IN THE MATTER OF THOMAS ORBAN/SQUARE PROPERTIES, LLC, FRESHWATER WETLANDS GENERAL PERMIT 6 NO. 1XXX-XX-0003.1 FWW070001, CHALLENGED BY SAVE HAMILTON OPEN SPACE (DEPARTMENT OF ENVIRONMENTAL PROTECTION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3072-16T2
IN THE MATTER OF
THOMAS ORBAN/SQUARE APPROVED FOR PUBLICATION
PROPERTIES, LLC, FRESHWATER
WETLANDS GENERAL PERMIT 6 August 29, 2019
NO. 1103-03-0003.1 FWW070001, APPELLATE DIVISION
CHALLENGED BY SAVE
HAMILTON OPEN SPACE.
________________________________
Argued February 27, 2019 - Decided August 29, 2019
Before Judges Accurso, Vernoia and Moynihan.
On appeal from the New Jersey Department of
Environmental Protection.
Stuart J. Lieberman argued the cause for appellant
Save Hamilton Open Space (Lieberman & Blecher,
PC, attorneys; Stuart J. Lieberman, of counsel and on
the brief; Jordan Michael Asch, on the briefs).
Afiyfa Hakim Ellington argued the cause for
respondent Thomas Orban/Square Properties, LLC
(Giordano Halleran & Ciesla, PC, attorneys; Paul H.
Schneider and Afiyfa Hakim Ellington, on the brief).
Bruce A. Velzy, Deputy Attorney General, argued the
cause for respondent Department of Environmental
Protection (Gurbir S. Grewal, Attorney General,
attorney; Jason Wade Rockwell, Assistant Attorney
General, of counsel; Bruce A. Velzy, on the brief).
Deanna K. Tanner of the Pennsylvania bar, admitted
pro hac vice, argued the cause for amicus curiae
Delaware Riverkeeper and Delaware Riverkeeper
Network (Aaron Joseph Stemplewicz and Deanna K.
Tanner, attorneys; Aaron Joseph Stemplewicz and
Deanna K. Tanner, on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
Save Hamilton Open Space (SHOS), a local citizens group, challenges
the Department of Environmental Protection's issuance of a freshwater
wetlands general permit 6 (GP6) to Thomas Orban/Square Properties, LLC in
connection with the construction of a shopping center in Hamilton Township
and the denial of SHOS's request for an adjudicatory hearing. SHOS raises
three issues on appeal: first, it contends the GP6 is substantively non -
compliant due to the misuse of the New Jersey Geological Survey Report,
GSR-32 methodology to calculate recharge analysis in wetlands areas contrary
to the Department's own rules; second, it contends the Department has never
before permitted use of the GSR-32 methodology to calculate groundwater
recharge in wetlands areas, and it is thus a new application requiring formal
rulemaking; and third, it contends it was entitled to an adjudicatory hearing.
Amici Curiae Delaware Riverkeeper and Delaware Riverkeeper Network
support SHOS's position, contending "strict compliance with storm water
management rules are of critical importance to New Jersey," and echoing its
A-3072-16T2
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arguments that the Department's issuance of the GP6 was arbitrary and
capricious and its denial of a hearing improper.
Having reviewed the record, we determine SHOS's argument that it was
entitled to an adjudicatory hearing is without sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(1)(E); see In re Freshwater
Wetlands Statewide Gen. Permits, 185 N.J. 452, 471 (2006) (holding third-
party objector to development application lacked particularized property
interest warranting an adversarial hearing before an administrative law judge).
Because we cannot, however, discern where the agency has explained why
Square Properties' use of the GSR-32 methodology to calculate recharge is
consonant with the Department's regulations, which appear to expressly
prohibit its use in these circumstances, we vacate the GP6 permit and remand
for further fact-finding. In light of our disposition, we do not address SHOS's
argument that the agency needed to proceed through rulemaking.
Although the engineering calculations underlying Square Properties'
stormwater plan are complex, the issues before us are not. The matter has over
a decade-long procedural history, most of which is irrelevant to the issues we
decide. Suffice it to say that Square Properties, owner of a roughly five acre,
heavily wooded site along Route 33 in Hamilton, applied for site plan approval
A-3072-16T2
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for a shopping center in 2006. SHOS participated in the public hearings as an
objector.
As both a condition of its approval and part of a settlement agreement
with SHOS, Square Properties agreed to apply for a GP6 permit to fill two
areas of isolated, non-tributary wetlands of intermediate resource value, and
that SHOS and its consultant, Princeton Hydro, would have the opportunity to
review the stormwater plans and consult regarding stormwater management on
the site. SHOS has maintained throughout the history of this matter that the
wetlands areas on the property, essentially bowl-like depressions in the middle
of the site, not only absorb all of the site's stormwater runoff but also runoff
from neighboring properties resulting from the natural topography of the area.
