                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

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


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

IN THE MATTER OF CARE ONE, INC.
____________________________________

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


         Argued March 12, 2013 – Decided September 9, 2013

         Before Judges Fisher, Waugh, and Leone.

         On appeal from the New Jersey Department of
         Environmental Protection, 1103-07-0007.1.

         R. William Potter argued the cause           for
         appellants Residents for Enforcement          of
         Existing Land Use Code, Susan Tierney,       and
         Pond Run Watershed Association (Potter       and
         Dickson, attorneys; Mr. Potter, on           the
         briefs).

         Jill Denyes, Deputy Attorney General, argued
         the   cause    for   respondent   New   Jersey
         Department    of    Environmental   Protection
         (Jeffrey   S.    Chiesa,   Attorney   General,
             attorney; Lewis A. Scheindlin, Assistant
             Attorney General, of counsel; Ms. Denyes, on
             the brief).

             Richard M. Hluchan argued the cause for
             respondent Care One, Inc. (Hyland Levin LLP,
             attorneys; Mr. Hluchan, of counsel; Robert
             S. Baranowski, Jr., on the brief).

             Nicholas B. Patton argued the cause for
             amici   curiae,  Delaware   Riverkeeper  and
             Delaware Riverkeeper Network (Mr. Patton and
             Jane P. Davenport McClintock, on separate
             briefs.)


       The opinion of the court was delivered by

WAUGH, J.A.D.

       In   these   consolidated   actions,   appellants       Residents   for

Enforcement of Existing Land Use Code, Susan Tierney, and the

Pond   Run   Watershed   Association     appeal   several   administrative

decisions by respondent New Jersey Department of Environmental

Protection     (Department)   in   connection     with   its    grant   of    a

general freshwater wetlands permit and transition area waivers

to respondent Care One, Inc. (CareOne), which seeks to expand

its assisted living facility in Hamilton Township.                We dismiss

the appeal in Docket No. A-3400-10 as interlocutory.               We affirm

the administrative agency action in Docket No. A-3837-09, and

reverse the administrative agency actions in Docket No. A-2231-

08.    Finally, we remand for further proceedings consistent with

this opinion.




                                     2                               A-2231-08T2
                                         I.

     We discern the following facts and procedural history from

the record on appeal.

     In     1999,    the    Department        granted    CareOne      a    freshwater

wetlands permit to fill 0.97 acres of isolated wetlands and to

create a stormwater management basin, also known as a detention

basin,1    for   construction      of   an     assisted      living       facility    on

approximately seven acres in Hamilton Township, Mercer County.

The facility, known as CareOne at Hamilton, is located on the

northern     corner    of    the   intersection         of    Cypress       Lane     and

Whitehorse-Hamilton Square Road.                A 0.47 acre portion of the

permitted area was left undisturbed.

     In 2007, CareOne wanted to construct a two-story, 62,259

square foot addition, as well as a paved parking lot.                                The

proposed construction would require the filling of the existing

detention    basin    and    other      wetlands    on       the   site,     and     the

construction of a new, L-shaped detention basin along Cypress

Lane.




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




                                         3                                    A-2231-08T2
     In April, CareOne submitted a combined application for a

"Letter    of    Interpretation"      (LOI)     to    delineate    the      site's

freshwater wetlands and a "Freshwater Wetlands Statewide General

Permit    No.   6"    (GP6),   see    N.J.A.C.       7:7A-5.6,    to   fill      the

undisturbed segment of the land covered by the 1999 permit, or

21,800 square feet (0.5 of an acre) of freshwater wetlands, and

to disturb an additional 35,906 square feet (0.82 of an acre) of

the adjoining transition area.2

     According to CareOne, the nearest waterway to the site is

Pond Run.       The affected onsite wetlands were isolated and of

intermediate resource value, requiring an adjacent transition

area of fifty feet.       No bog turtle populations would be impacted

and "no flood hazard permit was required," because no activities

were proposed within the flood hazard area or riparian zones.

