                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-3835-12T3


NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
                                      APPROVED FOR PUBLICATION
      Plaintiff-Respondent,               January 2, 2015

v.                                      APPELLATE DIVISION

ALLOWAY TOWNSHIP and
COUNTY OF SALEM,

      Defendants-Respondents/
      Cross-Appellants,

and

WILLIAM R. COBB,

     Defendant-Appellant/
     Cross-Respondent.
_________________________________________________

          Submitted October 7, 2014 – Decided January 2, 2015

          Before Judges Messano, Ostrer and Hayden.

          On appeal from the Superior Court of New
          Jersey, Law Division, Salem County, Docket
          No. L-95-08.

          Holston, MacDonald, Uzdavinis, Ziegler &
          Lodge,    attorneys   for appellant/cross-
          respondent William R. Cobb (William F.
          Ziegler, on the brief).

          John     G.     Hoffman,     attorney     for
          respondent/cross-appellant Alloway Township.
           Michael M. Mulligan, Salem County Counsel,
           attorney    for   respondent/cross-appellant
           County of Salem.

           John J. Hoffman, Acting Attorney General,
           attorney for respondent State of New Jersey
           Department   of    Environmental   Protection
           (Lewis A. Scheindlin, Assistant Attorney
           General, of counsel; Daniel A. Greenhouse,
           Deputy Attorney General, on the brief).

           The opinion of the court was delivered by

MESSANO, P.J.A.D.

    In this appeal we are called upon to construe provisions of

the Safe Dam Act (the "SDA"), N.J.S.A. 58:4-1 to -14, a statute

enacted   upon    the   Legislature's       specific   finding    "that      the

condition of many dams, lakes, and streams throughout the State

has been deteriorating at an alarming rate due to a chronic lack

of maintenance," and "that these conditions have led to the

collapse of dams, polluted lakes, stream flooding and property

damage    to   homes,   businesses,       lake   communities     and    public

utilities."      N.J.S.A. 58:4-11.        The SDA casts a "broad net" of

liability, New Jersey Department of Environmental Protection v.

Mercer County Soil Conservation District, 425 N.J. Super. 208,

221 (Ch. Div. 2009), so that its remedial purpose -- "to protect

the public from the loss of life and property in the event a dam

fails, regardless of whether it is privately or publicly owned"

-- is served.     Id. at 218.




                                      2                                A-3835-12T3
     Under the SDA, the Commissioner (the Commissioner) of the

Department     of    Environmental      Protection    (DEP)   is    vested       with

sweeping regulatory and enforcement powers.               See, e.g., N.J.S.A.

58:4-3 (permitting the Commissioner to request surveys and plans

of   dams     and    reservoirs);      N.J.S.A.     58:4-4    (permitting         the

Commissioner to inspect any dam or reservoir); N.J.S.A. 58:4-

5(b),   (d)    (granting      the    Commissioner     broad   remedial         powers

regarding unsafe dams, including the power to enter onto lands

and remove the dam).

     The    SDA     also   imposes    significant    obligations        upon    "[a]n

owner or person having control of a reservoir or dam."                    N.J.S.A.

58:4-5(a) (emphasis added).             Such person must "[i]mplement all

measures" required by the SDA or its accompanying regulations,

provide     any     reports   or     information     requested     by    DEP,    and

"[i]mplement any action ordered by the Commissioner" to rectify

unsafe conditions.         N.J.S.A. 58:4-5(a)(1)-(3).

     The Commissioner is vested with broad enforcement powers

whenever the SDA, "or any rule or regulation adopted, or permit

or order issued pursuant thereto" is violated.                   N.J.S.A. 58:4-

6(a).     The remedies available to the Commissioner are numerous

and include the right to file a summary civil action seeking

injunctive relief, costs and civil penalties.                    N.J.S.A. 58:4-

6(c).




                                         3                                 A-3835-12T3
       In this case, DEP filed a civil enforcement action alleging

violations of the SDA by defendants William R. Cobb, the County

of    Salem    (the     County)   and   Alloway       Township     (the       Township)

(collectively,          defendants).1          At     issue      was     defendants'

involvement      with    the   Cobb's   Mill    Dam    (the     dam),     a    288-foot

earthen structure that forms a private lake, Cobb's Mill Lake,

in the Township, and along the top of which runs a paved road,

Cobb's Mill Road.

