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

• Court: New Jersey Superior Court Appellate Division
• Decided: August 29, 2019
• Docket: A-3072-16T2
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3072-16T2

IN THE MATTER OF THOMAS ORBAN/SQUARE APPROVED FOR PUBLICATION PROPERTIES, LLC, FRESHWATER WETLANDS GENERAL PERMIT 6 August 29, 2019 NO. 1103-03-0003.1 FWW070001, APPELLATE DIVISION CHALLENGED BY SAVE HAMILTON OPEN SPACE. ________________________________

Argued February 27, 2019 - Decided August 29, 2019

Before Judges Accurso, Vernoia and Moynihan.

On appeal from the New Jersey Department of Environmental Protection.

Stuart J. Lieberman argued the cause for appellant Save Hamilton Open Space (Lieberman & Blecher, PC, attorneys; Stuart J. Lieberman, of counsel and on the brief; Jordan Michael Asch, on the briefs).

Afiyfa Hakim Ellington argued the cause for respondent Thomas Orban/Square Properties, LLC (Giordano Halleran & Ciesla, PC, attorneys; Paul H. Schneider and Afiyfa Hakim Ellington, on the brief).

Bruce A. Velzy, Deputy Attorney General, argued the cause for respondent Department of Environmental Protection (Gurbir S. Grewal, Attorney General, attorney; Jason Wade Rockwell, Assistant Attorney General, of counsel; Bruce A. Velzy, on the brief). Deanna K. Tanner of the Pennsylvania bar, admitted pro hac vice, argued the cause for amicus curiae Delaware Riverkeeper and Delaware Riverkeeper Network (Aaron Joseph Stemplewicz and Deanna K. Tanner, attorneys; Aaron Joseph Stemplewicz and Deanna K. Tanner, on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

Save Hamilton Open Space (SHOS), a local citizens group, challenges

the Department of Environmental Protection's issuance of a freshwater

wetlands general permit 6 (GP6) to Thomas Orban/Square Properties, LLC in

connection with the construction of a shopping center in Hamilton Township

and the denial of SHOS's request for an adjudicatory hearing. SHOS raises

three issues on appeal: first, it contends the GP6 is substantively non -

compliant due to the misuse of the New Jersey Geological Survey Report,

GSR-32 methodology to calculate recharge analysis in wetlands areas contrary

to the Department's own rules; second, it contends the Department has never

before permitted use of the GSR-32 methodology to calculate groundwater

recharge in wetlands areas, and it is thus a new application requiring formal

rulemaking; and third, it contends it was entitled to an adjudicatory hearing.

Amici Curiae Delaware Riverkeeper and Delaware Riverkeeper Network

support SHOS's position, contending "strict compliance with storm water

management rules are of critical importance to New Jersey," and echoing its

A-3072-16T2 2 arguments that the Department's issuance of the GP6 was arbitrary and

capricious and its denial of a hearing improper.

Having reviewed the record, we determine SHOS's argument that it was

entitled to an adjudicatory hearing is without sufficient merit to warrant

discussion in a written opinion, R. 2:11-3(e)(1)(E); see In re Freshwater

Wetlands Statewide Gen. Permits, 185 N.J. 452, 471 (2006) (holding third-

party objector to development application lacked particularized property

interest warranting an adversarial hearing before an administrative law judge).

Because we cannot, however, discern where the agency has explained why

Square Properties' use of the GSR-32 methodology to calculate recharge is

consonant with the Department's regulations, which appear to expressly

prohibit its use in these circumstances, we vacate the GP6 permit and remand

for further fact-finding. In light of our disposition, we do not address SHOS's

argument that the agency needed to proceed through rulemaking.

Although the engineering calculations underlying Square Properties'

stormwater plan are complex, the issues before us are not. The matter has over

a decade-long procedural history, most of which is irrelevant to the issues we

decide. Suffice it to say that Square Properties, owner of a roughly five acre,

heavily wooded site along Route 33 in Hamilton, applied for site plan approval

A-3072-16T2 3 for a shopping center in 2006. SHOS participated in the public hearings as an

objector.

As both a condition of its approval and part of a settlement agreement

with SHOS, Square Properties agreed to apply for a GP6 permit to fill two

areas of isolated, non-tributary wetlands of intermediate resource value, and

that SHOS and its consultant, Princeton Hydro, would have the opportunity to

review the stormwater plans and consult regarding stormwater management on

the site. SHOS has maintained throughout the history of this matter that the

wetlands areas on the property, essentially bowl-like depressions in the middle

of the site, not only absorb all of the site's stormwater runoff but also runoff

from neighboring properties resulting from the natural topography of the area.

