been very substantial changes. … This may have more nuances to it than the previous ones did – as far as the things that are changing overall. But I think it’s pretty commensurate with how it’s been flowing in general,” he explained. “And they’re really hitting all facets of their regulatory environment.”

NJDEP identifies seven key REAL takeaways:

• Adjust Coastal Flood Hazard Areas to account for rising sea levels and attendant storm surge, extending jurisdictional area further inland, requiring higher first-floor elevations or floodproofing for buildings and higher roadways.
• Create an Inundation Risk Zone to address risk for residential building and critical structures proposed in areas of permanent or daily inundation due to sea level rise.
• Improve water quality and reduce flooding by adding sound stormwater management practices in areas where stormwater is not adequately managed.
• Encourage nature-based solutions by working with the environment to protect communities and resources.
• Support renewable energy by balancing habitat conservation with novel infrastructure demands.
• Improve State alignment with FEMA’s National Flood Insurance Program through clarifying amendments to the FHA rules.
• Improve NJDEP permitting processes to better track authorizations and permits from start of construction to project completion.

Half the battle

Bohler is taking the initiative to help spread the word about the changes. A blog posted to its website was sent to clients via email, Thaon said, and the company has also shared posts on social media. According to him, the outreach has been met with positive feedback from clients. It’s also helped to spark conversations in these working relationships about REAL impacts.

Additionally, Thaon and other Bohler partners are traveling and talking with clients now to help explain the coming changes in practical terms: “What does this mean? How does it impact you? What sites should you now look for if you’re looking for new sites or in your existing portfolio?” he said.

Ahead of the coming changes – whatever they may be – planning is key to both preparing internal teams, as well as clients, for what’s to come. “We absolutely have to be very strategic about how to handle these regulations,” Thaon said, adding later, “you have to be thinking about this because it really can change what you’re designing and how you’re designing it.”

To help make those determinations, he said taking an early look at projects – and where they are in their lifecycle – can shed light on how and what to advise clients. It can also help determine whether it’s best to look toward current guidance or plan with potential changes in mind.

“If the project is working out things with the township and they’re trying to get a redevelopment plan and a PILOT in place and need a rezoning to go through and all things that just take a lot of time, that’s probably one of those projects where we’re going to say, ‘Hey, we should likely consider making the project comply with the forthcoming regulations because of the timing of when you’re actually going to be filed and you’ve minimized enough risk to actually produce the design. We’re probably going to be at or close to the time where these regs will be adopted anyway.

“The flip side of that would be a project that could be substantially impacted by the regs,” he continued. “We actually might speed up the process.”

Sean Savage, director of land development at Florham Park-based Matrix New World Engineering, pointed out that with adoption expected between the summer and fall of 2025, you’re getting “into a situation now where time’s starting to get really short.”

“It may behoove a project to accelerate its timeline,” he pointed out. As an example, for a current project located within a Jersey City tidal flood zone, Savage says it makes sense to try to get grandfathered in under the current regulations.

While it is possible the REAL adoption timeline could be pushed back, for clients coming in now and looking at sites – either within a current tidal flood zone, or nearby one – Savage said his team is working to make the developer aware that, “you’re going to have to bring in all this extra fill and we got to think about site access and a lot of things like that,” he explained.

Working with a team of qualified consultants can also help ensure compliance and preparedness. And it can help set appropriate expectations.

“Don’t play out, here’s my best-case scenario type of thing,” Thaon cautioned. “What’s your most realistic scenario that can actually happen? Because the regulations, they’re not changing and they’re getting more and more stringent.

“So, being strategic on your development deal and — how much time are you buying yourself for due diligence? What is the contingencies for that? How is that going to then impact your strategy? Those are the types of things that we like to help with,” Thaon said. “And you generally have to be involved earlier than later, because if you have locked yourself into a due diligence period that won’t work for determining the impacts based on rules that can cause a significant impact to your deal structure or it can impact your yield and you may not have a way of getting out of that,” he cautioned.

Going up

According to NJDEP, more than half a million acres of New Jersey land is highly vulnerable to coastal hazards and 98% of the coastline is projected at medium, or very high risk, to sea-level rise. The agency says the proposed REAL standards aim to produce projects that can withstand current, as well as future, conditions.

Both Thaon and Savage identified updated height standards within tidal flood zones as one of REAL’s toplines. The change would raise area elevations by 5 feet, compared with current FEMA mapping.

Not just a coastal issue

Many of the flood mitigation measures that bolster coastal resiliency are easily applicable to inland structures. Click here to learn more.

“So right now you would use a FEMA elevation and if you’re building in that, you would add a foot to get what they refer to as freeboard … They’re now adding 5 feet to that. So, you’ll take your FEMA elevation, add 5 feet, and then still add that 1 foot of freeboard,” Savage explained.

Thaon also pointed out that the increase “has a much more practical impact to the average New Jersey resident than they may” realize, as more properties become subject to regulations.

“If you’re in a tidal flood zone, where you might have had to elevate your house 5 feet, now you’re going to elevate potentially 10 feet, let’s say, or it’s going to add some amount of elevation to your building,” Savage also explained.

