To: New Jersey Department of Environmental Protection Attn: Chris Segal, Esq.
Re: New Jersey’s Protecting Against Climate Threats (NJPACT) Resilient Environments and Landscape (REAL) Rules
DEP Docket No. 05-24-05
Mr. Segal:
Thank you for the opportunity to submit written comments on DEP Docket No. 05-24-05, the Notice of Proposed Substantial Changes of the Resilient Environments and Landscapes (REAL) rule, which seeks to modernize land resource protection rules to increase New Jersey’s resilience.
Regional Plan Association (RPA) is a private, non-profit civic organization dedicated to regional planning and development that, since 1929, has published four comprehensive long-term plans to direct the growth and development of the New York-New Jersey-Connecticut metropolitan area. The ideas and recommendations from these plans have shaped the region’s infrastructure, open spaces, and economic development projects for the past century.
Guided by that mission, and our unique vantage point as vocal advocates for both the built environment and the natural one, RPA strongly supports increased resilience measures and stricter controls on future development in the most at-risk places now, and into the future.
The proposed rule is a critical and precedent-setting step toward aligning development policy with the realities of climate change. By using reasonable estimates from a peer-reviewed and vetted sea-level rise forecast, the Inundation Risk Zone and Climate Adjusted Flood Elevation proposals are grounded in the latest science and reflect an acceptable level of risk for the state. And importantly, the rule does not prohibit development in vulnerable areas; rather, it sets a new standard of responsibility by requiring projects to account for long-term viability and resilience. This framework will not only guide our near-term decisions, but will also evolve with our communities’ needs as science advances and conditions change.
That said, while we support the rule’s overall direction, we offer updated comments below and identify areas where further clarification is needed to avoid unintended consequences and improve implementation.
Adjusted Sea Level Rise
While we believe the original 5-foot sea-level rise projection provides a more protective standard than the updated 4-foot threshold, we appreciate that the rule incorporates a five-year review cycle to ensure alignment with the best available science.
Further Strengthen Dry Access Requirements
The updated rule appropriately requires developers to guarantee dry access to a primary road, while clarifying that they are not responsible for off-site roadway infrastructure or emergency management. This is a sound approach, but gaps remain. Secondary access points may still be inundated, leaving residents effectively trapped by floodwaters.
Areas subject exclusively to tidal flooding are exempt from the dry access requirement on the grounds that tidal flooding is more predictable than fluvial flooding. But predictability does not eliminate risk. The Department should require structured emergency management or alert systems in tidal flood zones so residents are not left to determine evacuation timing on their own.
Another concern regarding dry access is the required deed notice that discloses the maximum depth of floodwaters through which motor vehicles would be required to pass in order to access the site. RPA agrees that this level of notice is very important for prospective home-buyers but we are concerned about whether or not renters of these developments will be given the same opportunity. Prospective renters should be given the same notice as they will be occupying the development and should have an understanding of the flood risk level.
The State should also work with other roadway entities to improve dry access for the surrounding roads that are subject to fluvial flooding.
Remove the Affordable Housing Exemption
RPA strongly opposes the proposed hardship exception that would permit development in high flood-risk areas based on a “compelling public need” for affordable housing. This provision will actually incentivize municipalities and developers to site affordable housing on land that is otherwise unsuitable or prohibitively expensive to develop. This approach would concentrate vulnerable populations in the areas most exposed to future flooding, essentially creating future environmental justice communities.
The rule further requires that any exempted development “not pose a threat to public health, safety, and welfare.” It is difficult to reconcile this standard with permitting residential construction in locations identified as high-risk for inundation.
We recognize the urgency of the affordable housing crisis and the complexity of balancing this need with climate resilience. However, the solution cannot be to weaken protections in a way that puts low-income residents at disproportionate risk. RPA urges the Department to eliminate this exemption and instead coordinate with the Department of Community Affairs to identify safer, more sustainable pathways for meeting affordable housing obligations.