SHOS's members, several of whose backyards abut the site, contend nearby

basements and backyards will be flooded unless Square Properties ensures its

development of the site continues the vitally important function the existing

wetlands currently provide for stormwater management in the surrounding

area.

The heart of the dispute concerns Square Properties' use of the GSR-32

methodology to calculate groundwater recharge. Square Properties sought a

GP6 permit issued under the authority of the Freshwater Wetlands Protection

Act, N.J.S.A. 13:9B-1 to -30, and its implementing regulations, N.J.A.C. 7:7A-

A-3072-16T2 4 1.1 to -22.20, to disturb less than one acre of isolated freshwater wetlands.

N.J.A.C. 7:7A-5.6(a).1 The parties agree Square Properties' proposed shopping

center qualifies as a "major development" under N.J.A.C. 7:8-1.2, and thus is

required to "comply in its entirety with the Stormwater Management Rules at

N.J.A.C. 7:8." N.J.A.C. 7:7A-4.3(b)10. In order to satisfy the minimum

design and performance standards for groundwater recharge in accordance

with N.J.A.C. 7:8-5.4, Square Properties elected to "[d]emonstrate through

hydrologic and hydraulic analysis that the site and its stormwater management

measures maintain 100 percent of the average annual pre-construction

groundwater recharge volume for the site." N.J.A.C. 7:8-5.4(a)2(i)(1).

Square Properties used the GSR-32 methodology to calculate pre-

construction groundwater recharge volume for the site. In its comments to the

Department on behalf of SHOS, Princeton Hydro objected to use of the GSR-

32 methodology on two bases. First, it noted the New Jersey Geological

Survey Report establishing the GSR-32 methodology states that wetlands were

"eliminated from the analysis . . . because the direction of flow between

ground-water and surface water or wetlands depends on site specific factors

1 After the permit in this case was issued, the Department renumbered the relevant regulations, 49 N.J.R. 3849(a) (Dec. 18, 2017). The parties have referenced the regulatory numbers in effect when the Department approved the permit. We do the same.

A-3072-16T2 5 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.

A-3072-16T2 6 [Id. at 94 (emphasis added).]

Second, Princeton Hydro maintained that 4.14 of the site's 4.8 acres

drain to "isolated and perched wetland systems located in closed depressions,"

and as a result, "rainfall and runoff which flows into these areas c an only

become groundwater recharge or potentially evapotranspiration." 2 Because of

those site specific conditions, it contended Square Properties' "pre-

development groundwater recharge analysis significantly under predicts the

existing conditions at the site and consequently under predicts the potential

post development deficit."

The Department apparently agreed in 2013 that use of the GSR-32

methodology was inappropriate. It wrote to Square Properties in August of

that year, advising its application failed to meet the Department's Stormwater

Management Rules at N.J.A.C. 7:8, and specifically noted the following:

Groundwater Recharge: The presence of hydric soils (Othello) onsite precludes the use of GSR-32 in determining recharge. There is a certain amount of recharge occurring through the isolated wetland areas but this classification under GSR-32 yields zero recharge. Therefore, the spreadsheet underestimates recharge under existing conditions and consequently a

2 The Geological Survey Report states "[e]vapotranspiration refers to water that is returned to the atmosphere from vegetated areas by evaporation from the soil and plant surfaces (dew and rain) and soil water that is taken up by plant roots and transpired through leaves or needles. Infiltrated water that is not returned to the atmosphere . . . becomes ground water." GSR-32 at 3.

A-3072-16T2 7 lower post development deficit. Please see the relevant public comments from Princeton Hydro representing "Save Hamilton Open Space."

Square Properties responded the following October by explaining that

the Geological Survey Report establishing the GSR-32 methodology "does not

establish recharge rates for approximately 75 different hydric soils," among

them Othello in Hydrologic Group D, which was identified on site. It

explained that it substituted Holyoke, another soil in Hydrologic Group D,

which is included in the Groundwater Recharge Spreadsheet database, based

on the recommendation in the New Jersey Stormwater Best Management

Practices Manual that "where a soil series identified at a land development site

has not been included . . . the user should select a similar soil series from the

program's database." Sandra A. Blick, et al., New Jersey Stormwater Best

Management Practices Manual (hereinafter, Stormwater BMP Manual), N.J.

Dep't of Envtl. Prot., 6-15 (Apr. 2004),

https://njstormwater.org/bmp_manual/NJ_SWBMP_6%20print.pdf. Square

Properties contended that by replacing Holyoke for Othello in the spreadsheet,

the annual recharge deficit was increased by approximately thirty-two percent,

which was acceptable because of the size of the proposed subsurface basin.

