Opinion
DOCKET NO. A-4357-12T1
04-21-2015
LEVIN MANAGEMENT, Petitioner-Respondent, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, LAND USE REGULATION PROGRAM, Respondent-Respondent. SAVE HAMILTON OPEN SPACE, Intervenor-Appellant.
Shawn M. LaTourette argued the cause for appellant (Lieberman & Blecher P.C., attorneys; Stuart J. Lieberman, of counsel and on the briefs; Mr. LaTourette and David J. Miller, on the briefs). Bruce Samuels argued the cause for respondent Levin Management Corporation (Frizell & Samuels, attorneys; Mr. Samuels, of counsel and on the brief). Mark Collier, Deputy Attorney General, argued the cause for respondent Department of Environmental Protection (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Collier and Alison M. Reynolds, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the New Jersey Department of Environmental Protection, File No. 1103-02-0022.1. Shawn M. LaTourette argued the cause for appellant (Lieberman & Blecher P.C., attorneys; Stuart J. Lieberman, of counsel and on the briefs; Mr. LaTourette and David J. Miller, on the briefs). Bruce Samuels argued the cause for respondent Levin Management Corporation (Frizell & Samuels, attorneys; Mr. Samuels, of counsel and on the brief). Mark Collier, Deputy Attorney General, argued the cause for respondent Department of Environmental Protection (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Collier and Alison M. Reynolds, Deputy Attorney General, on the brief). PER CURIAM
Intervenor Save Hamilton Open Space (Save Hamilton) appeals the final administrative action of respondent Department of Environmental Protection (Department) in settling the captioned matter without giving it the opportunity to review the proposed settlement and comment on it pursuant to N.J.A.C. 7:7A-1.7(h). We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Petitioner Levin Management Corporation (Levin) seeks to build a 201,000 square foot retail shopping center on an undeveloped 29.9-acre parcel of land located at the corner of Nottingham Way (New Jersey State Highway Route 33) and Klockner Road in Hamilton Township. In October 2002, Levin applied to the Department's Land Use Regulation Program for a letter of interpretation (LOI) to verify the existence, location, and classification of freshwater wetlands and waters on the property. The Department issued an LOI in August 2003, confirming the presence of wetlands of both "[i]ntermediate and [o]rdinary [r]esource [v]alues," comprising less than one acre combined. The intermediate values required a transition area of fifty feet, while the ordinary values did not require a transition area. N.J.A.C. 7:7A-2.5(c), (e).
N.J.A.C. 7:7A-1.4 defines a "[t]ransition area" as "an area of upland adjacent to a freshwater wetland which minimizes adverse impacts on the wetland or serves as an integral component of the wetlands ecosystem."
In November, Levin prepared a site plan for the project and applied for a freshwater wetlands statewide general permit 6, N.J.A.C. 7:7A-5.6, to fill an isolated wetland of 4125 square feet (0.095 acres), consisting of an old house foundation that is flooded by a leaking Hamilton Township water main. Levin also applied for a freshwater wetlands statewide general permit 7, N.J.A.C. 7:7A-5.7, to fill and grade 19,590 square feet (0.45 acres) of parallel swales of human construction that drain the east and north portion of the property.
N.J.A.C. 7:7A-1.4 defines a "[s]wale" as
a linear topographic depression, either naturally occurring or of human construction, which meets all of the following criteria:
1. It is surrounded by uplands except where runoff flows out of it[;]
i. A depression is not a swale if it is located within a larger wetland or if it is merely an undulation in a wetland boundary;
ii. A depression is not a swale if it is naturally occurring, contains palustrine forest, and is located within an upland forest;
2. It has formed or was constructed in uplands to convey surface water runoff from the surrounding upland areas;
3. It drains less than 50 acres;
4. It is not a seep or spring;
5. It is not an intermittent stream;
6. It has no definite bed and banks; and
7. At its widest point, it is generally 50 feet wide or narrower.
On February 2, 2004, the Department's revised Stormwater Management Rules (Stormwater Rules), N.J.A.C. 7:8-1.1 to -6.3, became effective. 36 N.J.R. 670(a), 781(a) (Feb. 2, 2004); In re Stormwater Mgmt. Rules, 384 N.J. Super. 451, 455 (App. Div.), certif. denied, 188 N.J. 489 (2006). The Department classified the project as a "major development" pursuant to the Stormwater Rules because it involved "increasing impervious surface by one-quarter acre or more," specifically by adding 0.27 acres of impervious cover. N.J.A.C. 7:8-1.2. Pursuant to N.J.A.C. 7:7A-4.3(b)(10) of the Freshwater Wetlands Protection Act Rules (Freshwater Rules), N.J.A.C. 7:7A-1.1 to -17.1, if any activities that require a general permit "meet the definition of 'major development' . . ., then the project of which the activities are a part shall comply in its entirety with the [Stormwater Rules]." Therefore, the entire project became subject to the Stormwater Rules.
In June 2004, Bohler Engineering, P.C. (Bohler), one of Levin's engineers, prepared a fourth revision to the site plan in response to the Department's comments concerning stormwater management measures related to groundwater recharge. The plan already included a number of structural "Best Management Practices" (structural BMPs) in the form of infiltration basins to manage stormwater. The Department requested that grading and drainage plans be changed to include nonstructural "Best Management Practices" (nonstructural BMPs) to assist with groundwater recharge and provide water quality treatment.
Under the Stormwater Rules, a "[S]tormwater management measure" is defined as "any structural or nonstructural strategy, practice, technology, process, program, or other method intended to control or reduce stormwater runoff and associated pollutants, or to induce or control the infiltration or groundwater recharge of stormwater or to eliminate illicit or illegal nonstormwater discharges into stormwater conveyances." N.J.A.C. 7:8-1.2.
"Recharge" is defined as "the amount of water from precipitation that infiltrates into the ground and is not evapotranspired." N.J.A.C. 7:8-1.2.
Bohler submitted the fourth revision on June 29. It added landscaped island depressions in the shopping center's parking lot, which could fill with six inches of water during a storm event, and depression areas around the perimeter of the site.
In December, Peter DeMeo, the Department's reviewing engineer, recommended approval of "the grading, drainage, and utility plans and the construction detail sheets" for the project and issued a review of the project's stormwater management facilities. The report noted that the proposal included structural BMPs, in the form of four infiltration basins, and nonstructural BMPs. In accordance with the Stormwater Rules, the report also addressed peak flow rate attenuation, water quality, and recharge under the proposed plan. Concerning peak flow, the report concluded that "the basins will attenuate peak flow rates in accordance with the regulations," which required a fifty percent reduction in the existing 2-year peak flow rate, a seventy-five percent reduction in the 10-year peak flow rate, and an eighty percent reduction in the 100-year peak flow rate. The report determined that the proposed infiltration basins met the water quality standard, which required the removal of eighty percent of total suspended solids (TSS) from a storm producing 1.25 inches of rain in two hours. Concerning groundwater recharge, the report concluded that the proposal complied by recharging the runoff volume through its use of infiltration basins and nonstructural BMPs.
