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In re Authorization For Freshwater Wetlands Statewide General Permit 6

Superior Court of New Jersey, Appellate Division

September 9, 2013

IN THE MATTER OF AUTHORIZATION FOR FRESHWATER WETLANDS STATEWIDE GENERAL PERMIT 6, SPECIAL ACTIVITY TRANSITION AREA WAIVER FOR STORMWATER MANAGEMENT, WATER QUALITY CERTIFICATION, AND ACCESS WAIVER FOR GENERAL PERMITS. IN THE MATTER OF CARE ONE, INC. IN THE MATTER OF AUTHORIZATION FOR FRESHWATER WETLANDS STATEWIDE GENERAL PERMIT 6. (Revised or Modified Permit).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 12, 2013.

On appeal from the New Jersey Department of Environmental Protection, 1103-07-0007.1.

R. William Potter argued the cause for appellants Residents for Enforcement of Existing Land Use Code, Susan Tierney, and Pond Run Watershed Association (Potter and Dickson, attorneys; Mr. Potter, on the briefs).

Jill Denyes, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Denyes, on the brief).

Richard M. Hluchan argued the cause for respondent Care One, Inc. (Hyland Levin LLP, attorneys; Mr. Hluchan, of counsel; Robert S. Baranowski, Jr., on the brief).

Nicholas B. Patton argued the cause for amici curiae, Delaware Riverkeeper and Delaware Riverkeeper Network (Mr. Patton and Jane P. Davenport McClintock, on separate briefs).

Before Judges Fisher, Waugh, and Leone.

PER CURIAM.

In these consolidated actions, appellants Residents for Enforcement of Existing Land Use Code, Susan Tierney, and the Pond Run Watershed Association appeal several administrative decisions by respondent New Jersey Department of Environmental Protection (Department) in connection with its grant of a general freshwater wetlands permit and transition area waivers to respondent Care One, Inc. (CareOne), which seeks to expand its assisted living facility in Hamilton Township. We dismiss the appeal in Docket No. A-3400-10 as interlocutory. We affirm the administrative agency action in Docket No. A-3837-09, and reverse the administrative agency actions in Docket No. A-2231-08. Finally, we remand for further proceedings consistent with this opinion.

I.

We discern the following facts and procedural history from the record on appeal.

In 1999, the Department granted CareOne a freshwater wetlands permit to fill 0.97 acres of isolated wetlands and to create a stormwater management basin, also known as a detention basin, [1] for construction of an assisted living facility on approximately seven acres in Hamilton Township, Mercer County. The facility, known as CareOne at Hamilton, is located on the northern corner of the intersection of Cypress Lane and Whitehorse-Hamilton Square Road. A 0.47 acre portion of the permitted area was left undisturbed.

In 2007, CareOne wanted to construct a two-story, 62, 259 square foot addition, as well as a paved parking lot. The proposed construction would require the filling of the existing detention basin and other wetlands on the site, and the construction of a new, L-shaped detention basin along Cypress Lane.

In April, CareOne submitted a combined application for a "Letter of Interpretation" (LOI) to delineate the site's freshwater wetlands and a "Freshwater Wetlands Statewide General Permit No. 6" (GP6), see N.J.A.C. 7:7A-5.6, to fill the undisturbed segment of the land covered by the 1999 permit, or 21, 800 square feet (0.5 of an acre) of freshwater wetlands, and to disturb an additional 35, 906 square feet (0.82 of an acre) of the adjoining transition area.[2]

According to CareOne, the nearest waterway to the site is Pond Run. The affected onsite wetlands were isolated and of intermediate resource value, requiring an adjacent transition area of fifty feet. No bog turtle populations would be impacted and "no flood hazard permit was required, " because no activities were proposed within the flood hazard area or riparian zones.

CareOne's application package contained, among other documents: (1) a March 2007 "Statement of Compliance" by its licensed professional engineers, Taylor Wiseman & Taylor (TWT), which included a "Freshwater Wetlands Delineation Report"; (2) grading and groundwater recharge plans, maps, soil boring logs, vegetative and hydrological analyses, photographs, and a description of the onsite vegetative species; (3) two stormwater management reports by TWT dated March 2007, "Drainage and Detention Calculations, " and "Detention Facilities Operation and Maintenance Manual"; and (4) a March 2007 preliminary and final site plan. CareOne also provided the required notice of its project to Hamilton Township and landowners within 200 feet of the site. The Department published notice of the applications in the DEP Bulletin on May 2, 2007.