     CareOne's        application     package    contained,       among       other

documents:      (1) a March 2007 "Statement of Compliance" by its

licensed professional engineers, Taylor Wiseman & Taylor (TWT),

which included a "Freshwater Wetlands Delineation Report"; (2)

grading and groundwater recharge plans, maps, soil boring logs,

vegetative      and    hydrological     analyses,       photographs,       and     a


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



                                       4                                  A-2231-08T2
description of the onsite vegetative species; (3) two stormwater

management        reports    by    TWT     dated       March      2007,      "Drainage      and

Detention Calculations," and "Detention Facilities Operation and

Maintenance Manual"; and (4) a March 2007 preliminary and final

site plan.         CareOne also provided the required notice of its

project to Hamilton Township and landowners within 200 feet of

the site.         The Department published notice of the applications

in the DEP Bulletin on May 2, 2007.

       In   March     2008,       CareOne       responded         to   the    Department's

request     for    additional       information             by   submitting     (1)     hydro-

graphs, including inflow and outflow hydrographs of the existing

and    proposed     basins    for        the     two-,       ten-,     twenty-five-,        and

hundred-year        storms;       (2)    calculations            and   diagrams    for      two

recharge areas, one each in the front and rear of the building,

showing     that    they    both        would       drain    within     the   Department's

required seventy-two-hour limit; (3) existing and proposed flow

charts, and drainage area and grading maps; (4) a February 2008

revision of TWT's "Drainage and Detention Calculations"; and (5)

a     February     2008     revision        of       TWT's       "Detention      Facilities

Operation and Maintenance Manual."

       CareOne's      proposed          stormwater          management    plan     included

(1) the new detention basin designed to meet the two-year, ten-

year, and hundred-year storm flow estimates and to "dry out"




                                                5                                     A-2231-08T2
within    the     seventy-two-hour              time    limit     required      by     the

Department; (2) two recharge areas with VortSentry® treatment

devices   to    manage       stormwater      quality       by    removing    the     total

suspended solids (TSS) in any runoff within 17.3 hours; (3) two

"StormChambers"        to    meet    infiltration        or     groundwater     recharge

estimates; and (4) an "Emergency Spillway" that would convey any

flows from a hundred-year storm.

    While       the     Department's        staff       was     reviewing      CareOne's

application     and     submissions,        CareOne      applied    to   the    Hamilton

Township Zoning Board of Adjustment (Zoning Board) for use and

site plan approvals and bulk variances for its project.                         On June

9, 2009, the Zoning Board voted to deny CareOne's request for

site plan approval with bulk variances.                       The decision is not in

the record.      CareOne did not appeal the Zoning Board's denial.

    In    a     May    8,    2008    internal         "Engineer's    Report     for    SWM

[stormwater       management]            review,"       the     Department's         staff

recommended "approval," concluding that "[t]his project is in

conformance      with        all    of    the     engineering       aspects     of     the

Stormwater rules."             The staff also            (1) determined that the

"[o]verall proposed land disturbance is more than 1 acre and new

impervious      area    is    more   than       1/4    acre,    therefore     review   of

stormwater management was required for this project"; (2) found

that CareOne's submitted Nonstructural Strategies Points System




                                            6                                   A-2231-08T2
(NSPS)        spreadsheet         had     been     "completed     correctly";        (3)

"accepted" CareOne's calculations that its proposed TSS removal

plans    of    an    extended      detention       basin   and   two   water   quality

treatment devices to treat any runoff from the new parking lot

and sidewalks, and from the pre-existing impervious area, would

remove approximately seventy-four percent of TSS; (4) noted that

CareOne   had       proposed      two    recharge    chambers,    or   bio-retention

swales, to provide the required recharge volume within seventy-

two hours; and (5) found that stormwater flows would be "further

reduced due to Bio[s]wales."3                    Finally, the staff approved the

drawings that CareOne had submitted, including CareOne's overall

site plan, grading plan, utility plan, and construction details.

       On June 19, CareOne submitted a separate application to the

Department          for    a     "Special     Activity      Transition     Area      for

Stormwater Management."                 The application, which included a June

2008    version       of   TWT's        "Statement    of   Compliance,"    concerned

proposed construction on a section of CareOne's property that

was    part    of    the       transition    area    associated    with   freshwater

wetlands on the other side of Whitehorse-Hamilton Square Road.

Because the offsite wetlands were of exceptional resource value,

they required a 150-foot transition area, which extended across

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




                                              7                                A-2231-08T2
the road onto CareOne's property.4                  CareOne provided the required

notice to Hamilton Township and adjacent landowners.