The recommendation also included three conditions:
1. The applicant must make specific arrangements to ensure the continuous maintenance and efficient operation of all proposed stormwater BMP[]s on site. This includes, but is not limited to, the cleaning and inspection of all structural and nonstructural BMP[]s in accordance with the New Jersey Stormwater Best Management Practices Manual, the cleaning and inspection of all stormwater inlets at least twice a year and after every major storm, and the continuous implementation of appropriate soil conservation practices within any grassed swales, stormwater outfall structures and other similar appurtenances throughout the site in order to limit soil erosion and sediment discharge into adjacent waterways.
2. The recharge areas and nonstructural stormwater BMP[]s must be protected by a deed restriction. Prior to site preparation, the permitee shall submit a draft copy of the required conservation restriction for review and written approval of the Program. Upon written approval of the draft, a final conservation restriction shall be recorded with the property deed in the office of the County Clerk, and proof of recordation shall be submitted to the Program. No site preparation or construction authorized by this permit shall commence until the approved conservation restriction is recorded with the property deed in the office of the County Clerk.
3. The applicant must certify that any possible mounding of groundwater [] [w]ill not result in adverse impacts to nearby roadways or structures. No construction may
begin until such certification is submitted to the Department.
[(Emphasis omitted).]
On December 21, the Department granted Levin's application for both permits. It also authorized an "access transition area waiver," pursuant to N.J.A.C. 7:7A-6.1(a)(6). However, the approval imposed ten general and two special conditions. The two special conditions were:
1. The total amount of disturbance associated with this authorization shall not exceed 0.54 acres (23,715 [square feet]).
2. During construction all excavation must be adequately monitored for presence of acid-producing deposits. If any such deposits are encountered, the mitigation and disposal standards outlined in Section 3.6 of the "Stream Encroachment Technical Manual" must be implemented.
[(Emphasis omitted).]
On April 21, 2005, the Department issued a correction to its December authorization to add three additional conditions, which were recommended in its review, as special conditions three, four, and five. Specifically, Levin must monitor and maintain all of the proposed stormwater BMPs (special condition three), must protect all recharge areas and nonstructural BMPs by a deed restriction (special condition four), and must certify that any groundwater mounding will not adversely impact surrounding structures or roadways (special condition five).
Levin explains that "[t]he three conditions were apparently inadvertently omitted from the December 21, 2004 [a]uthorization and were discovered after [the Department] received comments from third parties."
Levin appealed the corrected authorization in May and requested a hearing. Levin alleged that the corrected authorization was improper because:
(1) [The Department] did not follow the proper procedures for a "Corrected Authorization[.]"
(2) [The Department] failed to provide [Levin] notice and an opportunity to be heard.
(3) [The Department] improperly received and improperly acted upon third party comment.
(4) [The Department] considered information already available to it at the time of the original permit decision.
(5) Third party comments received and acted upon by [the Department] were out of time.
(6) Special Condition 5 is a standardless and vague requirement; is not authorized by law and subjects [Levin] to arbitrary action by the [Department].
(7) [The Department] failed to state any reasons for the "Corrected Authorization[.]"
In August, the case was transferred to the Office of Administrative Law (OAL) as a contested case, and the parties commenced discovery. Levin subsequently agreed to special conditions three and four, but continued to dispute special condition five, which required a certification regarding the potential for mounding of groundwater.
In November 2006, Levin provided the Department with a "Groundwater Mounding Analysis" (Mounding Analysis) for the stormwater basins, which had been prepared by Whitestone Associates, Inc. (Whitestone), as well as a certification letter from Bohler.
In a February 2007 letter between counsel, the Department outlined its concerns about the Mounding Analysis. First, the Mounding Analysis was based on a 25-year storm event, which, according to the Department, was not a sufficiently large storm on which to model the groundwater mounding. Consequently, the Department requested an examination of mounding during a 100-year storm event. Second, the analysis employed the Sunada methodology, which had not been discussed during settlement talks and with which the Department was not familiar. The Department requested information regarding the basis of the Sunada methodology. Third, the Department asked for an explanation of how Whitestone arrived at its calculations for "the recharge rate, transmissivity, and specific yield, all of which appear[ed] to be variables used in the Sunada method." Lastly, the Department asked whether the calculated mounds would be "lower than adjacent development, i.e. basements or roadways."
In April, Whitestone addressed the first three concerns in a letter to Levin. It noted that the site plan had recently been revised, making Basins 1 and 4 detention basins, while Basins 2 and 3 remained infiltration basins. Basins 1 and 4 would be clay lined to prevent infiltration and would connect to an existing sewer system to protect adjacent residential properties to the north from the effects of mounding. On April 27, Bohler prepared a certification addressing the Department's fourth concern. That same day, Bohler forwarded its certification and Whitestone's letter to the Department. Bohler also submitted a revised Drainage Report and revised Grading and Drainage Plan Sheets.
On January 10, 2008, based in part on Bohler's and Whitestone's revised submissions, the Department entered into a stipulation of settlement with Levin, which included a dismissal of Levin's administrative appeal. The following documents were attached to the settlement: the grant of Levin's permit application; the amended grant; and the grading and drainage plans. The Department was satisfied that Levin had amended its plan to conform to the applicable wetlands and stormwater regulations. In the stipulation, the Department stated that it would issue a notice of intent to settle the permit appeal, which is required by N.J.A.C. 7:7A-1.7(h). Levin was responsible for notifying all persons who had commented on the application. The notice was to provide that, if "no significant public comments" were received within ten days of the date of the notice, Levin would be "authorized to start proposed site disturbance, pre-construction earth movement or improvements to the [p]roperty" in accordance with its May 30, 2007 plan.
The Department published the notice of intent to settle in its bulletin on January 30, 2008. Save Hamilton retained John Miller, a professional engineer with Princeton Hydro, LLC (Princeton Hydro), to review the stipulation of settlement. In accordance with the instructions on the notice, Miller contacted the Department to request a copy of the stipulation. Over the next two months, Miller repeatedly contacted the Department to obtain a copy, but no copy was provided. In addition, Miller was not given an opportunity to review the agreement at the Department's offices.
On May 7, the Department notified the interested parties, including Miller, that the proposed settlement agreement was final. On June 12, Save Hamilton sent a letter to the Commissioner, attaching documentation of Miller's communications seeking a copy of the proposed settlement. The letter asserted that Save Hamilton was unable to comment on the proposed settlement because Miller was never provided with it. Save Hamilton sought a stay of the approval of settlement, absent which it would file an appeal on the grounds that it was deprived of its legal right to review and comment.
On June 19, having received no response, Save Hamilton appealed the final settlement, arguing that (1) it had a right to intervene and have its comments considered before the Department issued a final decision; (2) that the failure to provide Save Hamilton with a copy of the proposed settlement rendered the final decision arbitrary, capricious, and unreasonable; (3) that the incorrect statement that Miller commented on the proposal rendered the final decision arbitrary, capricious, and unreasonable; and (4) that the Department violated Save Hamilton's due process rights by failing to provide it with a copy of the proposed settlement despite numerous requests.