SHOS's members, several of whose backyards abut the site, contend nearby
basements and backyards will be flooded unless Square Properties ensures its
development of the site continues the vitally important function the existing
wetlands currently provide for stormwater management in the surrounding
area.
The heart of the dispute concerns Square Properties' use of the GSR-32
methodology to calculate groundwater recharge. Square Properties sought a
GP6 permit issued under the authority of the Freshwater Wetlands Protection
Act, N.J.S.A. 13:9B-1 to -30, and its implementing regulations, N.J.A.C. 7:7A-
A-3072-16T2
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1.1 to -22.20, to disturb less than one acre of isolated freshwater wetlands.
N.J.A.C. 7:7A-5.6(a).1 The parties agree Square Properties' proposed shopping
center qualifies as a "major development" under N.J.A.C. 7:8-1.2, and thus is
required to "comply in its entirety with the Stormwater Management Rules at
N.J.A.C. 7:8." N.J.A.C. 7:7A-4.3(b)10. In order to satisfy the minimum
design and performance standards for groundwater recharge in accordance
with N.J.A.C. 7:8-5.4, Square Properties elected to "[d]emonstrate through
hydrologic and hydraulic analysis that the site and its stormwater management
measures maintain 100 percent of the average annual pre-construction
groundwater recharge volume for the site." N.J.A.C. 7:8-5.4(a)2(i)(1).
Square Properties used the GSR-32 methodology to calculate pre-
construction groundwater recharge volume for the site. In its comments to the
Department on behalf of SHOS, Princeton Hydro objected to use of the GSR-
32 methodology on two bases. First, it noted the New Jersey Geological
Survey Report establishing the GSR-32 methodology states that wetlands were
"eliminated from the analysis . . . because the direction of flow between
ground-water and surface water or wetlands depends on site specific factors
1
After the permit in this case was issued, the Department renumbered the
relevant regulations, 49 N.J.R. 3849(a) (Dec. 18, 2017). The parties have
referenced the regulatory numbers in effect when the Department approved the
permit. We do the same.
A-3072-16T2
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and can also change seasonally." Emanuel G. Charles, et al., New Jersey
Geological Survey Report GSR-32: A Method for Evaluating Ground-Water-
Recharge Areas in New Jersey, N.J. Dep't of Envtl. Prot. & Energy, Div. of
Sci. & Research, 6 (1993),
https://www.nj.gov/dep/njgs/pricelst/gsreport/gsr32.pdf. The Report states
that "[r]echarge (or discharge) from surface-water bodies, wetlands and hydric
soils are not evaluated using the method. These areas are eliminated from the
assessment." Id. at 1.
The Geological Survey Report explains that "[w]hether a wetland or
surface-water body recharges ground water or receives discharge from ground
water depends on the relative levels of the water table and the surface water
and on the degree of interconnection between them." Id. at 92. Thus, one
assumption limiting the accuracy of all recharge values generated by the GSR-
32 methodology is that "[t]here is no addition (recharge) or subtraction
(discharge) of ground water from surface-water bodies and wet areas." Id. at
44. The Report concludes:
From the standpoint of a soil-water balance model
used in this report, the fact that the recharge or
discharge status of the wetlands does not depend on
the factors used in the recharge simulations precludes
the use of the model to quantify any recharge they
may supply. Other modeling methods exist that can
simulate recharge from surface water.
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[Id. at 94 (emphasis added).]
Second, Princeton Hydro maintained that 4.14 of the site's 4.8 acres
drain to "isolated and perched wetland systems located in closed depressions,"
and as a result, "rainfall and runoff which flows into these areas c an only
become groundwater recharge or potentially evapotranspiration." 2 Because of
those site specific conditions, it contended Square Properties' "pre-
development groundwater recharge analysis significantly under predicts the
existing conditions at the site and consequently under predicts the potential
post development deficit."
The Department apparently agreed in 2013 that use of the GSR-32
methodology was inappropriate. It wrote to Square Properties in August of
that year, advising its application failed to meet the Department's Stormwater
Management Rules at N.J.A.C. 7:8, and specifically noted the following:
Groundwater Recharge: The presence of hydric soils
(Othello) onsite precludes the use of GSR-32 in
determining recharge. There is a certain amount of
recharge occurring through the isolated wetland areas
but this classification under GSR-32 yields zero
recharge. Therefore, the spreadsheet underestimates
recharge under existing conditions and consequently a
2
The Geological Survey Report states "[e]vapotranspiration refers to water
that is returned to the atmosphere from vegetated areas by evaporation from
the soil and plant surfaces (dew and rain) and soil water that is taken up by
plant roots and transpired through leaves or needles. Infiltrated water that is
not returned to the atmosphere . . . becomes ground water." GSR-32 at 3.