       Objectors, including appellants and other property owners

living in the adjacent Society Hill community, opposed CareOne's

proposal.            Their     major        concerns          centered       on     stormwater

management and local flooding risks.                           The Department assured

them    that    their        concerns       would        be    considered          before    any

approvals were given.

       On June 24, appellants' engineer, John A. Miller, P.E., of

Princeton      Hydro,       LLC    (Princeton       Hydro),         sent     the    Department

fourteen     detailed        objections       to    CareOne's            stormwater    control

plan.     He opined that the plan would not prevent runoff or the

resulting      periodic       inundation       of    neighboring            properties       and

downstream      pollution.             He     pointed          to    CareOne's        lack    of

conformity with non-structural strategies, peak flow reductions,

water     quality      runoff       treatment,       maintenance            of     groundwater

recharge,      and    safety       standards.        He       asserted       that    CareOne's

design:      (1) failed to address as a primary consideration the

use     of     natural            (non-structural)             stormwater           management

techniques,          such     as     "minimizing              disturbance,          minimizing

impervious     surfaces,          minimizing       the    use       of    stormwater    pipes,


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



                                              8                                        A-2231-08T2
[and]    preserving    natural     drainage      features,"          as    required     by

Departmental       regulations;     (2)       improperly        exempted         existing

impervious     groundwater      recharge;       (3)     improperly         allowed     the

post-development rate of runoff to exceed the pre-development

runoff rate in at least two locations; (4) failed to consider

the     recharge    capabilities    of        certain       soils,    which      led    to

erroneous     stormwater       calculations;          (5)      planned      to    employ

manufactured       treatment    devices       that      were    not       effective     at

reducing nonpoint water pollution; (6) violated safety standards

by installing retaining walls around the detention basin; (7)

proposed a wetland basin that conflicted with TWT's statements

at the zoning board hearing proposing a dry basin; (8) failed to

account for runoff from existing wetland after it is filled; (9)

relied on onsite soil testing logs that erred in regard to the

depth    to   seasonal   high     groundwater,          understated         groundwater

levels and overstated recharge, and ultimately understated the

amount of stormwater runoff; (10) relied on "test pits" that

were not dug to sufficient depths or in the deepest location of

the proposed detention basin to verify groundwater depth; (11)

relied on a soil survey that contradicted the submitted soil

boring logs; (12) relied on a flawed annual groundwater recharge

analysis, resulting in the under-assessment of stormwater flows;

(13) violated best management practices by failing to test near




                                          9                                      A-2231-08T2
the proposed recharge facility; and (14) failed to describe the

construction schedule to ensure the maintenance of stormwater

controls as the existing basin is being filled.

       In addition, appellant Tierney, an adjacent property owner,

sent   an   email   to   the   Department    complaining      about    CareOne's

stormwater management plan and the loss of the site's natural

resources.    She was concerned that CareOne's site plan contained

only one stormwater basin:

            My concern with the stormwater basin is
            based on the fact that [the] property was
            also once wetlands and we have very wet
            ground surface for days following rain.    In
            the month of December when a stormwater
            outlet to our basin was obstructed we had a
            couple feet of standing water for over 20
            days.    This standing water shows soils
            adjacent to CareOne do not provide recharge
            in a 72 hour period.     CareOne's stormwater
            basin is connected to the area of existing
            wetlands. . . .         I am concerned the
            increased permeable surface, loss of natural
            vegetation   and   surface   area   and   the
            questionable recharge properties may lead to
            flooding of adjacent areas and support a
            mosquito breeding area.

Following    receipt     of    appellants'     comments,      the     Department

requested    additional    information      from   CareOne,    which    filed    a

September 2008 revision of its "Detention Facilities Operation

and Maintenance Manual."

       On October 7, the Department's staff contacted Princeton

Hydro by telephone to discuss CareOne's stormwater design, and




                                     10                                 A-2231-08T2
then    responded         to    follow-up          emails       from    Princeton            Hydro   on

November       7    and    13.         The     staff       told    Princeton            Hydro     that

CareOne's      new     basin     was     not       required       to    be     "a      1:1   wetlands

replacement"         for       the     existing          "wet     basin,"           which     CareOne

proposed to fill and replace, because the basin had been created

under the 1999 permit.