He highlighted tools offered by NJDEP, like NJ-GeoWeb. The Geographic Information Systems site allows users to interact with GIS data as it relates to environmental information.

“So basically … you can turn on these sea level rise selections to see the impact of the 5 feet, and it’ll show you how much more of the land will be inundated with 5 feet to really meet that [standard],” Savage explained.

In its blog, Bohler also highlighted reviewing the GeoWeb Sea Level Rise 5 Feet and Tidal Climate Adjusted Floor Elevation updates as a new part of its teams’ due diligence process to help identify potential permitting or design impacts.

Professionals also expect costs for impacted projects could rise.

“On some of these larger sites, where you would be bringing in fill to a site, imagine bringing in an extra 5 feet onto it,” Savage said, adding, “So it’s again, just a lot of costs. You got a lot more dump truck trips going through the neighborhoods and things like that.”

“Depending on the type of building, assuming it’s not a residential building, you may consider doing some sort of flood-proofing in the building,” Thaon also said, “And there’s absolutely a cost associated with that as well.”

Savage also cautioned that increased heights to adhere to REAL regulations could potentially clash with local zoning ordinances, which might hinder previously viable projects in certain areas.

Whereas a 20-foot-tall building may have been tall enough to establish a two-story house before, “That kind of stuff could become an issue because you’re adding potentially 5 feet to the height of a building, effectively,” he said. “So, you have to make sure the towns are adjusting, hopefully, their zoning requirements to calculate building from these flood elevations, which again, after Sandy, a lot of the towns did.”

Turning down the volume

For proposed stormwater changes, Savage said the focus shifts to now include decreasing volume, along with rate reduction. “To reduce volume, you have to lose water, which means you have to infiltrate water or decrease the amount of impervious coverage on a site from existing,” he explained.

Updating the standard for sites of a quarter-acre or more of impervious surface to now being a major development, based on NJDEP’s criteria, will again make additional sites subject to compliance with these regulations.

For existing properties, Thaon pointed out that it could create challenges with infrastructure that must be updated or replaced to mitigate and comply with water quality, quantity and recharge standards.

“From their perspective, you have a lot of the cities where they’re already paved. So, if you allow people just to redevelop it and not have to provide water quality, well, you’re never going to get water quality,” Savage posited.

Thaon highlighted the impact for quick-service restaurant projects, in particular, such as a Taco Bell or McDonalds property. “Whereas previously they didn’t trigger those rules. Now they will,” he said.

These changes also highlight the coming need for more sites to comply with state environmental protection standards.

“So that will bring a plethora of sites into having to now comply with these regulations, which may be quite challenging on existing sites with existing infrastructure to now have to try to put in infrastructure to mitigate and comply with water quality, quantity and recharge standards from the DEP,” Thaon said.

Getting involved

REAL public comments are due by Nov. 3.

“I think there’s obviously going to be, and there has been, some resistance from the building groups and everyone, it could end up that it gets delayed. It could end up being instead of 5 feet, it’s 3 feet, who knows? But we’re talking with any clients that anticipate that this is getting adopted, otherwise you’re going to get caught out. I think you have to move forward now, assuming it’s going to happen as it is right now.

“There’s a reason that there’s a comment period. It’s supposed to engage the public and people providing their opinions,” Thaon said.

According to him, Bohler did provide comments from “an engineering sense.”

“Really from a practical perspective, we’re not trying to offer our opinion on the politics of it one way or the other,” he said.

Of which, there are many takes. The New Jersey Builder’s Association, New Jersey Business & Industry Association and others have raised awareness and alarms about REAL.

In August, NJBA said, “The REAL rule, if adopted, would have a wide ranging and hugely detrimental impact to the home building industry. Impacts of the rule proposal are not just limited to the coast, as increases to buffer zones and stormwater changes will be statewide.”

Meanwhile, NJBIA has come out as “strongly opposing new Land Use rules proposed by state Department of Environmental Protection that, as currently written, will ultimately force a retreat from the Jersey Shore and urban river communities throughout the state.”

When the reforms were announced in May, NJDEP Commissioner Shawn LaTourette commented that, “By engaging deeply with stakeholders over the last four years and utilizing reliable science to modernize our land use rules, the Murphy Administration has developed reforms that will help ensure that investments in New Jersey today will stand the test of time and a changing climate. The REAL reforms will provide property owners, investors, and the public with the tools necessary to build more resilient communities while improving environmental quality and flood protection, especially in neighborhoods most vulnerable to the impacts of climate change.”

Beyond the public hearings it held, NJDEP has also released resources, including a look at Myths & Facts. The bullet points address “no build” zones and “retreat”; concerns about development and urban revitalization; and more.

“The more people that know about it, the more energy you’re going to get, the more participation you’re going to get,” Thaon said. “I think that’s a good thing because the state can get an understanding of how people are feeling about the regulations given the tone of the comments that they’ll receive.”

More information is available at dep.nj.gov/njreal.