A-3072-16T2
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lower post development deficit. Please see the
relevant public comments from Princeton Hydro
representing "Save Hamilton Open Space."
Square Properties responded the following October by explaining that
the Geological Survey Report establishing the GSR-32 methodology "does not
establish recharge rates for approximately 75 different hydric soils," among
them Othello in Hydrologic Group D, which was identified on site. It
explained that it substituted Holyoke, another soil in Hydrologic Group D,
which is included in the Groundwater Recharge Spreadsheet database, based
on the recommendation in the New Jersey Stormwater Best Management
Practices Manual that "where a soil series identified at a land development site
has not been included . . . the user should select a similar soil series from the
program's database." Sandra A. Blick, et al., New Jersey Stormwater Best
Management Practices Manual (hereinafter, Stormwater BMP Manual), N.J.
Dep't of Envtl. Prot., 6-15 (Apr. 2004),
https://njstormwater.org/bmp_manual/NJ_SWBMP_6%20print.pdf. Square
Properties contended that by replacing Holyoke for Othello in the spreadsheet,
the annual recharge deficit was increased by approximately thirty-two percent,
which was acceptable because of the size of the proposed subsurface basin.
Princeton Hydro responded in March 2014, stating:
The GSR-32 analysis has been revised substituting the
Othello soil unit with the Holyoke series (non-hydric).
A-3072-16T2
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However, the revised analysis does not address our
comment that due to the site's unique topography, all
rainfall must either become groundwater recharge or
evapotranspiration. As such the calculated 13 in/yr
[recharge] is likely a gross underestimation of the
annual recharge capacity of the property. It is herein
reiterated that the NJGS documentation for the GSR-
32 analysis indicates that this application of the
analysis is beyond the scope of the original GSR-32
method.
It also noted that Square Properties' assertion that the proposed size of the
infiltration basin as meeting the requirements of the GSR-32 analysis was
refuted in any event by the applicant's revised groundwater mounding
analysis.3
Specifically, Princeton Hydro contended the applicant's revised
mounding analysis used a hydraulic conductivity figure in its calculations
based on test pits, the location of which do not appear on the revised utility
plan. Further, the tested elevations did not correspond with the proposed
bottom elevation of the stormwater systems and the soil logs suggested the
facilities might be located "in fine grained material that is expected to have a
3
Square Properties' expert defined groundwater mounding as the increase in
the groundwater elevation as a result of the infiltration from the proposed
stormwater management facilities. The applicant performed a groundwater
mounding analysis "to evaluate the groundwater mounding expected to result
from an underground stormwater infiltration basin, two (2) dry wells, a
bioretention swale, and a detention basin[,] . . . and to determine whether the
increased groundwater elevations will adversely impact nearby underground
structures, including basements."
A-3072-16T2
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hydraulic conductivity level that is orders of magnitude lower than what is
assumed in [Square Properties'] analysis." Princeton Hydro also maintained
the "HydroCAD calculations use an infiltration rate that is not consistent with
the measured testing," suggesting the soil testing had not been conducted in
compliance with the Stormwater BMP Manual.
Finally, Princeton Hydro asserted the applicant's mounding analysis "has
(apparently unknowingly) determined that during the 100 year storm4 the
infiltration basin will fail due to mounding." Princeton Hydro asserted that
failure should also be expected in much smaller storms, and would result in
outflow from the site at rates "obviously . . . in excess of the current conditions
where there is no outflow observed due to the unique existing topography."
Princeton Hydro noted the revised plan did not reflect the impact of off -site
contributory drainage flowing onto the site from neighboring properties. It
concluded by noting that:
the site in its current condition is providing valuable
water quality, recharge, and volume control benefits.
The proposed design will eliminate this functionality
and jeopardize the ability of the proposed system to
4
See Am. Cyanamid Co. v. State, Dep't of Envtl. Prot., 231 N.J. Super. 292,
299-300 (App. Div. 1989) (explaining "the 100-year storm is not based on any
actual storm" but is instead "a theoretical storm constructed . . . using
mathematical models" to mimic "a storm of a size that is expected to occur
once a century or have a one percent chance of occurring in any one year"
(citing N.J.A.C. 7:13-1.2)).
A-3072-16T2
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perform these functions for runoff originating within
the property boundaries as is further detailed in this
letter.
Square Properties responded to the Department that Princeton Hydro
"agrees . . . that the infiltration basin meets the recharge requirements for the
site in accordance with GSR-32." As to Princeton Hydro's comment that the
GSR-32 methodology was not suitable for the site, Square Properties simply
reiterated its assertion that it relied on the recommendation in the instructions
for the Groundwater Recharge Spreadsheet to substitute soils when the soil
identified on site was not included in the database.