On September 8, following an Appellate Division pre-argument settlement conference, the parties agreed that Save Hamilton had a right to intervene and comment on the stipulation of settlement. As a result, we dismissed the appeal, remanding to the Department with the following conditions:
The [Department] . . . shall immediately provide a true copy of the STIPULATION OF
SETTLEMENT to counsel for Levin Management Corporation who will check its validity promptly and then forward the STIPULATION OF SETTLEMENT to counsel for [Save Hamilton]. Counsel for [Save Hamilton] shall immediately provide a valid copy of the STIPULATION OF SETTLEMENT to its forensic expert, John Miller, for evaluation. Miller shall on or before October 15, 2008 provide his comments on the STIPULATION OF SETTLEMENT to the [Department] . . . . [The Department] shall then consider Miller's comments and issue its final decision by December 8, 2008.The final decision date was subsequently changed to January 26, 2009.
Miller performed a review of the technical documents received from the Department and submitted comments in October 2008. The review focused on the recharge design and its compliance with the Stormwater Rules regarding water quality and recharge. Miller noted "deficiencies and contradictions" in the materials. First, the Drainage Report listed Basins 2 and 3 as infiltration basins, while the Grading and Drainage Plan noted that Basins 2 and 3 were to be clay lined. Second, the Plan listed the bottoms of Basins 2 and 3 as 53.0 feet above sea level, but its infiltration calculations were based on an elevation of 52.5. Third, the Plan listed the bottom of Basin 1 as 53.0 feet above sea level, but its detention calculations were based on an elevation of 52.5. Fourth, the Drainage Report did not document how the exfiltration rate was calculated and was inaccurate with respect to Basins 2 and 3 because they are clay lined according to the Plan. Fifth, the BMP area variable used in the Annual Groundwater Recharge Analysis was incorrect and the Analysis did not account for Basins 2 and 3 being clay lined in the Plan. Sixth, the Drainage Report did not analyze nonstructural BMPs scattered around the site or test their soil. Seventh, the Department's request in its February 6, 2007 letter, namely, that Levin "identify, with supporting information whether the elevation of the calculated mounds [were] lower than adjacent development, i.e. basements or roadways," was not properly addressed by Bohler. Rather, Bohler's April 27, 2007 letter did not provide any basis for its determination that the Whitestone Report's findings supported the conclusion that any mounding would not adversely impact adjacent development. Lastly, Miller had difficulty determining whether the design would meet water quality requirements because all basins were to be clay lined and the Drainage Report failed to investigate the ability of the nonstructural BMPs scattered throughout the site to meet the eighty percent removal rate of suspended solids.
On December 19, Bohler provided the Department with a response to Miller's comments. First, Bohler clarified that Basins 1 and 4 would be clay lined and Basins 2 and 3 would serve as infiltration basins. Although the Drainage Report was correct in this regard, the Plan Sheet was not. Second, the bottoms of Basins 2 and 3 are at 52.5 feet above sea level, which is the number used in the infiltration report. Third, the bottom of Basin 1 is at elevation 52.5. Fourth, the laboratory permeability results for Basins 2 and 3 were included in the Drainage Plan. Fifth, Basin 2 meets the groundwater recharge requirement and the calculations are correct. Sixth, the nonstructural BMPs scattered throughout the site did not have to be tested because that is only required for infiltration basins, not vegetative swales. Seventh, Bohler reiterated its belief that the Whitestone Analysis supported the conclusion that the project will not adversely impact surrounding road networks. Finally, the infiltration basins on the site meet the eighty percent removal rate of suspended solids and the scattered depressions through the site will link to the infiltration basins.
On January 26, 2009, the Department issued its final decision letter to Levin. It stated, in part, as follows:
Based on [our] review, the Department has determined some of the comments to be significant. While the Department is already in receipt of revised plans submitted on behalf of your client which the Department feels may adequately address the concerns raised in these comments, these revised plans would need to be incorporated
into a revised agreement and revising the agreement will necessitate another opportunity for the public to comment.
Therefore, the Department has decided that it cannot enter into the underlying settlement agreement as currently drafted. A new agreement will need to be worked out and made available for public comment.
On February 5, Whitestone revised its Mounding Analysis. On March 10, Bohler sent Whitestone's revised analysis to the Department and addressed the Department's concerns regarding the effect of groundwater mounding on adjacent roadways and basements, which was raised in the Department's February 2007 letter. In support of its claim that the project would not adversely impact adjacent developments, Bohler noted that permeability testing revealed that the proposed stormwater management system complied with "the Hamilton Township Ordinance and the NJDEP Stormwater Regulations." Likewise, the results of the revised Mounding Analysis supported the conclusion that the mounding identified in Basins 2 and 3 would not adversely impact the surrounding road networks. In addition, Basins 1 and 4, which are adjacent to residential neighborhoods, were designed "to prevent infiltration, and potential mounding that may have an adverse [e]ffect on the surrounding basements."
In April 2010, Levin and the Department entered into another stipulation of settlement and dismissal. The Department noted that, in its opinion, Levin's revised plans, submitted in response to concerns raised by public comment, "conform[ed] to the applicable freshwater wetlands and stormwater management regulations." The revised plans included:
(1) Drainage Report prepared by Bohler Engineering, [d]ated November 2003 revised through December 2007.
(2) Preliminary and Final Site Plan drawings[,] dated November 25, 2003 revised through May 19, 2008, revision 16, prepared by Bohler Engineering, consisting of 42 sheets.
(3) Groundwater Mounding Analysis at Revised Stormwater Basins, dated April 26, 2007, [r]evised February 5, 2009 prepared by Whitestone Associates, Inc.
(4) Certification Letter[,] dated March 10, 2009 [f]rom Bohler Engineering to [the Department].
(5) Boundary and Topographic Survey prepared by Control Point Associates, Inc.[,] dated June 3, 2008 consisting of 2 sheets with raised [s]eal signed by John P. Lynch, New Jersey Professional Land Surveyor.
(6) Operations and Maintenance Manual for Stormwater Management systems prepared by Bohler Engineering[,] dated March 2004, [l]ast [r]evised February 2009.
(7) Report of Geotechnical Investigation [p]repared by Whitestone Associates, Inc., [d]ated November 25, 2003, revised February 5, 2009.
(8) Deed Restricted Area Plan prepared by Bohler Engineering dated 02/05/09.
(9) Grant of Conservation Restriction/Easement (Stormwater Management Strategies Protection Area) [The Department] file No.: 1103-02-0022.1.The stipulation provided that the Department would again issue a notice of intent to settle. The Department expressed its intention to "issue a [l]etter of [c]ondition [c]ompliance to [Levin]" upon receipt of item nine, "provided [that] no significant public comments [were] received within the deadline expressed in the [n]otice of [i]ntent to [s]ettle."
On June 23, Levin served copies of the notice of intent to settle upon commenting parties, including Save Hamilton. The notice was also published in the Department Bulletin on the same day. The notice provided that comments on the proposed settlement were to be submitted in writing to the Department within thirty days.
On July 22, the Department granted Save Hamilton's request for a brief extension to submit comments. On July 26, Miller submitted comments on Levin's revised plans. Based on his review of the revised submission's compliance with the Stormwater Rules, "specifically[,] nonstructural stormwater management, peak rate reduction, infiltration[,] and water quality," Miller concluded that there were "significant deficiencies" in the revised plan. We note that Miller's comments included many issues not previously raised.