Princeton Hydro responded in March 2014, stating:

The GSR-32 analysis has been revised substituting the Othello soil unit with the Holyoke series (non-hydric).

A-3072-16T2 8 However, the revised analysis does not address our comment that due to the site's unique topography, all rainfall must either become groundwater recharge or evapotranspiration. As such the calculated 13 in/yr [recharge] is likely a gross underestimation of the annual recharge capacity of the property. It is herein reiterated that the NJGS documentation for the GSR- 32 analysis indicates that this application of the analysis is beyond the scope of the original GSR-32 method.

It also noted that Square Properties' assertion that the proposed size of the

infiltration basin as meeting the requirements of the GSR-32 analysis was

refuted in any event by the applicant's revised groundwater mounding

analysis.3

Specifically, Princeton Hydro contended the applicant's revised

mounding analysis used a hydraulic conductivity figure in its calculations

based on test pits, the location of which do not appear on the revised utility

plan. Further, the tested elevations did not correspond with the proposed

bottom elevation of the stormwater systems and the soil logs suggested the

facilities might be located "in fine grained material that is expected to have a

3 Square Properties' expert defined groundwater mounding as the increase in the groundwater elevation as a result of the infiltration from the proposed stormwater management facilities. The applicant performed a groundwater mounding analysis "to evaluate the groundwater mounding expected to result from an underground stormwater infiltration basin, two (2) dry wells, a bioretention swale, and a detention basin[,] . . . and to determine whether the increased groundwater elevations will adversely impact nearby underground structures, including basements."

A-3072-16T2 9 hydraulic conductivity level that is orders of magnitude lower than what is

assumed in [Square Properties'] analysis." Princeton Hydro also maintained

the "HydroCAD calculations use an infiltration rate that is not consistent with

the measured testing," suggesting the soil testing had not been conducted in

compliance with the Stormwater BMP Manual.

Finally, Princeton Hydro asserted the applicant's mounding analysis "has

(apparently unknowingly) determined that during the 100 year storm4 the

infiltration basin will fail due to mounding." Princeton Hydro asserted that

failure should also be expected in much smaller storms, and would result in

outflow from the site at rates "obviously . . . in excess of the current conditions

where there is no outflow observed due to the unique existing topography."

Princeton Hydro noted the revised plan did not reflect the impact of off -site

contributory drainage flowing onto the site from neighboring properties. It

concluded by noting that:

the site in its current condition is providing valuable water quality, recharge, and volume control benefits. The proposed design will eliminate this functionality and jeopardize the ability of the proposed system to

4 See Am. Cyanamid Co. v. State, Dep't of Envtl. Prot., 231 N.J. Super. 292, 299-300 (App. Div. 1989) (explaining "the 100-year storm is not based on any actual storm" but is instead "a theoretical storm constructed . . . using mathematical models" to mimic "a storm of a size that is expected to occur once a century or have a one percent chance of occurring in any one year" (citing N.J.A.C. 7:13-1.2)).

A-3072-16T2 10 perform these functions for runoff originating within the property boundaries as is further detailed in this letter.

Square Properties responded to the Department that Princeton Hydro

"agrees . . . that the infiltration basin meets the recharge requirements for the

site in accordance with GSR-32." As to Princeton Hydro's comment that the

GSR-32 methodology was not suitable for the site, Square Properties simply

reiterated its assertion that it relied on the recommendation in the instructions

for the Groundwater Recharge Spreadsheet to substitute soils when the soil

identified on site was not included in the database.

Princeton Hydro responded to those comments in July 2014, stating:

1. The annual recharge estimate is still low. Due to the site's unique closed depression topography all rainfall (~45 in/yr) must either become recharge or be evapotranspired by vegetation. As outlined in the GSR-32 documentation, a closed depression is out of the scope of the simple spreadsheet analysis. From a hydrologic perspective the represented 13 in/yr of recharge is too low. It is our strong professional opinion that this is a gross underestimate of existing conditions;

2. With respect to the mounding analysis, the applicant's professional now contends that the mound will intercept the basin bottom, as previously stated by Princeton Hydro, but insist[s] that it will not influence the operation of the basin. The mound is not shy of the basin bottom; it is three feet higher according to the calculations. It is Princeton Hydro's professional

A-3072-16T2 11 opinion that the mound will definitely impact the functioning of the proposed basin[.]

In a third point, Princeton Hydro noted the Stormwater Management Rule,

N.J.A.C. 7:8-5.3, and the Stormwater BMP Manual placed "great value on

natural systems that provide stormwater management services," and asserted

the applicant's proposed filling of the wetlands resource was not consistent

with the Rule.