Princeton Hydro responded to those comments in July 2014, stating:
1. The annual recharge estimate is still low. Due to
the site's unique closed depression topography all
rainfall (~45 in/yr) must either become recharge
or be evapotranspired by vegetation. As outlined
in the GSR-32 documentation, a closed
depression is out of the scope of the simple
spreadsheet analysis. From a hydrologic
perspective the represented 13 in/yr of recharge is
too low. It is our strong professional opinion that
this is a gross underestimate of existing
conditions;
2. With respect to the mounding analysis, the
applicant's professional now contends that the
mound will intercept the basin bottom, as
previously stated by Princeton Hydro, but
insist[s] that it will not influence the operation of
the basin. The mound is not shy of the basin
bottom; it is three feet higher according to the
calculations. It is Princeton Hydro's professional
A-3072-16T2
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opinion that the mound will definitely impact the
functioning of the proposed basin[.]
In a third point, Princeton Hydro noted the Stormwater Management Rule,
N.J.A.C. 7:8-5.3, and the Stormwater BMP Manual placed "great value on
natural systems that provide stormwater management services," and asserted
the applicant's proposed filling of the wetlands resource was not consistent
with the Rule.
In response, Square Properties provided the Department with yet another
Groundwater Recharge Spreadsheet in September 2014, this one substituting
"gravel pits," having an annual recharge of 15.9 inches, the highest annual
recharge specified in the spreadsheet reference table, for the Othello soil
identified on site. It did not respond to Princeton Hydro's assertion that all
forty-five inches of annual rainfall on the site, due to its "unique closed
depression topography," must either become recharge or be evapotranspired,
rendering the site outside "the scope of the simple spreadsheet analysis." As to
the comments regarding the mounding analysis, Square Properties asserted the
groundwater mound was limited to the area within the subsurface infiltration
basin and the average groundwater elevation is still below the bottom of the
basin.
The Department contacted Princeton Hydro within weeks seeking its
response. The Department's reviewing environmental engineer asked the
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engineer at Princeton Hydro for "a list of all outstanding issues that have not
been resolved." Noting "[w]e have had so many issues raised, commented,
debated, answered and re-commented on this application," he stated Princeton
Hydro's list "will be the basis going forward," which the Department would
review and then "make a decision on the application." Princeton Hydro
apologized for the delay in responding, said they would be "in touch," were
"doing [their] best to keep up with multiple demand[s]" and "[i]n the
meantime, our many prior review letters should be helpful for you to assess if
the application is compliant with N.J.A.C. 7:8."
Princeton Hydro did not make any further response while the permit
application was pending. Although Square Properties made further revisions
to their plans, which were reviewed and commented on by the Department,
neither entity copied SHOS or Princeton Hydro on any of their exchanges.
This notwithstanding the several prior letters in the Department's file from
SHOS's counsel, the most recent being from August 29, 2014, reminding of the
underlying settlement agreement and asking "that the Department, Applicant
and its consultants continue to provide the undersigned with copies of any and
all documents and materials contemporaneous with their submission/mailing."
The Department continued to communicate with Square Properties,
requiring it to account for off-site runoff, including from nearby homes, and
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submit an updated mounding analysis. The Department noted that mounded
water would partially rise into the infiltration basin at the peak of the 100 -year
storm, and that Princeton Hydro disputed the applicant's representation that the
basin would continue to function as designed "because only some cells in the
basin are affected." The Department also noted the mounding analysis showed
increased ground water elevations of .3 feet for nearby homes, which the
applicant contended was negligible as the existing ground water level was
more than seven feet below grade.
In December 2015, the Department's reviewing environmental engineer
completed a four-page summary engineering report of the application. The
report noted the heavily wooded site "collects off-site contributory drainage"
from two lots and several nearby homes, which "has been included in the
analysis." The report confirmed that there was no runoff leaving the site, as
"all stormwater runoff is either absorbed into the two wetland areas or
evaporates."
The report stated the applicant's submitted calculations and stormwater
report demonstrated that the dry wells, bio-retention swale and infiltration
basins together would "retain and infiltrate all storms up to and including th e
100-year storm, thus satisfying requirements under N.J.A.C. 7:8-5.4."
Although noting Princeton Hydro "questioned the suitability of NJGSR-32
A-3072-16T2
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spreadsheet to model hydric soils onsite; applicant's engineer (RBS
Engineering) submitted NJGSR-32 spreadsheet analyzing the recharge using
both Othello and Holyoke soils to show that the proposed infiltration basin's
capacity exceeds the recharge deficit by a wide margin."
As to the groundwater mounding analysis, the report noted the
applicant's engineer's submitted calculations showing the maximum water
surface level in the basin for the 100-year storm is approximately one foot
below the emergency outlet elevation, precluding any discharge. And,
assuming the basements of nearby homes are no more than seven feet below
grade, the applicant's ground water mounding analysis showed that the highest,
estimated ground water elevations will be half-a-foot or more below those
basement floors.
