Lawsuit is Next Hurdle For Woodcliff Lake Dam Project

United Water sued Hillsdale to void a pair of land use laws the borough passed last year.

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.

Have a question or news tip? Contact editor Jim Leggate at Jim.Leggate@patch.com, or find us on Facebook and Twitter. For news straight to your inbox, sign up for our daily newsletter.

STRESSED February 26, 2013 at 12:25 AM
All of our elected officials from Westwood, River Vale New Milford and whoever is affected by flooding due to the Woodcliff Lake Dam need to speak up for their residents. When this project moves forward i hope all u elected officials can promise your residents that by doing this work it will not make things worst for them you really need to look at the impact down stream cause as of now we all know the brook cannot handle what has come out. It is about time we get answers to this projects impact and a meeting needs to be held to let these residents know and if flooding becomes worst who will be held liable. THEY NEED ANSWERS AND THEY NEED IT NOW. FORGOTTEN ABOUT AGAIN SINCE WE HAVE NOT HAD ANY FLOODING.
Barry Black February 26, 2013 at 03:15 PM
But more importantly is why did the DEP make the ruling to double the flow from the WLR. WLR holds less than 10% of UW storage capacity and any storm warning can easily be assuaged with current the flow capacity. Maybe the questionable dam project is a contractor make work deal.
Jim Leggate (Editor) February 26, 2013 at 03:22 PM
@Barry- The DEP wanted the dam to be able to withstand a "1,000-year storm," which means it needs to let out about 30,000 cubic feet of water per second. Right now the dam is capable of releasing about 15,000 cfs.
STRESSED February 26, 2013 at 04:00 PM
And Jim maybe you can explain what that means for the residents down stream?
Pete February 26, 2013 at 06:06 PM
What it means for the residents downstream is lives saved. A dam failure will bring unspekabale destruction. Each time there is a devastating disaster of that kind, critics ask why steps weren't taken to prevent it. Well, DEP is taking steps to prevent it. No one thought rusting bridges were such a big problem until one collapsed and sent rush-hour traffic pouring into the Mississippi. DEP is looking at the difficult but important choices needed to avoid wiping downtown Hillsdale off the map and killing who knows how many.
Jim Leggate (Editor) February 26, 2013 at 06:16 PM
It's definitely a lot of water.
STRESSED February 26, 2013 at 06:39 PM
ok Pete understand all that but when it is completed what happens to the houses downstream are they going to be wiped out and what about the lives of those residents. Things are bad now when it floods if they get more water now things are going to get worst
Gary Conkling February 26, 2013 at 06:58 PM
Pete hit it!! A dam like this cannot over top with water because it will fail. So they will take steps so this will not happen. Instead of fighting this the towns down stream best be dreaging out the stream. Stop blaming the water company.
Pete February 26, 2013 at 11:30 PM
If they don't get more water, it endangers many more homes and lives than those. That's not the answer anyone wants to hear, but nobody seems to want to hear the truth. We developed areas that should never have been developed. The answer is not figuring out how to stop the flooding, it's figuring out what to do about the tremendous mistake of building homes in undeniably dangerous places.
Township February 27, 2013 at 12:35 AM
Pete has a point but he's missing one just as big: they shouldn't build a reservoir in a residential zone. That is a man-made reservoir and was expended.....again by man. Some of those houses were there before the reservoir. Perhaps the answer should be less water on a daily basis in that particular reservoir??? As United Waters smart mouthed ans sarcastic spokesman says "they're in thevwatervdelivery business" so if they're any good at it they should be able to deliver water to their plants with less water sitting in Woodcliff Lake.
STRESSED February 27, 2013 at 02:22 AM
Pete IF is the big word here no one wants more water this is why these residents need answers as to the affects they are in for when this moves forward. Who is going to be held liable if things get worst after this project and if it does all there answers will be answered that United Water is the problem and they need to step up and be held responsible for their actions.. Can we really do a wait and see i don't think so to many residents at risk. All local officials need to get involved to help theor residents.
Gary Conkling February 27, 2013 at 12:31 PM
If the reservoir was not there down stream would flood more.The Boswell report did say at times the reservoir stop flooding.
Pete February 27, 2013 at 04:00 PM
Township, they didn't. They built a reservoir in a rural area. The residential area largely came later. In 1905, a smattering of houses and businesses occupied the center of Hillsdale, alongside a major NJ&NY railroad facility. Even aerial photos of the area from 1931, the earliest I've seen, still show a mostly farming community. The library's excellent collection tells us that the Glenbrook Park section was not built until after the reservoir, and that the Hackensack Water Company, knowing this was no place to build, attempted to refuse to provide water service there as its veto. But then as now, development at all cost was the rule. Developers go away, and their gross irresponsibility becomes the problem of someone who bought a house that by all reasonable standards should never have been built. These homes would never receive Certificates of Occupancy under modern, responsible standards (though here, who knows). The problem is only partly the reservoir. It's just as much our collective pigheadedness in thinking there's a way to justify every development there is.
Pete February 27, 2013 at 04:06 PM
And yes, this means the people stuck with the negligent decisions of bygone builders and lax officials need all the help possible to get out of the terrible mess they're in. We're collectively the heirs to the responsibility for the decisions the borough has approved in the past, so we're on the hook for these people the borough allowed into harm's way.
Township February 27, 2013 at 05:44 PM