In the area of nonstructural stormwater management, Miller opined that the design fails to incorporate any "nonstructural/[l]ow [i]mpact [d]evelopment strategies" as a means of meeting the groundwater recharge, stormwater runoff quantity, and runoff quality standards, although N.J.A.C. 7:8-5.3(a) requires that such designs "shall be" incorporated "[t]o the maximum extent practicable." N.J.A.C. 7:8-5.3(a). According to Miller, the site design does not incorporate any of the nonstructural stormwater management strategies listed in N.J.A.C. 7:8-5.3(b)(1) to -(b)(9). The design does not "[p]rotect areas that provide water quality benefits," under N.J.A.C. 7:8-5.3(b)(1), because it involves the filling of the existing wetlands. Levin's plan does not minimize or break up the flow of water over impervious surfaces, pursuant to N.J.A.C. 7:8-5.3(b)(2); instead, "all impervious areas are connected." The design "removes virtually all of the natural drainage features and vegetation," contrary to N.J.A.C. 7:8-5.3(b)(3). The design also does not reduce the time it takes for water to travel from the furthest point of the drainage area to the point of interest, as described in N.J.A.C. 7:8-5.3(b)(4). The development does not "[m]inimize land disturbance" under N.J.A.C. 7:8-5.3(b)(5) because "the site has been maximized[,] requiring the removal of tree masses and existing wetlands." The use of light equipment in the area of the infiltration basins is insufficient to "[m]inimize soil compaction," as required by N.J.A.C. 7:8-5.3(b)(6). The development will eliminate the native trees and vegetation, contrary to N.J.A.C. 7:8-5.3(b)(7). The design does not propose any "vegetated open-channel conveyance systems," as described in N.J.A.C. 7:8-5.3(b)(8); instead, "all areas of the site drain over pavement into basins." The site also does not contain any area or features designed to provide nonstructural treatment of runoff for pollutants, trash, or debris, contrary to N.J.A.C. 7:8-5.3(b)(9).
Concerning peak rate reduction, Miller identified nine problem areas: (1) the infiltration and detention basin design summary "assumes a free discharge, which is not consistent with the plans and is not proper modeling"; (2) the proposed storm piping is not sloped; (3) the use of an outdated soil survey for the site; (4) the use of a runoff curve number that combined the runoff rates of pervious and impervious surfaces, contrary to N.J.A.C. 7:8-5.6(a)(4); (5) the absence of dewatering calculations for the infiltration basins; (6) outdated rainfall totals for the 2-year, 10-year, 25-year, and 100-year storm analyses; (7) a flawed calculation of the emergency spillway routing; (8) potential problems with the outlet structure components for the infiltration basins; and (9) the absence of an analysis of the municipal sewer system's capacity for handling the runoff from the detention basins.
Regarding water quality, Miller noted that Levin does not address how the design complies with nutrient removal to the "maximum extent feasible," as required by N.J.A.C. 7:8-5.5(e) of the Stormwater Rules. The engineer also does not address the possibility of stormwater contamination from a gas station's lawn, which is included in the drainage area. Further, Miller recommended that a water treatment device be installed in a pipe running to Hamilton Lakes because it is unclear if runoff from the property will drain into Hamilton Lakes.
With respect to infiltration and recharge, Miller, again, stated that Levin failed to adequately resolve the issue of "[t]he effect of groundwater mounding on adjacent developments, such as roadways and basements," a condition imposed by the Department and addressed in N.J.A.C. 7:8-5.4(a)(2)(iv). Bohler's March 10, 2009 letter is deficient in that regard. In addition, Whitestone only tested infiltration of Basin 3, not 4. Likewise, three test pits show that the basins are not separated from the seasonal high groundwater table by two feet or more as required by the Stormwater Rules.
Miller also made four additional, miscellaneous comments: (1) the conveyance calculations do not correlate with the plan documents regarding the slope of the internal drainage pipes; (2) the package lacks any map of the existing features of the site, including the extent of existing wetlands; (3) Basin 4's outlet pipe has not been properly evaluated and its current design could present a flood risk to adjacent properties; and (4) the grant of conservation easement does not contain all of the necessary legal descriptions.
On July 30, Margaret Y. Snyder, a professional engineer and principal of Emerald Environmental Solutions, submitted additional comments on behalf of Save Hamilton. Snyder's analysis evaluated the project's compliance with N.J.A.C. 7:8-5.2 to -5.7 of the Stormwater Rules. She concluded that the proposed project did not meet many of the Stormwater Rules' requirements.
Snyder claimed that Levin's proposal does not comply with N.J.A.C. 7:8-5.3 because it neither identifies nonstructural stormwater management strategies to be employed at the site nor explains the decision not to use such strategies. Compliance could have been demonstrated with a "[l]ow [i]mpact [d]evelopment [c]hecklist or a [n]onstructural [s]tormwater [s]trategies [p]oint [s]ystem," but neither were submitted. Rather, the plans "indicate no attempt . . . to incorporate no[n]structural stormwater strategies into the site design."
Snyder also opined that the proposal did not comply with N.J.A.C. 7:8-5.4(a)(2)(i)(2) because the analysis fails to "[d]emonstrate through hydrologic and hydraulic analysis that the increase in stormwater runoff volume from pre-construction to post-construction for the two-year storm [will be] infiltrated." She explained:
The hydrological analysis indicates that there will be no runoff from the site for the two year storm event in the developed condition. The analysis is based on the infiltration basins having a design infiltration rate of 4.65" per hour. However, no permeability test results were provided by the applicant to document the validity of this rate. In fact, portions of [i]nfiltration Basin 2 will be located in the area of Plummer soils; these soils are classified as Hydrologic Soil Group D. In addition, the soil logs for Test Pits 3, 5 and 8 indicate that neither infiltration basin will have the required [two] foot separation between the bottom of the sand layer and the elevation of the [s]easonal [h]igh [w]ater [t]able.This alleged oversight, along with others, necessitated a revised analysis to assure that "the post-construction peak runoff rates for the two, 10 and 100-year storm events are 50, 75 and 80 percent, respectively, of the pre-construction peak runoff rates," as required by N.J.A.C. 7:8-5.4(a)(3)(iii).
According to Snyder, the infiltration basins fail to conform to the design guidelines set forth in the New Jersey Stormwater Best Management Practice Manual (BMP Manual). As a result, they do not conform to the runoff quality standards in N.J.A.C. 7:8-5.5(a) that require an eighty percent removal rate for suspended solids. Further, an improperly designed infiltration basin could result in water being infiltrated at a slower rate than anticipated. If this were to occur, the water that does not infiltrate would be conveyed to the detention basins, where it "would receive at most, a [total suspended solids] removal rate of [sixty percent]." Finally, in regards to water quality, Snyder asserted that the project does not comply with N.J.A.C. 7:8-5.5(e) because it "is not using nonstructural stormwater strategies."