The Department issued the GP6 permit in December 2015. SHOS timely
challenged the permit and requested a hearing. Relying on comments
presented to the Department by Princeton Hydro, SHOS reiterated its assertion
that application of the GSR-32 methodology was inappropriate and grossly
underestimated annual recharge. SHOS noted that Square Properties' engineer
confirmed "the site does not produce any surface runoff and . . . also collects
and provides direct volume control and groundwater recharge of runoff
generated from off-site areas." Notwithstanding, the applicant's groundwater
A-3072-16T2
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recharge analysis "suggests that only thirty-percent (30%) of the on-site annual
rainfall, all of which is captured by the existing closed depressions will
become recharge." SHOS also maintained Square Properties' groundwater
recharge analysis was "in direct conflict with the documented understanding of
the site's hydrology" and its "mounding analysis fails to accurately reflect the
proposed design and intended function of the infiltration basin."
The Commissioner issued an order upholding the permit and denying
SHOS's request for a hearing, finding no statutory right or any particularized
property interest entitling SHOS to an adjudicatory-type hearing. As to the
merits, the Commissioner noted that under N.J.A.C. 7:8-5.4(a)(3), Square
Properties "was required to show that no runoff would leave the [p]roperty
post-construction." Addressing SHOS's contention that Square Properties
underestimated the pre-construction recharge volume because the property
experiences approximately forty-five inches of rain annually and Square
Properties calculated it recharges between "10 and 13 inches, depending on the
soil type selected for the areas of Othello soil," the Commissioner stated "[t]he
method Square Properties used to calculate recharge is expressly allowed by
the Department's rules, see N.J.A.C. 7:8-5.6(b), and SHOS has not provided an
alternative method for calculating a more appropriate pre-construction
recharge volume."
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The Commissioner further noted that "even if the recharge analysis . . .
underestimated the pre-construction recharge volume," Square Properties'
separate stormwater analysis "supports the conclusion that, since all
stormwater is retained onsite both pre- and post-construction, the appropriate
groundwater recharge volume is likewise maintained as required by N.J.A.C.
7:8-5.4(a)(2)(i)(1)." Thus, while concluding "the analysis used by Square
Properties was appropriate under these circumstances, the Commissioner found
the stormwater analysis provides additional support for the Department's
conclusion that the recharge requirement was satisfied."
Finally, the Commissioner found the agency's conclusion that Square
Properties had demonstrated the maximum water level during the 100-year
storm would be a foot below the emergency overflow drain, thus precluding
any discharge, was reasonable and supported by the record. The
Commissioner rejected SHOS's contention that Square Properties' own
mounding analysis demonstrated the infiltration basin would fail in a 100 -year
storm because groundwater would rise above the bottom of the basin resulting
in overflow. Instead, the Commissioner accepted Square Properties' assertion
that its mounding analysis "showed that groundwater would rise above only
A-3072-16T2
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half of the twenty 'cells' [5] in the infiltration basin," leaving the other ten
functioning and keeping the groundwater level from reaching the emergency
overflow drain. SHOS appeals, reprising the arguments it made to the
Commissioner.
Our assessment of the Commissioner's decision is governed by a familiar
standard of review. "An appellate court reviews a final agency decision with
deference, and will not reverse the ultimate determination of an agency unless
the court concludes that it was 'arbitrary, capricious or unreasonable, or that it
lacked fair support in the evidence, or that it violated legislative policies'
expressed or implied in the act governing the agency." In re Freshwater
Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341 (App. Div. 2005)
(quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Our
traditional deference to an agency's "specialized expertise," In re Freshwater
Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004), "is even stronger when
the agency, like DEP in regard to wetlands, 'has been delegated discretion to
determine the specialized and technical procedures for its tasks,'" In re
Freshwater Wetlands Gen. Permits, 372 N.J. Super. 578, 593 (App. Div. 2004)
(quoting City of Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82 N.J.
530, 540 (1980)). Importantly, however, "[w]hile we must defer to the
5
Each "cell" is a 30-foot by 30-foot area of the property.
A-3072-16T2
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agency's expertise, we need not surrender to it." N.J. Chapter of Nat'l Ass'n of
Indus. & Office Parks v. N.J. Dep't of Envtl. Prot., 241 N.J. Super. 145, 165
(App. Div. 1990) (finding there was "simply nothing in this record to indicate
why or how the DEP chose that [7:1] ratio for enhancement mitigation
purposes").
We also extend substantial deference to an agency's interpretation of its
own regulations, reasoning that "the agency that drafted and promulgated the
rule should know the meaning of that rule." In re Gen. Permit No. 16, 379 N.J.
