IN THE MATTER OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION CAFRA PERMIT NO. 0XXX-XX-0007.1 CAF 150001 AND FRESHWATER WETLANDS PROTECTION ACT PERMIT NO. 0XXX-XX-0007.1 FWW 15001 ISSUED TO NEW JERSEY NATURAL GAS (NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3293-16T1

IN THE MATTER OF NEW
JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION
CAFRA PERMIT NO. 0000-15-0007.1
CAF 150001 AND FRESHWATER
WETLANDS PROTECTION ACT
PERMIT NO. 0000-15-0007.1
FWW 15001 ISSUED TO NEW
JERSEY NATURAL GAS.
______________________________

Submitted March 27, 2019 – Decided July 22, 2019

Before Judges Fuentes, Vernoia and Moynihan.

On appeal from permits issued by the New Jersey
Department of Environmental Protection, Nos. 0000-
15-0007.1 CAF 150001 and 0000-15-0007.1 FWW
15001.

Potter and Dickson, attorneys for appellants People
Over Pipelines, Inc., Agnes Marsala, Rita Romeu, Glen
Ashton, Katherine Marlin and Michael Marlin (R.
William Potter, on the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Department of Environmental
Protection (Jason W. Rockwell, Assistant Attorney
 General, of counsel; Bruce A. Velzy, Deputy Attorney
General, on the brief).

Riker, Danzig, Scherer, Hyland & Perretti LLP,
attorneys for respondent-intervenor New Jersey Natural
Gas Company (Dennis J. Krumholz, of counsel and on
the brief; Laurie J. Sands and Michael S. Kettler, on the
brief).

PER CURIAM

Appellants Agnes Marsala, Rita Romeu, Glen Ashton, Katherine Marlin,

Michael Marlin, all individually, and People Over Pipelines, Inc. (POP)

challenge the issuance of a joint permit by the New Jersey Department of

Environmental Protection (the Department) under the Coastal Area Facility

Review Act (CAFRA), N.J.S.A. 13:19-1 to -21, and the Freshwater Wetlands

Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30, authorizing intervenor New

Jersey Natural Gas Company (NJ Gas) to install a .68 mile long portion of a

thirty-mile natural gas transmission pipeline (SRL), which would cause "the

permanent disturbance of 0.021 acres of freshwater wetlands and 0.170 acres of

freshwater wetland transition area, and temporary disturbance of 0.378 acres of

freshwater wetlands and 5.54 acres of freshwater wetland transition area."

Appellants in their merits brief assert:

Point I

A-3293-16T1
2
 The [Department] Failed To Identify Sufficient Facts In
The Record Supporting The CAFRA Permit Granted To
[NJ Gas] For A Segment Of The SRL Pipeline Project.

Point II

The CAFRA Criteria For Issuance Of A Permit Have
Not Been Met By The Facts Of Record.

Point III

The [Response To Public Comments] Revealed Fatal
Defects And Failed To Provide The Necessary Support
To Sustain The [Department] Permits.

Point IV

The CAFRA Statute Requires Findings To Be Made By
The Commissioner Of The [Department] And There Is
Nothing In The Record To Show That [The Department
Employee Who Prepared Those Findings] Was
Properly Delegated The Required Statutory Authority.

The Department's determination, fairly supported by sufficient evidence in the

record which we have closely reviewed, was not arbitrary, capricious or

unreasonable. Consequently, we affirm.

We first address NJ Gas's challenge to appellants' standing. Typically,

"[t]o possess standing in a case, a party must present a sufficient stake in the

outcome of the litigation, a real adverseness with respect to the subject matter,

and a substantial likelihood that the party will suffer harm in the event of an

unfavorable decision." In re Camden County, 170 N.J. 439, 449 (2002). Under

A-3293-16T1
3
New Jersey's liberal approach to standing, "owners of other properties in the

vicinity of a property for which a permit or other land use approval has been

granted may appeal the approval." In re Issuance of Access Conforming Lot

Permit No. A-17-N-N040-2007, 417 N.J. Super. 115, 126 (App. Div. 2010). In

a CAFRA case, all that is necessary is a "slight private interest, added to and

harmonizing with the public interest." SMB Assocs. v. N.J. Dep't of Envtl. Prot.,