In response, Square Properties provided the Department with yet another

Groundwater Recharge Spreadsheet in September 2014, this one substituting

"gravel pits," having an annual recharge of 15.9 inches, the highest annual

recharge specified in the spreadsheet reference table, for the Othello soil

identified on site. It did not respond to Princeton Hydro's assertion that all

forty-five inches of annual rainfall on the site, due to its "unique closed

depression topography," must either become recharge or be evapotranspired,

rendering the site outside "the scope of the simple spreadsheet analysis." As to

the comments regarding the mounding analysis, Square Properties asserted the

groundwater mound was limited to the area within the subsurface infiltration

basin and the average groundwater elevation is still below the bottom of the

basin.

The Department contacted Princeton Hydro within weeks seeking its

response. The Department's reviewing environmental engineer asked the

A-3072-16T2 12 engineer at Princeton Hydro for "a list of all outstanding issues that have not

been resolved." Noting "[w]e have had so many issues raised, commented,

debated, answered and re-commented on this application," he stated Princeton

Hydro's list "will be the basis going forward," which the Department would

review and then "make a decision on the application." Princeton Hydro

apologized for the delay in responding, said they would be "in touch," were

"doing [their] best to keep up with multiple demand[s]" and "[i]n the

meantime, our many prior review letters should be helpful for you to assess if

the application is compliant with N.J.A.C. 7:8."

Princeton Hydro did not make any further response while the permit

application was pending. Although Square Properties made further revisions

to their plans, which were reviewed and commented on by the Department,

neither entity copied SHOS or Princeton Hydro on any of their exchanges.

This notwithstanding the several prior letters in the Department's file from

SHOS's counsel, the most recent being from August 29, 2014, reminding of the

underlying settlement agreement and asking "that the Department, Applicant

and its consultants continue to provide the undersigned with copies of any and

all documents and materials contemporaneous with their submission/mailing."

The Department continued to communicate with Square Properties,

requiring it to account for off-site runoff, including from nearby homes, and

A-3072-16T2 13 submit an updated mounding analysis. The Department noted that mounded

water would partially rise into the infiltration basin at the peak of the 100 -year

storm, and that Princeton Hydro disputed the applicant's representation that the

basin would continue to function as designed "because only some cells in the

basin are affected." The Department also noted the mounding analysis showed

increased ground water elevations of .3 feet for nearby homes, which the

applicant contended was negligible as the existing ground water level was

more than seven feet below grade.

In December 2015, the Department's reviewing environmental engineer

completed a four-page summary engineering report of the application. The

report noted the heavily wooded site "collects off-site contributory drainage"

from two lots and several nearby homes, which "has been included in the

analysis." The report confirmed that there was no runoff leaving the site, as

"all stormwater runoff is either absorbed into the two wetland areas or

evaporates."

The report stated the applicant's submitted calculations and stormwater

report demonstrated that the dry wells, bio-retention swale and infiltration

basins together would "retain and infiltrate all storms up to and including th e

100-year storm, thus satisfying requirements under N.J.A.C. 7:8-5.4."

Although noting Princeton Hydro "questioned the suitability of NJGSR-32

A-3072-16T2 14 spreadsheet to model hydric soils onsite; applicant's engineer (RBS

Engineering) submitted NJGSR-32 spreadsheet analyzing the recharge using

both Othello and Holyoke soils to show that the proposed infiltration basin's

capacity exceeds the recharge deficit by a wide margin."

As to the groundwater mounding analysis, the report noted the

applicant's engineer's submitted calculations showing the maximum water

surface level in the basin for the 100-year storm is approximately one foot

below the emergency outlet elevation, precluding any discharge. And,

assuming the basements of nearby homes are no more than seven feet below

grade, the applicant's ground water mounding analysis showed that the highest,

estimated ground water elevations will be half-a-foot or more below those

basement floors.

The Department issued the GP6 permit in December 2015. SHOS timely

challenged the permit and requested a hearing. Relying on comments

presented to the Department by Princeton Hydro, SHOS reiterated its assertion

that application of the GSR-32 methodology was inappropriate and grossly

underestimated annual recharge. SHOS noted that Square Properties' engineer

confirmed "the site does not produce any surface runoff and . . . also collects

and provides direct volume control and groundwater recharge of runoff

generated from off-site areas." Notwithstanding, the applicant's groundwater

A-3072-16T2 15 recharge analysis "suggests that only thirty-percent (30%) of the on-site annual

rainfall, all of which is captured by the existing closed depressions will

become recharge." SHOS also maintained Square Properties' groundwater

recharge analysis was "in direct conflict with the documented understanding of

the site's hydrology" and its "mounding analysis fails to accurately reflect the

proposed design and intended function of the infiltration basin."