Snyder also identified potential errors in the calculation of stormwater runoff and groundwater recharge pursuant to N.J.A.C. 7:8-5.6(a)(1) to -(a)(4). Contrary to N.J.A.C. 7:8-5.6(a)(1)(i), the "hydrological analysis may have modeled the impervious, clay lined detention basins as grassy lawn areas," which "would have underestimated the peak flows in the developed condition." In addition, she contended that "[t]he hydrological analysis [was] performed using incorrect rainfall depths for the 10 and 100-year storm events," which results in an overestimation of peak flows in the 10-year event and an underestimation in the 100-year event. Further, the hydrological analysis of the existing condition on the site did not comply with N.J.A.C. 7:8-5.6(a)(2)-(3). The analysis incorrectly models the shrubby areas of the site as open space, although the open space classification only applies to sites in the developed condition. A correction could result in a lower runoff curve number, which would, in turn, result in lower peak flow calculations for the site in its existing condition. Lastly, the runoff and recharge analysis does not satisfy N.J.A.C. 7:8-5.6(a)(4) because it is based on a composite runoff curve number that does not treat pervious and impervious areas separately. According to Snyder, "[t]his error has the effect of underestimating the peak flows in the post-developed condition and may have resulted in less peak flow reduction and groundwater recharge than is required."
Moreover, Snyder alleged that the analysis needed to be revised to conform to N.J.A.C. 7:8-5.7(a)(1)-(2). The use of incorrect soil classifications invalidated calculations related to the peak flow reduction and groundwater recharge requirements. In addition, the infiltration basins "[have] not been designed to ensure proper functioning in accordance with the BMP Manual guidelines." In particular, during a 100-year storm event, several of the storm grates on the site would overflow. Snyder also noted the presence of a twelve-inch pipe on the northwestern portion of the site that transfers runoff flows to the site. Levin had proposed to cap this pipe. Snyder recommended "determin[ing] the origin of the water that currently flows through [the] pipe before sealing it in order to assure that the diverted water [does] not become a nuisance off-site." Another issue was that drain valves listed in the Drainage Report were not shown on the grading plans.
In August, the Department provided Save Hamilton with a copy of the Boundary and Topographic Survey that had not been previously provided. Whitestone prepared a supplemental stormwater management area evaluation. The purpose of the report was "to conform with current infiltration testing requirements per . . . the [BMP Manual], Appendix E, last updated September 2009." Whitestone visited the site on two occasions in July 2011 to "conduct[] supplemental infiltration tests in eleven supplemental soil profile pits." Bohler sent the results of the tests to the Department in September.
In June and July 2012, the Department requested additional information about the project, emailed comments to Bohler, and met with Levin's representative to discuss the project. In August, Levin sent the Department Whitestone's clarification of the permeability rates and the estimated seasonal high groundwater elevations.
Bohler also revised its Drainage Report in response to the Department's comments. The revised report indicated that the twelve inch pipe near the property's northwestern corner would be capped, "as the drainage . . . is rerouted [w]est toward the Hamilton Lake[s]." The report noted that Basin 4 was designed to provide stormwater management for the off-site runoff generated by the project. It would "discharge[] through a 15" RC Pipe under the landscape berm into the Basin #1, 2 & 3 System such that the 2 Year occurrence storm runoff from [the] offsite area [would] also be infiltrated back to the groundwater table." A "Tideflex" valve would be used to prevent the site's runoff from surcharging the fourth basin. In addition, the revised report updated its comparison of the pre-development and post-development stormwater runoff rates for discharge to Klockner Road. The average curve number calculations for the existing drainage area and the proposed drainage area were also changed. In September, Bohler sent the Department a revised site plan corresponding to the stormwater management report.
On April 2, 2013, the Department notified Levin that the project was in compliance with special condition five of the corrected authorization from April 21, 2005. That same day, DeMeo issued a report approving the project's stormwater management facilities. He also issued separate documents responding to comments from the public regarding the proposed project, including the July 2010 submissions from Miller and Snyder. DeMeo's report outlined how the Stormwater Rules were satisfied by the most recent design and explained that the Department would not insist on the use of nonstructural stormwater management strategies to the "maximum extent practicable." The report also noted the existence of a revised soil composition study, and discussed the project's compliance with regulations governing runoff quantity, groundwater recharge, runoff quality, and groundwater mounding.
Regarding the use of nonstructural stormwater management strategies, DeMeo was satisfied that the use of vegetative swales within islands in the parking lot met the requirement in N.J.A.C. 7:8-5.3 that such strategies be used to the "maximum extent practicable" because the proposed project had a "unique history." He explained that Levin's application was submitted three months prior to the effective date of the Stormwater Rules. Had the Department approved the permit within the three months, Levin would not be subject to the Stormwater Rules. Therefore, "the Department determined that a complete redesign of the project for the purpose of low impact design was not warranted." The nonstructural design element was also not the basis of Levin's appeal. Moreover, at the time Levin "proposed to alter the basins to allow for less infiltration," the Department "determined that it was not necessary to reanalyze the project for incorporation of additional nonstructural strategies." For these reasons, the Department "[could not] completely reopen the issue." Nevertheless, "to be considerate of both [Levin] and the third[-]party commenters, the Department determined it would be sufficient to improve what had previously been authorized with the goal of making the approved vegetat[ive] conveyance swales more effective."
Concerning the regulation of runoff quantity in accordance with N.J.A.C. 7:8-5.4(a)(3), DeMeo determined that the proposed design sufficiently reduces peak flow rates from the pre-construction to the post-construction condition. He based this decision on the peak flow rate calculations appearing in the revised drainage report prepared by Bohler in August 2012. DeMeo noted that the Department requested that the site hydrology be revised to account for separate analysis of pervious and impervious surfaces, as required by N.J.A.C. 7:8- 5.6(a)(4), and to "account for the correct hydrologic soils groups and land coverage on site." Both revisions were made and the design complies with the regulations.
With respect to groundwater recharge, DeMeo concluded that the plan satisfies the requirements of N.J.A.C. 7:8-5.4(a) because the design maintains 100 percent of the annual pre-construction groundwater recharge volume of 449,513 cubic feet. That was accomplished through the use of two infiltration basins (Basins 2 and 3). According to calculations, the basins would need to hold 6334 cubic feet to satisfy the deficit over the course of a year. They would need to be 41,348 square feet (0.95 acres), 1.8 inches deep, and collect runoff from 18.71 acres of impervious coverage. Those calculations proved to be incorrect, however. Levin's consultant "incorrectly completed the spreadsheet." The calculations should have been based on 19.43 acres of impervious coverage. If the calculations were based on 19.43 acres, the basins would need to hold a volume of 6367 cubic feet, be greater than 41,348 square feet in area, and be more than 1.8 inches deep. Nevertheless, the Department determined that the basins were large enough to accommodate the additional capacity despite the initial oversight. Therefore, DeMeo concluded that the design satisfied the recharge requirements.
