Skip to main content



In Re Highlands Water Protection and Planning Act Rules

A-3034-06T1 (N.J. Super. App. Div. 2009) (Unpublished)

HIGHLANDS ACT; CLEAN WATER ACT — New Jersey may regulate wetlands that are not subject to regulation under the Clean Water Act and its regulation of wetlands with respect to which it has been delegated regulatory responsibility under the Clean Water Act may be more stringent than required by federal law.

An individual challenged the validity of the Highlands Water Protection and Planning Act alleging that the New Jersey Department of Environmental Protection (DEP) was bound by the provisions of the Federal Clean Water Act and therefore could not promulgate separate regulations under the Highlands Water Protection and Planning Act. The Appellate Division dismissed the arguments out of hand. According to the Court, federal regulation under the applicable section of the Clean Water Act “only applies to navigable waters and freshwater wetlands adjacent to those waters.” When New Jersey, by agreement with a number of federal agencies, agreed to assume responsibility for administration of the Clean Water Act in New Jersey, DEP’s program was “only required to be ‘as stringent as the federal program ... .’” Therefore, according to the Court, New Jersey could “regulate wetlands that are not subject to regulation under the Clean Water Act and a state’s regulation of wetlands with respect to which it has been delegated regulatory responsibility under the Clean Water Act may be more stringent than required by federal law.”

The appellant also “challenge[d] the Highlands Act as allegedly denying equal protection of the law because it subjects land uses in the Highlands region to more stringent regulation than land uses in other parts of the State.” Citing much prior case law, the Court rejected that argument, finding that similar challenges to similar acts had always been rejected.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com