       All parties moved for summary judgment.                     Chancery Judge

Anne    McDonnell       granted   DEP   summary      judgment     on    its    amended

verified complaint and denied defendants' motions.                       She entered

an    interlocutory      order    thereafter,       apportioning       the    costs   of

compliance among the three defendants, sixty-five percent to the

County, twenty-five percent to Cobb, and ten percent to the

Township.       After carefully considering the specific penalties

requested by DEP, Judge McDonnell entered judgment in favor of

DEP    and    ordered    defendants     to   pay     civil    penalties        totaling




1
  Since none of the appellants contest DEP's right to bring the
action, or its entitlement to the relief accorded by the judge,
we do not elaborate upon the factual and procedural history that
preceded the commencement of the enforcement action.




                                         4                                     A-3835-12T3
$19,250, apportioned $7312.50 to the County, $7932.50 to Cobb,

and $4005 to the Township.2

      Cobb appeals and argues that the SDA does not apply to him,

the   "mere   owner"   of   the   lake       bed   without    any    authority     to

"'control, operate or maintain'" the dam in question.                      He argues

that the County is solely responsible because it owns the right

of way in which Cobb's Mill Road is situated.

      In    its   cross-appeal,    the        County    argues      that    material

factual disputes regarding its contacts with and control of the

dam should have foreclosed summary judgment.                  In particular, the

County argues that the judge mistakenly found as a fact that

title to the public right of way for Cobb's Mill Road vested

with the County pursuant to a document recorded in the late 19th

century.

      In   its    cross-appeal,   the    Township       argues      that   since   it

never      "maintained,     managed,         operated    or      controlled        the

2
   All civil penalties under the SDA are deposited in the
Environmental Services Fund and appropriated to DEP for the
removal of dams in the state.      N.J.S.A. 58:4-6(j); N.J.A.C.
7:20-2.8. In a single sentence in its brief, the County states
that it "cannot be determined to have the lion's share of
responsibility for remedial activity or sanctions." It provides
no legal argument why the judge mistakenly exercised her
discretion in fixing and apportioning the penalty.     An issue
that is not briefed is deemed waived upon appeal. Fantis Foods
v. N. River Ins. Co., 322 N.J. Super. 250, 266-67 (App. Div.
2000); Pressler & Verniero, Current N.J. Court Rules, comment 4
on R. 2:6-2 (2015).




                                         5                                  A-3835-12T3
structure," it cannot be responsible for any violations of the

SDA.      The    Township    further   contends       that    since    the    County

installed the structures appurtenant to the roadway, including a

culvert    for    spill-off    from    the    lake,    the    County    is    solely

responsible for compliance with the SDA.

       DEP urges us to affirm in all respects the orders entered

by Judge McDonnell.         It argues that because Cobb owns the lake

and historically maintained the dam, the County owns the "bridge

and culverts" that are part of the dam, and the Township owns

and maintains the road, all defendants are responsible for the

dam structure and any concomitant violations of the SDA.

       We have considered these arguments in light of the record

and applicable legal standards.             We affirm.

                                       I.

       In reviewing a grant of summary judgment we "'employ the

same standard . . . that governs the trial court.'"                     W.J.A. v.

D.A., 210 N.J. 229, 237 (2012) (quoting Henry v. N.J. Dep't of

Human Servs., 204 N.J. 320, 330 (2010)). We first determine

whether   the    moving     party   demonstrated      there    were    no    genuine

disputes as to material facts.               Atl. Mut. Ins. Co. v. Hillside

Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif.

denied, 189 N.J. 104 (2006).

            [A] determination whether there exists a
            "genuine  issue"  of  material fact  that



                                        6                                    A-3835-12T3
          precludes summary judgment requires the
          motion   judge  to   consider  whether  the
          competent evidential materials presented,
          when viewed in the light most favorable to
          the non-moving party, are sufficient to
          permit a rational factfinder to resolve the
          alleged disputed issue in favor of the non-
          moving party.

