I/M/O Authorization for Freshwater Wetlands Statewide General Permit 6, Etc. I/M/O Care One, Inc.

• Court: New Jersey Superior Court Appellate Division
• Decided: December 11, 2013
• Docket: A-2231-08 A-3837-09 A-3400-10
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2231-08T2 A-3837-09T2 A-3400-10T2

IN THE MATTER OF AUTHORIZATION FOR FRESHWATER WETLANDS STATEWIDE GENERAL APPROVED FOR PUBLICATION PERMIT 6, SPECIAL ACTIVITY TRANSITION AREA WAIVER FOR STORMWATER MANAGEMENT, December 11, 2013 WATER QUALITY CERTIFICATION, AND ACCESS WAIVER FOR GENERAL PERMITS. APPELLATE DIVISION ____________________________________

IN THE MATTER OF CARE ONE, INC. ____________________________________

IN THE MATTER OF AUTHORIZATION FOR FRESHWATER WETLANDS STATEWIDE GENERAL PERMIT 6. (Revised or Modified Permit). ____________________________________

Argued March 12, 2013 – Decided September 9, 2013

Before Judges Fisher, Waugh, and Leone.

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.)

The opinion of the court was delivered by

WAUGH, J.A.D.

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.

2 A-2231-08T2 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.

1 "'Detention basin' . . . means a human-made impoundment area made by constructing an embankment, or excavating a pit, or both, for the purpose of temporarily storing stormwater." N.J.A.C. 7:7A-1.4.

3 A-2231-08T2 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

2 N.J.S.A. 13:9B-3 defines "transition area" as "an area of land adjacent to a freshwater wetland which minimizes adverse impacts on the wetland or serves as an integral component of the wetlands ecosystem."

4 A-2231-08T2 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"

5 A-2231-08T2 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

6 A-2231-08T2 (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

3 Bioswales are stormwater runoff conveyance systems that provide an alternative to storm sewers.

7 A-2231-08T2 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,

4 See N.J.A.C. 7:7A-2.7 (governing transition areas due to freshwater wetlands on adjacent property).

8 A-2231-08T2 [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

9 A-2231-08T2 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

10 A-2231-08T2 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"

11 A-2231-08T2 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,

12 A-2231-08T2 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

13 A-2231-08T2 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

5 We subsequently granted amicus status to the Delaware Riverkeeper and the Delaware Riverkeeper Network.

14 A-2231-08T2 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

15 A-2231-08T2 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 which the Department is in

agreement."

More specifically, the Department agreed that (1) CareOne's

new inlet proposed for Whitehorse-Hamilton Square Road also

conveyed water into the proposed new detention basin, and that

CareOne had not included those runoff projections in its

calculations for the basin's capacity; (2) CareOne's design

assumed the wrong soil type in its stormwater calculations in

contradiction to the soil borings, and underestimated and

underreported the difference in runoff quantities, "resulting in

additional runoff downstream that is unaccounted for in the

submitted calculations"; (3) CareOne did not provide proof that

its proposed storm sewer system could carry stormwater into the

proposed new detention basin during a hundred-year storm, or

that the basin would function properly and not back up during

16 A-2231-08T2 this storm; (4) CareOne's operation and maintenance manual did

not address goose and invasive species control; (5) there was a

contradiction between CareOne's submitted materials and a detail

sheet regarding maintenance methods for the proposed

StormChambers infiltration units; (6) CareOne needed to conduct

"[a]dditional field work . . . to verify the functionality of

the proposed hybrid basin, given that the seed mixture proposed

on the plans for the 'wet' bottom of the basin is highly

dependent on the soils being saturated"; (7) CareOne's

stormwater calculations failed to compute drainage times

"necessary to verify that storage exists for the next storm

event"; (8) that, based on submitted soil boring logs, the

system near one of the test pits "could be influenced by a

perched water table, which would surcharge the area and

overwhelm the proposed facility"; and (9) CareOne needed to

address Princeton Hydro's conclusion that the "Groundwater

Recharge Trench" to the StormChambers "does not satisfy the

Stormwater Rule design standards."

The Department further advised us that, after addressing

those issues, CareOne would need to "apply for a modification of

the freshwater wetlands permits in order to formalize the

Department's review and approval of these changes." The

Department also asked Princeton Hydro to provide engineering

17 A-2231-08T2 calculations for "further illumination . . . regarding runoff

from adjacent properties," adding that, based on the

information, it might require CareOne to make "further

amendments to the stormwater management design of th[e]

project."

On March 10, the Department's Acting Commissioner denied

appellants' request for an adjudicatory hearing, finding that

they had "demonstrated neither a risk of erroneous deprivation

of a particularized property right nor any statutory right to an

administrative hearing." On April 26, appellants filed a notice

of appeal with respect to the denial of their hearing request.