       The     staff      also       told    Princeton          Hydro        that      filling       the

existing basin did not need to be part of CareOne's current

application, because the Department had "decided that requiring

. . . a permit for creating these wetlands and then another

permit    to       fill    these      same     wetlands         would     be      regulating         the

disturbance twice."                That advice, however, was not consistent

with the Department's earlier instruction to CareOne, in March

2008, that filling the existing basin and then creating a new

basin    involving         the       special       transition          area       of   the    offsite

wetlands required a separate General Permit No. 1 (GP1) wetlands

permit "for replacement of this wetland basin."

       On November 20, the Department issued CareOne an LOI/Line

Verification, specifying the boundary of the freshwater wetlands

and waters on the property, including the transition area for

the offsite wetlands.                 Based upon its own site inspection and

the     information        submitted          by        CareOne,       the     Department          also

determined         that    the       onsite     wetlands         were        of     "intermediate"




                                                   11                                         A-2231-08T2
resource    value,   "isolated         and        not   part    of    a    surface     water

tributary system."

      On    the   same    day,     the       Department         issued       CareOne     the

following    approvals:          (1)     a        GP6    permit,      which    authorized

activity involving the filling of 21,800 square feet (0.5 of an

acre) and the filling of the existing detention basin, including

a   transition    area    waiver       for        access;      (2)    a    Water   Quality

Certification; and (3) a Special Activity Transition Area Waiver

for   Stormwater     Management,         which          authorized        disturbing     the

transition area of the offsite wetlands.                             As the Department

acknowledges,     there    was    no    reference         to    CareOne's      stormwater

management plan or the agency's review of that plan on the face

of those approvals.

      The Department published notice of its permit approval in

the DEP Bulletin on December 3, and its approval of the special

transition area waiver on January 14, 2009.                          The Department did

not mention either a public comment period or the right to seek

a hearing for those approvals.                     However, the permit document

itself provided that, "[i]n accordance with N.J.A.C. 7:7A-1.7,

any person who is aggrieved by th[e] decision may request a

hearing within 30 days after notice of the decision is published

in the DEP Bulletin."            On January 2, 2009, appellants filed a

timely     "Adjudicatory    Hearing          Request"          with    the    Department,




                                             12                                    A-2231-08T2
asserting     that    alleged     defects      in    CareOne's         stormwater    plan

would cause the discharge of large volumes of stormwater onto

their properties.

       On January 5, appellants appealed the Department's November

2008   decision      granting     CareOne      the   GP6,     the      transition    area

waivers, and the water quality certificate.                            That appeal was

assigned Docket No. A-2231-08.

       On May 7, the Department moved for an order remanding the

matter to the Department for additional fact finding.                            It also

sought dismissal of the appeal without prejudice.                             The purpose

of    the   remand    was   to    address      the    issue       of    the    stormwater

management plan, which, as noted, had not been mentioned on the

face of the Department's approvals.                    The Department's section

chief asserted in her supporting certification that she would

meet with appellants and their consultant, Princeton Hydro, "to

discuss     concerns    expressed    in     their     submitted         comments,"     and

"[i]f the Department conclude[d] that the project . . . meets

the    Stormwater      Management    Regulations,           the     Department      shall

issue an amended decision setting forth the factual basis for

that determination."

       On June 22, we granted the Department's motion for remand

in Docket No. A-2231-08, but denied its motion to dismiss the

appeal.        Instead,      we     retained         jurisdiction         and     ordered




                                          13                                     A-2231-08T2
completion of the remand by September 25.                          We noted that we

would allow for "an appropriate extension" of the deadline if

the Department needed a "hearing . . . to properly complete

th[e] remand."         Although we granted extensions at the request of

both sides, the Department did not hold a hearing.

    In      August,        Department      staff   met     with      appellants      and

representatives of Princeton Hydro, the Delaware Riverkeeper,

and the Delaware Riverkeeper Network.5                  Appellants' counsel also

submitted       written     comments    and     legal    arguments.          Department

staff subsequently met with CareOne to discuss the objections

raised     by    the    project's       opponents.           In    October,     CareOne

submitted new revisions of its preliminary and final site plan,

its drawings, and TWT's "Drainage and Detention Calculations"

and "Detention Facilities Operation and Maintenance Manual."