264 N.J. Super. 38, 46 (1993) (quoting Elizabeth Fed. S & L Ass'n v. Howell,

24 N.J. 488, 499 (1957)), aff'd, 137 N.J. 58 (1994); see also N.J. Dep't of Envtl.

Prot. v. Exxon Mobil Corp., 453 N.J. Super. 272, 301 (App. Div. 2018), certif.

denied, 233 N.J. 378 (2018). We have explained

the right to seek judicial review of administrative
decisions "inheres not only in those who are direct
parties to the initial proceedings before an
administrative agency . . . but also belongs to all
persons who are directly affected by and aggrieved as a
result of the particular action sought to be brought
before the courts for review."

[SMB Assocs., 264 N.J. Super. at 46 (alteration in
original) (quoting Elizabeth Fed. S & L Ass'n, 24 N.J.
at 499-500).]

In SMB Associates, we concluded that the appellants – "a non-profit

organization whose goal is to encourage the study and conservation of marine

life and its habitat," the executive director of that non-profit group who

A-3293-16T1
4
"personally use[d] the coastal waters of New Jersey for recreation," and a

fisherman whose fishing waters were affected by the Department's decision –

had standing, despite failing to participate in the public proceedings prior to the

approval of CAFRA permits. Id. at 44-45, 47. We asked rhetorically, "if

appellants do not have standing, 'who then is there who can or will challenge'

the [agency action], thereby advancing the public interest?" Id. at 47 (quoting

In re Waterfront Dev. Permit No. WD88-0443-1, Lincoln Harbor Final Dev.,

244 N.J. Super. 426, 438 (App. Div. 1990)). Affirming our decision, the

Supreme Court ruled "the Appellate Division did not err in concluding that [the

non-profit group], as an association concerned with the preservation of our

coastal resources, had sufficient interests in the water-dependent development

issues of this case to appeal the [government] action under Rule 2:2-3(a)(2)." 1

SMB Assocs. v. N.J. Dep't of Envtl. Prot., 137 N.J. 58, 61-62 (1994). More

recently, we held an environmental group had standing to challenge a settlement

between the Department and Exxon because of "their broad representation of

1
"[A]ppeals may be taken to the Appellate Division as of right . . . to review
final decisions or actions of any state administrative agency or officer, and to
review the validity of any rule promulgated by such agency or officer . . . ." R.
2:2-3(a)(2).
A-3293-16T1
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citizen interests throughout this state." Exxon Mobil Corp., 453 N.J. Super. at

301.

Under those standards, POP – which essentially argues the equitable relief

of a remand to the Department is required because, in granting the permit, the

Department took inadequate action to protect the environment – has standing.

Rita Romeu, vice president of POP, commented at the public hearing that POP

represents "the community members from Chesterfield, Bordentown, North

Hanover, Upper Freehold, and other cities that are going to be affected by this."

As such, POP's representation of people from various municipalities through

which the pipeline will be constructed established its standing. 2 See Exxon

Mobil Corp., 453 N.J. Super. at 294.

The standard for individual standing, however, is not as broad. In Exxon

Mobil, we determined that although an environmental group had standing, the

residency of a state senator who lived in a city adjacent to that in which the

refinery in question was located did not provide him with standing because he

lacked "a sufficient 'personal or pecuniary interest or property right adversely

2
The permit lists the project as affecting lots in Chesterfield, North Hanover,
Plumstead, Upper Freehold, Jackson and Manchester.
A-3293-16T1
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affected by the judgement.'" Id. at 301 (quoting State v. A.L., 440 N.J. Super.

400, 418 (App. Div. 2015)).

