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In re Orban

Superior Court of New Jersey, Appellate Division

August 29, 2019

IN THE MATTER OF THOMAS ORBAN/SQUARE PROPERTIES, LLC, FRESHWATER WETLANDS GENERAL PERMIT 6 NO. 1103-03-0003.1 FWW070001, CHALLENGED BY SAVE HAMILTON OPEN SPACE.

          Argued February 27, 2019

          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).

          Before Judges Accurso, Vernoia and Moynihan.

          OPINION

          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 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 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-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 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.

[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 can 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 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 ...


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