On appeal from the determination of the Water Policy and Supply Council of the State Department of Conservation and Economic Development to the Appellate Division of the Superior Court, certified by this court on its own motion.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Heher, J.
The appeal is taken under Rule 3:81-8 from a resolution adopted by the Water Policy and Supply Council, a state discretionary administrative agency within the Division of Water Policy and Supply of the Department of Conservation and Economic Development, after hearing held, approving subject to certain conditions plans of the Plainfield-Union Water Company for obtaining an additional subsurface water supply by diverting (a) up to 1,000,000 gallons of water daily from a well to be located at the northwest end of Charles Street, in Mountainside, and (b) up to 750,000 gallons of water daily from a well to be located at 520 South Avenue West, in the Town of Westfield.
The plans were submitted for approval under R.S. 58:1-18, as a means of supplying the water needs of Plainfield, Westfield, Cranford and 16 other municipalities, in the fulfillment of the applicant's function as a public utility.
The powers vested in the old State Water Policy Commission by R.S. 58:1-1 et seq. have been transferred to the State Division of Water Policy and Supply by L. 1945, c. 22, p. 66, N.J.S.A. 13:1 A -9, for exercise by the Water Policy and Supply Council set up within the Division in accordance with the provisions of the act. The Council, in virtue of its succession to the general jurisdiction of the Water Policy Commission in relation to the State's water supplies, was clothed with "general supervision over all sources of potable and public water supplies, including surface, subsurface and percolating waters, to the end that the same may be economically and prudently developed for public use." R.S. 58:1-10. The supply of pure and wholesome water from
watersheds to municipalities and their inhabitants is one of its major concerns. R.S. 58:1-11.
The function of the Council in respect of the approval of plans for a new or additional water supply has a judicial quality. Its authority is invoked by a petition in writing setting forth, inter alia, the maps, plans and profiles and the sources of the proposed water supply, the lands to be acquired and the sites and areas of the proposed reservoirs, a plan of the works to be constructed, the profiles of the aqueduct lines and the flow lines of the water when impounded, "maps, plans and surveys and abstract of official reports relating to the same, showing the need for a particular source or sources of supply and the reasons therefor," and "the plan proposed for protecting the new supply and watershed from contamination or the proposed plan for filtering such new supply." R.S. 58:1-18. A "public hearing" on notice to the parties in interest is provided. R.S. 58:1-19. The Council is directed to
"determine whether the plans proposed are justified by public necessity, whether they provide for the proper and safe construction of all works connected therewith, whether they provide for the proper protection of the supply and the watershed from contamination or provide for the proper filtration of such additional supply, whether the reduction of the dry-season flow of any stream will be caused to an amount likely to produce insanitary conditions or otherwise unduly injure public or private interests, and whether the plans are just and equitable to the other municipalities and civil divisions of the state affected thereby and to the inhabitants thereof, particular consideration being given to their present and future necessities for sources of water supply." R.S. 58:1-20.
The Council is under a duty to act upon the petition within 60 days after "the final hearing and with all convenient speed." It may, in the pursuit of the statutory policy, approve the application as presented or with such modifications and subject to such conditions as it may determine should be made to
"protect the water supply and the interests of the applicant or of the inhabitants of the territory supplied by it with water, or the water supply and interests of any municipal corporation or other
civil division of the state, or the inhabitants thereof, or the water supply and interests of any other person or corporation engaged in supplying water to any municipal corporation or other civil division of the state, or the inhabitants thereof,"
"it may reject the application entirely or permit another to be filed in lieu thereof, but it shall, however, make a reasonable effort to meet the needs of the applicant, with due regard to the actual or prospective needs and interests of all other municipal corporations and civil divisions of the state affected thereby, and the inhabitants thereof." R.S. 58:1-21.
The "decision" shall be stated "in writing" and filed in the office of the Council, and is made subject to review by certiorari. R.S. 58:1-22. The Council has the power of subpoena. Self-crimination is rejected as a ground for refusing to testify, but the witness is accorded immunity from prosecution or punishment or the imposition of a penalty or forfeiture in regard to the subject matter of his testimony except as respects ...