Kilkenny, Goldmann and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D.
This is an appeal by Borough of Upper Saddle River (hereinafter "borough") and Village of Ridgewood (hereinafter "village") from a determination of Division of Water Policy and Supply, in the Department of Conservation and Economic Development, granting an application by Hackensack Water Company for approval of plans for diverting not to exceed an average of two million gallons of water daily during any month, for the purpose of obtaining an additional source of water supply from two wells. The point of the proposed diversion is located along the west bank of Saddle River and in the vicinity of Lake Street, between East Saddle River Road and West Saddle River Road, in the Borough of Upper Saddle River, Bergen County. In granting the application, certain conditions were imposed, as hereinafter noted.
The borough and village contend that the action of the Water Policy and Supply Council (hereinafter "Council") was not in accord with the statutory requirements, R.S. 58:1-20, failed to consider public and private interests below the point of diversion, and was violative of procedural due process. In order to put these issues in proper focus, we summarize the principal facts adduced at the hearings before the Council, in which the water company, the borough and the village, as well as some other objectors who have not appealed, participated.
Hackensack Water Company (hereinafter "Hackensack") services 58 municipalities in Bergen and Hudson Counties with a total population of over 750,000 persons. On October 23, 1963 Hackensack applied to the Council for permission to divert an average of two million gallons of water per day (MGD) from the two wells mentioned above. Although these wells are not located within the area served by Hackensack, it
was claimed that this additional supply was required by the company to meet the present and future needs of its customers. After due notice had been given to interested parties and municipalities, a public hearing was held on the application before a panel comprised of members of the Council.
At the hearing, Hackensack presented evidence of the public necessity for the diversion. It was demonstrated that the constant growth in the population of the area served by the company will place an ever-increasing burden upon it which can only be met by tapping every available source of supply. Evidence was also introduced to show that the proposed wells have been constructed safely, will be free from contamination and will have no adverse effect upon existing wells in the area.
Mr. R. M. Leggette testified as an expert geologist for Hackensack. As the result of various tests conducted at the wells, he concluded that the water pumped from the wells is derived partly from subsurface sources and partly from infiltration from Saddle River, located less than 50 feet away. Leggette also prepared a chart of the amount of water which flows daily past the point where the two wells are located. This chart indicated that the flow never falls below 2 MGD. Ninety per cent of the time the flow is at least 4 MGD. Half of the time the flow is over 10 MGD; and ten per cent of the time the flow reaches 25 MGD. From these figures the witness concluded that "even if all the water pumped from wells were derived by infiltration, the flow of the stream is adequate to support a development of 2 million gallons per day."
The municipalities which objected to the proposed diversion offered evidence that for the summer of 1957 the average river flow past the location of the wells was only 2.8 MGD. One of the objectors' experts indicated that it would not be unusual for Hackensack's wells to draw as much as 50% of their water from the river. He was, therefore, of the opinion that during the dry season the output of 2 MGD by the wells "could have very significant effects" upon the river flow. On the basis of data which showed that on one occasion the flow
of Saddle River had fallen to only 1.5 MGD, he concluded that the use of the wells under such condition would "literally dry up the stream."
The objectors also introduced evidence of the importance of maintaining an adequate flow in Saddle River. Ridgewood, which is downstream from the proposed wells, has five municipal wells in the Saddle River basin. Borough of Saddle River, which is immediately downstream from the Borough of Upper Saddle River, depends upon the river for water for fire fighting. The fire insurance ratings for the Borough of Saddle River are contingent upon the maintenance of a minimum flow in the river of 500 gallons per minute, or 720,000 gallons per day. Similarly, the Borough of Upper Saddle River depends upon the river for water for fire fighting.
With the consent of all parties, the original hearing had been held before only two members of the Council. The later hearings were held before three members. At the conclusion of the case, the Chairlady of the hearing panel stated that "the testimony will be read and the members of this Board will make their recommendation to the full Council, and it will meet and make a determination and it will be published thereafter."
Accordingly, the Council members who heard the case made findings of fact and conclusions of law which were transmitted, together with copies of the transcript of the hearing, to the full membership of the Council. No copies of these findings, or of the recommendations which accompanied them, were transmitted to the parties in interest.
The hearing panel concluded that public necessity justified the utilization of the wells in question. Moreover, the construction of the wells was found to conform to safety and health requirements. Therefore, approval of the application was recommended. However, the panel found that the proposed diversion may cause a diminution of the flow of Saddle River and an interference with existing water supplies. Accordingly, approval of the application was recommended under the following pertinent conditions: (a) the wells may
divert no more than an average of 2 MGD of water; (b) diversion must cease when the natural flow of Saddle River, as measured at a point upstream from the wells, falls below 1.5 MGD; and (c) the approval shall be subject to review by the Council for possible future modifications in the public interest.
The full Council accepted the recommendations of the hearing panel and granted Hackensack's application. Although the determination of the Council made no specific finding on the question of the effect of the wells on the flow of Saddle River, its formal resolution granting the application noted that "the proposed diversion will not unduly injure public or private interests." Moreover, approval was granted subject to the conditions recommended by the hearing panel.
We turn first to the contention that the action of the Council was not in accord with the requirements of R.S. 58:1-20. To meet the criteria of this section, the proposed plans for water diversion must, (1) be justified by public necessity; (2) provide for proper and safe construction of facilities; (3) provide for the prevention of contamination; (4) insure that any resulting reduction in the dry-season flow of a stream will not produce unsanitary conditions or otherwise injure public or private ...