In March 2008, CareOne responded to the Department's request for additional information by submitting (1) hydro-graphs, including inflow and outflow hydrographs of the existing and proposed basins for the two-, ten-, twenty-five-, and hundred-year storms; (2) calculations and diagrams for two recharge areas, one each in the front and rear of the building, showing that they both would drain within the Department's required seventy-two-hour limit; (3) existing and proposed flow charts, and drainage area and grading maps; (4) a February 2008 revision of TWT's "Drainage and Detention Calculations"; and (5) a February 2008 revision of TWT's "Detention Facilities Operation and Maintenance Manual."

CareOne's proposed stormwater management plan included (1) the new detention basin designed to meet the two-year, ten-year, and hundred-year storm flow estimates and to "dry out" within the seventy-two-hour time limit required by the Department; (2) two recharge areas with VortSentry® treatment devices to manage stormwater quality by removing the total suspended solids (TSS) in any runoff within 17.3 hours; (3) two "StormChambers" to meet infiltration or groundwater recharge estimates; and (4) an "Emergency Spillway" that would convey any flows from a hundred-year storm.

While the Department's staff was reviewing CareOne's application and submissions, CareOne applied to the Hamilton Township Zoning Board of Adjustment (Zoning Board) for use and site plan approvals and bulk variances for its project. On June 9, 2009, the Zoning Board voted to deny CareOne's request for site plan approval with bulk variances. The decision is not in the record. CareOne did not appeal the Zoning Board's denial.

In a May 8, 2008 internal "Engineer's Report for SWM [stormwater management] review, " the Department's staff recommended "approval, " concluding that "[t]his project is in conformance with all of the engineering aspects of the Stormwater rules." The staff also (1) determined that the "[o]verall proposed land disturbance is more than 1 acre and new impervious area is more than 1/4 acre, therefore review of stormwater management was required for this project"; (2) found that CareOne's submitted Nonstructural Strategies Points System (NSPS) spreadsheet had been "completed correctly"; (3) "accepted" CareOne's calculations that its proposed TSS removal plans of an extended detention basin and two water quality treatment devices to treat any runoff from the new parking lot and sidewalks, and from the pre-existing impervious area, would remove approximately seventy-four percent of TSS; (4) noted that CareOne had proposed two recharge chambers, or bio-retention swales, to provide the required recharge volume within seventy-two hours; and (5) found that stormwater flows would be "further reduced due to Bio[s]wales."[3] Finally, the staff approved the drawings that CareOne had submitted, including CareOne's overall site plan, grading plan, utility plan, and construction details.

On June 19, CareOne submitted a separate application to the Department for a "Special Activity Transition Area for Stormwater Management." The application, which included a June 2008 version of TWT's "Statement of Compliance, " concerned proposed construction on a section of CareOne's property that was part of the transition area associated with freshwater wetlands on the other side of Whitehorse-Hamilton Square Road. Because the offsite wetlands were of exceptional resource value, they required a 150-foot transition area, which extended across the road onto CareOne's property.[4] CareOne provided the required notice to Hamilton Township and adjacent landowners.

Objectors, including appellants and other property owners living in the adjacent Society Hill community, opposed CareOne's proposal. Their major concerns centered on stormwater management and local flooding risks. The Department assured them that their concerns would be considered before any approvals were given.

