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Thursday, January 15, 2015

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS. ALLOWAY TOWNSHIP, ET AL. A-3835-12T3


NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
          VS. ALLOWAY TOWNSHIP, ET AL.
A-3835-12T3
In this appeal, we interpret provisions of the Safe Dam Act, N.J.S.A. 58:4-1 to -14, in particular DEP's authority to bring a civil enforcement action against an "owner or person having control of a reservoir or dam." N.J.S.A. 58:4-5(a). The Chancery Judge granted DEP summary judgment, concluding that the owner of the land upon which the dam was constructed, who also owned the reservoir created, as well as the county, which had constructed works appurtenant to the earthen dam, and the township, which maintained a road that traversed the crest of the dam, were all responsible under the statute and assessed civil penalties accordingly. We affirmed the judge's decision in all respects.
In so doing, we specifically overruled that portion of a published opinion of the Chancery Division, New Jersey Department of Environmental Protection v. Mercer County Soil Conservation District, 425 N.J. Super. 208 (Ch. Div. 2009), which held that ownership of the land upon which the dam was constructed was not, in and of itself, a sufficient basis for liability under the Act.