On the subject of runoff quality, DeMeo found that the project complied with the water quality standards found in N.J.A.C. 7:8-5.5(a). The standards require that the "post-construction load of TSS in stormwater runoff generated from the water quality design storm," which is defined in N.J.A.C. 7:8-5.5(a) as "1.25 inches of rainfall in two hours," be reduced by eighty percent of the anticipated TSS load from the site. He explained that the site would increase impervious coverage to 18.7 acres. He claimed that roughly five acres of the site should not be considered in the calculation because they do not generate TSS. Thus, only 13.5 acres needed to be treated for TSS removal. He explained that Basins 2 and 3 would treat 12.6 of the 13.5 acres to 100 percent TSS removal "in practice," although the rules credit infiltration basins with eighty percent TSS removal. Since the regulations allow twenty percent discharge of TSS, the site could leave as much as 2.7 acres untreated. DeMeo concluded that the project complies because it allows only 0.9 acres to be left untreated.
Regarding nutrient removal under N.J.A.C. 7:8-5.5(e), DeMeo found that the proposal removed nutrients to the "maximum extent feasible." He pointed out that some nutrient removal may occur through the use of nonstructural BMPs, including the vegetative islands. Relying on his findings with regards to the maximization of nonstructural BMPs, he concluded that "removal of nutrients has been maximized in accordance with the rules, in a similar fashion as the nonstructural design [has] been maximized."
DeMeo next addressed the soil composition and clearance levels of the proposed stormwater basins. According to the BMP Manual, "infiltration basins should be designed with a minimum of [two] feet [separating] the bottom of the basin to the elevation of the seasonal high groundwater table." Detention basins "should be designed with a minimum of [one] foot separation, but the low flow channels . . . may be located at the same elevation of the seasonal high groundwater table." Despite tests showing that two feet of separation did not exist in two of the ten borings at the basin locations tested, DeMeo was willing to accept that the infiltration basins complied with the regulations because: (1) "[a] majority of the tests show[ed] that the minimum recommended clearance ha[d] been achieved"; (2) "the depth of standing water in the infiltration basins will be less than 1.5 feet" prior to discharge through a storm sewer system; and (3) the Department has accepted shallower clearances in the past.
Regarding the permeability of the soil, DeMeo noted that the BMP Manual requires that "the soils underlying infiltration basins must have sufficient permeability to drain the runoff they collect within 72 hours." The soil was tested at the site in 2004, but the testing procedure changed in 2009. As a result, the Department requested a reevaluation. Based on the tests indicating that "the soils at the basins are sandy, with a lowest measured permeability rate of 3.5 inches per hour," and "the small depth within the basins that only [have] infiltration as an outlet (1 foot)," DeMeo concluded that "the expectation is that the basins [will] be able to infiltrate within 72 hours."
Finally, DeMeo addressed groundwater mounding at the site. N.J.A.C. 7:8-5.4(a)(2)(iv) requires the project's design engineer to assess the project for "hydraulic impact on the groundwater table and design the site so as to avoid adverse hydraulic impacts," such as "surfical ponding" and "flooding of basements." In this case, DeMeo relied on a signed certification from the design engineer, "stating that no adverse impacts would occur." He concluded that such a certification can be relied upon because the Stormwater Rules do not provide a methodology for evaluating the potential effects of mounding. In addition, the threat posed by mounding is alleviated because: "the basins are situated lower in elevation than the immediately adjacent development and hundreds of feet away from other development, and . . . [they] have a mechanism to discharge via storm sewers."
On April 2, in a separate document, DeMeo also responded to Miller's comments from July 2010. Regarding Miller's general assertion that the project did not make use of any nonstructural stormwater management strategies, DeMeo stated that the project made use of vegetative islands in the parking lot. Considering the fact that the Stormwater Rules were adopted after the permit application, the Department determined that Levin used such strategies to the "maximum extent practicable" as required by N.J.A.C. 7:8-5.3(a). As to Miller's individual concerns related to the non-use of stormwater management strategies in N.J.A.C. 7:8-5.3(b)(1) to -(b)(9), DeMeo offered individual responses. According to DeMeo, Levin was permitted to fill existing wetlands under N.J.A.C. 7:8-5.3(b)(1) even if it meant the loss of areas that provide water quality benefits. Concerning the minimization of impervious surfaces recommended by N.J.A.C. 7:8-5.3(b)(2), DeMeo acknowledged that most of the site will be covered by impervious surfaces, but there will be some disconnection of those surfaces through the vegetative islands in the parking lot. As for N.J.A.C. 7:8-5.3(b)(3), DeMeo acknowledged that the project does not maximize natural drainage features and vegetation, but noted that the existing nonstructural storm management strategies met the requirement of the rule. The vegetative swales in the parking lot aid in minimizing the time of concentration under N.J.A.C. 7:8-5.3(b)(4). Similarly, the vegetative swales make up for the fact that the project does not minimize land clearing and grading pursuant to N.J.A.C. 7:8-5.3(b)(5), does not retain any native vegetation as suggested by N.J.A.C. 7:8-5.3(b)(7), and does not minimize soil compaction, contrary to N.J.A.C. 7:8-5.3(b)(9). The use of vegetative swales also satisfies N.J.A.C. 7:8-5.3(b)(8), which encourages the use of "vegetated open-channel conveyance systems." As for the use of nonstructural strategies to treat runoff for pollutants, trash, or debris found in N.J.A.C. 7:8-5.3(b)(9), DeMeo noted that no nonstructural strategies are employed for that purpose, but the "Department accepts the usage of structural measures here because the rule requires only that the usage of nonstructural design measures be employed to the maximum extent practicable."
DeMeo also responded to Miller's nine issues concerning the project's conformity to regulations governing peak rate reduction. Regarding the lack of a slope in the storm piping, DeMeo noted that the parking lot is pitched to allow water to freely enter the storm system. Moreover, the Stormwater Rules do not govern pipe slope requirements, so the Department does not typically comment on the storm piping network. As for Miller's comment about the assumption of a free discharge in the plan, DeMeo noted that the Stormwater Rules do not require examination of tailwater in this case, so a free discharge can be assumed. Nevertheless, the Department requested revised modeling "to include a tailwater impact for runoff leaving the basins."
DeMeo also addressed the soil composition survey error noted by Miller. He responded that any soil survey error would likely not result in an appreciable change in the runoff calculation since most of the site will be covered by impervious surfaces. For such surfaces, the permeability of the underlying soil is irrelevant. Nevertheless, the Department requested that Levin revise its hydraulic analysis to correct the error. DeMeo concluded that the revised analysis "did not significantly impact the design of the stormwater basins" and they "did not need to be expanded."
Regarding Miller's recognition that the analysis employed a composite runoff curve number contrary to the BMP Manual, DeMeo responded that the Department initially "decid[ed] to accept this design error" because "the resultant error associated with not performing a separate [runoff] analysis of pervious and impervious areas was not expected to be significant enough for the Department to require revision." Nevertheless, the Department, "in light of the comment made, . . . ultimately asked that the analysis be revised." The revised analysis, "[a]s expected, . . . showed that the basins, as previously sized, were sufficient to meet the requirements of the [Stormwater Rules]."
In answer to Miller's comment on the absence of dewatering calculations for the project, DeMeo explained that such calculations were not necessary in this case. Rather, on this project, "it was expected that the basins would be able to evacuate the stored runoff well before the [seventy-two] hour time limit" required by the BMP Manual because the permeability of the soil in the infiltration basins is high "and the depth of [the] storage to be infiltrated in the basin is relatively small."
