A lawsuit filed by United Water against Hillsdale stands as the next step in the legal battle over a proposed project to upgrade the Woodcliff Lake Reservoir dam.
The Department of Environmental Protection (DEP) is requiring United Water to approximately double the rate at which water can flow out of the reservoir. The DEP approved a plan submitted by United Water in 2011.
Hillsdale has asserted that its Planning Board should review United Water's plans because of concerns that the project could worsen flooding along the Pascack Brook downstream from the reservoir.
The borough passed two ordinances last year which create additional borough oversight for tree removal and utility projects in order to "protect the public health, safety welfare and property" of the borough and residents.
"That's my only goal: to protect the residents of Hillsdale," Mayor Max Arnowitz said.
United Water sued the borough last June to have the ordinances declared "invalid and unenforcable." The case is still pending.
The state Board of Public Utilities (BPU) decided last week that they would dismiss without prejudice a petition from United Water which had requested a ruling that local ordinances in Hillsdale and Woodcliff Lake do not have authority over the plan.
The BPU declined to rule that they have jurisdiction over the issue. They also "accepted" the DEP's claim that the Dam Safety Act and Water Supply Management Act preempt local laws, but declined to decide that the DEP has sole authority over the issue.
"The Board is not the appropriate forum to review NJDEP’S authority and decisions made pursuant to that authority," BPU commissioners wrote in their decision.
United Water has argued that the DEP should have exclusive authority over dam projects in New Jersey.
"It's not the job of any local community," United Water Senior Vice President of Communications Rich Henning said.
Donald MacLachlan, an attorney representing the Hillsdale & Westwood Flood Solution Group, said he believed there should be a review of the downstream effects the project could have because the DEP only examined the dam structure when giving it their approval.
"Our goal is to make sure the environmental impact of the United Water project is objectively evaluated because nobody — not the residents, not Hillsdale's government and not the DEP — wishes to permit the construction of a $25 million project which could contribute to flooding," MacLachlan said.
One of the ordinances targeted in United Water's lawsuit requires utility companies to bring their plans before the borough's Municipal Land Use Board.
The ordinance also prevents any utility from "negatively impacting" roads or the ability of emergency services to reach any resident or business. United Water's proposed plan would send water across Church Road, the street which crosses the dam, potentially closing it during storms of rarely extreme severity.
In the complaint, United Water's attorney alleged that Hillsdale made "repeated attempts to thwart" the dam project.
"Hillsdale has actively fought against completion of the Dam Improvement Project," United Water alleged in the complaint.
Arnowitz and MacLachlan both said they did not want to stop the project, which the BPU ackowledged in their decision.
"The arguments raised do no question the necessity of the project, but focus on the safety and reliability of the renovations required by the permit," BPU commissioners wrote.