That matter was assigned Docket No. A-3837-09.6

On August 30, in response to the Department's remand

report, CareOne submitted revised plans and drawings to the

Department. These included (1) revised preliminary and final

site plans; (2) revised drawings for existing and proposed

drainage areas; (3) revised "Drainage and Detention

Calculations"; and (4) a new version of TWT's "Detention

Facilities Operation and Maintenance Manual." In those

documents, CareOne proposed two new groundwater recharge areas

that, based on its new soil borings and permeability tests, will

6 On the same day, appellants filed a motion for summary disposition in Docket No. A-2231-08. That motion was denied on June 8.

18 A-2231-08T2 "completely drain" in 3.3 hours and 7.3 hours, respectively,

which was less than the recharge volume required within seventy-

two hours. CareOne also reported that it had performed another

soil boring "to make sure the invert of basin . . . has at

minimum a 1" separation from the seasonal high water table."

Based on those results and its revised conditions, drainage, and

detention calculations, CareOne concluded that "the total annual

recharge volume will be greater than the post-development annual

recharge deficit, and it added that a proposed new "Emergency

Spillway" will "convey flow[s] of the 100-year inflow peak

[plus] 50%."

In a February 1, 2011 letter to CareOne concerning the

2008-approved GP6 and transition area waivers, the Department

stated in part:

As a result of the pending appeal of the above permits, the State requested that the Appellate Division remand these permits back to the Department for reconsideration. Since that time, the Department reviewed concerns raised by objectors, reviewed additional information submitted by the permittee's consultant [TWT], as noted below, and has determined that it is necessary and appropriate to issue a modified permit.

[(Emphasis added).]

The Department's letter listed information and documents it had

reviewed, which included (1) Princeton Hydro's June 2008

19 A-2231-08T2 comments; (2) CareOne's revised drawings, calculations, and

manuals prepared by TWT in October 2009; (3) Princeton Hydro's

December 2009 comments to the new revisions; and (4) CareOne's

subsequently revised drawings, calculations and manuals prepared

by TWT in July 2010, and submitted to the Department in August

2010.

The Department's letter continued:

This modification letter approves:

1. At the Department's request, a safety fence is now to be installed around the perimeter of the entire detention basin. This is necessary since the detention basin design includes small retaining walls in place of earthen slopes along the outer edges of the detention basin.

2. The relocation of manufactured water quality treatment devices which are to be located connected and adjoining to the storm water pipes. Constructing these devices adjacent to stormwater pipes allows larger storm flows to by-pass the water quality devices which makes them more efficient in treating water quality.

3. Groundwater recharge chambers are to be relocated. This is necessary since the chambers were previously proposed in an area where soils are not permeable enough to provide adequate groundwater recharge.

The modification letter also approved various drawings as

revised by TWT, including a new site plan, grading plan, utility

20 A-2231-08T2 plan, profiles, construction details, and basin construction

sequence plan.

However, the Department noted that

[t]his approval is subject to the following conditions:

1. The applicant [CareOne] is required to provide a revised Groundwater Recharge Spread Sheet (NJGRS) and confirm that the soil types determined by field infiltration tests were used in the recharge spread sheets, where appropriate. If the project does not provide adequate recharge in the proposed condition, additional recharge structures must be provided.

2. The applicant [CareOne] is required to seed the basin with a grass seed mixture of wet tolerant and dry tolerant varieties. Therefore, a revised Landscape Map must be submitted reflecting this change.

All required information must be submitted to this office within 60 days of receipt of this letter. Furthermore, no disturbance or construction may be undertaken in regulated areas until the permittee has submitted the required information and received a written approval of the same from the Department. All other conditions of the original permit remain in force, and this revision does not extend the original permit expiration date.

At the same time, the Department's staff issued two new

reports, both dated February 1: (1) a new "Engineer's Report

for SWM review" with supporting calculations; and (2) a new

"Engineering and Environmental Report."

21 A-2231-08T2 In its new SWM review report, the Department staff found

that, because CareOne's "[o]verall proposed land disturbance is

more than 1 acre and new impervious area is more than 1/4 acre,"

"review of stormwater management was required for this project."

Having reviewed CareOne's most recent submissions and

calculations, it recommended "approval." The staff also

accepted CareOne's proposed TSS removal rate and found that

CareOne's operation and maintenance manual was in accordance

with N.J.A.C. 7:8-5.8. Finally, the report noted the receipt of

objection letters from Princeton Hydro for CareOne's "original

stormwater design," after which "[t]he revised stormwater

management report and plans were reviewed twice by the

objector's engineer and no comments were received for this

revision."