Concerning Miller's contention that the rainfall totals used in the calculations for the storm events were incorrect, DeMeo concluded that the totals used did not need to be changed because they were the totals required at the time the application was declared complete for review. He asserted that the regulation adopting the revised rainfall data requirement provided for the grandfathering of such applications. As a result, the stormwater analyses did not need to be revised.
As for Miller's assertion that the emergency spillway routing for the project is flawed, DeMeo responded that "the Department does not typically review the design of emergency spillways" and the Stormwater Rules do not have a standard for evaluating them. He further explained: "Emergency spillways are designed for storm events greater than the 100-year event. From a peak flow rate perspective, the Department does not consider storms greater than the 100-year storm event." Further, the Department "presuppose[s] that [a] stormwater system will function as designed, such that an emergency spillway would not need to be utilized." If the system does not function as designed the permitee is held responsible.
DeMeo responded to Miller's concern with the outlet structure components for the infiltration basins by requesting that Levin clarify the plans for the project and remove a "perforated underdrain." DeMeo also responded to Miller's concern about the capacity of the municipal storm sewer system to handle discharge from the detention basins, noting that the Stormwater Rules do not require a review of a municipal storm sewer system's capacity in connection with the approval of a project.
With respect to Miller's request that Levin address how it is complying with the requirement to remove nutrients from stormwater runoff to the "maximum extent practicable," DeMeo clarified that the Stormwater Rules "do not quantify how much nutrient removal is adequate." Consequently, it was the Department's position that the requirement is satisfied "through the presence of vegetation found in both the vegetated swales and the detention basins."
DeMeo found Miller's request that Levin comment on any possible groundwater contamination from a nearby gas station to be unnecessary because the Stormwater Rules do not require that to be considered. As for Miller's request for a water quality or treatment device to protect Hamilton Lakes from drainage from the project, DeMeo found that this would be an excessive requirement, as long as Levin otherwise provided adequate water treatment.
With respect to Miller's concern about groundwater mounding, DeMeo concluded that reliance on Bohler's certification that no mounding would occur was warranted because "the basins are situated lower in elevation than the immediately adjacent development and hundreds of feet away from other development . . . [and] the basins have a mechanism to discharge to storm sewers."
In response to Miller's observation that Whitestone tested the soils in infiltration Basin 3, but not infiltration Basin 2, DeMeo recognized that the data from percolation tests in 2004 on Basin 2 was inadequate. A revised report in August 2011, "showed high . . . percolation rates within Basin 2." Nevertheless, DeMeo found that "[i]n either event, . . . the soils work done shows that the soils on site can infiltrate runoff."
DeMeo addressed Miller's observation that certain test pits from Basins 2 and 3 evidence a clearance of less than two feet at certain points although the regulations require a minimum of two feet. He responded that the Department "accepted the clearance as two feet" due to the fact that "the majority of the [t]est [p]its in each basin showed a [two-]foot clearance." Further, it was "common practice for the Department to exercise flexibility" with this requirement "when the shortage was less than half a foot, as is the case here in [two] of [ten] test pits."
Regarding Miller's four miscellaneous comments, DeMeo concluded: (1) conveyance calculations are outside of the scope of the Stormwater Rules; (2) an existing features plan showing the extent of wetlands on the site was referenced in the application even though one is not included in the package; (3) storm sewer sizing is not reviewed by the Department and an assessment of tailwater conditions is not required unless the project is in a flood hazard area; and (4) the legal descriptions in the grant of conservation restriction/easement are acceptable, even though they only reserve the land containing the vegetative swales, because the rules do not require easements for basins.
DeMeo also responded to Snyder's July 30, 2010 report. Snyder had alleged that the project did not attempt to incorporate nonstructural design strategies to the maximum extent practicable. DeMeo focused on the timing of the application and the use of vegetative swales in the parking lot as reasons why the Department determined that the project used nonstructural BMPs to the maximum extent practicable. DeMeo responded to Snyder's observation that there were no permeability tests to put the rate of infiltration in the infiltration basins at 4.65 inches per hour. Relying on "[s]upplemental data" from Whitestone's revised report in August 2011, he found:
[Eleven] additional test pits were taken. Six of these were taken in Basin 2, and five were taken in Basin 3. This testing indicates that the lowest percolation rate within Basins 2 and 3 would be approximately [three] inches per hour. Other measured percolation rates were higher, ranging between [three] and [four] inches per hour, with one measurement at 17.7 inches per hour and [four] measurements exceeding [twenty] inches per hour. Based on this, a
permeability rate of 4.65 inches per hour was deemed reasonable.
As for Snyder's recognition that the soil under a portion of Basin 2 (an infiltration basin) belonged to a class of soils with low permeability, DeMeo concluded that "the onsite soil testing shows that the soils underlying Basin 2 will have a sufficient permeability to allow infiltration to occur." DeMeo addressed Snyder's observations regarding the potential lack of a two-foot clearance in the infiltration basins by noting that the majority of the test pits shared two-foot clearance, which was acceptable to the Department.
With respect to Snyder's comment that the infiltration basins are improperly designed and, thus, would not meet the stormwater quality standards, DeMeo replied that the Department determined that the infiltration basins were properly designed and would be able to meet the quality standards. Likewise, it was Levin's responsibility to maintain the basins and assure proper functioning in the event of a disruption.
On the subject of Snyder's claim that the hydrological analysis was improperly modeled to classify certain impervious surfaces as grassy lawn areas, DeMeo responded that "[t]he stormwater management report was last revised August 2012 to account for this."
Snyder asserted that incorrect rainfall depths were used in the hydrological analysis, which could result in an underestimation of peak flows in the developed condition. DeMeo replied, as he did to Miller's similar point, that the project was grandfathered and, therefore, could utilize the rainfall depths applicable at the time the Department approved the application.
Snyder commented that the runoff curve numbers were incorrectly calculated because shrubby areas in the existing condition were modeled as grassy areas, a category that only applies to sites in the developed condition. If correctly modeled, the peak flows in the existing condition would be lower, which would affect the peak flow reduction calculation for the project. In response, DeMeo noted that the stormwater management report was revised in August 2012 to account for the existing conditions of brush, woods, and open space areas. He also referred the use of a "ponding factor" to reduce the peak flow calculation at the site in the existing condition. He explained that "[w]hile site topography was not specifically modeled, use of the ponding factor is an accepted practice."
Snyder noted in her comments that Levin's engineer used a composite runoff curve number in the analysis of peak flows, which is prohibited by the Stormwater Rules. DeMeo's response was the same as his response to Miller's similar point. The engineer had subsequently revised the analysis.
DeMeo addressed Snyder's comments regarding an underestimation of certain soils in the hydrological analysis and the use of low-level drain valves in the infiltration basins. He replied that both issues had been dealt with in the revised stormwater management report of August 2012. The soil groups previously omitted were accounted for and the low-level drain valves were removed.
Snyder commented on the potential that the stormwater system, as currently designed, would overflow during the 100-year storm event. DeMeo responded that the peak elevation of the infiltration basins was subsequently changed in the August 2012 revision to the stormwater management report. He concluded that "[b]ased on the plans, last revised September 27, 2012, the grates surrounding the infiltration basins will not be overtopped."