The Commissioner issued an order upholding the permit and denying

SHOS's request for a hearing, finding no statutory right or any particularized

property interest entitling SHOS to an adjudicatory-type hearing. As to the

merits, the Commissioner noted that under N.J.A.C. 7:8-5.4(a)(3), Square

Properties "was required to show that no runoff would leave the [p]roperty

post-construction." Addressing SHOS's contention that Square Properties

underestimated the pre-construction recharge volume because the property

experiences approximately forty-five inches of rain annually and Square

Properties calculated it recharges between "10 and 13 inches, depending on the

soil type selected for the areas of Othello soil," the Commissioner stated "[t]he

method Square Properties used to calculate recharge is expressly allowed by

the Department's rules, see N.J.A.C. 7:8-5.6(b), and SHOS has not provided an

alternative method for calculating a more appropriate pre-construction

recharge volume."

A-3072-16T2 16 The Commissioner further noted that "even if the recharge analysis . . .

underestimated the pre-construction recharge volume," Square Properties'

separate stormwater analysis "supports the conclusion that, since all

stormwater is retained onsite both pre- and post-construction, the appropriate

groundwater recharge volume is likewise maintained as required by N.J.A.C.

7:8-5.4(a)(2)(i)(1)." Thus, while concluding "the analysis used by Square

Properties was appropriate under these circumstances, the Commissioner found

the stormwater analysis provides additional support for the Department's

conclusion that the recharge requirement was satisfied."

Finally, the Commissioner found the agency's conclusion that Square

Properties had demonstrated the maximum water level during the 100-year

storm would be a foot below the emergency overflow drain, thus precluding

any discharge, was reasonable and supported by the record. The

Commissioner rejected SHOS's contention that Square Properties' own

mounding analysis demonstrated the infiltration basin would fail in a 100 -year

storm because groundwater would rise above the bottom of the basin resulting

in overflow. Instead, the Commissioner accepted Square Properties' assertion

that its mounding analysis "showed that groundwater would rise above only

A-3072-16T2 17 half of the twenty 'cells' [5] in the infiltration basin," leaving the other ten

functioning and keeping the groundwater level from reaching the emergency

overflow drain. SHOS appeals, reprising the arguments it made to the

Commissioner.

Our assessment of the Commissioner's decision is governed by a familiar

standard of review. "An appellate court reviews a final agency decision with

deference, and will not reverse the ultimate determination of an agency unless

the court concludes that it was 'arbitrary, capricious or unreasonable, or that it

lacked fair support in the evidence, or that it violated legislative policies'

expressed or implied in the act governing the agency." In re Freshwater

Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341 (App. Div. 2005)

(quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Our

traditional deference to an agency's "specialized expertise," In re Freshwater

Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004), "is even stronger when

the agency, like DEP in regard to wetlands, 'has been delegated discretion to

determine the specialized and technical procedures for its tasks,'" In re

Freshwater Wetlands Gen. Permits, 372 N.J. Super. 578, 593 (App. Div. 2004)

(quoting City of Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82 N.J.

530, 540 (1980)). Importantly, however, "[w]hile we must defer to the

5 Each "cell" is a 30-foot by 30-foot area of the property.

A-3072-16T2 18 agency's expertise, we need not surrender to it." N.J. Chapter of Nat'l Ass'n of

Indus. & Office Parks v. N.J. Dep't of Envtl. Prot., 241 N.J. Super. 145, 165

(App. Div. 1990) (finding there was "simply nothing in this record to indicate

why or how the DEP chose that [7:1] ratio for enhancement mitigation

purposes").

We also extend substantial deference to an agency's interpretation of its

own regulations, reasoning that "the agency that drafted and promulgated the

rule should know the meaning of that rule." In re Gen. Permit No. 16, 379 N.J.

Super. at 341-42 (quoting Essex Cty. Bd. of Taxation v. Twp. of Caldwell, 21

N.J. Tax 188, 197 (App. Div. 2003)). Of course, "an agency may not use its

power to interpret its own regulations as a means of amending those

regulations or adopting new regulations." Id. at 342 (quoting Venuti v. Cape

May Cty. Constr. Bd. of Appeals, 231 N.J. Super. 546, 554 (App. Div. 1989)).