Super. at 341-42 (quoting Essex Cty. Bd. of Taxation v. Twp. of Caldwell, 21
N.J. Tax 188, 197 (App. Div. 2003)). Of course, "an agency may not use its
power to interpret its own regulations as a means of amending those
regulations or adopting new regulations." Id. at 342 (quoting Venuti v. Cape
May Cty. Constr. Bd. of Appeals, 231 N.J. Super. 546, 554 (App. Div. 1989)).
And because a permitting decision by the Department is a quasi-judicial
determination, reasoned fact-finding is essential. In re Freshwater Wetlands
Gen. Permits, 372 N.J. Super. at 594. As Judge Conley explained in another
case challenging the issuance of a GP6 permit:
[N]o matter how great a deference the court is
obliged to accord the administrative determination
which it is being called upon to review, it has no
capacity to review at all unless there is some kind of
reasonable factual record developed by the
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administrative agency and the agency has stated its
reasons grounded in that record for its action.
[Id. at 595 (alteration in original) (quoting State v.
Atley, 157 N.J. Super. 157, 163 (App. Div. 1978)).]
Applying those standards here makes obvious to us the Department's
issuance of the GP6 permit to Square Properties should be vacated. We can
discern no reason for the Commissioner's conclusion that "[t]he method Square
Properties used to calculate recharge is expressly allowed by the Department's
rules." Indeed, the opposite would appear to be true. N.J.A.C. 7:8-5.6(b), the
regulation the Commissioner cited in support of that statement, provides only
that groundwater recharge "may" be calculated in accordance with the GSR-32
methodology.6 But as the record appears to make abundantly clear, and as the
agency itself concluded in 2013, the Geological Survey Report establishing the
GSR-32 methodology "precludes the use of GSR-32 in determining recharge"
for this site because of the presence of wetlands. See GSR-32 at 94.
6
Compare N.J.A.C. 7:8-5.6(a), which provides stormwater runoff "shall" be
calculated in accordance with the USDA Natural Resources Conservation
Service methodology, or the Rational Method for peak flow and the Modified
Rational Method for hydrograph computations. The agency's choice of the
permissive "may" for calculation of groundwater recharge in accordance with
the GSR-32 methodology, plainly signals other alternatives, see N.J. Dep't of
Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 512 (App. Div. 2015)
(noting the "bedrock assumption" that statutory language is not meaningless or
unnecessary), presumably in recognition of the expressed limitations of the
GSR-32 methodology.
A-3072-16T2
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The Department, echoed by Square Properties, argues to us that because
the Geological Survey Report "says that hydric soils are frequently in
wetlands, have 'undetermined recharge value,' and are assigned a 'recharge
value of zero,'" 7 that "Square Properties thus proceeded as allowed by the duly-
promulgated GSR-32 Method." The Department, however, provides no
authority for that conclusion, and we can find none.
Nowhere in the Geological Survey Report does it state that the GSR-32
methodology can be used to calculate the recharge value of wetlands simply by
assigning them a recharge value of zero as the Department asserts. Rather, the
7
The Department cites only the soil matrix in Appendix 5 of the Geological
Survey Report, "Recharge Factors and Constants by Soil Series," which
assigns a zero recharge factor for hydric soils such as Othello. It does not
address the explanation provided in Appendix 7, "Development and
Application of the Soil-Water Budget to the Method," for why those zero
values for hydric soils were included in the Appendix 5 soil matrix, namely,
that "[t]o include all 252 soil units [imported from the Soil Conservation
Service's New Jersey soils database] in appendix 5, R-factor and R-constant
values that yield zero-recharge were also included in appendix 5 for hydric
soils (75)" not among the 159 soil units simulated. It also does not address
Appendix 7's statement that hydric soils were assigned a recharge value of zero
for use in Appendices 3 ("Recharge Soil Group by Soil Unit"), 4 ("Recharge
Constants and Factors by Recharge Soil Group") and 5, but eliminated from
the list of those slated for recharge analysis. Thus review of that explanation
and those appendices would appear to make clear that hydric soils were
assigned a zero value only to permit their inclusion in the list of all known
New Jersey soils included in the soil databases, i.e., soil groups, units and
series tables, not for actual use in calculating recharge using the GSR-32
groundwater recharge methodology, which the Report makes clear cannot be
used to calculate the recharge value of wetlands.
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Report devotes an entire appendix to explaining why "the recharge or
discharge status of wetlands does not depend on the factors used in the
recharge simulations" forming the basis of the GSR-32 method, thus
"preclud[ing] the use of the model to quantify any recharge they may supply."
Far from providing, as respondents assert, that the GSR-32 model can reliably
compute the recharge value of wetlands, the Report, adopted at N.J.A.C. 7:8 -
5.6(b), appears to explain why the GSR-32 methodology would be unreliable
and its use thus precluded for that task. Nowhere does the Geological Survey
Report suggest how the GSR-32 methodology might be modified to calculate
the recharge values of wetlands. Instead, the Report states "[o]ther modeling
methods exist that can simulate recharge from surface water." GSR-32 at 94.
