With the fast-approaching July 20, 2026 deadline for new projects to avoid NJDEP’s Resilient Environment and Landscapes (“REAL”) rules by submitting a complete application to NJDEP, concurrent resolutions have been introduced in both Houses of the Legislature declaring those rules inconsistent with legislative intent. More specifically, the Senate introduced Senate Concurrent Resolution No. 106 (“SCR-106”) on February 24, 2026 and the Assembly pre-filed Assembly Concurrent Resolution NO. 59 “ACR-59” on January 13, 2026 for introduction in the 2026 legilsative session.

The REAL rules make dramatic changes to New Jersey’s already stringent flood hazard rules by increasing the regulated flood hazard elevation to four feet and changing stormwater and coastal development standards based on greatly criticized predictions of future conditions. The Senate resolution notes that the NJDEP adopted the REAL rules in the January 20, 2026 New Jersey Register (58 N.J.R. 247(a)), and states that they “make sweeping changes to various DEP rules and programs in response to climate change,” noting that the REAL rules drastically increased the size of Flood Hazard Areas under the Flood Hazard Area Control Act (“FHACA”) and significantly change the State’s stormwater management, wetlands conservation, and coastal area protection rules.

Both houses of the Legislature asserted that the laws relied upon by NJDEP have not been amended in decades and therefore could not have been intended to authorize rules to mitigate climate change. Both resolutions noted that those laws, “have not been amended for at least 40 years” and therefore the Legislature could not possibly have intended them to authorize the DEP’s rulemaking on climate change, since the issue was unheard of 40 years ago. The Senate resolution also asserts that NJDEP exceeded its constitutional authority in adopting the rules.

Overall, the Legislature’s concern is that the REAL rules substantially expand the flood hazard, stormwater, wetlands, and coastal programs, with significant consequences for development and property rights. The Senate resolution states that the rules “will have substantial effects on ordinary New Jerseyans, by limiting development rights for countless homeowners and property owners, devaluing property, and having a significant impact on property tax assessments.” Additional concerns noted include the increase in cost of housing and disincentives to redevelopment.

At this stage, the introduction of the concurrent resolutions is the first step in the legislative review process. Both resolutions rely on Article V, Section IV, Paragraph 6 of the New Jersey Constitution, which provides the Legislature with authority to review administration regulations and determine whether they are consistent with legislative intent. If the Legislature determines that a rule conflicts with legislative intent, the New Jersey Constitution establishes a specific process requiring formal notice to the executive branch. Once the Legislature adopts and transmits such a concurrent resolution, the agency has 30 days to amend or withdraw the rule. If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part.

Both Houses of the Legislature must first adopt a concurrent resolution declaring that the REAL rules are inconsistent with legislative intent througth SCR-106 and ACR-59. A joint hearing on the issue has been held and the formal record was closed on April 29, 2026. All public comment and testimony from the hearing will be posted on the Legislature’s website under the Senate Environment and Energy Committee. If a concurrent resolution is adopted after the hearing process, it will be transmitted to the Governor and NJDEP Commissioner, and NJDEP will have 30 days to amend or withdraw the REAL rules. If NJDEP does not revise the rule, the Legislature may adopt a second concurrent resolution invalidating the rule in whole or in part.

During this process, the public, including significant stakeholders, may submit comments directly to the members sponsoring SCR-106 and ACR-59, including: Senator Nicholas P. Scutari; Senator John J. Burzichelli; Senator Michael L. Testa Jr.; and Assemblyman Antwan L. McClellan. Their contact information can be found here. Contact us to learn more about these rules and the public comment process.

New Jersey’s Resilient Environments and Landscapes (“REAL”) rules were initially proposed by the New Jersey Department of Environmental Protection (“NJDEP”) in 2024 and underwent extensive public comment from municipalities, commercial developers, utilities, and housing advocates who were concerned about feasibility, cost, and grandfathering protections. In response to those comments, NJDEP issued a Notice of Substantial Change (“NOSC”) on July 21, 2025, reopening the rulemaking process for additional comments and revisions until September 2025.

Due to the scope of the revisions and the required comment period, NJDEP delayed formal adoption beyond its original 2025 summer target. NJDEP now aims to adopt the REAL rules in early 2026.

Once adopted, the rules will include a 180-day legacy (grandfathering) period across multiple permitting programs, including the Coastal Zone Management (“CZM”) rules (N.J.A.C. 7:7), the Freshwater Wetlands Protection Act (“FWPA”) rules (N.J.A.C. 7:7A), the Stormwater Management (“SWM”) rules (N.J.A.C. 7:8), and the Flood Hazard Area Control Act (“FHACA”) rules (N.J.A.C. 7:13). Under the NOSC, projects may proceed under existing standards if a technically and administratively complete application is submitted within 180 days of the REAL rules’ effective date.