    On      December        1,   Princeton       Hydro    sent      the      Department

objections      to   the    newly   revised      plans.       It    argued    that   the

Department should require CareOne to apply for an individual

permit   instead       of    a   general    permit,      because:     (1)     CareOne's

filling, relocating, and enlarging the existing detention basin

together    with       filling    the   wetlands      that    had    formed     in   the

uplands surrounding that basin since its 1999 construction did


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



                                           14                                  A-2231-08T2
not fall within the scope of the 1999 permit or qualify for a

GP1 under the N.J.A.C. 7:7A-5.1, which states that "[a]ctivities

under [GP1] shall not expand, widen or deepen the previously

authorized feature"; (2) the wetlands inside the existing basin

and   the   new     wetlands   created      in   the     uplands   could    not     be

considered isolated for GP6 purposes because of the existing

discharge     pipe    connecting     them    and    making    them   part      of   a

tributary system, and N.J.A.C. 7:7A-5.6 authorizes activities

"if the freshwater wetlands . . . are not part of a surface

water tributary system"; and (3) CareOne's proposed activities

combined     with     its    activities     in     the    existing    basin       and

associated wetlands exceeded the one-acre limit for a GP6 and

did not qualify for an exception under N.J.A.C. 7:7A-4.4(a).

      On    January    26,   2010,   the    Department       submitted     a   fact-

finding remand report, entitled "Engineering and Environmental

Report," to the Clerk of the Appellate Division.                   In the remand

report, the Department explained that "a number of revisions

were made to the proposed design of the site and the stormwater

management calculations by design engineer Gary Vecchio, P.E.,

as requested by the Department."

             The Nonstructural Strategies Point System
             (NSPS) spreadsheet has been revised to
             demonstrate that the project complies with
             the   requirements  of   N.J.A.C.  7:8-5.3.
             Various adjustments were made to the runoff
             and recharge calculations, based on revised



                                       15                                  A-2231-08T2
              assumptions of soil types and drainage
              areas.    Additionally, the proposed water
              quality treatment devices were modified as
              requested, so that only the water quality
              design storm, which is 1.25 inches of rain
              in a two-hour period, as defined at N.J.A.C.
              7:8-5.5(a) will be treated.    Modifications
              were also made to the stormwater management
              operation    and   maintenance   manual,   a
              construction sequence was provided, and
              runoff   to   depressed  areas  onsite   was
              reevaluated.

However, the Department informed us that CareOne still needed to

make additional design alterations to address Princeton Hydro's

December      2009    concerns     "with       which   the      Department      is    in

agreement."

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

new   inlet    proposed     for   Whitehorse-Hamilton           Square    Road       also

conveyed water into the proposed new detention basin, and that

CareOne    had    not     included     those     runoff      projections       in    its

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

assumed the wrong soil type in its stormwater calculations in

contradiction        to   the   soil    borings,       and    underestimated         and

underreported the difference in runoff quantities, "resulting in

additional     runoff     downstream      that    is   unaccounted       for   in    the

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

its proposed storm sewer system could carry stormwater into the

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

that the basin would function properly and not back up during



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

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

contradiction between CareOne's submitted materials and a detail

sheet       regarding        maintenance             methods        for         the      proposed

StormChambers infiltration units; (6) CareOne needed to conduct

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

the proposed hybrid basin, given that the seed mixture proposed

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

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

stormwater        calculations          failed        to     compute           drainage        times

"necessary to verify that storage exists for the next storm

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

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

perched      water    table,       which       would       surcharge            the    area       and

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

address     Princeton        Hydro's         conclusion        that       the     "Groundwater

Recharge     Trench"       to   the     StormChambers             "does    not    satisfy         the

Stormwater Rule design standards."

       The Department further advised us that, after addressing

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

the    freshwater      wetlands         permits       in     order        to    formalize         the

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

Department     also     asked      Princeton         Hydro     to       provide       engineering




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

from    adjacent          properties,"              adding    that,          based      on       the

information,         it     might       require        CareOne          to    make      "further

amendments      to        the    stormwater           management         design       of      th[e]

project."

