New Jersey Statutes

N.J. Stat. § 2A:35A-10 (2026)

Counsel and expert witness fees; application of collateral estoppel and res judicata; dismissal of action, use of payments

✓ current as of May 2026

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a. In any action under this act the court may in appropriate cases award to the prevailing party reasonable counsel and expert witness fees, but not to exceed a total of $50,000 in an action brought against a local agency or the Department of Environmental Protection, where the prevailing party achieved reasonable success on the merits. The fees shall be based on the number of hours reasonably spent and a reasonable hourly rate for the counsel or expert in the action taking into account the prevailing rate in the venue of the action and the skill and experience of the counsel or expert.

b. The doctrines of collateral estoppel and res judicata may be applied by the court to prevent multiplicity of suits.

c. An action commenced pursuant to the provisions of this act may not be dismissed without the express consent of the court in which the action was filed.

d. Except as provided in subsection e. of this section, any payments made pursuant to a settlement or judgment entered in a case brought pursuant to this act shall be used to fund institutions, entities, or activities for purposes consistent with the purposes and goals of the statute, regulation or ordinance at issue in the case. No payment of a settlement or judgment shall be made except upon the submission of a plan to the court by the prevailing party specifying the uses for which the payment will be put, any person or organization that will receive all or part of the payment, and the dollar amounts to be given to each person or organization and the dollar amounts allocated for each use. Recipients of any payments made pursuant to a settlement or judgment shall report to the court on the use of such funds.

e. Any payments made pursuant to a settlement or judgment entered in a case brought against a local agency pursuant to this act to enforce the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) shall be deposited in the "Wastewater Treatment Fund" established pursuant to subsection a. of section 15 of P.L.1985, c.329.

f. As used in this section "local agency" means a political subdivision of the State or an agency or instrumentality thereof, that owns or operates a municipal treatment works; "treatment works" means any device or systems, whether public or private, used in the storage, treatment, recycling, or reclamation of municipal or industrial waste of a liquid nature including intercepting sewers, outfall sewers, sewage collection systems, cooling towers and ponds, pumping, power and other equipment and their appurtenances; extensions, improvements, remodeling, additions, and alterations thereof; elements essential to provide a reliable recycled supply such as standby treatment units and clear well facilities; and any other works including sites for the treatment process or for ultimate disposal of residues resulting from such treatment. "Treatment works" includes any other method or system for preventing, abating, reducing, storing, treating, separating, or disposing of pollutants, including storm water runoff, or industrial waste in combined or separate storm water and sanitary sewer systems; and "municipal treatment works" means the treatment works of any municipal, county, or State agency or any agency or subdivision created by one or more municipal, county or State governments and the treatment works of any public utility as defined in R.S.48:2-13.

Notes of Decisions

Cited in 6 cases (4 in the last 5 years), 1990–2024 · leading case: Allied Corp. v. Frola, 730 F. Supp. 626 (D.N.J. 1990).

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Allied Corp. v. Frola, 730 F. Supp. 626 (D.N.J. 1990). · cites it 2× “Although the Court allowed those counts to survive insofar as they sought equitable remedies and attorney’s fees pursuant to ERA § 10(a), N.J.S.A. § 2A:35A-10(a), the Court expressed doubt as to the availability of Spill Act or ERA relief at all where, as here, the federal…”

Twp. of West Caldwell v. Carant Ltd. P'ship (N.J. Super. Ct. App. Div. 2023). · cites it 5× “2A:35-10(a),8 as 8 N.J.S.A. 2A:35A-10(a) states: In any action under this act the court may in appropriate cases award to the prevailing party reasonable counsel and expert witness fees, but not to exceed a total of $50,000 in an action brought against a local agency or the…”

Lincoln Harbor Enter., LLC v. Hartz Mountain Indus., Inc. (D.N.J. 2020). · cites it 5× “§ 2A:35A-10. It would be too literal, I think, to require that the underlying substantive statute contain a “definition” of the term “costs”; few do.”

Borough of Englewood Cliffs v. Thomas J. Trautner (N.J. Super. Ct. App. Div. 2024). “2A:35A-1 to 35A-14, which permits a counsel fee award in certain prescribed circumstances, subject to a limit set forth in N.J.S.A. 2A:35A-10, as an example of an express legislative undertaking to create liability within that limit.”

Lincoln Harbor Enter., LLC v. Hartz Mountain Indus., Inc. (D.N.J. 2021). “§ 2A:35A-10(a). See also N.J. State Bar Ass’n, Committee on State Legislation, Report on Assembly Bill 1245 at 5 (Apr.”

New Jersey Dep't of Env't Prot. v. E.i Dupont De Nemours & Co. (D.N.J. 2024). “N.J.S.A. 2A:35A-10. Plaintiffs’ unlawful usurpation of penalty funds harms the Township.”

— N.J. Stat. § 2A:35A-10(a) — 4 cases

Allied Corp. v. Frola, 730 F. Supp. 626 (D.N.J. 1990). “Although the Court allowed those counts to survive insofar as they sought equitable remedies and attorney’s fees pursuant to ERA § 10(a), N.J.S.A. § 2A:35A-10(a), the Court expressed doubt as to the availability of Spill Act or ERA relief at all where, as here, the federal…”

Twp. of West Caldwell v. Carant Ltd. P'ship (N.J. Super. Ct. App. Div. 2023). “2A:35-10(a),8 as 8 N.J.S.A. 2A:35A-10(a) states: In any action under this act the court may in appropriate cases award to the prevailing party reasonable counsel and expert witness fees, but not to exceed a total of $50,000 in an action brought against a local agency or the…”

Lincoln Harbor Enter., LLC v. Hartz Mountain Indus., Inc. (D.N.J. 2020). “§ 2A:35A-10. It would be too literal, I think, to require that the underlying substantive statute contain a “definition” of the term “costs”; few do.”

— N.J. Stat. § 2A:35A-10(b) — 1 case

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