The burden of providing facts to establish standing is on appellants . See

N.J. Shore Builders Ass'n v. Twp. of S. Brunswick, 325 N.J. Super. 412, 419-

420 (App. Div. 1999). Our review of the record, which appellants have not

moved to supplement, Rule 2:5-5(b), reveals: Agnes Marsala did not state where

she resided, only that she had previously driven past the affected area; Rita

Romeu noted that she was a resident of Chesterfield but, beyond her office in

POP and her statement that she is a resident of Chesterfield, and unlike the

executive director in SMB Associates, did not provide any facts to establish her

personal, pecuniary or property interest that will be affected by the pipeline ; 3

Glen Ashton did not state where he resides or his personal interest in the pipeline

project; Katherine Marlin did not say where she resides; and Michael Marlin

did not speak at any hearings and the record is bereft of any interest he has in

the pipeline project. Thus the record before us is insufficient to establish

standing for the individual appellants. Nevertheless, since POP has standing,

3
We note that when affirming our decision in SMB Associates, the Court
expressly declined to address our determination that the executive director of
the non-profit group had standing. 137 N.J. at 62. Given that our recent decision
in Exxon Mobil examined personal interest when determining individual
standing, 453 N.J. Super. at 301, we adhere to that analysis here.
A-3293-16T1
7
we will address the merits of the appeal. We note that POP and the individual

appellants advanced the same arguments in a joint merits brief. Our ruling that

the individual appellants do not have standing, therefore, has no effect on our

ultimate determination of this appeal.

We are unpersuaded by POP's arguments that the Department granted the

permit without making requisite factual findings and that there is insufficient

credible evidence in the record that the statutory CAFRA criteria were met. Our

review of the permit and related twenty-six page environmental report and

fourteen-page response to public comments belies POP's former argument

which, itself, is a meager, bald assertion unsupported in the merits brief by any

facts. The documents prepared by the Department adequately "set forth basic

findings of fact, supported by the evidence and supporting the [Department's]

ultimate conclusions and final determination," thus fulfilling its substantive

responsibility to the public and the courts. In re Issuance of a Permit by Dep't

of Envtl. Prot. to Ciba-Geigy Corp., 120 N.J. 164, 172-73 (1990) (quoting In re

Application of Howard Savings Inst., 32 N.J. 29, 52 (1960)).

A-3293-16T1
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 Those same documents evidence facts that supported the Department's

grant of the CAFRA permit thus surmounting POP's latter argument. 4 "In our

review of this administrative decision we are necessarily limited to a narrow

function, namely, to determine whether there is sufficient evidence in the record

as a whole to justify the determination reached below." Pub. Interest Research

Grp., Inc. v. State, Dep't of Envtl. Prot., 152 N.J. Super. 191, 203 (App. Div.

1977). "Such a limited scope of review is particularly significant in this area of

highly technical and scientific knowledge, wherein a court must accord a high

degree of deference to the administrative agency and its expertise." Ibid.

"The Commissioner of the Department . . . may not issue a permit unless

he finds that the statutory standards have been met." SMB Assocs., 264 N.J.

Super. at 41. The Legislature requires the Department, before issuing a CAFRA

permit, to find that the proposed development:

a. Conforms with all applicable air, water and radiation
emission and effluent standards and all applicable water
quality criteria and air quality standards.

b. Prevents air emissions and water effluents in excess
of the existing dilution, assimilative, and recovery

4
POP does not advance any argument in its merits brief challenging the
substantive grounds for the Department's issuance of the FWPA permit. Nor
does it argue that the mandated CAFRA regulatory criteria have not been met.
It likewise does not challenge the permit conditions imposed by the Department.
A-3293-16T1
9
 capacities of the air and water environments at the site
and within the surrounding region.

c. Provides for the collection and disposal of litter,
recyclable material and solid waste in such a manner as
to minimize adverse environmental effects and the
threat to the public health, safety, and welfare.

d. Would result in minimal feasible impairment of the
regenerative capacity of water aquifers or other ground
or surface water supplies.

e. Would cause minimal feasible interference with the
natural functioning of plant, animal, fish, and human
life processes at the site and within the surrounding
region.

f. Is located or constructed so as to neither endanger
human life or property nor otherwise impair the public
health, safety, and welfare.

g. Would result in minimal practicable degradation of
unique or irreplaceable land types, historical or
archeological areas, and existing public scenic
attributes at the site and within the surrounding region.

[N.J.S.A. 13:19-10(a) to (g).]