       On March 10, the Department's Acting Commissioner denied

appellants' request for an adjudicatory hearing, finding that

they had "demonstrated neither a risk of erroneous deprivation

of a particularized property right nor any statutory right to an

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

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

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

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

report,     CareOne       submitted          revised    plans      and       drawings      to    the

Department.      These included (1) revised preliminary and final

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

drainage      areas;            (3)         revised     "Drainage             and     Detention

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

Facilities      Operation             and     Maintenance       Manual."              In      those

documents, CareOne proposed two new groundwater recharge areas

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

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



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

which was less than the recharge volume required within seventy-

two hours.     CareOne also reported that it had performed another

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

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

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

detention calculations, CareOne concluded that "the total annual

recharge volume will be greater than the post-development annual

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

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

[plus] 50%."

    In a February 1, 2011 letter to CareOne concerning the

2008-approved GP6 and transition area waivers, the Department

stated in part:

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

            [(Emphasis added).]

The Department's letter listed information and documents it had

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




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

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

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

subsequently revised drawings, calculations and manuals prepared

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

2010.

      The Department's letter continued:

                   This modification letter approves:

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

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

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

            [(Emphasis added).]

The     modification   letter   also        approved   various   drawings    as

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




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

sequence plan.

    However, the Department noted that

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

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

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

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

           [(Emphasis added).]

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

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

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

"Engineering and Environmental Report."



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

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

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

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

Having      reviewed      CareOne's       most        recent      submissions           and

calculations,     it     recommended       "approval."            The        staff     also

accepted    CareOne's     proposed      TSS    removal    rate       and     found     that

CareOne's     operation    and    maintenance        manual    was      in    accordance

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

objection letters from Princeton Hydro for CareOne's "original

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

management     report     and     plans       were     reviewed       twice     by      the

objector's     engineer    and     no   comments       were    received        for     this

revision."

      The   Department's        revised    "Engineering         and     Environmental

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

included a proposed inlet on Whitehorse-Hamilton Square Road in

its   basin    inflow/outflow        calculations,        which       satisfied         the

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

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

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

cubic feet of groundwater recharge beyond what was provided in

the originally approved design," but the Department still needed




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

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

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

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

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

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

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

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

Operation and Maintenance Manual" to provide for invasive plant

species and goose control, along with "an acceptable maintenance

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

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

mixture consisting of wet tolerant and dry tolerant varieties,"

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

plans     to     include     new    drainage     time        calculations,     "which

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

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

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

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

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

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

relocated its recharge areas to different locations above the

seasonal        high   groundwater          table,      which      satisfied       the




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

SWM design standards.

      The Department concluded:

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

Finally, the Department reiterated that "no additional comments

were received from the Objector's consultant."

      On February 15, Princeton Hydro submitted updated comments

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

and drawings to the Department.            According to Princeton Hydro,

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

Department until the Department's staff had contacted Miller on

November 29.

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

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

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

pending determination on the merits of the appeal.




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

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

correspondence to CareOne.    The notice provided as follows:

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

                The revision letter approves:

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

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

                (3) Groundwater recharge       chambers   are
                to be relocated.

               The applicant is still required             to
          submit the following information:

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

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

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




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

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

Department]."

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

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

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

A-3400-10.7

       In   March,   CareOne   submitted     additional   revisions      to    the

Department in response to the two conditions in its February 1

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

that CareOne had satisfied those conditions.                   The Department

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

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

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

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

notice referred to the fifteen-day public comment period.

       In June, the Department filed its fourth statement of items

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

correct the administrative record by adding an April 8 letter

they contend Princeton Hydro sent to the Department concerning


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



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

motion was pending, the Department filed its fifth statement,

which   included      other      items   received        by   the     Department    after

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

Princeton Hydro.

      We initially denied appellants' motion to supplement, but

on reconsideration reserved the issue pending a decision on the

merits.    We observed that

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

Because the Department published its April 20 letter as a notice

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

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

in the record on appeal.

      In that letter, Princeton Hydro wrote:

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



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

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



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

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

                                     II.

      Before turning to the substantive issues raised on this

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

pending our consideration of the merits.

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

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

related approvals, arguing that the issue is moot because the

2008 permit was superseded by the subsequent modifications that

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




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

took     final     administrative        action     with     respect       to      those

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

an issued permit).

       In   both   instances,      the   Department       published       notices      of

intent      to   settle,   which    triggered       public     comment      periods.

However,     the   Department   took      no    formal     action   to     adopt      the

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

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

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

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

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

appeal in Docket No. 3400-10 is interlocutory.