The NOSC also revised key technical requirements, including reducing the proposed climate-adjusted flood elevation (“CAFE”) increase from five feet to four feet above FEMA’s 100-year flood elevation. Once adopted, the REAL rules will require NJDEP to reassess science-backed climate standards every five years, meaning regulatory requirements may continue to evolve.

Given the complexity of the new standards and the limited grandfathering window, early legal and permitting strategies will be critical to preserving project timelines and approvals. Contact us to learn more about these rules and how they may affect development projects.

On December 5, 2022, NJDEP published notice of its intent to adopt new rules in connection with Stormwater Management and the Flood Hazard Area Control Act (“FHA”). Given the impacts of increased flooding and stormwater runoff caused by climate change NJDEP argues that stricter requirements for controlling stormwater and development in flood-prone areas are needed. Therefore, the new rules propose to eliminate existing methods of calculating stormwater impacts and instead require that stormwater best management practices (“BMP’s”) be based on current and anticipated future precipitation data. In addition, the rules raise the design flood elevation two feet higher than currently indicated on NJDEP state flood maps and three feet higher than indicated on FEMA maps. Where an applicant instead retains a licensed professional engineer to calculate the design flood elevation, the rules require the engineer to use future projected precipitation data from the year 2100 as a basis for the calculation. Permits issued under the FHA will also be required to conform with Uniform Construction Code (“UCC”) standards and meet the requirements of FEMA’s National Flood Insurance Program (“NFIP”).

The impact of these rule changes will be considerable for development projects in New Jersey. Larger stormwater maintenance footprints may decrease the size of the developable portion of a property. The raised flood elevations may restrict development in areas that currently do not fall within the flood hazard area and builders may find it difficult and costly to obtain permits.

NJDEP is, however, allowing certain projects to be “grandfathered,” although the criteria to qualify is stringent. To be “grandfathered” from the FHA requirements, the project must have a valid FHA approval or have already submitted a complete FHA application before the new rules are adopted. If the project did not need a FHA permit prior to rule adoption, the project must receive all necessary Federal, State and local approvals prior to the rule adoption date and construction must commence prior to the rule adoption date.

To be “grandfathered” from the stormwater requirements, if the project needs a FHA approval, Coastal Zone Management approval, Freshwater Wetlands approval, or Highlands approval, a complete application for such must be submitted to NJDEP prior to rule adoption. If the project does not need an NJDEP approval list above, complete municipal applications pursuant to the Municipal Land Use Law must be submitted to the local municipality prior to rule adoption.

A virtual public hearing on the new rules will take place on January 11, 2023 and written comments may be submitted to NJDEP electronically or on paper until February 3, 2023.

Prospective purchasers of properties seeking environmental liability protections under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) are required to conduct All Appropriate Inquiry (“AAI”) to investigate both who the prior owners of the property were and how the property was historically used. As part of that due diligence process, the prospective purchaser retains an environmental consultant to conduct a Phase 1 Environmental Site Assessment (“ESA”) to evaluate the environmental conditions on the property and determine if past releases of hazardous substances have occurred or may occur in the future.

Currently, Phase I ESA’s are required to meet the standards of ASTM International E1521-13 (established in 2013) to satisfy the AAI requirements. However, effective February 13, 2023, Phase I ESA’s must meet the standards of ASTM International E1527-21 to satisfy the AAI requirements. E1527-21 updates the standards to include emerging contaminants, including the ones known as PFAS (per- and polyfluoroalkyl substances).

There will be a one-year “phase-out” period where reports may meet either the E1521-13 or E1527-21 standards until February 13, 2024. After that date, the E1527-21 standards must be met. As these new standards may add time and expense to the due diligence process, Prospective purchasers, their consultants and lenders should all be aware of this new requirement and deadline when seeking liability protections under CERCLA.

From an environmental perspective, the ban on single-use bags that took effect in May 2022 has been a success. According to NorthJersey.com, the ban has eliminated approximately 68 million paper bags and 3 billion plastic bags since the law was enacted. However, there are still certain aspects of the ban that some New Jersey businesses and their customers are finding problematic.

Due to the Covid-19 pandemic, the number of people who have their groceries and essential goods delivered by supermarkets and third-party delivery services is higher than ever before. Currently, those customers must pay for reusable bags to hold their delivered goods and then are left with no means to dispose of those bags, essentially turning them into “single-use” bags anyway.

A new bill (S3114/A4741) winding its way through the legislature aims to correct this issue. If passed, it would require stores and delivery services to establish a “takeback” program to collect and sanitize the reusable bags, recycle the reusable bags or donate them to food pantries. The bill would also allow grocery stores to use recycled paper bags and cardboard boxes for home deliveries for the next three (3) years. Paper bags would remain off-limits to in-store shoppers.