On appeal from the Division of Water Policy and Supply, certified to this court of its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by William J. Brennan, Jr., J.
This appeal of the City of Passaic, certified here of our own motion, is from a resolution of the Division of Water Policy and Supply denying a petition which sought to have the Division impose conditions upon permits issued to the City of Clifton authorizing the construction of a box culvert in MacDonald Brook, a tributary of the Passaic River.
MacDonald Brook is a natural stream flowing from its source in Clifton through Passaic to the Passaic River and draining approximately 1133 acres of land, about one-half in each city. Flood conditions from its overflow, brought about largely by the increased run-off of waters into the
Brook due to the intensified industrial and residential development of the two cities, are and have been a continuous and growing hazard. While Passaic is already substantially developed, Clifton is still growing. Passaic's municipal engineer has the opinion that over the next quarter century the further development of the cities will increase the run-off of waters into the brook by 7% in Passaic and 49% in Clifton. Each municipality has been planning for some time to make improvements to the brook within its limits to alleviate and protect against the flood danger.
Passaic formulated a plan as early as 1939, and effected some parts of it. More extensive improvements were planned, which took into consideration the prospective increased volume coming downstream as a result of the augmented run-off into the brook in Clifton, but anticipated an increased volume in the natural flow of waters only. However, the Clifton improvement approved by the Division of Water Policy and Supply calls for the enclosing of parts of the brook in Clifton's limits within a box culvert; and the waters running through that culvert will course downstream at a velocity substantially greater than the natural flow. At present the waters from the Clifton side enter the brook in Passaic through a 36-inch pipe. The Passaic plan calls for replacement of that pipe with a culvert of greater intake capacity. Using either method, the present pipe or the proposed culvert, the prospective increased velocity at which the water will reach Passaic after the Clifton improvement is completed caused Passaic's municipal engineer to anticipate a problem which could be met only by the revision of Passaic's plan at an increase in the cost of its improvement of 23%, or $180,000.
After Clifton obtained ex parte its permits, dated July 27, 1951 and May 20, 1952, Passaic's municipal engineer, under direction of Passaic's Director of Public Works, submitted to the Division for approval, also ex parte, the plan embodying the more expensive improvement. It was approved and a permit issued on November 17, 1952. About six months later, on May 11, 1953, Passaic filed its petition alleging
that the "proposed improvement of the City of Clifton does not safeguard the interests of the City of Passaic, its property owners and its residents." After full hearing and the taking of expert testimony offered by both cities, the Division, on June 15, 1953, adopted the resolution appealed from, incorporating therein the following findings:
"1. That the work authorized under the permits is necessary for the welfare of the inhabitants of the City of Clifton and their protection against the danger of flood waters;
2. That the natural waterway of MacDonald Brook downstream from the City of Clifton through the City of Passaic has been encroached upon by residents and property owners of the City of Passaic and the necessity for improving the stretch of the stream in Passaic has been recognized by that municipality;
3. That application for said improvement of MacDonald Brook in Passaic has been submitted and was approved November 17, ...