The Department's revised "Engineering and Environmental

Report," contained the following findings: (1) CareOne had

included a proposed inlet on Whitehorse-Hamilton Square Road in

its basin inflow/outflow calculations, which satisfied the

Department's concern that "the basin calculations count all of

the runoff from the impervious areas"; (2) CareOne had relocated

its proposed groundwater recharge, giving the project "9,000

cubic feet of groundwater recharge beyond what was provided in

the originally approved design," but the Department still needed

22 A-2231-08T2 CareOne to verify that it had "not underestimated existing

groundwater recharge on the site"; (3) CareOne "ha[d] now

analyzed the proposed storm sewer system based on a 25-year

storm event and a 100-year storm event, and ha[d] demonstrated

that the proposed system has adequate capacity," and that if the

storm pipes got backed up, "the majority of any overflow from

catch basins [would] still enter the detention basin by overland

flow"; (4) CareOne had revised its "Detention Facilities

Operation and Maintenance Manual" to provide for invasive plant

species and goose control, along with "an acceptable maintenance

protocol for the proposed StormChamber infiltration units"; (5)

CareOne would "be required to seed the basin with a grass seed

mixture consisting of wet tolerant and dry tolerant varieties,"

ensuring the grass would survive; (6) CareOne had revised its

plans to include new drainage time calculations, "which

demonstrate[d] that the proposed drainage-times are less than 72

hours," and had provided a new test pit "at the exact location

of the recharge system," which showed "that location is not

influenced by a perched water table" and that groundwater "was

not encountered [anywhere] down to a depth . . . more than 2

feet below the bottom of recharge facility"; and (7) CareOne had

relocated its recharge areas to different locations above the

seasonal high groundwater table, which satisfied the

23 A-2231-08T2 Department's concern that CareOne's proposed trench did not meet

SWM design standards.

The Department concluded:

As a result of the objector's claim[s], the applicant's consultant [TWT] has now revised plans and stormwater management report as submitted to the [Department] on August 30, 2010 to address the groundwater recharge, details of the recharge chambers and water quality bypass. The applicant's consultant also verified the depth of the groundwater where claims were made regarding inadequate documentation. The revised project meets all of the stormwater management regulations subject to the conditions listed in the revised approval letter.

Finally, the Department reiterated that "no additional comments

were received from the Objector's consultant."

On February 15, Princeton Hydro submitted updated comments

and objections concerning CareOne's August 2010 plans, reports,

and drawings to the Department. According to Princeton Hydro,

it "had not known about" TWT's August submissions to the

Department until the Department's staff had contacted Miller on

November 29.

On February 16, the Department moved to dismiss Docket No.

A-2231-08 as moot, and CareOne joined in the motion. On March

17, we reserved decision on the Department's motion to dismiss,

pending determination on the merits of the appeal.

24 A-2231-08T2 In the March 9 DEP Bulletin, the Department published a

"NOTICE OF INTENT TO SETTLE" based on its most recent

correspondence to CareOne. The notice provided as follows:

On February 1, 2011[,] a revision letter was issued to the applicant Care One for the previously approved Freshwater Wetlands Transition Area Waiver for Stormwater Management and General Permit No. 6. . . .

The revision letter approves:

(1) A safety fence to be constructed around the perimeter of the entire detention basin.

(2) The relocation of manufactured water quality treatment devices which are to be located connected and adjoining to storm water pipes.

(3) Groundwater recharge chambers are to be relocated.

The applicant is still required to submit the following information:

(1) A revised Groundwater Recharge Spread Sheet (NJGRS) must be submitted and if not acceptable additional recharge structures must be provided.

(2) A revised Landscape Map must be submitted showing the basin is seeded with a grass seed mixture of wet tolerant and dry tolerant varieties.

Seven (7) drawings prepared by Taylor, Wiseman and Taylor, dated March 30, 2007 and last revised July 30, 2010 were approved with this revision.

25 A-2231-08T2 The notice further provided that "[a]ny comments, concerning

this revision, must be submitted within 15 days to [the

Department]."

On March 18, appellants filed a notice of appeal from the

Department's February 1, 2011 decision, which they characterized

as "a revised permit." That matter was assigned Docket No.

A-3400-10.7

In March, CareOne submitted additional revisions to the

Department in response to the two conditions in its February 1

letter. In a letter dated April 20, the Department confirmed

that CareOne had satisfied those conditions. The Department

found that "[t]he project now complies with the Stormwater

Management Regulations, N.J.A.C. 7:8." The Department published

notice of its April 20 letter in the May 11 DEP Bulletin under

the heading "NOTICE OF INTENT TO SETTLE AND ISSUE PERMIT." The

notice referred to the fifteen-day public comment period.

In June, the Department filed its fourth statement of items

comprising the record. In July, appellants filed a motion to

correct the administrative record by adding an April 8 letter

they contend Princeton Hydro sent to the Department concerning

7 In April, CareOne moved to consolidate the three appeals and appellants moved to stay any construction pending appeal. We granted the consolidation motion in May, but denied the request for a stay.