In considering the 19-10 statutory criteria, the Department reviewed over

1800 public comments made during an extended comment period. It also

received and reviewed agency comments from the United States Fish and

Wildlife Service, New Jersey Division of Fish and Wildlife, New Jersey State

Historical Preservation Office, the Department's Green Acres Program, the

A-3293-16T1
10
Pinelands Commission, the Bureau of Water Allocation & Well Permitting, the

Department's Site Remediation Program, the Division of Land Use Regulation

(DLUR) Endangered and Threatened Species Unit (ETSU), the DLUR engineer,

and the DLUR Mitigation Unit.

In addition to setting forth, in over nine single-spaced pages of its

environmental report, its reasons for finding compliance or conditional

compliance with the CAFRA regulatory scheme, the Department similarly

addressed the N.J.S.A. 13:19-10 criteria; its findings are buttressed by its

regulatory analysis as well as the agency's comments and responses to public

comments.

In addressing the air and water quality criteria in subsections (a) and (b),

the Department noted in its regulatory findings that "no stream crossings [were]

proposed in the CAFRA zone" but protection against possible disturbance to

contaminated soil or water in streams and tributaries within the wate rshed of

Manapaqua Brook, which drains into a CAFRA zone and which will be crossed

by the pipeline, required NJ Gas, to have a plan in place for identifying and

managing contaminated material and to contact the Department Bureau of Site

Remediation if it encountered contaminated material. Further, approved

construction crossing streams, "utilizing either HDD [Horizontal Directional

A-3293-16T1
11
Drill] methods, jack and bore or trenching under existing culverts," would allow

those crossings to be made "without disturbing the surface characteristics." A

November 29, 2016 letter to the Department written by AECOM on behalf of

NJ Gas explained both these construction methods and other limitations of

construction activity. AECOM also prepared a March 24, 2015 Horizontal

Directional Drill Contingency Plan for Handling Inadvertent Releases of

Drilling Mud and a compliance statement as part of the application process

which details construction methods designed to meet the CAFRA statutory and

regulatory requirements.

Air standards were also addressed. The only anticipated air emissions

from the project were "temporary emissions of combustion-related pollutants"

from construction equipment and "fugitive particulate matter" – earth related to

excavation and construction activities – neither of which would have a

significant impact on air quality. Nonetheless, the compliance statement details

the mitigation measures NJ Gas will implement to reduce those emissions.

The Department, assessing subsection (c), reviewed NJ Gas's application

and submissions. Although those documents did not reveal that the project

would generate waste, the Department nonetheless included a standard condition

A-3293-16T1
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in the permit regarding waste management, removal and disposal: permit

standard condition 22.

In addressing subsection (d), the Department considered that the project

"is limited to installation of natural gas pipelines below ground level, and

primarily within paved roads" and, therefore, concluded construction was not

expected to intersect the aquifer or impair the "regenerative capacity of the water

aquifers." The Department also relied on the comment by the Bureau of Water

Allocation & Well Permitting in limiting the amount of water for construction

dewatering and requiring the cessation of construction if amounts exceeded the

thresholds in place.

The Department, utilizing recommended and required conditions –

comprehensively synopsized in the environmental report – from the United

States Fish and Wildlife Service, New Jersey Division of Fish and Wildlife and

the DLUR ETSU regarding a number of detailed species inhabiting the proposed

construction route, mandated extensive construction restrictions in its regulatory

findings under N.J.A.C. 7:7-9.36 and its evaluation of subsection (e).

In assessing subsection (f), the Department again noted the project "is

located primarily beneath existing paved roads and within the road [right -of-

A-3293-16T1
13
ways] and will be constructed using best management practices, "5 thus

dangerous conditions to "human life or property, public health, safety and

welfare" were not anticipated. The Department required, however, that

conditions recommended by the Department's Site Remediation Program be

implemented. As the environmental report related, the Program commented that

the project would "traverse known contaminated sites as well as areas where

potential unexploded ordnance has been identified on the Joint Base McGuire-

Dix-Lakehurst," and required NJ Gas to "have a plan in place for identifying and

managing contaminated soil, groundwater, surface water, and/or sediments

encountered during construction and installation." It also required NJ Gas to

coordinate construction activities with the Air Force. The Department echoed

those requirements in its analysis of this subsection.