Further, the Commissioner does not explain why the agency concluded
in 2013 that "[t]he presence of hydric soils (Othello) onsite precludes the use
of GSR-32 in determining recharge," yet approved the applicant's use of the
method when it issued the GP6 permit in 2015. The December 2015 four-page
engineering summary report, on which the Commissioner relied, notes SHOS's
objection to use of the GSR-32 methodology, but does not explain why its use
is permitted by the regulations. Instead, the report merely states that the
applicant submitted a GSR-32 spreadsheet "analyzing the recharge using both
A-3072-16T2
22
Othello and Holyoke soils to show that the proposed infiltration basin's
capacity exceeds the recharge deficit by a wide margin."
In its brief on appeal, the Department concedes that SHOS's assertion
"that determining if wetlands are recharge or discharge areas, or neither, is
beyond the scope of the GSR-32 method . . . . is literally accurate." It insists,
however, that SHOS "misses the point that Square Properties agreed to
substitute soil, pursuant to the [Stormwater BMP Manual]."
The Stormwater BMP Manual instructs users completing the Microsoft
Excel-based Annual Recharge worksheet to estimate recharge under both pre-
and post-development site conditions that
[a]t the time of the [New Jersey Groundwater
Recharge Spreadsheet's] development, all soil series
mapped in New Jersey were included in its databases.
Nevertheless, instances may arise where a soil series
identified at a land development site has not been
included. In such instances, the user should select a
similar soil series from the program's database.
[Stormwater BMP Manual at 6-15.]
The Manual makes plain, however, that the spreadsheet is based on the
Geological Survey Report and "[a]ll pertinent GSR-32 databases and
computational algorithms have been incorporated," and thus the spreadsheet
"is governed, in part, by the assumptions and limitations of GSR-32." Id. at 6-
5. Accordingly, if the presence of wetlands on site would preclude use of the
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23
GSR-32 methodology, use of the Groundwater Recharge Spreadsheet would
appear likewise precluded. Neither the Commissioner in his decision nor the
Department in its brief explains how the Stormwater BMP Manual's instruction
to users to select a similar soil series from the program's database when the
identified soil is not included permits an applicant to rely on the GSR-32
methodology to calculate the recharge value of wetlands on a site. 8 But see In
re Petition of Elizabethtown Water Co., 107 N.J. 440, 460 (1987) (stating
"grounds upon which an administrative order must be judged are those upon
which the record discloses that the action was based" and not upon an after -
the-fact explanation) (quoting Sec. & Exch. Comm'n v. Chenery Corp., 318
U.S. 80, 87 (1943)). See also In re N.J.A.C. 7:1B-1.1 Et Seq., 431 N.J. Super.
100, 139 (App. Div. 2013) (stating "[a]n appellate brief is no place for an
agency to try and rehabilitate [the agency's] actions").
8
In support of its substitution of Holyoke for Othello in the Groundwater
Recharge Spreadsheet, Square Properties noted the Geological Survey Report
"defin[ing] methods for evaluating groundwater recharge in New Jersey . . .
does not establish recharge rates for approximately 75 different hydric soils,"
and the Stormwater BMP Manual "recommends the user select an alternate but
similar soil type in the spreadsheet analysis when the identified soil type is not
included." As we noted, the Manual states "all soil series mapped in New
Jersey" at the time the Spreadsheet was developed were included in its
databases. Stormwater BMP Manual at 6-15. It would be difficult to conclude
the Manual intends by that remark to instruct the user to substitute a soil typ e
deliberately not mapped as part of the GSR-32 methodology for use in the
spreadsheet, especially in light of its incorporation of "[a]ll pertinent GSR -32
databases and computational algorithms." Id. at 6-5.
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24
Although the Commissioner concluded that even if the recharge analysis
"underestimated the pre-construction recharge volume," Square Properties'
separate stormwater analysis "further supports the conclusion that, since all
stormwater is retained onsite both pre- and post-construction, the appropriate
groundwater recharge volume is likewise maintained as required by N.J.A.C.
7:8-5.4(a)(2)(i)(1)." As underestimating pre-construction recharge volume
would consequently appear to result in underestimating the potential post -
construction deficit, and thus whether the project can meet required peak flow
rate reduction consistent with containing all stormwater on site post -
construction, we do not follow the Commissioner's logic. Underestimating
pre-construction recharge volume would appear to render all the other
calculations that depend on its accuracy, including the groundwater mounding
analysis, suspect. A stormwater analysis based on underestimated existing
conditions would appear likely to compound the error, not counteract it.
A state agency rendering a final agency decision must explain the
specific reasons for its determination. See In re Freshwater Wetlands Gen.
