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Township of Neptune v. State of New Jersey

April 26, 2012

TOWNSHIP OF NEPTUNE, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4982-09.

The opinion of the court was delivered by: Yannotti, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted March 6, 2012 -

Before Judges Messano, Yannotti and Kennedy.

The opinion of the court was delivered by YANNOTTI, J.A.D.

On October 14, 2009, the Township of Neptune (Township) filed a complaint in the Law Division seeking an order requiring the State of New Jersey, Department of Environmental Protection (DEP), to "perform dredging" of State navigational channels within Shark River Bay by a date certain, and to provide a site for the temporary placement of the dredged materials. The trial court determined that the Appellate Division has exclusive jurisdiction in the matter under Rule 2:2-3(a)(2) and entered an order dated July 9, 2010, transferring the case to this court pursuant to Rule 1:13-4(a). For the reasons that follow, the Township's complaint will be dismissed with prejudice.

I.

The Township is situated along Shark River Bay (the Bay). According to the Township's complaint, the Bay has historically been used by the public for boating, fishing and water-related recreation. The federal Army Corps of Engineers (ACOE) maintains the federal navigational channels within the Bay from the Atlantic Ocean to and adjacent to Shark River Island, and the ACOE undertook certain dredging to maintain the navigability of those channels.

The Township claims that the DEP is responsible for the dredging of State navigational channels within the Bay. The Township maintains that the DEP has long encouraged public access to and enhancement of the State's waters and shorefront. In 2003, the Township applied to the DEP for a grant to make improvements to Lake Alberta, part of the headwaters of the Shark River, and in 2004 dredged Lake Alberta, in partnership with the Monmouth County Mosquito Commission. Moreover, in 2004, the Township adopted an ordinance that required developers to comply with certain stormwater management regulations, which allegedly provided "significant water quality protections for the Bay."

The Township asserts that, despite these efforts, there has been significant "siltation and stormwater runoff" into the Bay. It alleges that the State navigational channels within the Bay have not been dredged since 1980, and this has had negative environmental consequences and a negative impact upon commercial fishing and recreational boating.

The Township further claims that since at least 2004, the DEP and the New Jersey Department of Transportation (DOT) have "induced" it to invest large sums of money to acquire and improve land along the Bay as a public marina recreational facility and wildlife habitat area. According to the Township, the DEP and the DOT provided assurances that the DEP would dredge the State navigational channels in the Bay and provide a site for the temporary placement of dredged material for "drying" or "dewatering."

On November 13, 2006, the Township acquired the Shark River Hills Marina, which had been privately owned, for $4.7 million. To purchase the marina, the Township used a $2.2 million grant from the DEP's Green Acres program, and $250,000 from the Monmouth County Open Space Program. The Township asserts that it expected to receive an additional $800,000 in Green Acres funds from the DEP, and it financed the balance of the cost through the issuance of debt.

The Township alleges that it spent a substantial amount of money to repair and improve the marina, which is now called the Shark River Municipal Marina. The Township also has requested additional funds from the New Jersey Environmental Infrastructure Trust to complete necessary repairs and improvements.

The Township claims that the Shark River and Bay are filling with silt from run-off from its bordering municipalities. It claims that, as a result of the lack of dredging, silt and sediment have accumulated within the State navigational channels in the Shark River and Bay, resulting in shallow water depths and compromised navigability. This condition has allegedly resulted in unsafe boating conditions, as well as negative impacts on the Bay's water quality, vegetation, wildlife and wildlife habitats.

In 2005, the DOT provided the Township with $20,700 for the creation of a sediment and dredged material management plan (DMMP) for the Bay. The Township retained an engineering firm, which issued the first draft of the DMMP in August 2005. A second draft was issued in November 2006, and it estimated that about 1,078,000 cubic yards of material must be removed from the Bay, which would require the dredging of 150,000 cubic yards of material each year for ten years.

The Township asserts that dredged material must be temporarily placed on land and dried, a process that takes about six months. The Township claims that a ten-acre site would be required for the dewatering of the dredged material. It asserts that a site in Wall Township had been identified in the final draft DMMP as a drying site.

The Township alleges that the DEP has failed to approve the final draft DMMP, and has failed to provide a site for the dewatering of the dredged material. The Township further alleges that the DEP has not dredged the State navigational channels of the Bay. It claims that, without dredging, boats are hindered from gaining ...


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