          [Brill v. Guardian Life Ins. Co. of Am., 142
          N.J. 520, 540 (1995).]

We confine our review to the same record that existed before the

motion judge.    Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App.

Div. 2000).

    We then decide "whether the motion judge's application of

the law was correct."        Atl. Mut. Ins. Co., supra, 387 N.J.

Super. at 231.   In this regard, "[w]e review the law de novo and

owe no deference to the trial court . . . if [it has] wrongly

interpreted a statute."   Zabilowicz v. Kelsey, 200 N.J. 507, 512

(2009) (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J.

366, 378 (1995)).

                                 A.

    The   motion    record     regarding   defendants   and      their

involvement with the dam, sometimes described as a bridge in the

record, and its appurtenant structures was largely undisputed.

    Cobb owns several parcels of land on Cobb's Mill Road, and

he has held many public offices and appointed positions in the

municipality and the County.      The land has been in his family




                                  7                           A-3835-12T3
since 1705, and Cobb's home and active saw mill are on parcels

that   are   adjacent   to   the   dam.   During   his   deposition,   Cobb

testified that he owned the land beneath the dam and all the

land on both sides of it, as well as all the land surrounding

Cobb's Mill Lake.       Additionally, in a 2000 letter to DEP, Cobb

said that he was the owner of the dam.

       Cobb surmised the dam was built by his ancestor Elisha

Dilks, sometime in the early 1800s, and the structure was known

for some time as the Dilks' Mill Dam.         A recorded document from

1876, the import of which was in dispute, set courses for the

construction of a road over the dam, indicating that at that

time, the dam was owned by Calvin Dilks, Cobb's relative.                  A

document in the record dated September 20, 1923, entitled "Dams

in New Jersey – Reference Data," lists a business, "Thomas Cobb

& Sons," as the owner of the dam, and states that the dam was

rebuilt in 1903 by the County and Calvin Dilks.            Cobb testified

that his business, Cobb's Mill, LLC, is the successor to Thomas

Cobb & Sons.

       Cobb also testified that he has looked after the dam on an

almost daily basis, operating the flood gates to control the

water level in the lake, inspecting for cracks and, on occasion,

making minor repairs.        He mows the grass on both sides of the

road and the lake-side embankment of the dam.            On occasion, Cobb




                                      8                           A-3835-12T3
plows snow from Cobb's Mill Road when the Township is too slow

in responding.

       In his deposition, Alloway Township public works director

Kenneth McKelvey testified that the Township never maintained

the    dam.     McKelvey       believed    that      Cobb    was    responsible     for

opening and closing the dam's flood gates and "maintaining the

land around the dam."             McKelvey conceded, however, that the

Township      maintained      Cobb's     Mill    Road      and   routinely    patched

potholes and applied sealant to the roadway.                       The Township also

received grant money from the State to repave the road, which it

last did in 2009.

       Since at least the early twentieth century, the County has

maintained portions of the dam.                In 1923, the County placed "new

caps and abutment planks on the dam," and then replaced the

planks with steel pipes in 1932.                 In 1988, the Board of Chosen

Freeholders         passed    a   resolution         remedying      "a   potentially

dangerous situation" at the lake and approving "the installation

of a . . . [c]ulvert with a new valve type structure [to]

decrease      the    potential    danger       for    downstream      residents     and

County structures."           The resulting structure, known as "Cobb's

Mill   Sluice,"       was    installed    about      ten    years   after    Cobb   was

forced to cut a trough through Cobb's Mill Road during a flood

to prevent the road from entirely washing away.




                                           9                                  A-3835-12T3
      As noted, the import of a January 1876 recorded document

was disputed.      The document records an "[a]pplication . . . made

to   the   Court   by    Gerald    Hitchner   and    others      more     than    10

Freeholders and residents of the County of Salem who think a

public road to be necessary in the Township of Upper Alloway

Creek in said County."            The document sets forth a metes and

bounds     description    for     a   proposed    road,        and   reflects      a

recommended "assessment of damages to the . . . owners of the

land taken for the laying out of the aforesaid road."                            The

document further states that those sums would be paid by the

"inhabitants" of the Township.