Permits, 372 N.J. Super. at 580. We cannot give deference to an agency's
factfinding unless we have "confidence that there has been a careful
consideration of the facts in issue and appropriate findings addressing the
critical issues in dispute." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33
A-3072-16T2
25
(App. Div. 2001). The Supreme Court recently addressed the issue of
administrative fact-finding, stating that "[a] lack of fair support is
demonstrated by the decisionmaker's 'failure to consider all the evidence in a
record,' or the 'complete misperception of the facts submitted in a record.'" US
Masters Residential Prop. (USA) Fund v. N.J. Dep't of Envtl. Prot., ___ N.J.
___, ___ (2019) (slip op. at 29) (citations omitted).
"The requirement of findings is far from a technicality and is a matter of
substance. It . . . is a fundamental of fair play that an administrative judgment
express a reasoned conclusion. A conclusion requires evidence to support it
and findings of appropriate definiteness to express it." N.J. Bell Tel. Co. v.
Commc'ns Workers of Am., 5 N.J. 354, 375 (1950) (citation omitted).
"[F]indings of fact [must] be sufficiently specific under the circumstances of
the particular case to enable the reviewing court to intelligently review an
administrative decision and ascertain if the facts upon which the order is based
afford a reasonable basis for such order." Id. at 377. "When an agency's
decision is not accompanied by the necessary findings of fact, the usual
remedy is to remand the matter to the agency to correct the deficiency." In re
Issuance of a Permit by Dep't of Envtl. Prot. to Ciba-Geigy Corp., 120 N.J.
164, 173 (1990); see In re State & Sch. Emps.' Health Benefits Comm'ns'
Implementation of I/M/O Yucht, 233 N.J. 267, 280 (2018).
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26
Because it is not possible on this record to determine why the
Commissioner concluded Square Properties' use of the GSR-32 methodology
to calculate groundwater recharge was consonant with the Department's
regulations, we vacate the permit and remand for further fact-finding. In doing
so, we note the Commissioner's failure to also address whether site specific
factors, in addition to the expressed limitations of the GSR-32 model, required
the applicant to use a different model to calculate recharge. 9 If it is the
Department's position that the GSR-32 methodology can be used to calculate
groundwater recharge on a site where wetlands are present, notwithstanding
the Geological Survey Report's statement precluding use of the GSR-32
methodology to quantify recharge of wetlands, it should also address why that
conclusion is permissible in the absence of formal rulemaking. 10 See In re
Authorization for Freshwater Wetlands Statewide Gen. Permit 6, 433 N.J.
Super. 385, 413-15 (App. Div. 2013).
9
Although the Commissioner in his decision stated that SHOS had not
"provided an alternative method for calculating a more appropriate pre -
construction recharge volume," such was not its burden. See Tanurb v. N.J.
Dep't of Envtl. Prot., 363 N.J. Super. 492, 503 (App. Div. 2008). SHOS,
however, insists in its brief that it suggested a water-budget for the site would
be an appropriate alternative.
10
We note in this regard that the Department in its brief did not respond to
SHOS's allegation that the Department has never previously permitted use of
the GSR-32 methodology to calculate groundwater recharge in such cases.
A-3072-16T2
27
The Commissioner also fails to explain adequately his conclusion that
the applicant's mounding analysis satisfactorily demonstrated compliance with
the runoff quantity requirements under N.J.A.C. 7:8-5.4(a)(3), in light of
Princeton Hydro's calculations showing the infiltration basis would fail in a
100-year storm. Although we have no hesitation in finding SHOS has no right
to an adjudicatory hearing, we note that whether a third-party objector's due
process rights may be satisfied by an agency's review process depends in
significant part on the objector's ability to participate in the process . See In re
Freshwater Wetlands Statewide Gen. Permits, 185 N.J. at 471-74.
We have neither the need nor the ability to resolve SHOS's claim that it
was shut out of the agency review process in 2014. We note only that SHOS
provided extensive comments through several years and that the permit was
issued without a number of its well-documented concerns being substantively
addressed. SHOS had a right to submit its arguments, views and data relevant
to the permit to the Department through Princeton Hydro. See N.J.S.A.
52:14B-3.1(a). The Department likewise had an obligation to consider the
submissions and "to make findings of fact and conclusions of law regarding
those comments." Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 401-02
(App. Div. 2006); see N.J.S.A. 13:9B-9. In light of our remand for further
fact-finding and SHOS's inability to comment on the applicant's last plan
A-3072-16T2
28
revisions, we recommend the record be re-opened to permit SHOS to provide
its comments on those plans to the agency.
We vacate the issuance of the GP6 permit and remand for further fact-
finding consistent with this opinion. We affirm the Commissioner's decision
that SHOS is not entitled to an adjudicatory hearing. We do not retain
jurisdiction.
Affirmed in part, reversed in part.
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