26 A-2231-08T2 objections to the Department's revision letter. While the

motion was pending, the Department filed its fifth statement,

which included other items received by the Department after

February 1, but did not include the April 8 letter from

Princeton Hydro.

We initially denied appellants' motion to supplement, but

on reconsideration reserved the issue pending a decision on the

merits. We observed that

[i]t is not clear from the motion that the document at issue was filed with [the Department] when it made the decision as to which there is an appeal pending or whether [the Department] has included in its statement of the record of appeal other documents that were received by it following such decision. Consequently, we defer the issue to the merits panel. Movant may include the document in its appendix and comment on it in argument, subject to the decision of the merits panel whether to consider the document.

Because the Department published its April 20 letter as a notice

of intent to settle in the May 11 DEP Bulletin, we grant

appellants' motion to include Princeton Hydro's April 8 letter

in the record on appeal.

In that letter, Princeton Hydro wrote:

There are a number of disconcerting items that [the Department] has failed to recognize through this lengthy and abnormal process. The point system that [the Department] is relying on to confirm the applicant has satisfied the Rule's non-

27 A-2231-08T2 structural strategies is not part of the Stormwater Rule or BMP manual and did not go through a formal adoption process. The [Department] accepted a fence in lieu of meeting the Safety Standards for Stormwater Management Basins (N.J.A.C. 7:8-6.2(c)3) and the Municipal Land Use Law, [N.J.S.A.] 40:55D-95.1, endangering the public. Further, [the Department] relied on a Certification Letter from the applicant's engineer for soils data and groundwater recharge design rather than evaluating the conclusions and integrity of design. Equally important to the defects in the application with regard to the Stormwater Rule, the [Department] has completely ignored the wetland permitting issues discussed in the September 10, 2009 meeting with [the Department] followed by a Princeton Hydro letter on December 1, 2009 to [the Department].

Continued nonconformance is fully described in a Princeton Hydro review letter dated February 15, 2011 submitted to your office. This letter details the persistent lack of conformity with non-structural strategies, peak flow reductions, water quality runoff treatment, maintenance of groundwater recharge and satisfying safety standards. The February 1, 2011 letter to modify the permit is seemingly based on the content of a [Department] Engineering and Environmental Report dated February 1, 2011. After much time and commenting to the [Department], the conditions assigned to the modified permit, requiring additional information to be submitted, acknowledges the further failure of the applicant to comply with the Rules. The original permit had no such required conditions to supply additional information. In fact, with these conditions of approval, the modified permit is additionally flawed since it will require the submission of additional information, and this being critical information to

28 A-2231-08T2 verify compliance with the Stormwater Rule. If additional recharge facilities are required, additional soil testing will also be necessary. Even if the conditions are met, there are a number of outstanding comments, detailed in Princeton Hydro's February 15, 2011 letter. The continual unconventional [Department] review process will further the cycle of revisions, reviews and more comments into the foreseeable future and beyond.

With the Princeton Hydro June 24, 2008 letter, [the Department] should not have issued a permit and, on a technical level, [should] have realized this in its first Engineering and Environmental Report dated January 26, 2010. After a permit was issued and following a September 10, 2009 meeting with [the Department] and Princeton Hydro letter dated December 1, 2009 to [the Department], [the Department] should have rescinded the permit. As the February 15, 2011 Princeton Hydro letter demonstrates, the modified permit, like the original, is flawed and should have been held, or as now issued, rescinded.

II.

Before turning to the substantive issues raised on this

appeal, we first address the motion to dismiss that was reserved

pending our consideration of the merits.

The Department and CareOne seek dismissal of Docket No. A-

2231-08, the appeal concerning the Department's 2008 permit and

related approvals, arguing that the issue is moot because the

2008 permit was superseded by the subsequent modifications that

are the subject of the appeal in Docket No. 3400-10. Our

29 A-2231-08T2 problem with respondents' argument is that the Department never

took final administrative action with respect to those

modifications. See N.J.A.C. 7:7a-14.1(a) and -14.3 (modifying

an issued permit).

In both instances, the Department published notices of

intent to settle, which triggered public comment periods.

However, the Department took no formal action to adopt the

modifications after the close of the comment period. See, e.g.,

Dragon v. N.J. Dep't of Envtl. Prot., 405 N.J. Super. 478, 492

(App. Div.) (discouraging use of agency's settlement power to

avoid regulatory compliance), certif. denied, 199 N.J. 517

(2009).8 Because there was no final administrative action, the

appeal in Docket No. 3400-10 is interlocutory.

As a result, we deny the motion to dismiss Docket No. A-

2231-08 and instead dismiss Docket No. 3400-10 as interlocutory.