      Cobb asserted that the document amounted to the creation of

a public right-of-way over the dam, and the road, therefore, was

owned by the County.       The County steadfastly maintained that the

document did not create any public right of way in favor of the

County,    but   rather   reflected     the   then-existing          practice     of

permitting municipal residents to petition a court to lay a

public road, thereby making Cobb's Mill Road a municipal, not

County, road.

                                       B.

      After   considering    oral     arguments     of   the    parties    on    the

various motions for summary judgment, in a written opinion Judge

McDonnell concluded that all defendants were "owners or persons




                                       10                                 A-3835-12T3
in control of a dam or reservoir within the meaning of the

[SDA]."   The judge reasoned:

            The County has accepted responsibility for
            the culvert over the years.    The Township's
            road and the supporting embankments are the
            sole reason for the existence of the
            County's bridge/culvert.    Both the County
            and the Township have control of the right-
            of-way and each has the right to remove
            structures.    Because the County and the
            Township have control of the right-of-way
            and the structures within it, each is a
            person in control of the Cobb[']s Mill Dam.

                 Mr. Cobb has legal and beneficial
            ownership of Cobb[']s Mill Pond.     As the
            owner of the lake bed, Mr. Cobb is the owner
            of a reservoir within the meaning of the
            [SDA].    Further, Mr. Cobb has exercised
            control over the embankments and dam over
            the years.    Mr. Cobb is an owner and a
            person in control over the dam or reservoir
            within the meaning of the [SDA].

            [T]he history and legal title of the dam
            itself   are   irrelevant,  as   the  clear
            legislative purpose of the amendments is to
            cast a broad net of responsibility that
            includes owners and persons in control of a
            dam or reservoir.

            [(Citations omitted).]

    After      considering      further       oral   arguments   regarding     the

penalty   to    impose    and    how    it    should   be   apportioned,    Judge

McDonnell      issued    the    order    for    judgment    referenced     above,

together with a bench memorandum explaining the apportionment.

She stayed payment of the penalties pending resolution of this

appeal.



                                         11                              A-3835-12T3
                                           II.

       We   first    consider       Cobb's       argument      that    he     cannot    be

responsible for violations of the SDA because, although he owned

the land upon which the dam was situated, as well as the bed of

the reservoir of water created by the dam, he lacked any control

over the dam's structure or the roadway and was not responsible

for maintaining them.           Cobb relies primarily upon the Chancery

Division's decision in Mercer County, supra, 425 N.J. Super. at

208.

       In that case, DEP brought an enforcement action against

private     property   owners       upon   whose      lands    two    publicly-funded

dams   were      constructed    fifty      years       earlier,       and    which     were

subject     to   easements     in    favor       of   public    entities       providing

access for maintenance of the dams.                   Id. at 215-217.         DEP argued

the defendants, as owners of the servient estates, were "owners"

of the dam for purposes of the SDA.                    Id. at 217.          The Chancery

judge disagreed.

       Interpreting the SDA's use of the phrase "owner or person

having control of a reservoir or dam," the judge reasoned,

              There are two reasonable ways to interpret
              this language. One interpretation is to read
              the word "owner" separate from the phrase
              "person having control," in which case being
              an owner of the land could make you the
              owner of any improvements upon the land even
              if you had no control thereof.      While an
              otherwise        perfectly        acceptable



                                           12                                   A-3835-12T3
           interpretation under the common law, there
           are plenty of exceptions to which this
           do[es] not hold true, including utilities
           transmission   wires,    sewer   pipes,    and
           telephone poles; such items are more often
           than not located in or on private easements,
           but are not considered to be owned by the
           underlying   property   owner.   The    second
           possible interpretation, then, is to read
           the words "owner or persons having control"
           together as one phrase, such that either the
           owner who has control or another person
           having control would be responsible for the
           improvements   upon   real   property.    This
           construction implies that having control is
           a necessary element of being an "owner"
           under the statute.

           [Id. at 220.]