Finally, with respect to Snyder's concerns about an existing pipe that conveys runoff flows that will be capped by the project, DeMeo confirmed that, according to the August 2012 revision, the pipe was to be capped and the water diverted. The redirection was approved by Hamilton Township.
On April 2, counsel for Levin served a notice of settlement by certified mail on the commenting parties, including Save Hamilton, pursuant to N.J.A.C. 7:7A-1.7(h)(3). The notice incorporated documents revised in response to Miller's and Snyder's comments, including "an engineering report revised through August 2012, plans revised through September 27, 2012, and a report dealing with supplemental soil[] evaluations dated August 2011." The notice was published in the Department's bulletin on April 13 in accordance with N.J.A.C. 7:7A-1.7(i)(4). On April 11, counsel for Save Hamilton sent a letter to the Department objecting that it had not received any of the supplemental submissions upon which the notice of settlement was based, preventing it from comment. Save Hamilton requested that the Department withdraw its approval of the permits, provide Save Hamilton with the revised documents, and allow it time to comment.
On May 17, having received no response, Save Hamilton filed its notice of appeal. On October 22, the Attorney General responded, asserting that Save Hamilton "enjoyed ample opportunity to comment on the Levin application" and the Department had "more than adequately addressed" Save Hamilton's concerns.
II.
Save Hamilton argues on appeal that the Department's decision to enter into a final settlement of Levin's administrative appeal without a further comment period was arbitrary, capricious and unreasonable, and violative of Save Hamilton's right to comment pursuant to N.J.A.C. 7:7A-1.7(h)(1)-(2). It also argues that its constitutional due process rights have been violated.
We note that, in its reply brief, Save Hamilton improperly seeks to raise a substantive issue concerning the Department's right to waive the applicability of the Stormwater Rules. Not only does the issue go to the merits of the Department's issuance of the permits as opposed to the issue before us, which is whether there should have been an additional comment period, it is also an issue not raised in Save Hamilton's initial appellate brief. We decline to consider issues raised for the first time in the reply brief. L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App. Div. 2014) (citing Borough of Berlin v. Remington & Vernick Eng'rs., 337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001)), certif. denied, 218 N.J. 273 (2014). We further note that Save Hamilton was not precluded from challenging the permits on their merits at the time it filed this appeal. We express no opinion concerning its ability to do so at a later date.
Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). A court may reverse only if it "conclude[s] that the decision of the administrative agency is arbitrary, capricious, or unreasonable, or is not supported by substantial credible evidence in the record as a whole." J.D. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div. 2000); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988); Outland v. Bd. of Trs., 326 N.J. Super. 395, 399 (App. Div. 1999). We accord a "strong presumption of reason-ableness" to an agency's "exercise of statutorily delegated responsibility." City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).
Our limited standard of review of administrative agency decisions is informed by three inquiries:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law;Where an agency's expertise is a factor, a court defers to that expertise, particularly in cases involving technical matters within the agency's special competence. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004).
(2) whether the record contains substantial evidence to support the findings on which the agency based its action; and
(3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).]
"[J]udicial deference to administrative agencies stems from the recognition that agencies have the specialized expertise necessary to . . . deal[] with technical matters and are 'particularly well equipped to read and understand the massive documents and to evaluate the factual and technical issues.'" N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (quoting Bergen Pines Cnty. Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 474 (1984)). "'[W]here there is substantial evidence in the record to support more than one regulatory conclusion, it is the agency's choice which governs.'" Murray v. State Health Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001) (quoting In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990) (internal quotation marks omitted)). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).
N.J.A.C. 7:7A-1.7(h) provides:
If the Department agrees to settle a matter for which a hearing has been submitted under this section, and the settlement will result in Department approval of a regulated activity, public notice of the settlement shall be provided as follows:
1. The person who requested the hearing shall send by certified mail a notice of intent to settle the matter. . . . The notice shall be sent to:
i. Each person provided notice of the application for the permit or approval which is the subject of the appeal; and
ii. Each person who commented on the application;
2. The Department shall publish a notice of intent to settle in the DEP Bulletin, and shall accept comments on the notice for at least 30 days;
3. After the 30 day comment period provided for in h(2) above, the person who requested the hearing shall send by certified mail a notice of settlement. . . . The notice shall be sent to:
i. Each person provided notice of intent to settle under (h)1 above; and
ii. Each person who commented on the notice of intent to settle provided under (h)2 above; and
4. The Department shall publish a notice of the final settlement in the DEP Bulletin.
As our factual exposition demonstrates, Save Hamilton had two opportunities to comment on the proposed settlement of Levin's challenge to the Department's conditions to the two permits issued to Levin. In each case, especially the second, Save Hamilton submitted extensive comments prepared by its chosen experts. They were analyzed by the Department, which sought additional information from Levin and then required changes to the project. Following the second round of comments, DeMeo issued two reports outlining the issues raised and the action taken by the Department, as well as the reasons the Department determined that no further changes were required.
In the context of administrative rulemaking, we have held that the proper construction of the principles underlying the requirement that there be publication and a comment period "should not condemn a responsive agency[] that wishes to modify its proposed action because of comments received[] to indefinite and endless re-proposals." In re Adoption of N.J.A.C. 9A:10-7.8(b) , 327 N.J. Super. 149, 155-56 (App. Div. 2000). In determining whether re-notice is required, the "focus [is] on whether the changes destroyed the value of the original notice." Id. at 156.
We are satisfied that, following the second round of comments by Save Hamilton, there were no modifications sufficiently material to require a third round of comments. The purpose of the rule is to give interested parties the opportunity to comment and the agency the opportunity to consider the comments and to act on those comments found by it to have merit. There is no requirement that an agency agree with or act on all of the comments received. An interested party, such as Save Hamilton, has a separate right to appeal the Department's grant of permits when it concludes that the Department has improperly issued such permits.
Although an interested party, such as Save Hamilton, does not have a right to a hearing before the Office of Administrative Law, it can appeal the agency's final action in granting permits like those involved here. See In re Authorization for Freshwater Wetlands Statewide Gen. Permit 6, 433 N.J. Super. 385, 406-13 (App. Div. 2013).
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Although we do not rubber stamp an administrative agency's decisions, In re Taylor, 158 N.J. 644, 657 (1999), we do owe a level of deference to them, especially when they involve matters of expertise within the agency's competence. Given the extensive comments and responses reflected in the record, we conclude that the Department's decision to settle Levin's administrative appeal without another comment period did not "destroy[] the value," In re Adoption of N.J.A.C. 9A:10-7.8(b) , supra, 327 N.J. Super. at 156, of the first two comment periods and, consequently, was not arbitrary, capricious or unreasonable, or clearly violative of N.J.A.C. 7:7A-1.7(h).
Having reviewed Save Hamilton's due process arguments in light of the facts and applicable law, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that Save Hamilton cannot satisfy the test for full due process hearing rights established by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18, 33 (1976). See also In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452, 466-72 (2006). In In re Freshwater, our Supreme Court held that "a third-party objector's due process rights may be satisfied by an agency's review process." Id. at 472. Because we have held that the Department complied with its comment obligations, there is no constitutional violation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION