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New Jersey Department of Environmental Protection v. Mercer County Soil Conservation District

C-100-08 (N.J. Super. Ch. Div. 2011)

DAMS — A logical reading of the New Jersey Safe Dams Act would not impose responsibility for maintaining a dam on an underlying property owner who has no control or legal ability to operate, repair or maintain the dam.

The New Jersey Department of Environmental Protection (NJDEP) sued a County Soil Conservation District (District) as well as certain individual property owners who owned real property underneath two dams located in the county. The NJDEP claimed that the underlying property owners were “owners” of the dams pursuant to the New Jersey Safe Dams Act (Dams Act), N.J.S.A. 58:4-5, and the regulations promulgated thereunder as N.J.A.C. 7:20. The NJDEP asserted that the property owners, who acquired title subject to a deed of easement for the construction, maintenance, and inspection of the dams to be built, were considered the owners of the dams constructed on their lands and therefore were responsible for the maintenance and repair of the dams under the Dams Act. The property owners claimed that they were not owners of the dams and therefore were not responsible for repairing and maintaining them.

The Court reviewed the statutory language to determine who is considered an “owner” of a dam. The statute imposes maintenance and repair obligations on “an owner or person having control” of a reservoir or dam. In interpreting the statute, the Court noted its obligation to interpret the statute broadly and to give substantial deference to the agency charged with enforcing the statute. However, a court is not obligated to agree with the enforcing agency’s conclusion where doing so would negate logic and common sense. Here, it looked at the two reasonable ways to interpret the statute. The first would be to separate the word “owner” from “person having control.” In that scenario, being the owner of the land would make that person the owner of the improvements constructed on the land even if he or she had not control over those improvements. However, that did not make sense when considering that utilities, sewer pipes, and telephone poles may be located within easement areas on a person’s property, but are not considered to be owned by the property owner. A second possible interpretation would be to read “owner or person having control” together so as to make the owner responsible for maintenance and repair if the owner had control over the dam. But, if the owner did not have control over the dam, responsibility would shift to the person who did, in fact, have control over the dam. The Court noted that a logical reading of the Dams Act would not impose responsibility for maintaining a dam on an underlying property owner who had no control or legal ability to operate, repair or maintain the dam.

According to the Court, in order to determine whether a person is an “owner” pursuant to the Dam Act, the following factors are to be considered: (1) the nature and extent of legal title to the underlying property; (2) whether the owner constructed, or participated in the construction of, the dam or structure; (3) whether the alleged owner controls, ever controlled or participated in the control of the structure to more than a de minimis extent; and (4) whether the alleged owner had legal authority to exercise control over the structure. Based on these considerations, the Court found that these particular property owners did not own the dams and were not responsible to maintain and repair them under the Dams Act.

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