Pete,you're not looking at the whole area:yes, the small area you quote came mostly after the reservoir but areas now being flooded were established before the resevoir and most were well established after the reservoirs last major construction.Well established homes that flooded once in 25 years now flood regularly. The Kmart shopping center should be investigated as well:1-it should never have been built as it was watershed 2-it never had the permits to raise the ground level higher than the stream which now adds to flooding.Somehow all the paperwork vanished in Westwood town hall as to who allowed the builder to fill the land in so its now higher than the stream. Elected officials have failed to protect its people in numerous towns for decades. Kudos to the recent Hillsdale administration for taking a stand against United Water. As for the other towns their photo ops of elected officials for the news showing them walking a stream to pretend they're being proactive and that desnagging does anything meaningful is shameful. Elected officials must fight for their people and the huge Goliath that is United Water needs to releaize their resevoir is already operating well over capacity. United Water has failed in the case of the Woodcliff Lake.
Township February 27, 2013 at 05:52 PM
United Water trying to force this thru is no different than a commercial property owner who has a three story commercial building in a residential zone now wanting to tear it down and build a ten story commercial building in its place. We wouldn't stand for that nor should we stand for United Water trying to do almost the same thing in trying to over expand the use of their property in a way the property can't handle. The Woodcliff Lake Resevoir is simply already at capacity: United Water needs to look elsewhere for more water holding capacity; at the same time towns need to start correcting years of over construction that they allowed and work to remediate the flooding that has resulted and is only getting much worse. It's time to start protecting our neighbors and setting this on the right course.
Pete February 28, 2013 at 06:38 PM
Not exactly. The DEP is requiring a safety upgrade. The potential consequences of not doing it are far greater than the potential consequences of doing it. It's more like that three-story building being required to add a second fire exit that adversely effects the properties of homes built after the building was. The reservoir system, let's not forget, is not only a private enterprise but a public necessity. Those of us around in 1980, when shrubs began growing in the lake bed, know that the water supply here comes with no guarantees. Weather is only becoming more erratic, and we have mo choice but to adapt to both extremes simultaneously.
Township February 28, 2013 at 07:39 PM
As a 40 plus year Pascack Valley resident I know the resevoir well: even before their last major expansion when major flooding was very rare. The answer isn't to let United Water meet safety levels for a Resevoir that is well above capacity but rather have them lower the water level to where the current infrastructure can safely handle that amount of water. If United Water ever abandons its 'greed at all costs' attitude they should look into expanding other reservoirs instead. As for your brown shrubs comment: I'd gladly let my shrubs go brown for a summer once every ten years or so if it means showing my neighbors the compassion and relief they deserve.
Pete February 28, 2013 at 09:20 PM
Read more closely: the shrubs were growing in the empty lake bed (though astutely, you did pick up on the fact that they indeed were ultimately drought victims as well).
Pete February 28, 2013 at 09:31 PM
As for what the infrastructure can handle, it isn't clear that the developed Pascack Valley can handle even the volume pre-dredging. This is in many ways a needs-of-few vs. needs-of-many issue, which are very seldom simple. The aim of my reference to the essentially Woodcliff Lake of 1980 is to ask how much water is enough for the region, and who gets to decide? Should the regional water supply be required to accomodate gross mistakes and negligence in building practices and the people stuck paying the price for those? I'm not saying yes, I'm not saying no. But there is more to this debate than simply "the reservoir must be made smaller."
Township February 28, 2013 at 10:16 PM
Yes Pete, the shrubs were growing in the lake bed AND turning brown at our houses if you can remember it back then. I was actually making your original point more valid. Also to be noted: all those shrubs growing in the lake bed went away and those of us who made the effort lost virtually no shrubs at our homes either. Perhaps if people were to read what was written with an open mind rather than masses refusing to burge on both sides that a compromise could be worked out. United Water has so far refused to make themselves available in an open an honest forum with all the parties involved. To date there is no proof either way as to whether this DEP regulation will actually save more people or if the Resevoir is already over capacity and needs to hold less water. If that is the case United Water needs to explore other avenues. They are for all intensive purposes a monopoly who receives considerable government funding/concessions. As such they need to work with the local communities rather than fight them. The case has yet to be made by any of the parties involved. Until then everyone can agree to disagree.
Gary Conkling March 01, 2013 at 02:38 AM
What is the capacity of wood cliff lake? 92feet? 80 feet? Read up on earthen dams. The Dep is making United Water make the dam safer. Hopefully we don't see a storm which can compromise the dam.
Township March 01, 2013 at 01:42 PM
To say simply 'Read up on earthen dams' is a poor blanket statement. Every earthen dam is different as is the individual communities they are located in. As such each and every earthen dam needs to be studied in great depth in relation to local conditions. This isn't simply flood waters: the Woodcliff Lake Resevoir now floods so quickly and with such force there is virtually no warning. A house on Harding Ave in Westwood, a well built and well maintained house at that, had to be knocked just this week as a former flood knocked it off its foundation. This house was not located on a stream but well away from it and was built well before local elected and appointed officials ignored the over expansion of the Resevoir in the 80's and its since operating at a clearly unsafe leaves for decades. The dam is already well past being a critical safety risk for local people. That leaves the question what will truly make people more safe: United Waters proposal or lowering the water levels in the dam to a level United Waters delivery system can safely handle? That has yet to be answered and until all parties meet in a truly open and honest fashion lets hope people keep an open mind to both sides.


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