5
N.J.A.C. 7:7a-1.3 provides:

"Best Management Practices" or "BMPs" means
methods, measures, designs, performance standards,
maintenance procedures, and other management
practices which prevent or reduce adverse impacts upon
or pollution of freshwater wetlands, State open waters,
and adjacent aquatic habitats, which facilitate
compliance with [enumerated federal and state
environmental laws] and effluent limitations or
prohibitions under Section 307(a) of the Federal Act
and the Department's Surface Water Quality Standards,
N.J.A.C. 7:9B.
A-3293-16T1
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 The Department considered, in connection with subsection (g), extensive

comments by the Historical Preservation Office, as fully set forth in the section

of the environmental report regarding N.J.A.C. 7:7-9.34, and required NJ Gas

to consult with the Office and comply with its requirements in order to minimize

"practicable degradation of historic and archeological areas." As set forth more

fully in the Department's analysis of N.J.A.C. 7:7-9.38 of the environmental

report, the project would have minimal impact on Green Acres encumbered

parcels, except for one parcel for which NJ Gas entered into a right of entry

agreement. The Department also included a condition that required NJ Gas to

obtain approval from the Green Acres Program if changed plans impacted Green

Acres property.

The Department's documents, considered as a whole, evidence that the

Department properly exercised its power under N.J.S.A. 13:19-10, and issued

the permit after making "specific findings . . . regarding the development's

impact on the environment." Crema v. N.J. Dep't of Envtl. Prot., 182 N.J. Super.

445, 453 (App. Div. 1982), aff’d as modified, 94 N.J. 286 (1983). The

Department need not, contrary to POP's contention, respond to each individual

criticism or concern raised by public comment or scrutinize all potential

alternatives to an applicant's proposal. Nor does it need to address factors that

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15
are not set forth in N.J.S.A. 13:19-10, including alleged impact of the project on

global warming. It need only set forth, as it did here, its findings regarding the

enumerated factors. We accord a high degree of deference to the Department's

findings in light of its expertise in this "highly technical and scientific" field.

Pub. Interest Research Grp., Inc., 152 N.J. Super. at 203. In that those findings

were, as we delineated, supported by sufficient, credible evidence in the record,

the Department's issuance of the permit was justified. Ibid.

POP also argues the freshwater wetlands component of NJ Gas's

application was unlawfully segmented from a permit application submitted by

Transco, another energy company, for construction of a natural gas valve station,

gas meter and regulating station, gas compressor station, electrical substation,

storm water management facilities, an office building, parking and a

communications tower for its project, the Garden State Expansion (GSE), which

would supply the gas that passed through NJ Gas's pipeline. POP contends both

applications involved parts of single project and segmentation allowed NJ Gas

to apply for a general permit instead of an individual permit, 6 preventing "a

6
N.J.A.C. 7:7a-1.3 provides the definitions of these permits:

"General permit" means a permit, adopted as a rule,
under which the Department issues authorizations. A

A-3293-16T1
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comprehensive review of the cumulative primary and secondary impacts" of the

combined projects. Citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402 (1971), it asserts segmentation fails the "independent utility" test. That

test requires multiple projects to be considered the same project for permit

purposes under the federal National Environmental Protection Act, 42 U.S.C. §§

4321 to 4370m-12, "if the segmented project has no independent utility, no life

of its own, or is simply illogical when viewed in isolation." Stewart Park &

Reserve Coalition, Inc. v. Slater, 352 F.3d 545, 559 (2d. Cir. 2003).

The Department, however, does not utilize the independent utility test.

Instead, it analyzes segmentation under its own regulatory provisions. Although

POP argues the provision cited by the Department, N.J.A.C. 7:7A-7.1(c) (Oct.