On June 24, appellants' engineer, John A. Miller, P.E., of Princeton Hydro, LLC (Princeton Hydro), sent the Department fourteen detailed objections to CareOne's stormwater control plan. He opined that the plan would not prevent runoff or the resulting periodic inundation of neighboring properties and downstream pollution. He pointed to CareOne's lack of conformity with non-structural strategies, peak flow reductions, water quality runoff treatment, maintenance of groundwater recharge, and safety standards. He asserted that CareOne's design: (1) failed to address as a primary consideration the use of natural (non-structural) stormwater management techniques, such as "minimizing disturbance, minimizing impervious surfaces, minimizing the use of stormwater pipes, [and] preserving natural drainage features, " as required by Departmental regulations; (2) improperly exempted existing impervious groundwater recharge; (3) improperly allowed the post-development rate of runoff to exceed the pre-development runoff rate in at least two locations; (4) failed to consider the recharge capabilities of certain soils, which led to erroneous stormwater calculations; (5) planned to employ manufactured treatment devices that were not effective at reducing nonpoint water pollution; (6) violated safety standards by installing retaining walls around the detention basin; (7) proposed a wetland basin that conflicted with TWT's statements at the zoning board hearing proposing a dry basin; (8) failed to account for runoff from existing wetland after it is filled; (9) relied on onsite soil testing logs that erred in regard to the depth to seasonal high groundwater, understated groundwater levels and overstated recharge, and ultimately understated the amount of stormwater runoff; (10) relied on "test pits" that were not dug to sufficient depths or in the deepest location of the proposed detention basin to verify groundwater depth; (11) relied on a soil survey that contradicted the submitted soil boring logs; (12) relied on a flawed annual groundwater recharge analysis, resulting in the under-assessment of stormwater flows; (13) violated best management practices by failing to test near the proposed recharge facility; and (14) failed to describe the construction schedule to ensure the maintenance of stormwater controls as the existing basin is being filled.

In addition, appellant Tierney, an adjacent property owner, sent an email to the Department complaining about CareOne's stormwater management plan and the loss of the site's natural resources. She was concerned that CareOne's site plan contained only one stormwater basin:

My concern with the stormwater basin is based on the fact that [the] property was also once wetlands and we have very wet ground surface for days following rain. In the month of December when a stormwater outlet to our basin was obstructed we had a couple feet of standing water for over 20 days. This standing water shows soils adjacent to CareOne do not provide recharge in a 72 hour period. CareOne's stormwater basin is connected to the area of existing wetlands. . . . I am concerned the increased permeable surface, loss of natural vegetation and surface area and the questionable recharge properties may lead to flooding of adjacent areas and support a mosquito breeding area.

Following receipt of appellants' comments, the Department requested additional information from CareOne, which filed a September 2008 revision of its "Detention Facilities Operation and Maintenance Manual."

On October 7, the Department's staff contacted Princeton Hydro by telephone to discuss CareOne's stormwater design, and then responded to follow-up emails from Princeton Hydro on November 7 and 13. The staff told Princeton Hydro that CareOne's new basin was not required to be "a 1:1 wetlands replacement" for the existing "wet basin, " which CareOne proposed to fill and replace, because the basin had been created under the 1999 permit.

The staff also told Princeton Hydro that filling the existing basin did not need to be part of CareOne's current application, because the Department had "decided that requiring . . . a permit for creating these wetlands and then another permit to fill these same wetlands would be regulating the disturbance twice." That advice, however, was not consistent with the Department's earlier instruction to CareOne, in March 2008, that filling the existing basin and then creating a new basin involving the special transition area of the offsite wetlands required a separate General Permit No. 1 (GP1) wetlands permit "for replacement of this wetland basin."

On November 20, the Department issued CareOne an LOI/Line Verification, specifying the boundary of the freshwater wetlands and waters on the property, including the transition area for the offsite wetlands. Based upon its own site inspection and the information submitted by CareOne, the Department also determined that the onsite wetlands were of "intermediate" resource value, "isolated and not part of a surface water tributary system."

On the same day, the Department issued CareOne the following approvals: (1) a GP6 permit, which authorized activity involving the filling of 21, 800 square feet (0.5 of an acre) and the filling of the existing detention basin, including a transition area waiver for access; (2) a Water Quality Certification; and (3) a Special Activity Transition Area Waiver for Stormwater Management, which authorized disturbing the transition area of the offsite wetlands. As the Department acknowledges, there was no reference to CareOne's stormwater management plan or the agency's review of that plan on the face of those approvals.

