In a win for clean water, the New Jersey Supreme Court has declined to hear a challenge to a 2020 state Department of Environmental Protection (DEP) upgrade of protections for the state’s most pristine rivers and streams.

Without fanfare, the Supreme Court on Feb. 10 issued a two-sentence decision allowing an appellate court ruling from July 2021 to stand. That means that the DEP’s classification of over 600 miles of rivers and streams as Category 1 – including 200 miles in Hunterdon, Somerset and Morris counties – can no longer be challenged.

“This is a huge victory for clean water and an even larger victory for our stream monitoring program and citizen science in general,” said Bill Kibler, policy director for the Bedminster-based nonprofit Raritan Headwaters Association (RHA). “We are thrilled that the New Jersey Supreme Court has upheld the vital role of our citizen science.”

For 25 years, staff scientists and trained citizen scientist volunteers from Raritan Headwaters have conducted water quality monitoring in the rivers and streams of the upper Raritan River watershed.  Wading into the water with nets, they sample the streams for “benthic macroinvertebrates,” bottom-dwelling insects, worms and snails whose presence is an indicator of clean water. They also assess habitats in and around streams and test the water’s chemistry.

“There are 1,400 miles of stream within the 470-square-mile upper Raritan River watershed, and the contributions of our highly-trained citizen scientists are key to allowing us to closely monitor stream conditions in this large headwaters region, a source of drinking water for 1.8 million people,” said Dr. Kristi MacDonald, science director for RHA. “We use the same methods employed by scientists at DEP, which makes our data valuable for assessing whether our waterways meet state and federal standards under the Clean Water Act.”

Data collected by Raritan Headwaters was used by the DEP in its April 2020 decision to designate 600 miles of rivers and streams as Category 1 (C-1). This total included about 200 miles of the North Branch Raritan, South Branch Raritan and their tributaries.

The upgrade to C-1 status gave the waterways greater protections, including doubling the buffer area around them from 150 feet to 300 feet on each bank and limiting wastewater and stormwater discharges within the buffer.

Category 1 waters have exceptional ecological significance based on the presence of macroinvertebrates that are intolerant of polluted water and good habitat conditions. C-1 waters also have a low percentage of development in the area of land that drains to the waterway.

Court Challenges

The C-1 upgrades were appealed by the Township of Raritan, the County of Hunterdon, and the Raritan Township Municipal Utilities Authority.

Raritan Headwaters and two other conservation groups – the Watershed Institute and the New Jersey Highlands Coalition – collectively appeared as “amici curiae,” or friends of the court, in support of the DEP’s upgraded protections. They were represented by the Eastern Environmental Law Center in Newark.

The New Jersey Business & Industry Association (NJBIA), New Jersey Chapter of NAIOP, Commercial Real Estate Development Association, New Jersey Builders Association (NJBA), National Association of Home Builders (collectively the Business amici curiae), as well as the New Jersey Farm Bureau and the Borough of Flemington, appeared as amici curiae in support of the appellants.

In July 2022, the New Jersey Superior Court, Appellate Division, affirmed the DEP’s upgrade of over 600 miles of streams and rivers around the state to Category 1 status.

The appellate court recognized that state-based water quality standards, such as NJDEP’s Surface Water Quality Standards rules (SWQS), are required by the federal Clean Water Act (CWA).  At issue was the DEP’s Category One antidegradation designation of the upgraded waterways and its alleged financial impacts on the appellants.

The Court rejected the appellants’ claims that the DEP lacked transparency in adopting the upgrades and violated the due process rights of property owners whose development opportunities were diminished.

In August 2022, a month after the appellate court ruling was handed down, the Township of Raritan, County of Hunterdon, and Raritan Township Municipal Utilities Authority petitioned the New Jersey Supreme Court to reverse the ruling.

On Feb. 10 of this year, the New Jersey Supreme Court denied the petition without comment, allowing the appellate court ruling to stand.

“We presented very strong legal arguments and scientifically based factual evidence in favor of the DEP’s decision, so this is a great outcome that we can all be proud of,” said Daniel Greenhouse, senior attorney for the Eastern Environmental Law Center.

About Raritan Headwaters

Since 1959, Raritan Headwaters Association has focused on clean water. RHA engages citizens and decision makers in the protection of the Raritan River headwaters region and beyond through science, education, land preservation and advocacy.  If you are interested in learning more about our stream monitoring program or volunteering to assess streams or other environmental projects, please contact us at https://www.raritanheadwaters.org/volunteer/.

RHA’s 470-square-mile region provides clean drinking water to 300,000 residents of 38 municipalities in Somerset, Hunterdon, and Morris counties and directly impacts over 1.5 million homes and businesses in New Jersey’s densely populated urban areas. To learn more about Raritan Headwaters and its programs, please visit www.raritanheadwaters.org or call 908-234-1852.