6, 2008), was repealed after NJ Gas's application was approved on February 24,

general permit may authorize regulated activities in
freshwater wetlands, State open waters, and/or
transition areas. An authorization issued under a
general permit satisfies the requirement for a
freshwater wetlands permit, open water fill permit,
and/or transition area waiver, as applicable.
....
"Individual permit" means a freshwater wetlands
permit or open water fill permit that is issued by the
Department after an alternatives analysis and other site-
specific and project-specific reviews required at
N.J.A.C. 7:7A-10.
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2017, and this appeal should consider the "readopted and amended" provision

that became effective on December 18, 2017, N.J.A.C. 7:7A-10.1(c), we observe

those provisions apply to FWPA individual permits, not general permits, the

segmentation of which are analyzed under N.J.A.C. 7:7A-5.3(f).

In any event, all of the regulatory provisions provide that the permit,

including any activity conducted thereunder, applies "to the entire site" upon

which activities occur. N.J.A.C. 7:7A-5.3(f); N.J.A.C. 7:7A-7.1(c) (Oct. 6,

2008); N.J.A.C. 7:7A-10.1(c). And each regulation provides:

[a]n applicant shall not segment a project or its impacts
by applying for [a general permit] for one portion of the
project and applying for an individual permit for
another portion of the project. Similarly, an applicant
shall not segment a project or its impacts by separately
applying for [a separate permit] for different portions
of the same project.

[N.J.A.C. 7:7A-5.3(f); N.J.A.C. 7:7A-7.1(c) (Oct. 6,
2008); N.J.A.C. 7:7A-10.1(c).]

Giving "'great deference'" to an agency's "'interpretation of statutes within

its scope of authority and its adoption of rules implementing' the laws for which

it is responsible," N.J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 549

(2012) (quoting N.J. Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of

Agric., 196 N.J. 366, 385 (2008)), and focusing not on "whether the agency

interpretation [of its regulations] is indisputably correct, but on whether it is not

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plainly unreasonable," Ge Solid State, Inc. v. Dir., Div. of Taxation, 132 N.J.

298, 322 (1993), we determine the Department correctly ruled that the NJ Gas

and Transco projects were discrete.

NJ Gas and Transco are separate entities and independently discretely

applied for approval of their respective projects. Thus, they were not "an

applicant" which was prohibited by the regulations from segmenting a project.

Moreover, a "site" is "the area within the legal boundary of the property(ies) or

right-of-way . . . upon which a regulated activity is proposed, is occurring, or

has occurred, plus any contiguous land owned or controlled by the same

person(s)." N.J.A.C. 7:7A-1.3 (emphasis added). The Department, in its

response to public comments, set forth the basis for its decision that the projects

were not segmented:

The [NJ Gas] project primarily takes place in the
right of ways of roads or on easements leased or
purchased from property owners along the route. The
roadways include municipal, County, State roads, as
well as federal roads located on Joint Base [McGuire-
Dix-Lakehurst]. The GSE compressor station and
electrical substation in Chesterfield and Bordentown
are proposed on two lots owned by Transco, within an
easement to cross a PSEG right of way, and to cross a
third property that is owned by Bordentown. The
Bordentown parcel is Green Acres encumbered.
Transco has initiated condemnation proceedings for an
easement through the Bordentown property. With the
exception of the pipe connection between the proposed

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 Transco GSE compressor and the proposed [NJ Gas]
SRL pipeline in the roadway, the two project locations
are not contiguous land owned or controlled by the
same person(s).

Further, Transco and [NJ Gas] are not co-
applicants for either project. Although the two projects
are associated with transporting natural gas, the
Transco project is regulated by the Federal Energy
Regulatory Commission and the [NJ Gas] project is
regulated by the NJ Board of Public Utilities.

In that the NJ Gas and Transco projects, except for the site of the necessary

junction, are being built on separate, non-contiguous parcels not owned or

controlled by the same entity, the Department's classification of the projects was

not plainly unreasonable.

We determine POP's argument that the permit was issued by a Department

official who did not have delegated authority to do so to be without sufficient

merit to warrant further discussion. R. 2:11-3(e)(1)(E). POP's argument

mistakenly postulates that the permit was issued by a DLUR environmental

specialist. It was issued by the DLUR director, to whom authority was properly

delegated by the Land Use Management assistant commissioner, who derived

that authority from the Commissioner via Administrative Order No. 2014-10,

see N.J.S.A. 13:1B-4.

Affirmed.

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