Inasmuch as the issues have been fully briefed and argued, we

reluctantly consider the subsequent actions taken to have been a

consequence of our 2009 remand and, therefore, included in the

earlier appeal in Docket No. A-2231-08.

Nevertheless, we note the Department's continuing

modification of the permit and other approvals long after the

8 We again caution against the use of a notice of settlement to avoid regulatory compliance.

30 A-2231-08T2 expiration of the remand period was inappropriate. Once it had

determined that the information on which the 2008 approvals were

issued was inaccurate or insufficient, the better practice would

have been to withdraw the permit pending further review of the

applications. Once it had finalized the approvals, it should

have reissued them, as revised, with appropriate notice,

publication, and compliance with administrative procedures.

III.

We now turn to the merits of the appeal, starting with the

issue raised in Docket No. A-3837-09 concerning the Acting

Commissioner's denial of the appellants' request for an

adjudicatory hearing.

A third-party objector's right to a formal administrative

hearing is delineated and circumscribed by the Administrative

Procedure Act (APA), N.J.S.A. 52:14B-1 to -25. Although "the

APA does not foreclose such third parties from seeking judicial

review of the merits of a permit once it is issued by an

agency," In re Riverview Dev., LLC, 411 N.J. Super. 409, 425

(App. Div.), certif. denied, 202 N.J. 347 (2010), it gives the

non-applicant objector no automatic right to a formal

administrative hearing to contest the issuance of a permit

unless he or she can establish a statutory or constitutional

right to that hearing. In re NJPDES Permit No. NJ0025241, 185

31 A-2231-08T2 N.J. 474, 481 (2006); In re Freshwater Wetlands Statewide Gen.

Permits, 185 N.J. 452, 463 (2006); Spalt v. N.J. Dep't of Envtl.

Prot., 237 N.J. Super. 206, 212 (App. Div. 1989), certif.

denied, 122 N.J. 140 (1990). In fact, the APA expressly

prohibits a state agency from promulgating rules or regulations

entitling a third party to an administrative appeal as a

contested case under the APA unless "specifically authorized to

do so by federal law or State statute," or unless a person "has

[a] particularized interest sufficient to require a hearing on

constitutional or statutory grounds." N.J.S.A. 52:14B-3.1(d),

-3.2(c), -3.3.

The Freshwater Wetlands Protection Act (FWPA), N.J.S.A.

13:9B-1 to -30, does not provide third-party objectors with the

right to a plenary administrative hearing to challenge DEP's

issuance of a permit. Under N.J.S.A. 13:9B-20, only applicants

may request an adjudicatory hearing to challenge the

Department's decision concerning a FWPA permit. Consequently,

appellants' challenge to the Department's action does not

qualify for an adjudicatory hearing unless they establish that

one or more of their constitutional rights are at stake.

In rejecting appellants' request, which was premised on

CareOne's project posing a threat of increased stormwater

discharge to their properties, the Acting Commissioner relied on

32 A-2231-08T2 In re Freshwater Wetlands, supra, 185 N.J. at 470. In that

case, the Supreme Court, referring to our decision in Spalt,

supra, 237 N.J. Super. at 212, observed that

Judge (later Justice) Coleman held that "simply because some of the plaintiffs reside close to the proposed [marina] site and are fearful of resultant injury to their property, does not mean they are entitled to an adjudicatory hearing." Further elaborat- ing on that theme, Judge Coleman noted that "[f]ear of damage to one's recreational interest or generalized property rights shared with other property owners is insufficient to demonstrate a particularized property right or other special interest."

[In re Freshwater Wetlands, supra, 185 N.J. at 470 (citations omitted).]

Appellants presented only their fears of flooding and

Princeton Hydro's calculations evidencing the possibility of

flooding on neighboring properties from CareOne's project. We

find no error in the Acting Commissioner's determination that

appellants "have not demonstrated a particularized property

right which gives rise to a constitutional basis for granting a

hearing."

Consequently, we affirm the denial of appellants' request

for an adjudicatory hearing.

IV.

We next address appellants' argument that the Department's

reliance on the Nonstructural Strategies Points System to assess

33 A-2231-08T2 CareOne's stormwater management plan was improper because

implementation of the NSPS constituted improper administrative

rulemaking.9 Before addressing their argument, however, we must

supply some background, including the Department's general

stormwater management requirements and its incorporation of the

NSPS into its permitting process under the FWPA.

Pursuant to N.J.A.C. 7:7A-2.11, all projects requiring an

FWPA individual permit and all regulated activities requiring an

FWPA general permit that propose to disturb one or more acres

are considered "major development[s]" under N.J.A.C. 7:8-1.2,

and trigger compliance with the Department's stormwater

management rules, found at N.J.A.C. 7:8-1.1 to -6.3. The same

requirement applies to a project that would increase impervious

surfaces by one-quarter acre (10,890 square feet) or more.