Facilitate and Incentivize Redevelopment
Redevelopment of already developed areas has been a key tenet of state environmental and economic policy helping to reduce sprawl and revitalize communities. This rule attempts to maintain this tenet by changing how redevelopment can be carried out in floodplains without eliminating the opportunity for redevelopment in them. We encourage the state to consider additional means by which responsible redevelopment can be encouraged with clear guidance and complementary practices that ensure redevelopment is more attractive than greenfield development.
Account for Misalignment With Local Zoning
Implementation of the REAL rule will likely conflict with existing local Master Plans and zoning ordinances. For instance, a municipality may have recently identified an area outside the current flood zone for redevelopment and upzoned accordingly. Similarly, some existing zoning codes may prohibit the type of development required under the rule (e.g. a height restriction that conflicts with raising ground floors 6 feet above base flood elevation).
RPA recommends that the Department clarify the process by which local Master Plans and zoning will be updated to align with the REAL rule, and outline how the state will support municipalities in resolving these conflicts.
Clarify Interaction with Flood Mitigation Projects
Resilience and adaptation efforts are already underway, including Resilient NJ, the Army Corps of Engineers’ Backbay and HATS studies, and numerous local projects. As these efforts move forward, the boundaries and conditions of flood-prone areas are likely to shift over time.
RPA requests clarification on how the REAL rule will account for these changes. Specifically: if state, federal, or municipal projects reduce flood risk in a regulated area, what mechanism will determine whether—and when—the requirements of the rule are adjusted accordingly?
What needs to happen in parallel:
For this rule to achieve its intended shift toward more responsible development without creating unintended consequences, it must be accompanied by complimentary measures advanced in parallel with rule implementation, described below:
Design Guidelines and technical assistance
If implemented, the REAL rule will dramatically change the way projects are planned for and developed in the newly regulated areas. While necessary, these requirements will place added burdens on a wide range of stakeholders, including local municipalities working to integrate the rule into local land use decisions, developers navigating new standards, land use attorneys advising on permits, and landowners making decisions about their property.
Given the scale and scope of these changes, the state should provide technical assistance to ensure that stakeholders clearly understand the rule’s requirements and can financially plan for compliance. DCA should be sufficiently resourced to support municipalities in their efforts to comply with the rule. Additionally, the state should publish design guidelines to promote consistency while allowing municipalities to preserve their unique character.
Increase DEP staffing levels and resources
Implementation of the REAL rule will significantly increase the volume and complexity of permit reviews conducted by DEP. If the state also provides technical assistance as recommended above, additional staff and capacity will be required to guide compliance. Meeting these needs will necessitate additional resources to hire and sustain the staffing levels necessary for effective implementation. The state should ensure that these resources are secured upon adoption of the rule and maintained throughout its rollout.
Develop alignment with the State Plan (and other programs and local master plans)
Prior to drafting this rule, New Jersey had been undergoing an update to its State Development and Redevelopment Plan (the State Plan). If implemented, this rule would have a significant effect on the State Plan and its focus on where growth should be encouraged. The State - and its various agencies - should work together internally to identify shared approaches that could be incorporated into the State Plan from this rule, regardless of whether or not the REAL rule ultimately gets adopted. Similarly, other plans that are being developed (from infrastructure plans to local Master Plans) will need to come into alignment with this rule, should it pass. That work should begin now, and regardless of whether the rule is implemented, those plans should also reflect the forecasts for flooding across the state.
Consider a role for sector permits
New Jersey has a history of usingsector permits to align local development approvals with statewide regulations (e.g„ Long Branch redevelopment and CAFRA rules). Sector permits could be a useful strategy following the implementation of the REAL rule, helping to streamline compliance, reduce administrative burden, and promote consistency across jurisdictions. RPA recommends that DEP evaluate how sector permits might be applied in this context, drawing lessons from past use and assessing whether they could provide municipalities and developers with clearer guidance while maintaining strong resilience standards.
Align with FEMA Flood Maps and NFIP Reform
FEMA’s 100-year flood maps remain the primary tool for determining insurance eligibility and requirements under the National Flood Insurance Program (NFIP), and home elevations are a key factor in lowering insurance premiums. However, both the Inundation Risk Zone (IRZ) and Climate Adjusted Flood Elevation (CAFE) extend beyond FEMA’s current 100-year floodplain, creating potential inconsistencies between state and federal standards.