The judge found further support in DEP's own regulation, which

defines   "[o]wner   and/or   operator"   as   "any   person   who   owns,

controls, operates, maintains, manages or proposes to construct

a dam."   N.J.A.C. 7:20-1.2.

       The judge then listed four factors to be considered in

determining whether a person was an "owner" for purposes of the

SDA:

           (1) The nature and extent of any legal title
           to the underlying real property;

           (2) Whether the alleged owner constructed or
           participated     in      the     structure's
           construction;

           (3) Whether the alleged owner controls, ever
           controlled, or participated in the control
           of the structure to more than a de minimis
           extent; and




                                  13                             A-3835-12T3
              (4) Whether the alleged owner has legal
              authority  to  exercise control of  the
              structure.

              [Id. at 223.]

The judge held that the defendants were "not owners or persons

having control of the subject dams or reservoirs as contemplated

by the [SDA]," and he dismissed DEP's complaint.                Id. at 223.

       Cobb argues that application of these four factors to this

case should have resulted in summary judgment in his favor.                    We

need not consider the merits of that argument.                 We conclude that

the court in Mercer County erred in construing the terms "owner

or person having control of a reservoir or dam" as used in the

SDA.     In    that   limited   regard,      we   respectfully    overrule    the

decision.

       Our    analysis   begins    by        noting     that   "[i]n   statutory

interpretation, a court's role 'is to determine and effectuate

the Legislature's intent.'"        State ex rel. K.O., 217 N.J. 83, 91

(2014) (quoting Allen v. V & A Bros., 208 N.J. 114, 127 (2011)).

The first step in divining legislative intent is to consider the

statute's plain language, Town of Kearny v. Brandt, 214 N.J. 76,

98 (2013), which "should be given its ordinary meaning and be

construed in a common-sense manner."                  K.O., supra, 217 N.J. at

91.    "[W]e must examine that language sensibly, in the context

of the overall scheme in which the Legislature intended the




                                        14                              A-3835-12T3
provision to operate[.]"                 N.J. Dep't of Envtl. Prot. v. Huber,

213 N.J. 338, 365 (2013).                  Additionally, we may consider "the

interpretation and cognate enactments of the agency to which the

Legislature has entrusted the statute's implementation."                                  Ibid.

      Courts are further guided by "the bedrock assumption that

the   Legislature        did       not    use    any       unnecessary       or    meaningless

language."       Jersey Cent. Power & Light Co. v. Melcar Util. Co.,

212 N.J. 576, 587 (2013) (quoting Patel v. N.J. Motor Vehicle

Comm'n, 200 N.J. 413, 418-19 (2009)) (internal quotation marks

omitted).       We therefore presume that each of the statute's words

means something and "'is not mere surplusage.'"                              Ibid. (quoting

Cast Art Indus. v. KPMG LLP, 209 N.J. 208, 222 (2012)).

      The   SDA    compels         compliance          from     "[a]n    owner      or    person

having   control     of    a       reservoir          or     dam."     N.J.S.A.      58:4-5(a)

(emphasis    added).           A    common       sense       reading    of    this    language

indicates there are four classes of people who are subject to

the statute:       (1) dam owners; (2) reservoir owners; (3) those

who control the dam; and (4) those who control the reservoir.

It    follows     that    if       a     party        fits    into     any   one     of     those




                                                 15                                      A-3835-12T3
categories, the Commissioner may seek enforcement of the SDA

against that person.3

       The   Chancery       Division's   construction        of    the   statute     in

Mercer County implied that, to be brought under the enforcement

umbrella     of    the    SDA,    a   person   must    have       more   than    legal

ownership of a dam or reservoir.                Such person also must have

constructed or exercised some degree of control over the dam or

reservoir, or have had the legal authority to exercise control.

Mercer County, supra, 425 N.J. Super. at 223.                       The commonsense

understanding       of      the   word   "owner"      does    not    support      that

interpretation.          See Black's Law Dictionary 1214 (9th ed. 2009)

("An owner may have complete property in the thing or may have

parted with some interests in it (as by granting an easement or

making a lease).").          Additionally, by interpreting the SDA's use

of the term "owner" to necessarily include qualities similar to

that   of    a    "person    in   control,"    the    court   in     Mercer     County

conflated two separate statutory terms, thereby rendering the

phrase "owner" surplusage.