The Department published notice of its permit approval in the DEP Bulletin on December 3, and its approval of the special transition area waiver on January 14, 2009. The Department did not mention either a public comment period or the right to seek a hearing for those approvals. However, the permit document itself provided that, "[i]n accordance with N.J.A.C. 7:7A-1.7, any person who is aggrieved by th[e] decision may request a hearing within 30 days after notice of the decision is published in the DEP Bulletin." On January 2, 2009, appellants filed a timely "Adjudicatory Hearing Request" with the Department, asserting that alleged defects in CareOne's stormwater plan would cause the discharge of large volumes of stormwater onto their properties.

On January 5, appellants appealed the Department's November 2008 decision granting CareOne the GP6, the transition area waivers, and the water quality certificate. That appeal was assigned Docket No. A-2231-08.

On May 7, the Department moved for an order remanding the matter to the Department for additional fact finding. It also sought dismissal of the appeal without prejudice. The purpose of the remand was to address the issue of the stormwater management plan, which, as noted, had not been mentioned on the face of the Department's approvals. The Department's section chief asserted in her supporting certification that she would meet with appellants and their consultant, Princeton Hydro, "to discuss concerns expressed in their submitted comments, " and "[i]f the Department conclude[d] that the project . . . meets the Stormwater Management Regulations, the Department shall issue an amended decision setting forth the factual basis for that determination."

On June 22, we granted the Department's motion for remand in Docket No. A-2231-08, but denied its motion to dismiss the appeal. Instead, we retained jurisdiction and ordered completion of the remand by September 25. We noted that we would allow for "an appropriate extension" of the deadline if the Department needed a "hearing . . . to properly complete th[e] remand." Although we granted extensions at the request of both sides, the Department did not hold a hearing.

In August, Department staff met with appellants and representatives of Princeton Hydro, the Delaware Riverkeeper, and the Delaware Riverkeeper Network.[5] Appellants' counsel also submitted written comments and legal arguments. Department staff subsequently met with CareOne to discuss the objections raised by the project's opponents. In October, CareOne submitted new revisions of its preliminary and final site plan, its drawings, and TWT's "Drainage and Detention Calculations" and "Detention Facilities Operation and Maintenance Manual."

On December 1, Princeton Hydro sent the Department objections to the newly revised plans. It argued that the Department should require CareOne to apply for an individual permit instead of a general permit, because: (1) CareOne's filling, relocating, and enlarging the existing detention basin together with filling the wetlands that had formed in the uplands surrounding that basin since its 1999 construction did not fall within the scope of the 1999 permit or qualify for a GP1 under the N.J.A.C. 7:7A-5.1, which states that "[a]ctivities under [GP1] shall not expand, widen or deepen the previously authorized feature"; (2) the wetlands inside the existing basin and the new wetlands created in the uplands could not be considered isolated for GP6 purposes because of the existing discharge pipe connecting them and making them part of a tributary system, and N.J.A.C. 7:7A-5.6 authorizes activities "if the freshwater wetlands . . . are not part of a surface water tributary system"; and (3) CareOne's proposed activities combined with its activities in the existing basin and associated wetlands exceeded the one-acre limit for a GP6 and did not qualify for an exception under N.J.A.C. 7:7A-4.4(a).

On January 26, 2010, the Department submitted a fact-finding remand report, entitled "Engineering and Environmental Report, " to the Clerk of the Appellate Division. In the remand report, the Department explained that "a number of revisions were made to the proposed design of the site and the stormwater management calculations by design engineer Gary Vecchio, P.E., as requested by the Department."

The Nonstructural Strategies Point System (NSPS) spreadsheet has been revised to demonstrate that the project complies with the requirements of N.J.A.C. 7:8-5.3. Various adjustments were made to the runoff and recharge calculations, based on revised assumptions of soil types and drainage areas. Additionally, the proposed water quality treatment devices were modified as requested, so that only the water quality design storm, which is 1.25 inches of rain in a two-hour period, as defined at N.J.A.C. 7:8-5.5(a) will be treated. Modifications were also made to the stormwater management operation and maintenance manual, a construction sequence was provided, and runoff to depressed areas onsite was reevaluated.

However, the Department informed us that CareOne still needed to make additional design alterations to address Princeton Hydro's December 2009 concerns "with ...


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