N.J.A.C. 7:7A-2.11, 7:8-1.2.

Subchapter 5 of those rules, N.J.A.C. 7:8-5.1 to -5.9, sets

standards for limiting the "adverse impact of stormwater

runoff." N.J.A.C. 7:8-5.1(a). Standards for controlling

erosion, encouraging and controlling infiltration and

9 Although it is not clear that the issue was directly argued before the Department, no party has raised that issue, and they have addressed the merits of the argument. Consequently, we need not reach that question.

34 A-2231-08T2 groundwater recharge, and controlling runoff quantities are

found in N.J.A.C. 7:8-5.4. Standards for runoff quality are

found in N.J.A.C. 7:8-5.5. The regulations provide that the

standards in those two regulations "shall be met by

incorporating nonstructural stormwater management strategies at

N.J.A.C. 7:8-5.3 into the design" "[t]o the maximum extent

practicable." N.J.A.C. 7:8-5.2(a), -5.3(a) (emphasis added).

The nine specific nonstructural strategies that "shall" be

incorporated into every site design to "the maximum extent

practicable" are listed in N.J.A.C. 7:8-5.3(b).

In addition, all permit applicants "shall identify the

nonstructural strategies incorporated into the design of the

project." N.J.A.C. 7:8-5.3(a) (emphasis added). "If the

applicant contends that it is not feasible for engineering,

environmental or safety reasons to incorporate any nonstructural

stormwater management strategies identified in [N.J.A.C. 7:8-

5.3(b)] . . . into the design of a particular project, the

applicant shall identify the strategy and provide a basis for

the contention." Ibid. (emphasis added). It is only when the

standards in N.J.A.C. 7:8-5.4 and -5.5 cannot be met by

nonstructural measures alone that "structural stormwater

management measures . . . necessary to meet these standards

shall be incorporated into the design." N.J.A.C. 7:8-5.2(a).

35 A-2231-08T2 Consequently, the Department's regulations require

applicants for major developments, such as CareOne, to

demonstrate that, to the "maximum extent practicable," they gave

nonstructural stormwater strategies, such as swales or

bioretention basins, priority over structural stormwater

strategies, such as storm sewers, pipes, and manufactured

treatment devices. If they cannot do so, they must prove why

such priority was not feasible for engineering, environmental or

safety reasons.10

When the Department proposed its current stormwater

management rules in 2003, 35 N.J.R. 119(a) (Jan. 6, 2003),

commenters requested "a definition" of "maximum extent

practicable," 36 N.J.R. 670(a), 691 (comments 185-86) (Feb. 2,

2004). The Department responded that the term is "fact-

sensitive and cannot be reduced to a standard formula. The

reviewing agency's administrative discretion in determining

compliance with these rules will be guided by the goals of this

chapter and its statutory mandates." Ibid. The Department

explained that the term was "used to describe the expenditure of

effort required to achieve full compliance with the applicable

10 The Department provides extensive guidance concerning nonstructural stormwater management strategies. See N.J.A.C. 7:8-5.3(d), -5.9.

36 A-2231-08T2 standard, taking into account the specific circumstances of the

development in question." Ibid.

Commenters further noted that neither the proposed rules

nor the New Jersey Stormwater Best Management Practices (BMP)

Manual "include[d] any specifics as to how can one calculate the

effectiveness of the nonstructural measures incorporated into

the site design as required under N.J.A.C. 7:8-5.3." Id. at

719-20 (comments 473-75). The Department responded:

Calculations are performed based upon computational methods referenced in N.J.A.C. 7:8-5.4(a)2i and 5.6. The factors that are utilized in the calculations depend upon the nonstructural stormwater strategy and the site-specific conditions. . . . The BMP Manual provides guidance on how to adjust computations based on the nonstructural stormwater BMPs implemented. Because the calculations depend on varying site-specific conditions, the Department does not believe that the formation of a table is appropriate.

The applicant's engineer must demonstrate and discuss the use of nonstructural stormwater management techniques throughout a proposed development site to demonstrate where each technique is utilized. In cases where specific techniques are not used, the applicant's engineer must provide the justification. A checklist is included in the BMP Manual to assist designers to address this requirement.

[Id. at 720.]

37 A-2231-08T2 In 2006, however, the Department created the NSPS,

described in the NSPS User's Guide as "a tool to assist

planners, designers, and regulators in determining that the

strategies have been used to the 'maximum extent practicable' at

a major development as required by the Rules" (emphasis added).