As FEMA updates its maps and long-awaited NFIP reforms are advanced, New Jersey should ensure close alignment between state and federal floodplain designations. Doing so will reduce confusion for property owners, prevent contradictory guidance for municipalities, and strengthen the effectiveness of both programs.
Address Property Value Impacts in Overburdened Communities
The REAL rule could have major impacts on property values and economic development, particularly in overburdened communities. Additional restrictions on development in high-risk flood areas may limit redevelopment opportunities and dampen economic growth. Likewise, expanding regulated flood zones into areas that do not currently flood may depress property values, undermining the equity that many families rely on for retirement or generational wealth.
These are serious issues that must be addressed. While allowing unchecked development in vulnerable areas is not an option, the state should adopt an interagency approach to ensure that disadvantaged communities are not further harmed. The State Plan and NJEDA programs can play a central role in advancing resilient economic development strategies, while also supporting homeowners by providing clear information about future risks and pathways to preserve property value until they choose to sell.
Expand and Improve the Blue Acres program
If adopted, the REAL rule will expand the footprint of areas considered flood-prone, both now and in the future. This expansion could increase demand for the state’s Blue Acres buyout program, as homeowners seek to secure fair value for their properties before flooding reduces it. The state should make clear that designation within the expanded flood zone will not jeopardize eligibility for federal buyout funds.
To meet this increased demand, New Jersey must expand and strengthen Blue Acres so that those who wish to relocate from flood-prone areas can do so equitably. In addition to increased funding and staffing, program improvements should include:
Resources and/or tools to help municipalities assess any tax revenue impacts that could result from participating in buyout programs, so that they can weigh costs and benefits, and preemptively plan for tax revenue gains in other ways;
Plan for and and support post-buyout land-use interventions with municipalities to ensure that community needs can be met on the land where buyouts are carried out.
Finally, as climate impacts worsen, the state should consider how it might expand its Blue Acres program to support buyouts of commercial properties, in addition to its current focus on residential properties.
Expanding and improving the Blue Acres program will ensure that buyouts are put on the table as a truly viable option for properties at risk of flooding.
What still needs to be addressed:
While this draft rule aims to recalibrate the way development and redevelopment occurs in the current and future flood zone, it is impossible to address all issues in one rule. The following are just three areas of many more that RPA would like to see the state focus on in future rules, programs, and policies.
Finding solutions for existing development in the flood zone that is not built to resilient standards
The REAL rule applies only to new development, redevelopment, and substantial improvements to buildings. That leaves all existing buildings in the current and future flood zone without a regulatory mechanism to encourage greater resilience. An expanded and improved Blue Acres program (as detailed above) is one way that existing homeowners can avoid flooding by being bought out. But there is no such program for commercial properties. Initiatives like Resilient NJ have done good planning work for a number of regions at risk of flooding, but implementation of those plans - and the funding to carry them out - is lacking clear direction and source. Ideas such as a statewide Bond Act, or a dedicated, ongoing funding stream for resilience will likely be required to ensure that similar updates to existing buildings, or buyouts can be achieved. But a comprehensive coastal adaptation plan would be required.
Contaminated sites and the“Chemical Coast”:
Far too little attention has been given to legacy contaminated sites in the flood zone, and the large commercial activities involving petrochemical and other chemical productions and storage along the coast in northern New Jersey. The REAL rule does not impact these sites or operations, yet the threat of flooding to them could be catastrophic for humans and ecosystems alike. The state needs to work closely with municipalities and private stakeholders to ensure that these sites are secured in the face of increased flooding.
DOT roadways
State-owned and operated roadways are largely - if not completely - exempt from this rule. Given the critical role they play in connecting the state and providing critical access, these roadways need to be addressed in a separate rule.
Conclusion
RPA appreciates the opportunity to comment on DEP Docket No. 05-24-05, the Notice of Proposed Substantial Change to the Resilient Environments and Landscapes (REAL) rule. The proposal establishes a critical framework for statewide resilience that—if clarified and accompanied by the parallel actions outlined above—can help ensure sustainable, equitable growth for decades to come.