And because a permitting decision by the Department is a quasi-judicial

determination, reasoned fact-finding is essential. In re Freshwater Wetlands

Gen. Permits, 372 N.J. Super. at 594. As Judge Conley explained in another

case challenging the issuance of a GP6 permit:

[N]o matter how great a deference the court is obliged to accord the administrative determination which it is being called upon to review, it has no capacity to review at all unless there is some kind of reasonable factual record developed by the

A-3072-16T2 19 administrative agency and the agency has stated its reasons grounded in that record for its action.

[Id. at 595 (alteration in original) (quoting State v. Atley, 157 N.J. Super. 157, 163 (App. Div. 1978)).]

Applying those standards here makes obvious to us the Department's

issuance of the GP6 permit to Square Properties should be vacated. We can

discern no reason for the Commissioner's conclusion that "[t]he method Square

Properties used to calculate recharge is expressly allowed by the Department's

rules." Indeed, the opposite would appear to be true. N.J.A.C. 7:8-5.6(b), the

regulation the Commissioner cited in support of that statement, provides only

that groundwater recharge "may" be calculated in accordance with the GSR-32

methodology.6 But as the record appears to make abundantly clear, and as the

agency itself concluded in 2013, the Geological Survey Report establishing the

GSR-32 methodology "precludes the use of GSR-32 in determining recharge"

for this site because of the presence of wetlands. See GSR-32 at 94.

6 Compare N.J.A.C. 7:8-5.6(a), which provides stormwater runoff "shall" be calculated in accordance with the USDA Natural Resources Conservation Service methodology, or the Rational Method for peak flow and the Modified Rational Method for hydrograph computations. The agency's choice of the permissive "may" for calculation of groundwater recharge in accordance with the GSR-32 methodology, plainly signals other alternatives, see N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 512 (App. Div. 2015) (noting the "bedrock assumption" that statutory language is not meaningless or unnecessary), presumably in recognition of the expressed limitations of the GSR-32 methodology.

A-3072-16T2 20 The Department, echoed by Square Properties, argues to us that because

the Geological Survey Report "says that hydric soils are frequently in

wetlands, have 'undetermined recharge value,' and are assigned a 'recharge

value of zero,'" 7 that "Square Properties thus proceeded as allowed by the duly-

promulgated GSR-32 Method." The Department, however, provides no

authority for that conclusion, and we can find none.

Nowhere in the Geological Survey Report does it state that the GSR-32

methodology can be used to calculate the recharge value of wetlands simply by

assigning them a recharge value of zero as the Department asserts. Rather, the

7 The Department cites only the soil matrix in Appendix 5 of the Geological Survey Report, "Recharge Factors and Constants by Soil Series," which assigns a zero recharge factor for hydric soils such as Othello. It does not address the explanation provided in Appendix 7, "Development and Application of the Soil-Water Budget to the Method," for why those zero values for hydric soils were included in the Appendix 5 soil matrix, namely, that "[t]o include all 252 soil units [imported from the Soil Conservation Service's New Jersey soils database] in appendix 5, R-factor and R-constant values that yield zero-recharge were also included in appendix 5 for hydric soils (75)" not among the 159 soil units simulated. It also does not address Appendix 7's statement that hydric soils were assigned a recharge value of zero for use in Appendices 3 ("Recharge Soil Group by Soil Unit"), 4 ("Recharge Constants and Factors by Recharge Soil Group") and 5, but eliminated from the list of those slated for recharge analysis. Thus review of that explanation and those appendices would appear to make clear that hydric soils were assigned a zero value only to permit their inclusion in the list of all known New Jersey soils included in the soil databases, i.e., soil groups, units and series tables, not for actual use in calculating recharge using the GSR-32 groundwater recharge methodology, which the Report makes clear cannot be used to calculate the recharge value of wetlands.

A-3072-16T2 21 Report devotes an entire appendix to explaining why "the recharge or

discharge status of wetlands does not depend on the factors used in the

recharge simulations" forming the basis of the GSR-32 method, thus

"preclud[ing] the use of the model to quantify any recharge they may supply."

Far from providing, as respondents assert, that the GSR-32 model can reliably

compute the recharge value of wetlands, the Report, adopted at N.J.A.C. 7:8 -

5.6(b), appears to explain why the GSR-32 methodology would be unreliable

and its use thus precluded for that task. Nowhere does the Geological Survey

Report suggest how the GSR-32 methodology might be modified to calculate

the recharge values of wetlands. Instead, the Report states "[o]ther modeling

methods exist that can simulate recharge from surface water." GSR-32 at 94.

