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.
February 27, 2019
appeal from the New Jersey Department of Environmental
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).
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).
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
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).
Judges Accurso, Vernoia and Moynihan.
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.
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
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
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.
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). 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.
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),
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.
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
[Id. at 94 (emphasis added).]
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." 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
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."
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),