June 4, 2025, Planning Board Regular Meeting Transcript - WEHI

06/20/2025 06:55:03 AM Page 53 to 56 of 101 14 of 41 sheets 53 both accounts. This, for example what I was saying,1 this Basin 1 interrupts that groundwater flow as well.2 And then it's at 532 and the wetlands are at 45 -- 540.3 So you change that gradient from groundwater moving4 towards the wetland to now groundwater or water in the5 wetland moving towards the basin. But not only is that6 an impact on the wetlands, but it is going to compromise7 the design of the basin because there's water that was8 never anticipated in the design.9 MR. ALPER: Okay.10 And then can, if you could go back to the11 arrow page with the blue arrows. Yeah, that's good.12 So if I understood you correctly, you're13 saying that the impact here of the pink arrows is14 there's going to be less water to the northern part of15 the wetlands? They're going to dry out.16 THE WITNESS: To an extent, yes. There's17 just less water getting to them.18 MR. ALPER: Is that what you might call19 destruction of wetlands or not to that extent or is20 that --21 THE WITNESS: It does definitely have an22 impact.23 MR. ALPER: Also, DEP doesn't have24 jurisdiction on that or they do but they didn't look at25 54 it or they looked at it and decided it was okay?1 THE WITNESS: There you go. Their footprint2 of jurisdiction is the wetlands and the wetland3 transition area.4 MR. ALPER: So who does have that5 jurisdiction or who does it go to if the wetlands are6 disturbed?7 THE WITNESS: Normally DEP does it. Many8 times Townships, even though they can't supercede9 ordinances, but they could have stream buffers or stream10 impact requirements and that would feed into that. So11 it's often part of a municipal EIS.12 MR. ALPER: Are these your arrows or --13 THE WITNESS: They are.14 MR. ALPER: Has the DEP seen these arrows?15 THE WITNESS: They have now.16 MR. ALPER: This is in the letter that you17 sent, they just haven't responded?18 THE WITNESS: That's correct.19 MR. ALPER: I guess my remaining questions20 are for Mr. Bagoff.21 Do we have some power if the DEP is not22 weighing in on specific actions as opposed to DEP? If23 you say X and DEP says no, X is fine. I assume maybe we24 don't have an issue. If you say X and DEP never25 55 responds on X, does the Planning Board have some1 jurisdiction in that regard?2 MS. McGOVERN: Well, I think under N.J.S.A.3 13:9B-30, pretty clear that the DEP has the

If you say X and DEP never25 55 responds on X, does the Planning Board have some1 jurisdiction in that regard?2 MS. McGOVERN: Well, I think under N.J.S.A.3 13:9B-30, pretty clear that the DEP has the exclusive4 right for regulations, number one.5 Number two, and what this Board has to6 review is if this application complies with its7 ordinance, with the towns ordinance. And the town8 ordinance specifically state's under General Provisions,9 which is Section C5. "The development of the tract10 shall be exempt from all bulk design and environmental11 regulations of West Orange Land Use regulation12 ordinances unless otherwise indicated herein." And13 there are no other environmental regulations set forth14 in this ordinance. So if the Board finds that they15 complied with ordinance as it applies to this zoning16 district, that's what the Board is supposed to be17 looking at. If the Board disagree with the DEP, the18 Board has no power to disagree with the DEP. It is a19 higher level. The Appellate Division has to make that20 decision.21 MR. ALPER: Even if the DEP maybe didn't22 look at it as we say they should?23 MS. McGOVERN: Well, we know there was a big24 submission, so we didn't look at that. I don't know25 56 whether the witness did look at everything that was1 submitted to the DEP by the applicant because it is on2 file.3 THE WITNESS: Yes. Well, I am not sure we4 looked at every page but we looked at a lot.5 MS. McGOVERN: Also I would defer to our6 expert, perhaps if something was egregious or something7 really like, I don't know, whether these are minor8 consistencies or this is something totally unusual.9 MR. MacNEILL: So when we develop a site10 regarding freshwater wetlands any impacts of that11 development are regulated by NJ DEP. So NJ DEP doesn't12 have N.J.S.A. 7A, it is not a regulation that as a Board13 we could point back to. It's not in our code. It's not14 in the freshwater protection rules. There is -- it's15 nothing that I have identified that had showed any16 noncompliance with those freshwater wetland rules based17 on my review of them. Typically as a Board it's always18 a condition of any potential approval that you need to19 obtain your outside agency approvals. One of them in20 this case, as the Board engineer, we identified those21 required approvals and it's up to the applicant to22 obtain them and provide them for us to review and

utside agency approvals. One of them in20 this case, as the Board engineer, we identified those21 required approvals and it's up to the applicant to22 obtain them and provide them for us to review and verify23 that it is consistent with what we're reviewing. The24 revision that was approved we have also reviewed and25