For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Proctor, J.
[47 NJ Page 66] This appeal concerns the construction of the 1918 order of the Board of Conservation and Development (predecessors of the present Water Policy and Supply Council,
see P.L. 1929, c. 267; N.J.S.A. 13:1A-8 to 12, N.J.S.A. 13:1B-47 to 51) approving the application of the Elizabethtown Water Company to divert 20 million gallons per day (MGD) from the confluence of the Raritan and Millstone Rivers.*fn1 Although Elizabethtown was permitted to divert this water without charge, the approval contained, among others, the following condition:
"6. The Board hereby expressly reserves the right, in case it shall be necessary in the future to provide storage of storm waters along the Raritan and Millstone Rivers or their tributaries for the purpose of supplying municipalities or water companies that may lawfully take water from the said rivers and tributaries, to apportion the expense of providing the necessary storage among the petitioners [Elizabethtown] and such other companies or municipalities as may at the time have a right to take water from said rivers, their tributaries, or either of them, for public or domestic use, as may be equitable."
In 1931 Elizabethtown commenced taking the water authorized by the grant and is presently using the full 20 MGD.
In 1958 the Legislature adopted the Water Supply Law and the Water Bond Act designed to develop the Raritan river basin as a source of water supply for the northeastern metropolitan counties as well as the counties in the Raritan Valley. P.L. 1958, c. 34, c. 35; N.J.S.A. 58:22-1 to 19. In N.J.S.A. 58:22-2 the Legislature found and determined that:
"(a) Adequate supplies of wholesome water are essential to the health, welfare, commerce and prosperity of the people of the State. Such supplies will be best developed by long-range plans, to be put into effect in stages during a period of years. The formulation and execution of such plans cannot safely be allowed to wait until the shortage of water in the State becomes critical in all parts of the State.
(c) There is an immediate need for a new major supply of water to meet the present acute water requirements in the northeastern metropolitan counties and in the Raritan Valley, areas which directly and indirectly affect the commerce and prosperity of the entire State.
(i) It is therefore in the interest of the health, safety and prosperity of the people of the State as a whole, that immediate legislative action be taken towards making provision for storage facilities to augment natural water resources to make available an adequate supply of water for the most critical need and in addition provide for a long-range program for development, as shall be required, of the remaining water resources of the State."
After passage of the legislation and approval of the bond issue in the general election of 1958 (see P.L. 1958, c. 35; N.J.S.A. 58:22-19), two reservoirs, Spruce Run and Round Valley, were constructed at a cost of 39.5 million dollars. Spruce Run, with a capacity of 11 billion gallons, and Round Valley, with a capacity of 55 billion gallons (see N.J.S.A. 58:22-4), are intended to have a twofold function. First, by releasing water into the Raritan River or its tributaries during periods of low flow, the reservoirs will maintain minimum flow rates. N.J.S.A. 58:22-8 requires that the flow of water in the south branch of the Raritan River be maintained at 40 MGD at Stanton, 70 MGD at Manville and 90 MGD at Bound Brook. The importance of maintaining minimum flow rates was emphasized by the Legislature in N.J.S.A. 58:22-2(g): "* * * The increased and sustained minimum flows will improve the quality of the water in the river, will tend to reduce the salinity in the tidal reaches, and will improve the upper river and its tributaries for recreational purposes." Providing water for consumption is the reservoirs' second major function. Such water may be delivered to the users directly from the reservoirs or may be released into the river and diverted at some point downstream. Elizabethtown employs the latter method, and its principal intake is about a half mile above the Bound Brook gauging station.
In December 1961 the Bureau of Water Supply filed an application with the Water Policy and Supply Council for approval of its plans to operate the Spruce Run and Round Valley reservoirs. Elizabethtown participated in the hearings which were held from May to November 1962. On ...