       Moreover, even though it chose to use the disjunctive "or,"

the Legislature did not mean that either the "owner" or "the

person in control," but not both, could be subject to DEP's

3
   DEP's regulations define "person" as "any individual,
proprietorship,     partnership,    association,    corporation,
municipality, county or public agency." N.J.A.C. 7:20-1.2.



                                         16                                   A-3835-12T3
enforcement action.    See United States v. Woods, __ U.S. __, 134

S. Ct. 557, 567, 187 L. Ed. 2d 472, 484 (2013) ("[T]he operative

terms are connected by the conjunction            'or.' While that can

sometimes introduce an appositive -- a word or phrase that is

synonymous with what precedes it ('Vienna or Wien,' 'Batman or

the   Caped   Crusader')   --   its    ordinary   use   is   almost    always

disjunctive, that is, the words it connects are to 'be given

separate meanings.'" (quoting Reiter v. Sonotone Corp., 442 U.S.

330, 339, 99 S. Ct. 2326, 2331, 60 L. Ed. 2d 931, 937 (1979))).

Rather, the Legislature intended the SDA to have the broadest

possible remedial application and envisioned enforcement actions

against   multiple   responsible      parties.    See   Gallenthin     Realty

Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344, 368 (2007)

("[I]t has long been settled that the disjunctive 'or' in a

. . . statute may be construed as the conjunctive 'and' if to do

so is consistent with the legislative intent." (quoting State v.

Holland, 132 N.J. Super. 17, 24 (App. Div. 1975))).

      The recent legislative history and language in other parts

of the SDA make this clear.           In 2004, for example, Burlington

County suffered severe flooding after several dams failed. See

39 N.J.R. 4894(a) (Nov. 19, 2007).          As a result, DEP concluded

that it "lacked [the] necessary tools to efficiently enforce the

provisions of the [SDA]."        Ibid.     The Legislature subsequently




                                      17                              A-3835-12T3
broadened       DEP's        enforcement        powers,          noting         its    proposed

amendment would "strengthen[] the DEP's authority to take action

regarding       failing       and     failed     dams      and       to    integrate       these

measures        with        the     provisions       of        the    [SDA]."            Senate

Environmental Committee, Statement to S. 1895 (Oct. 18, 2004).

One   of   the    sections          enacted,    N.J.S.A.         58:4-5(c),           explicitly

authorizes "allocation               of the cost of removal among the liable

owners     or    persons          having   control        of    the       dam   or     reservoir

whenever    two        or    more    owners     or   such       persons         are    liable."4

(Emphasis added).

      Finally, our conclusion that the SDA permits enforcement of

its provisions against both owners and persons in control of

dams and reservoirs is consistent with DEP's interpretation of

its authority.          See Dep't of Envtl. Prot. and Energy v. Cnty of

Cumberland, 94 N.J.A.R.2d 111, 119 (Dep't of Envtl. Prot. and

4
  We recognize that the Legislature has used similar, albeit
slightly different language, at various points in the SDA.
Compare N.J.S.A. 58:4-5(a) ("An owner or person having control
of a reservoir . . . ." (emphasis added)), with N.J.S.A. 58:4-
6(h) ("Each owner or person having control of a reservoir
. . . ." (emphasis added)).     We are convinced, however, that
DEP's enforcement powers are not limited to a single "owner or
person in control" of a dam or reservoir.               Such an
interpretation would be at odds with the remedial purpose of the
statute.   See A.B. v. Div. of Med. Assistance & Health Servs.,
407 N.J. Super. 330, 341 ("[W]hen a literal interpretation of
individual statutory terms or provisions would lead to results
inconsistent with the overall purpose of the statute, that
interpretation should be rejected." (internal quotation marks
omitted)), certif. denied, 200 N.J. 210 (2009).



