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New Jersey Builders Association v. Department of Environmental Protection

Decided: June 12, 1979.


On appeal from final administrative Actions of the Actions of the Commissioner of the Department of Environmental Protection.

Lynch, Crane and Horn. The opinion of the court was delivered by Lynch, P.J.A.D. (retired and temporarily assigned).


By this appeal the New Jersey Builders Association and several affiliate Associations (hereafter Builders), together with a group of intervening farmers and the Town of Hammonton, challenge the validity of certain regulations adopted by the Commissioner of the Department of Environmental Protection (DEP) which (1) established water quality standards for the 760 square miles of land popularly called the Central Pine Barrens, and (2) designated those lands as a "critical area" for sewerage purposes.

Though in its past history the Pine Barrens was the center of bog iron production, glass making and brick and tile manufacturing, today its principal use is agriculture, mainly for the growing of cranberries and blueberries. Among the states New Jersey ranks first and third in the nationwide production of blueberries and cranberries, respectively. Such activities are dependent upon the continued high quality of the river and subsurface waters which are characteristic of the area.

The soil of the area is sandy and sterile. Because of its porus nature, its rapid percolation rates and the relatively high water-table levels it is subject to wide spreading of pollutants and is extremely susceptible to contamination from the surface. The sandy soil is vulnerable to nitrate contamination from septic tank effluent. Such nitrates are a known hazard to public health.

The foregoing constitutes a general view of the conditions in the Pine Barrens which require regulation both of water quality and sewage disposal systems. This is especially so in view of the recent and prospective development therein with significant population growth. Since 1950 the population of the Pine Barrens has increased 68% whereas the rest of the State for the same period has increased only 35%. Prospective increase is even more significant.

In other words, the finding of the Commissioner of DEP of a need of establishment of standards for water quality and septic systems control is clearly supported by ample credible evidence in the record. See Municipal Sanitary Landfill Auth. v. Hackensack, &c. Comm'n , 120 N.J. Super. 118 (App. Div. 1972).


The Water Quality Standards Appeal

Appellants Builders contend that establishment of the water quality standards by the Commissioner of DEP was not within his statutory authority. In doing so Builders cite N.J.S.A. 58:10-1 et seq. as the purported statutory base for the regulation and argue that since that statute only concerns pollution of potable water the standards adopted to protect the ecosystem,*fn1 including dwarf pine trees and

sparse vegetation, far exceed the statutory proscription of N.J.S.A. 58:10-1 et seq.

In the first place, N.J.S.A. 58:10-1 et seq. was repealed by the Water Pollution Control Act, L. 1977, c. 74; N.J.S.A. 58:10A-1 et seq. That Act provides:

The Legislature finds and declares that pollution of the ground and surface waters of this State continues to endanger public health; to threaten fish and aquatic life, scenic and ecological values; and to limit the domestic, municipal, recreational, industrial, agricultural and other uses of water, even though a significant pollution abatement effort has been made in recent years. It is the policy of this State to restore, enhance and maintain the chemical, physical, and biological integrity of its waters, to protect public health, to safeguard fish and aquatic life and scenic and ecological values, and to enhance the domestic, municipal, recreational, industrial and other uses of water.

The Legislature further finds and declares that the Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500; 33 U.S.C. 1251 et seq.) establishes a permit system to regulate discharges of pollutants and provides that permits for this purpose will be issued by the Federal Government or by states with adequate authority and programs to implement the regulatory provisions of that act. It is in the interest of the people of this State to minimize direct regulation by the Federal Government of wastewater dischargers by enacting legislation which will continue and extend the powers and responsibilities of the Department of Environmental Protection for administering the State's water pollution control program, so that the State may be enabled to implement the permit system required by the Federal Act. [ N.J.S.A. 58:10A-2; emphasis supplied]

The purpose of the act is to facilitate the restoration and maintenance of unpolluted surface and ground waters of the State in order to protect the water and the environment. See N.J.S.A. 58:10A-4(c). Generally, this type of statute is considered in environmental terms as a "nondegradation" statute. That is, the water quality standards and permit programs developed pursuant thereto are to ensure that water pollution will not worsen. In furtherance of that goal the

Accordingly, by N.J.A.C. 7:9-4.6 et seq. and N.J.A.C. 7:9-14.6 et seq. , he has adopted water quality standards.

Second, the Commissioner's powers cannot be limited under N.J.S.A. 58:10A-1 to set regulations only for potable water, since another act exists which specifically controls potable drinking water. It is known as the Safe Drinking Water Act, L. 1977, c. 224; N.J.S.A. 58:12A-1 et seq. The legislative purpose of that Act specifies that "the maintenance of high-quality potable water is essential in order to safeguard the health and welfare of the people of the State * * *." N.J.S.A. 58:12A-2. Under this act the Commissioner is empowered to promulgate "State primary drinking water regulations * * *, secondary drinking water regulations * * * and other regulations to protect potable waters." N.J.S.A. 58:12A-4(a).

Third, undoubtedly water pollution prevention is directly related to water quality planning programs. N.J.S.A. 58:11A-1 et seq. , known as the Water Quality Planning Act, L. 1977, c. 75, parallels the Water Pollution Control Act in declaring a broad environmental purpose:

a. The Legislature finds that the people of the State have a paramount interest in the restoration, maintenance and preservation of the quality of the waters of the State for the protection and preservation of public health and welfare, food supplies, public water supplies, propagation of fish and wildlife, agricultural and industrial uses, aesthetic satisfaction, recreation, and other beneficial uses; and that the severity of the water pollution problem in the State necessitates continuing water quality management planning in order to develop and implement water quality programs in concert with other social and economic objectives. The Legislature further finds that the water quality is dependent upon factors of topography, hydrology, population concentration, industrial and commercial development, agricultural uses, transportation and other such factors which vary among and within watersheds and other regions of the State and that pollution abatement programs should

consider these natural and man-made conditions that influence water quality. The Legislature further finds that the State's groundwaters are a precious and vulnerable resource.

b. The Legislature declares that the objective of this act is, wherever attainable, to restore and maintain the chemical, physical and biological integrity of the waters of the State, including groundwaters, and the public trust therein; and that areawide waste treatment management planning processes should be developed and implemented in order to achieve this objective and to assure adequate control of sources of water pollutants in the State. [ N.J.S.A. 58:11A-2(a), (b); emphasis supplied]

Under this act the Commissioner has broad power pursuant to N.J.S.A. 58:11A-5 to establish a regulatory plan to:


(1) to provide control or treatment of all point and nonpoint sources of pollution , including in-place or accumulated pollution sources, to the extent practicable;

(2) to regulate the location, modification , and construction of any facilities within such area which may result in any discharge in such area , and

(3) to assure that any industrial or commercial wastes discharged into any treatment works in such area meet applicable pretreatment requirements; * * * [emphasis supplied].

In summary, we find there are three acts in Title 58 of the Revised Statutes which seek to promote water quality and aid the ecosystem: the Water Pollution Control Act focuses on water quality standards and a permit system; the Safe Drinking Water Act centers on drinking water treatment plants, and the Water Quality Standards Act deals with areawide waste management planning. All of the acts seek to prevent the degradation of water quality and to preserve the environment. All of the acts give the DEP Commissioner the power to protect ground water and surface water. All of the acts seek to lessen the impact of pollution from point sources and nonpoint sources. Undoubtedly, given the ...

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