NJDEP ADOPTS LAND USE RULES TO ADDRESS CLIMATE CHANGE IMPACTS

On January 20, 2026, the New Jersey Department of Environmental Protection adopted amendments to its land use regulatory program to address the risks posed by climate change to New Jersey residents, their property, and the natural environment. Called the Resilient Environments And Landscapes (“REAL”) Rules. Originally proposed in 2024, these regulations faced substantial opposition, prompting NJDEP to make changes and then adopt the final regulations.

Under these regulations, the first floor of new and substantially improved buildings must be elevated four feet above the base flood elevation. Additional development limits are imposed in a coastal Inundation Zone. The initial regulations were based on projected sea levels in 2100 without recognizing that the facts may change over time, so NJDEP agreed to revisit the data every five years and amend the regulations if appropriate. NJDEP also agreed that applications will not be subject to the new rules if they are deemed complete within 180 days of the rules’ effective date.

One of the problematic aspects of the rules previously in place is the ‘dry access rule,’ which requires that road access into the site and parking must be elevated.  The amended regulations provide some additional flexibility, but these rules still seem likely to prevent highly desirable downtown, transit-oriented development.  

Affordable housing advocates have been concerned that these much-needed projects will be impeded by these rules.  NJDEP responded by providing that these projects can be considered for a hardship exception – an existing remedy NJDEP has been reluctant to grant previously. Under the new rules, these projects will presumptively meet the “compelling public need” test for that exception, but the applicant will still need to demonstrate that the regulated activities would not pose a threat to public health, safety, and welfare, and that the other hardship exception criteria are met.

These regulations are intended to address the substantial challenges posed by climate change to New Jersey.  They will also significantly influence development and redevelopment.

Our Environmental and Land Use team is closely monitoring the implementation of the REAL Rules and advising clients on compliance strategies, permitting pathways, and risk mitigation. Developers, property owners, and municipalities should engage experienced counsel early in the planning process to navigate the new requirements and preserve project viability.