It posted the NSPS User's Guide and the NSPS Excel Spreadsheet

on its website, along with other guidance documents and

responses to "Frequently Asked Questions" relating to its

stormwater management rules.11

According to the NSPS User's Guide (emphasis added):

The New Jersey NSPS is a Microsoft Excel- based computer spreadsheet program that can be used to demonstrate that sufficient nonstructural stormwater management measures have been incorporated into the design of a major land development project to . . . meet the maximum extent practicable requirement for nonstructural strategies in the Stormwater Management Rules. The NSPS assigns points based upon the existing and proposed conditions at the development site. A specific percentage of existing or pre- developed points must be achieved under proposed or post-developed conditions in order to demonstrate compliance through the NSPS. As described in detail below, the required percentage of existing points varies according to the size of project site and the State Planning Area in which it is located.

11 See N.J. Dep't of Envtl. Prot., Stormwater Magagement: Additional Guidance Documents, http://www.njstormwater.org/ guidance.htm (last visited Aug. 5, 2013).

38 A-2231-08T2 Appellants argue that the NSPS has the effect of an

administrative rule and should have been adopted through the

formal rulemaking process. Both the Department and CareOne

argue that formal APA rulemaking is not required because the

Department is entitled to take informal action to advise and

supervise the regulated community, such as creating the NSPS and

using it to review permit and waiver applications. They assert

that the NSPS provides no new substantive legal or

administrative standard or policy that cannot be inferred from

the existing stormwater management rules. Respondents further

maintain that use of the NSPS is not "mandatory" or

"dispositive." Instead, they contend that the NSPS "merely

serves as a screening device to streamline review." They aver

that it is only "one way" for the agency to review a project's

nonstructural features, providing only a preliminary screen for

minimal compliance with N.J.A.C. 7:8-5.3 standards without

"eliminate[ing] case-specific departmental review of a

stormwater plan."

Respondents' argument is fatally undercut by the

Department's own "Important Note" in the NSPS User's Guide.

Important Note: If the NSPS demonstrates that sufficient nonstructural stormwater management measures have been utilized at a major development, no further proof of compliance with the maximum extent practicable requirement shall be required.

39 A-2231-08T2 However, if the NSPS fails to demonstrate such compliance, such results shall not be used to disapprove any permit application sought by a proposed major development. Instead, the applicant for such permit will be required to demonstrate compliance through other and/or additional means. This includes the Low Impact Development (LID) Checklist contained in Appendix A of the New Jersey Stormwater Best Management Practices Manual, which includes a rigorous alternatives analysis for each measure. Finally, it should be noted that the NSPS is not presently intended for use on roadway construction, improvement, and other linear development projects. As a result, other means, including the LID Checklist, should be used for such projects.

It is clear from the language used by the Department itself

that its review of the use of nonstructural measures does not go

beyond the NSPS if the minimum number of points have been

awarded to satisfy the "sufficient" standard, without

determining whether the use of additional nonstructural measures

would have been practicable. In contrast, failure to use the

NSPS or to reach the required "sufficient" score will result in

"a rigorous alternatives analysis for each measure." Such an

application of the NSPS conflicts with the Department's own

assertion, during promulgation of its stormwater management

regulations, that the term "maximum extent practicable" found in

N.J.A.C. 7:8-5.3 is "fact-sensitive and cannot be reduced to a

standard formula." 36 N.J.R. at 691 (response to comments 185-

40 A-2231-08T2 86). Indeed, the Department asserted that "[b]ecause the

calculations depend on varying site-specific conditions, the

Department does not believe that the formation of a table is

appropriate." Id. at 720 (response to comments 473-76).

Appellants argue that the use of the NSPS, as described by

the Department, improperly shortcuts the application review

process because it has not been subjected to the rulemaking

process and its opportunity for public comment. We agree.

Administrative agencies possess wide latitude in selecting

the appropriate procedures to effectuate their regulatory duties

and statutory goals. In re Request for Solid Waste Util.

Customer Lists, 106 N.J. 508, 519 (1987); Metromedia, Inc. v.

Dir., Div. of Taxation, 97 N.J. 313, 333 (1984); Texter v. Dep't

of Human Servs., 88 N.J. 376, 383-84 (1982). However, an

agency's "discretion to act formally or informally is not

absolute." In re N.J.A.C. 7:1B-1.1 et seq., 431 N.J. Super.

100, 133 (App. Div. 2013) (petition for certification pending).

"The inquiry whether an agency's actions constitute

improper rulemaking is informed by well-settled principles."

Ibid. Guidance documents, standardized forms, and responses to

"frequently asked questions" can constitute improper rulemaking.

Id. at 112-14, 138-40.

41 A-2231-08T2 The APA defines an administrative rule as an agency's

"statement of general applicability and continuing effect that

implements or interprets law or policy, or describes the

organization, procedure or practice requirements" of the agency.