Further, the Commissioner does not explain why the agency concluded

in 2013 that "[t]he presence of hydric soils (Othello) onsite precludes the use

of GSR-32 in determining recharge," yet approved the applicant's use of the

method when it issued the GP6 permit in 2015. The December 2015 four-page

engineering summary report, on which the Commissioner relied, notes SHOS's

objection to use of the GSR-32 methodology, but does not explain why its use

is permitted by the regulations. Instead, the report merely states that the

applicant submitted a GSR-32 spreadsheet "analyzing the recharge using both

A-3072-16T2 22 Othello and Holyoke soils to show that the proposed infiltration basin's

In its brief on appeal, the Department concedes that SHOS's assertion

"that determining if wetlands are recharge or discharge areas, or neither, is

beyond the scope of the GSR-32 method . . . . is literally accurate." It insists,

however, that SHOS "misses the point that Square Properties agreed to

substitute soil, pursuant to the [Stormwater BMP Manual]."

The Stormwater BMP Manual instructs users completing the Microsoft

Excel-based Annual Recharge worksheet to estimate recharge under both pre-

and post-development site conditions that

[a]t the time of the [New Jersey Groundwater Recharge Spreadsheet's] development, all soil series mapped in New Jersey were included in its databases. Nevertheless, instances may arise where a soil series identified at a land development site has not been included. In such instances, the user should select a similar soil series from the program's database.

[Stormwater BMP Manual at 6-15.]

The Manual makes plain, however, that the spreadsheet is based on the

Geological Survey Report and "[a]ll pertinent GSR-32 databases and

computational algorithms have been incorporated," and thus the spreadsheet

"is governed, in part, by the assumptions and limitations of GSR-32." Id. at 6-

5. Accordingly, if the presence of wetlands on site would preclude use of the

A-3072-16T2 23 GSR-32 methodology, use of the Groundwater Recharge Spreadsheet would

appear likewise precluded. Neither the Commissioner in his decision nor the

Department in its brief explains how the Stormwater BMP Manual's instruction

to users to select a similar soil series from the program's database when the

identified soil is not included permits an applicant to rely on the GSR-32

methodology to calculate the recharge value of wetlands on a site. 8 But see In

re Petition of Elizabethtown Water Co., 107 N.J. 440, 460 (1987) (stating

"grounds upon which an administrative order must be judged are those upon

which the record discloses that the action was based" and not upon an after -

the-fact explanation) (quoting Sec. & Exch. Comm'n v. Chenery Corp., 318

U.S. 80, 87 (1943)). See also In re N.J.A.C. 7:1B-1.1 Et Seq., 431 N.J. Super.

100, 139 (App. Div. 2013) (stating "[a]n appellate brief is no place for an

agency to try and rehabilitate [the agency's] actions").

8 In support of its substitution of Holyoke for Othello in the Groundwater Recharge Spreadsheet, Square Properties noted the Geological Survey Report "defin[ing] methods for evaluating groundwater recharge in New Jersey . . . does not establish recharge rates for approximately 75 different hydric soils," and the Stormwater BMP Manual "recommends the user select an alternate but similar soil type in the spreadsheet analysis when the identified soil type is not included." As we noted, the Manual states "all soil series mapped in New Jersey" at the time the Spreadsheet was developed were included in its databases. Stormwater BMP Manual at 6-15. It would be difficult to conclude the Manual intends by that remark to instruct the user to substitute a soil typ e deliberately not mapped as part of the GSR-32 methodology for use in the spreadsheet, especially in light of its incorporation of "[a]ll pertinent GSR -32 databases and computational algorithms." Id. at 6-5.

A-3072-16T2 24 Although the Commissioner concluded that even if the recharge analysis

"underestimated the pre-construction recharge volume," Square Properties'

separate stormwater analysis "further supports the conclusion that, since all

stormwater is retained onsite both pre- and post-construction, the appropriate

groundwater recharge volume is likewise maintained as required by N.J.A.C.

7:8-5.4(a)(2)(i)(1)." As underestimating pre-construction recharge volume

would consequently appear to result in underestimating the potential post -

construction deficit, and thus whether the project can meet required peak flow

rate reduction consistent with containing all stormwater on site post -

construction, we do not follow the Commissioner's logic. Underestimating

pre-construction recharge volume would appear to render all the other

calculations that depend on its accuracy, including the groundwater mounding

analysis, suspect. A stormwater analysis based on underestimated existing

conditions would appear likely to compound the error, not counteract it.

A state agency rendering a final agency decision must explain the

specific reasons for its determination. See In re Freshwater Wetlands Gen.

