discharges into surface and ground waters, discharges
into sewer systems and land application of municipal and
industrial wastewaters. See N.J.A.C. 7:14A-1.2. It is
unlawful for any person to discharge any pollutant, as
defined in N.J.S.A. 58:10A-3(n), without a valid New
Jersey Pollutant Discharge Elimination System
(“NJPDES”) permit.
Sewer discharges without a permit or in violation of
a permit are subject to the same penalties as discharges of
pollutants to surface waters in violation of, or without, a
permit. N.J.S.A. 58:10A-3e. The DEP Commissioner is
authorized to promulgate regulations establishing
pretreatment standards to which sewage must conform
before it may be discharged into a public sewer. N.J.S.A.
58:11-49; N.J.S.A. 58:11-51. Authority is also
delegated to Municipal Utility Authorities to regulate
sewer discharges into the MUA sewage treatment
systems. N.J.S.A. 58:10A-6i.
The 1990 Clean Water Enforcement Act (“the 1990
Act”) penalizes serious water pollution violations and
significant non-compliance, N.J.S.A. 58:10A-3; N.J.S.A.
58:10A-3w, and requires the assessment of a mandatory
minimum penalty of $1,000 for a serious violation and
$5,000 for significant non-compliance. N.J.S.A.
58:10A-10.1b and c.
The 1990 Act limits DEP’s discretion to
compromise penalty assessments. DEP cannot
compromise the amount by more than 50% of the
assessed penalty and cannot compromise the amount
below the statutory minimum amount. N.J.S.A.
58:10A-10d(4).
The 1990 Act significantly increases criminal
penalties for water pollution violations. Prior to 1990,
any person who willfully or negligently discharged
pollutants not in conformity with a valid permit; built or
operated a facility for collection, treatment or discharge
or a pollutant without DEP approval; or knowingly
falsified permit applications or knowingly tampered with
monitoring equipment, was guilty of a fourth degree
crime for which that person could receive a maximum one
year custodial sentence and a fine between $5,000 and
$50,000 per day of violation. N.J.S.A. 58:10A-6a and b;
N.J.S.A. 58:10A-10f.
Under the 1990 Act, negligent violations are fourth
degree crimes for which the defendant receives an 18-
month custodial sentence and a fine of between $5,000
and $50,000 per day of violation. N.J.S.A. 58:10A-
10f(3). For purposeful, knowing or reckless violations of
the Act, a person is guilty of a third degree crime for which
he can receive a three- to five-year custodial sentence and
a fine between $5,000 and $75,000 per day of violation.
N.J.S.A. 58:10A-10f(2).The 1990 Act creates a second degree crime for a
person who purposely, knowingly or recklessly violates
the Act and in so doing, causes a significant adverse
environmental effect. For such a violation, a person can
receive a custodial sentence between five and ten years
and a fine between $25,000 and $250,000 per day of
violation. N.J.S.A. 58:10A-10f(1)(a). The 1990 Act
defines a significant adverse environmental effect as
causing “serious harm or damage to wildlife, freshwater or
saltwater fish, any other aquatic or marine life, water fowl,
or to their habitats, or to livestock or agricultural crops;
serious harm or degradation of, any ground or surface
water used for drinking, agricultural, navigational,
recreational, or industrial purposes; or any other serious
articulable harm or damage to, or degradation of, the
lands and waters of the State, including ocean waters
subject to its jurisdiction.” N.J.S.A. 58:10A-10F(1)(b).The Act creates a first degree crime for any person
who purposely or knowingly violates a permit condition
or discharges without a permit and who knows at the time
that he places another person in imminent danger of
death or serious bodily injury. For such a violation, a
person can receive a custodial sentence of between 10 and
20 years and a fine between $50,000 and $250,000 for
an individual and $200,000 and $1,000,000 for a
corporation. N.J.S.A. 58:10A-10(f)(4).The Freshwater Wetlands Protection Act, N.J.S.A.
13:9B-1, et seq., prohibits removal, excavation or
disturbance of soil, dumping or filing with materials or
erecting of structures in designated freshwater wetlands
without DEP authorization.Under N.J.S.A. 13:9B-21f, any person who willfully
or negligently violates the Wetlands Act is guilty of a
crime of the fourth degree and can be fined between
$2,500 to $25,000.In State v. Robinson, 287 N.J. Super. 240 (App. Div.
1996), the Appellate Division reversed defendant’s
conviction for a violation of the Wetlands Act because the
judge failed to charge the jury that the State had to prove
that defendant failed to ascertain the need for a permit or