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NJDEP Can Conduct Warrantless Searches Under Freshwater Wetlands Protection Act

In 1987, the New Jersey Legislature passed the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1, et seq. (“FWPA”), to protect and regulate New Jersey’s vast sensitive freshwater wetlands. This law followed the Wetlands Act of 1970, N.J.S.A. 13:9A-1, et seq., which delineated and regulated New Jersey’s coastal wetlands. The FWPA established a permitting process which a property owner must submit to before engaging in any activity that risks disturbing freshwater wetlands or protected transition areas near wetlands. The goal of the FWPA is “to maintain a delicate balance between environmental interests and the rights of property owners.” In re Freshwater Wetlands Protection Act Rules, 180 N.J. 478, 482 (2004). As part of the process, the FWPA extends a statutory right to the New Jersey Department of Environmental Protection (NJDEP) to enter property “for purpose of conducting inspections, sampling of soil or water… and for otherwise determining compliance with the provision of [the] act.” N.J.S.A. 13:9B-21(m).

In its decision of New Jersey Department of Environmental Protection v. Huber (A-116 September Term 2010, 065540), the New Jersey Supreme Court analyzed whether the NJDEP has the right to inspect private property covered by the FWPA when they have grounds to suspect that a wetlands violation has occurred. In the aforementioned matter, Defendants Robert and Michelle Huber owned residential property in Hunterdon County which was developed by prior owners subject to conditions of a duly recorded FWPA permit that controlled activities in certain areas of the Hubers’ property. In or around early 2002, the NJDEP became involved with the Hubers after a neighbor complained that they were placing fill and mowing vegetation in restricted areas. On July 3, 2002, Michael Nystrom, a NJDEP supervisor visually inspected the property and took soil samples. There was conflicting testimony as to whether permission was granted from the Hubers to Mr. Nystrom regarding the inspection. Mr. Nystrom claims that Mr. Huber granted him permission to inspect the property; however, at the administrative hearing Mr. Huber testified that permission to inspect the property was not granted to Mr. Nystrom.

Additional inspections were conducted by the NJDEP in 2002, when it was concluded that the Hubers placed approximately 2,500 square feet of fill in the restricted area, cultivated the lawn, and that the deck, patio, and a retaining wall encroached upon the restricted area. As such, the NJDEP charged the Hubers with removing vegetation and placing fill in violation of the FWPA. Ultimately, an Administrative Order and Notice of Civil Administrative Penalty Assessment detailing the violations, requiring a full restoration plan, and assessing a $4,500 penalty against the Hubers. The Hubers appealed and the case made its way to the Appellate Division. There, the Hubers argued that the evidence obtained by Mr. Nystrom should have been excluded because he had not obtained an administrative search warrant. The Appellate Division rejected this argument on the basis that Mr. Nystrom had statutory authority to enter and inspect the property and, therefore, an administrative warrant was not required.

The Supreme Court granted the Hubers’ petition for certification. The Hubers contended that Mr. Nystrom’s warrantless intrusion onto their property was invalid under the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. The Fourth Amendment to the United States Constitution, as well as Article I, Paragraph 7 of the New Jersey Constitution, guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV; see N.J. Const. art. I, ¶ 7. The United States Supreme Court has consistently held that warrantless searches are “per se unreasonable.” Katz v. United States, 389 U.S. 347, 357 (1967).

The Supreme Court noted that judicial process to enforce a reasonable administrative inspection scheme can comply with Fourth Amendment protections despite the lack of consent by the property owner if the regulatory scheme fulfills the following requirements: advances important governmental interests, takes into account reasonable expectations of privacy, and avoids nonconsensual, forced entry accomplished outside of the warrant framework. See Slip Op. at 34. Specifically with regard to the FWPA, the Supreme Court found that the regulatory scheme which implements the FWPA puts the permittee on notice that owning property subject to a FWPA permit renders the property subject to a reasonable right of entry by a NJDEP representative for the purpose of an inspection. N.J.A.C. 7:7A-013.1(a)(9). However, it requires that the NJDEP inspector present credentials prior to exercising the statutory right to enter, inspect, and sample at reasonable times. See id. Moreover, the regulatory scheme provides that the NJDEP Commissioner can issue orders to permittees who refuse entry, as well as bring a civil action to obtain a court order directing the entry. See N.J.S.A. 13:9B-21. The Commissioner can also issue orders to permittees who deny entry to inspectors who have presented their credentials, charging such persons with a violation of the FWPA and of a regulation to which the permittee is subject by virtue of being a permittee, pursuant to the power granted to the NJDEP under N.J.S.A. 13:9B-21(b)-(c).

In sum, the FWPA expects a permittee to consent and will penalize the permittee who denies a NJDEP representative reasonable entry onto the property to inspect compliance with the FWPA. See Slip Op. at 42. However, the inspection scheme taken as a whole does not authorize forcible, nonconsensual entry into the backyard of a residential property owner. See id. Instead, the FWPA provides a means for the NJDEP to secure authorization of the administrative search to which the NJDEP is entitled under the FWPA if consent is denied by the property owner. See id. In this instance, the Supreme Court held

that based on the FWPA’s integrated scheme governing freshwater wetlands in New Jersey, land subject to FWPA restrictions so important as to be required by law to be filed of record, which was done here, is subject to the statutory, reasonable right of entry and inspection. In exercising that right, the DEP must comply with its processes, which require presentation of credentials before seeking consent to entry at reasonable times. If entry is denied, the Commissioner may order that entry be provided, N.J.S.A. 13:9B-21(b), and the DEP shall be entitled, pursuant to the rules of court, to judicial process to compel access to the property subject to the FWPA permit, see N.J.S.A. 13:9B-21(c).

[Slip Op. at 47-48.]

Ultimately, the Court unanimously affirmed the Appellate Division’s ruling, finding that there was sufficient evidence to sustain the findings of a violation without considering Mr. Nystrom’s evidence, based on the NJDEP’s other inspections, photographs, and the Hubers’ admissions.

Get a copy of the NJDEP v. Huber decision here:  NJDEP v Duber A-5874-07T3 Warrantless Searches under FWPA.

To learn more about the New Jersey Freshwater Wetlands Protection Act and how the attorneys Lieberman Blecher & Sinkevich assist clients with wetlands and other environmental regulatory, compliance, and enforcement matters, please visit our Environmental Compliance services page.

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