N.J.S.A. 52:14B-2(e). "If an agency determination or action

constitutes an 'administrative rule,' then its validity requires

compliance with the specific procedures of the APA that control

the promulgation of rules." Airwork Serv. Div. v. Dir., Div. of

Taxation, 97 N.J. 290, 300 (1984), cert. denied, 471 U.S. 1127,

105 S. Ct. 2662, 86 L. Ed. 2d 278 (1985).

Formal rulemaking "allows the agency to further the policy

goals of legislation by developing coherent and rational codes

of conduct 'so those concerned may know in advance all the rules

of the game, so to speak, and may act with reasonable

assurance.'" Gen. Assembly of N.J. v. Byrne, 90 N.J. 376, 385-

86 (1982) (quoting Boller Beverages, Inc. v. Davis, 38 N.J. 138,

152 (1962)). "The purpose of the APA rulemaking procedures is

'to give those affected by the proposed rule an opportunity to

participate in the process, both to ensure fairness and also to

inform regulators of consequences which they may not have

anticipated.'" In re Provision of Basic Generation Serv. for

Period Beginning June 1[,] 2008, 205 N.J. 339, 349 (2011)

(quoting In re Adoption of 2003 Low Income Hous. Tax Credit

42 A-2231-08T2 Qualified Allocation Plan, 369 N.J. Super. 2, 43 (App. Div.),

certif. denied, 182 N.J. 141 (2004)).

The Supreme Court has identified six factors to consider

when evaluating whether an agency's action, "to be valid, had to

comply with the requirements governing the promulgation of

administrative rules as provided by the APA." Metromedia,

supra, 97 N.J. at 328.

[A]n agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency

43 A-2231-08T2 action must be rendered through rule-making or adjudication.

[Id. at 331-32.]

Although the Court formulated those factors in the context

of distinguishing rulemaking from adjudication, they also

provide a test for determining when rulemaking procedures are

necessary to validate agency actions or determinations.

Woodland Private Study Grp. v. N.J. Dep't of Envtl. Prot., 109

N.J. 62, 68 (1987). "[T]he factors are relevant whenever the

authority of an agency to act without conforming to the formal

rulemaking requirements is questioned." Doe v. Poritz, 142 N.J.

1, 97 (1995). They "need not be given the same weight, and some

factors will clearly be more relevant in a given situation than

others." Ibid. "The pertinent evaluation focuses on the

importance and weight of each factor, and is not based on a

quantitative compilation of the number of factors which weigh

for or against labeling the agency determination as a rule." In

re Provision of Basic Generation Serv., supra, 205 N.J. at 350.

We are satisfied that the NSPS and its User's Guide meet

all of the Metromedia factors. The use or non-use of the NSPS,

as well as the achievement of or failure to obtain the required

minimum points on the NSPS, directly affects the Department's

review of all applications covered by the "maximum extent

possible" requirement. In fact, avoidance of the "rigorous

44 A-2231-08T2 review" resulting from failure to use the NSPS provides a clear

incentive for its use. The NSPS is intended for ongoing use,

and is not an adjudicative decision or application of a

procedure under limited circumstances. It establishes a

standard for application submissions and agency evaluations that

is not otherwise expressly provided by or obviously inferable

from the Department's stormwater management rules or from any

statute or other regulation. It constitutes a material and

significant change from what applicants are required to submit

as to nonstructural stormwater management strategies under

N.J.A.C. 7:8-5.3(a). As already noted, it also represents a

significant change from the Department's own position at the

time it adopted the regulation, when it specifically rejected

suggestions that it create a formula because compliance with

those requirements is a "fact-sensitive" determination.

Finally, creating a fixed formula for assigning NSPS points and

percentages reflects a decision on regulatory policy not found

in regulations adopted through the APA.

We conclude that the Department's use of and reliance on

NSPS in connection with its evaluation of CareOne's applications

was impermissible because the NSPS procedure was not the subject

45 A-2231-08T2 of formal rulemaking.12 Consequently, in Docket No. A-2231-08,

we reverse the Department's approval of the applications, as

well as its issuance and modification of permits and related

approvals.

We affirm in Docket No. A-3837-09, and dismiss Docket No.

A-3400-10 as interlocutory. We remand the matter to the

Department for further proceedings consistent with this opinion.

For that reason, we need not consider any of the remaining

points raised on appeal.

Affirmed in part, reversed in part, dismissed in part, and

remanded. We do not retain jurisdiction.

12 We express no opinion, one way or another, concerning the propriety of the use of the NSPS should the Department adopt it through formal rulemaking. We note that, in the context of the Delaware and Raritan Canal State Park Law of 1974 (N.J.S.A. 13:13A-1 to -15), the Department employed the APA's rulemaking procedure to provide for use of the NSPS as an evaluative tool. See N.J.A.C. 7:45-8.2(a)(16) and -8.4(a), (c).

46 A-2231-08T2