Permits, 372 N.J. Super. at 580. We cannot give deference to an agency's

factfinding unless we have "confidence that there has been a careful

consideration of the facts in issue and appropriate findings addressing the

critical issues in dispute." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33

A-3072-16T2 25 (App. Div. 2001). The Supreme Court recently addressed the issue of

administrative fact-finding, stating that "[a] lack of fair support is

demonstrated by the decisionmaker's 'failure to consider all the evidence in a

record,' or the 'complete misperception of the facts submitted in a record.'" US

Masters Residential Prop. (USA) Fund v. N.J. Dep't of Envtl. Prot., ___ N.J.

___, ___ (2019) (slip op. at 29) (citations omitted).

"The requirement of findings is far from a technicality and is a matter of

substance. It . . . is a fundamental of fair play that an administrative judgment

express a reasoned conclusion. A conclusion requires evidence to support it

and findings of appropriate definiteness to express it." N.J. Bell Tel. Co. v.

Commc'ns Workers of Am., 5 N.J. 354, 375 (1950) (citation omitted).

"[F]indings of fact [must] be sufficiently specific under the circumstances of

the particular case to enable the reviewing court to intelligently review an

administrative decision and ascertain if the facts upon which the order is based

afford a reasonable basis for such order." Id. at 377. "When an agency's

decision is not accompanied by the necessary findings of fact, the usual

remedy is to remand the matter to the agency to correct the deficiency." In re

Issuance of a Permit by Dep't of Envtl. Prot. to Ciba-Geigy Corp., 120 N.J.

164, 173 (1990); see In re State & Sch. Emps.' Health Benefits Comm'ns'

Implementation of I/M/O Yucht, 233 N.J. 267, 280 (2018).

A-3072-16T2 26 Because it is not possible on this record to determine why the

Commissioner concluded Square Properties' use of the GSR-32 methodology

to calculate groundwater recharge was consonant with the Department's

regulations, we vacate the permit and remand for further fact-finding. In doing

so, we note the Commissioner's failure to also address whether site specific

factors, in addition to the expressed limitations of the GSR-32 model, required

the applicant to use a different model to calculate recharge. 9 If it is the

Department's position that the GSR-32 methodology can be used to calculate

groundwater recharge on a site where wetlands are present, notwithstanding

the Geological Survey Report's statement precluding use of the GSR-32

methodology to quantify recharge of wetlands, it should also address why that

conclusion is permissible in the absence of formal rulemaking. 10 See In re

Authorization for Freshwater Wetlands Statewide Gen. Permit 6, 433 N.J.

Super. 385, 413-15 (App. Div. 2013).

9 Although the Commissioner in his decision stated that SHOS had not "provided an alternative method for calculating a more appropriate pre - construction recharge volume," such was not its burden. See Tanurb v. N.J. Dep't of Envtl. Prot., 363 N.J. Super. 492, 503 (App. Div. 2008). SHOS, however, insists in its brief that it suggested a water-budget for the site would be an appropriate alternative. 10 We note in this regard that the Department in its brief did not respond to SHOS's allegation that the Department has never previously permitted use of the GSR-32 methodology to calculate groundwater recharge in such cases.

A-3072-16T2 27 The Commissioner also fails to explain adequately his conclusion that

the applicant's mounding analysis satisfactorily demonstrated compliance with

the runoff quantity requirements under N.J.A.C. 7:8-5.4(a)(3), in light of

Princeton Hydro's calculations showing the infiltration basis would fail in a

100-year storm. Although we have no hesitation in finding SHOS has no right

to an adjudicatory hearing, we note that whether a third-party objector's due

process rights may be satisfied by an agency's review process depends in

significant part on the objector's ability to participate in the process . See In re

Freshwater Wetlands Statewide Gen. Permits, 185 N.J. at 471-74.

We have neither the need nor the ability to resolve SHOS's claim that it

was shut out of the agency review process in 2014. We note only that SHOS

provided extensive comments through several years and that the permit was

issued without a number of its well-documented concerns being substantively

addressed. SHOS had a right to submit its arguments, views and data relevant

to the permit to the Department through Princeton Hydro. See N.J.S.A.

52:14B-3.1(a). The Department likewise had an obligation to consider the

submissions and "to make findings of fact and conclusions of law regarding

those comments." Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 401-02

(App. Div. 2006); see N.J.S.A. 13:9B-9. In light of our remand for further

fact-finding and SHOS's inability to comment on the applicant's last plan

A-3072-16T2 28 revisions, we recommend the record be re-opened to permit SHOS to provide

its comments on those plans to the agency.

We vacate the issuance of the GP6 permit and remand for further fact-

finding consistent with this opinion. We affirm the Commissioner's decision

that SHOS is not entitled to an adjudicatory hearing. We do not retain

jurisdiction.

Affirmed in part, reversed in part.

A-3072-16T2 29