What New Jersey Property Owners and Environmental Advocates Need to Know

New Jersey’s wetlands are among the State’s most important natural resources. They provide flood protection, filter pollutants, support wildlife, recharge groundwater, and perform countless ecological functions that benefit communities throughout the State.

But what happens when someone fills, drains, excavates, or otherwise alters wetlands without the approvals required by New Jersey law?

And what happens when NJDEP believes that you—not someone else—has violated the State’s wetlands laws?

These are very different situations, but both require prompt attention and knowledgeable legal counsel.

Our firm has extensive experience representing clients in New Jersey wetlands matters, including cases involving alleged unlawful filling or alteration of wetlands by third parties, as well as cases in which the New Jersey Department of Environmental Protection (NJDEP) has issued a Notice of Violation against a property owner or other regulated party.

If Someone Else Is Violating New Jersey’s Wetlands Laws

Suppose you discover that a neighboring property owner, developer, contractor, or other party has been filling wetlands, disturbing wetlands, constructing without the required approvals, or otherwise violating New Jersey’s environmental laws.

Don’t assume that there is nothing you can do.

New Jersey law provides mechanisms through which affected citizens and organizations may seek enforcement of environmental laws. In appropriate circumstances, the New Jersey Environmental Rights Act (ERA) can provide an important avenue for addressing alleged violations of environmental laws by private parties or governmental entities.

The ERA is particularly significant because it recognizes that citizens can have a meaningful role in enforcing New Jersey’s environmental protections.

Depending upon the circumstances, the appropriate course may include:

• Documenting the alleged wetlands disturbance;
• Determining whether the property has required NJDEP approvals;
• Reviewing applicable wetlands, flood-hazard, stormwater, and land-use requirements;
• Obtaining public records and permit information;
• Notifying the appropriate governmental authorities;
• Evaluating whether an Environmental Rights Act action is appropriate;
• Seeking appropriate judicial relief where warranted.

Document first—but don’t trespass

If you believe wetlands are being illegally disturbed, photographs, videos, dates, maps, public records, permit information, and other documentation can be extremely important.

But members of the public should not trespass onto private property to gather evidence.

A lawyer experienced in wetlands litigation can help determine what information is legally obtainable and what legal remedies may be available.

What If NJDEP Sends YOU a Notice of Violation?

The situation is very different when the letter comes from NJDEP and you or your company is the alleged violator.

The first rule is simple:

Don’t ignore it.

A Notice of Violation can have significant consequences. Depending on the circumstances, NJDEP may seek penalties, restoration, remediation, additional permitting, or other corrective measures.

The notice may also lead to administrative proceedings and, in some circumstances, litigation or appeals.

Do not assume that receiving a Notice of Violation means that NJDEP’s allegations are necessarily correct.

The facts and the applicable law matter.

Among the questions that may need to be examined are:

• Does the area actually constitute regulated wetlands?
• Was the alleged activity within a regulated wetland or transition area?
• Was a permit required?
• Was a permit previously issued?
• Does an exemption apply?
• Did a prior owner conduct the activity?
• What exactly does NJDEP contend occurred?
• When did the alleged violation occur?
• Was the activity authorized by another governmental approval?
• Is NJDEP seeking restoration, a civil penalty, or both?
• Is there a factual or legal basis for challenging the alleged violation?
• What administrative procedures and deadlines apply?

These questions can be highly technical. Wetlands enforcement often involves the intersection of environmental law, engineering, hydrology, surveying, land-use law, and administrative procedure.

Don’t Make the Problem Worse

When a property owner receives an NJDEP enforcement notice, the natural reaction may be to call the agency immediately and try to explain what happened.

That can be a mistake.

Before making substantive statements or entering into an agreement concerning alleged violations, it is prudent to have counsel review the notice and the underlying facts.

An experienced environmental lawyer can help determine what NJDEP is actually alleging, what the agency is seeking, and what legal options are available.

That does not necessarily mean fighting every issue. In some cases, the best strategy may involve negotiating a resolution, obtaining the appropriate permits, correcting the condition, or pursuing another form of compliance.

In other cases, the allegations may warrant a vigorous legal challenge.

Administrative Proceedings Are Only Part of the Picture

Environmental enforcement matters do not necessarily end with an exchange of letters with NJDEP.

Our firm represents clients in administrative legal proceedings involving NJDEP, and where appropriate, we also handle appellate court proceedings arising from environmental and wetlands disputes.

That continuity can be important.

A wetlands dispute may begin with an NJDEP inspection or Notice of Violation and eventually involve administrative litigation and, depending upon the circumstances, review by the courts.

Having counsel who understands both the administrative process and potential appellate issues can help a client make informed decisions from the beginning.

The Same Law Can Protect Wetlands—and Protect Property Owners

There is sometimes a misconception that environmental lawyers represent only environmental organizations or only property owners.

In reality, environmental law can involve both.

A lawyer may represent a citizen seeking to stop an unlawful wetlands disturbance. The same lawyer may represent a property owner who believes NJDEP has incorrectly determined that the owner violated the law.

The common thread is enforcement of the law and protection of the client’s legal rights.

New Jersey’s wetlands laws are important, but so are the procedural and substantive rights of people and businesses subject to governmental enforcement.

What Should You Do?

Whether you believe someone else is illegally disturbing wetlands or you have received an NJDEP Notice of Violation, don’t wait until the problem escalates.

If you are concerned about a wetlands violation by another party:

1. Document what you can lawfully observe.
2. Do not trespass onto private property.
3. Preserve photographs, correspondence, maps, and other information.
4. Determine whether permits or approvals exist.
5. Consult an attorney experienced in New Jersey environmental and wetlands law.

If NJDEP has issued you a Notice of Violation:

1. Read the notice carefully.
2. Calendar every deadline.
3. Preserve the notice and all accompanying documents.
4. Do not destroy, alter, or conceal relevant records.
5. Avoid making substantive admissions before obtaining legal advice.
6. Have an experienced environmental attorney review the allegations and underlying facts.
7. Determine whether the matter should be negotiated, challenged administratively, or potentially appealed.

Wetlands disputes can become complicated quickly.

Whether you are trying to protect wetlands from an unlawful activity or defending yourself against an NJDEP enforcement action, early legal advice can make a significant difference.

Stuart Lieberman, Esq. represents clients in New Jersey environmental and wetlands matters, including cases involving alleged unlawful wetlands activities, Environmental Rights Act matters, NJDEP enforcement proceedings, administrative litigation, and appellate proceedings.

This article is intended for general informational purposes and does not constitute legal advice. The facts and legal options in any particular wetlands matter depend upon the specific circumstances of the case.