                                               18                                       A-3835-12T3
Energy) ("By nature of a party's decision to engage in either

ownership        or   control     of     a     dam,    such       party     incurs      such

statutorily established liabilities.").

    In this case, Judge McDonnell properly found that Cobb was

within the reach of the SDA's regulatory and enforcement powers.

He admitted being the owner of the dam, as well as the reservoir

created by the dam.             See N.J.A.C. 7:20-1.2 (defining reservoir

as "any impoundment or any potential impoundment that will be

created     by    a   dam,     dike     or     levee").           Moreover,    Cobb      has

historically exerted some level of control over the reservoir by

admittedly operating the spillway.                    For all these reasons, we

affirm    the     grant   of    summary      judgment       and    the    amount   of    the

judgment entered against Cobb.

                                               III.

    The     Township      argues       that,      because    it    "never     maintained,

managed, operated or controlled the structure . . . [it] cannot

be held responsible under the [SDA]."                  We disagree.

    DEP's regulations define a "dam" as "any artificial dike,

levee or other barrier, together with appurtenant works, which

is constructed for the purpose of impounding water." N.J.A.C.

7:20-1.2     (emphasis         added).         The    word        "appurtenant"       means

"[a]nnexed to a more important thing." Black's Law Dictionary

118 (9th ed. 2009).            In this case, Cobb's Mill Road is a work




                                             19                                    A-3835-12T3
"appurtenant" to the preexisting Cobb's Mill Dam, the entire

length of which the road traverses.                     The issue then becomes

whether the Township's routine work on the road brings it within

the SDA's regulatory scheme, i.e., is the Township a "person[]

having control of a reservoir or dam"?

       Although the case is not on all fours, we find persuasive

the Law Division's decision in Braun v. Twp. of Mantua, 270 N.J.

Super. 404 (Law Div. 1993).              There, the court considered whether

Mantua    Township    ("Mantua"),         which   had   removed   snow,    cleared

weeds,     replaced       gravel    and     generally      maintained     a   road

traversing a dam, could be compelled to make repairs when the

dam collapsed due to heavy rains.                 Id. at 406-08.    Recognizing

that     the    roadway    and     dam    were    "interrelated,"    the      court

reasoned:

               Although the legally required duty of Mantua
               may only encompass a duty to provide safe
               passage for users of the road, that safe
               passage can only be assured if the dam
               itself   is  secure.  The   most  exhaustive
               efforts by Mantua to maintain and control
               the roadway, which it provides for public
               use and accommodation, would be for naught,
               unless the underpinning of the road, in this
               instance the dam, is also vigilantly and
               safely maintained.

               [Id. at 411.]




                                          20                              A-3835-12T3
The Court also reasoned that under the SDA, the owners of the

dam     --       owners        of   the    adjoining            properties       --     were   also

responsible.               Id. at 411-12.

      In this case, it is undisputed that the Township regularly

maintained Cobb's Mill Road, and that the road had been and

remained an integral part of Cobb's Mill Dam.                                    In maintaining

the road, the Township exercised some level of control over one

of the dam's appurtenant structures.                              We affirm the grant of

summary judgment against the Township, as well as the amount of

penalties assessed against it.

      The County argues Judge McDonnell erroneously found that

"it [had taken] title of a public right of way over Cobb's Mill

Dam   .      .    .     in    the   late   19th       Century,"        and     that    there   were

material          factual        issues        in    dispute      regarding       the     County's

contacts with and historic control of the dam.                                        The argument

lacks     sufficient             merit    to    warrant     extensive          discussion.        R.

2:11-3(e)(1)(E).

      We         need      not    decide       whether     the    disputed       1876     recorded

instrument created a public right-of-way over the dam in favor

of the County or the Township.                        It is undisputed that the County

assisted          in       reconstructing           the   dam    in    1923,     that     it   made

improvements to the dam in 1932, and that in 1988, it installed

a   culvert           to     "decrease     the       potential        danger    for     downstream




                                                     21                                   A-3835-12T3
residents    and   County   structures."   These   acts   alone   are

sufficient to render the County subject to the Commissioner's

enforcement powers under the SDA as "a person in control" of the

dam.

       Affirmed.




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