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

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

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

reluctantly consider the subsequent actions taken to have been a

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

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

       Nevertheless,       we   note          the   Department's          continuing

modification of the permit and other approvals long after the


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



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

determined that the information on which the 2008 approvals were

issued was inaccurate or insufficient, the better practice would

have been to withdraw the permit pending further review of the

applications.         Once it had finalized the approvals, it should

have     reissued     them,     as      revised,       with     appropriate         notice,

publication, and compliance with administrative procedures.

                                             III.

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

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

Commissioner's        denial       of       the     appellants'       request       for    an

adjudicatory hearing.

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

hearing is delineated and circumscribed by the Administrative

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

APA does not foreclose such third parties from seeking judicial

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

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

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

non-applicant        objector        no      automatic        right      to     a    formal

administrative        hearing      to     contest     the     issuance    of    a    permit

unless he or she can establish a statutory or constitutional

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




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

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

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

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

prohibits a state agency from promulgating rules or regulations

entitling        a    third    party      to    an     administrative          appeal    as    a

contested case under the APA unless "specifically authorized to

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

[a] particularized interest sufficient to require a hearing on

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

-3.2(c), -3.3.

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

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

right to a plenary administrative hearing to challenge DEP's

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

may   request          an      adjudicatory           hearing      to     challenge        the

Department's decision concerning a FWPA permit.                                Consequently,

appellants'          challenge      to    the        Department's       action    does     not

qualify for an adjudicatory hearing unless they establish that

one or more of their constitutional rights are at stake.

      In    rejecting         appellants'       request,        which    was    premised      on

CareOne's        project      posing      a     threat     of    increased       stormwater

discharge to their properties, the Acting Commissioner relied on




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

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

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

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

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

    Appellants     presented     only    their   fears   of    flooding     and

Princeton    Hydro's   calculations     evidencing   the      possibility   of

flooding on neighboring properties from CareOne's project.                  We

find no error in the Acting Commissioner's determination that

appellants    "have    not   demonstrated   a    particularized     property

right which gives rise to a constitutional basis for granting a

hearing."

    Consequently, we affirm the denial of appellants' request

for an adjudicatory hearing.

                                    IV.

    We next address appellants' argument that the Department's

reliance on the Nonstructural Strategies Points System to assess




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

implementation of the NSPS constituted improper administrative

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

supply     some     background,    including        the    Department's       general

stormwater management requirements and its incorporation of the

NSPS into its permitting process under the FWPA.

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

FWPA individual permit and all regulated activities requiring an

FWPA general permit that propose to disturb one or more acres

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

and   trigger        compliance     with      the     Department's         stormwater

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

requirement applies to a project that would increase impervious

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

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

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

standards     for     limiting     the     "adverse       impact    of     stormwater

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

erosion,      encouraging         and      controlling          infiltration       and

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




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

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

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

standards     in     those        two     regulations          "shall     be      met    by

incorporating nonstructural stormwater management strategies at

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

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

The   nine    specific      nonstructural         strategies       that     "shall"      be

incorporated       into   every     site       design    to     "the    maximum    extent

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

      In   addition,      all     permit       applicants       "shall    identify      the

nonstructural      strategies       incorporated         into    the     design    of   the

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

applicant    contends      that     it    is    not    feasible    for     engineering,

environmental or safety reasons to incorporate any nonstructural

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

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

applicant shall identify the strategy and provide a basis for

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

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

nonstructural       measures        alone       that      "structural          stormwater

management measures . . . necessary to meet these standards

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




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

applicants     for       major        developments,           such        as     CareOne,        to

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

nonstructural        stormwater            strategies,         such        as      swales       or

bioretention        basins,          priority         over     structural          stormwater

strategies,       such    as     storm       sewers,         pipes,       and     manufactured

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

such priority was not feasible for engineering, environmental or

safety reasons.10

     When     the     Department            proposed         its        current    stormwater

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

commenters     requested             "a     definition"            of     "maximum        extent

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

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

sensitive and cannot be reduced to a standard formula.                                         The

reviewing     agency's         administrative           discretion          in     determining

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

chapter and its statutory mandates."                           Ibid.           The Department

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

effort required to achieve full compliance with the applicable



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



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

development in question."   Ibid.

    Commenters further noted that neither the proposed rules

nor the New Jersey Stormwater Best Management Practices (BMP)

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

effectiveness of the nonstructural measures incorporated into

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

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

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

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

         [Id. at 720.]




