A sand mining company recently filed a brief challenging a Pinelands Commission rule that regulates diversions of water from an aquifer in the New Jersey Pinelands. The rule in question, published at 54 N.J.R. 1668(a) (the Regulation), regulates proposed water diversions of 50,000 gallons per day or more from the Kirkwood-Cohansey Aquifer and reduces the quantity of water that may be diverted therefrom. It thus impacts parties that use large amounts of water from the aquifer, including resource extraction operations that mine sand and gravel in the Pinelands, and municipalities.

The case is before the Appellate Division of the New Jersey Superior Court and is captioned In re Challenge of Clayton Sand Company to Dec. 4, 2023 Amendments to N.J.A.C. 7:50-1.1 et seq. (Docket No. A-001476-23). The initial brief was filed on July 30, 2024, on behalf of Clayton Sand Company. It argues that the Regulation, without any legislative authority, encroaches upon the jurisdiction of the New Jersey Department of Environmental Protection (NJDEP). As Clayton notes, the Water Supply Management Act directs the NJDEP to "manage the water supply by adopting a uniform water diversion system," and the Appellate Division has previously determined that "NJDEP has the exclusive authority … to manage the water supply … and the diversions of that water supply." United Water N.J. v. Boro. Of Hillsdale, 438 N.J. Super. 309, 319 (App. Div. 2014). Clayton thus seeks invalidation of the Regulation.