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

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

planners,    designers,     and    regulators         in    determining      that      the

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

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

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

on   its    website,      along   with     other       guidance      documents         and

responses    to     "Frequently     Asked      Questions"         relating      to     its

stormwater management rules.11

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

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


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



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

administrative rule and should have been adopted through the

formal    rulemaking      process.         Both    the        Department      and     CareOne

argue that formal APA rulemaking is not required because the

Department is entitled to take informal action to advise and

supervise the regulated community, such as creating the NSPS and

using it to review permit and waiver applications.                             They assert

that     the     NSPS     provides         no     new     substantive           legal       or

administrative standard or policy that cannot be inferred from

the existing stormwater management rules.                         Respondents further

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

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

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

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

nonstructural features, providing only a preliminary screen for

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

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

stormwater plan."

       Respondents'        argument        is      fatally           undercut        by     the

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

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



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

            [(Emphasis added).]

    It is clear from the language used by the Department itself

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

beyond    the    NSPS     if    the   minimum   number     of    points     have   been

awarded     to        satisfy      the   "sufficient"           standard,     without

determining whether the use of additional nonstructural measures

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

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

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

application      of    the     NSPS   conflicts     with   the    Department's      own

assertion,       during      promulgation      of   its    stormwater     management

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

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

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



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

calculations       depend     on    varying        site-specific      conditions,       the

Department does not believe that the formation of a table is

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

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

the    Department,      improperly        shortcuts         the    application       review

process because it has not been subjected to the rulemaking

process and its opportunity for public comment.                       We agree.

       Administrative agencies possess wide latitude in selecting

the appropriate procedures to effectuate their regulatory duties

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

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

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

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

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

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

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

       "The    inquiry      whether        an      agency's        actions    constitute

improper      rulemaking      is    informed        by   well-settled        principles."

Ibid.    Guidance documents, standardized forms, and responses to

"frequently asked questions" can constitute improper rulemaking.

Id. at 112-14, 138-40.




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

"statement of general applicability and continuing effect that

implements     or    interprets        law    or    policy,       or    describes         the

organization, procedure or practice requirements" of the agency.

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

constitutes an 'administrative rule,' then its validity requires

compliance with the specific procedures of the APA that control

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

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

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

     Formal rulemaking "allows the agency to further the policy

goals of legislation by developing coherent and rational codes

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

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

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

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

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

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

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

inform     regulators       of    consequences      which     they      may      not    have

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

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

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




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

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

    The Supreme Court has identified six factors to consider

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

comply   with   the   requirements    governing      the   promulgation   of

administrative   rules   as   provided    by   the    APA."    Metromedia,

supra, 97 N.J. at 328.

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



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

              [Id. at 331-32.]

     Although the Court formulated those factors in the context

of   distinguishing       rulemaking      from    adjudication,           they    also

provide a test for determining when rulemaking procedures are

necessary      to     validate   agency       actions    or        determinations.

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

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

authority of an agency to act without conforming to the formal

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

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

factors will clearly be more relevant in a given situation than

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

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

quantitative compilation of the number of factors which weigh

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

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

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

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

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

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

review   of    all     applications    covered     by   the    "maximum          extent

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



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

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

and     is    not   an   adjudicative     decision    or    application   of    a

procedure       under    limited    circumstances.          It   establishes    a

standard for application submissions and agency evaluations that

is not otherwise expressly provided by or obviously inferable

from the Department's stormwater management rules or from any

statute or other regulation.                  It constitutes a material and

significant change from what applicants are required to submit

as    to     nonstructural    stormwater       management    strategies   under

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

significant change from the Department's own position at the

time it adopted the regulation, when it specifically rejected

suggestions that it create a formula because compliance with

those        requirements    is      a   "fact-sensitive"        determination.

Finally, creating a fixed formula for assigning NSPS points and

percentages reflects a decision on regulatory policy not found

in regulations adopted through the APA.

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

NSPS in connection with its evaluation of CareOne's applications

was impermissible because the NSPS procedure was not the subject




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

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

well as its issuance and modification of permits and related

approvals.

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

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

Department for further proceedings consistent with this opinion.

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

points raised on appeal.

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

remanded.    We do not retain jurisdiction.




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




                                         46                              A-2231-08T2
