The New Jersey Supreme Court recently released its decision in Huber v. NJ DEP. I wrote about the case in Does DEP need a search warrant to investigate wetlands on your property? The Court held that while DEP does not need a search warrant, it cannot enter a residential property under the Freshwater Wetlands Act without the property owners consent or Court Order. If a property owner does not voluntarily consent than the DEP has regulatory authority and ultimately judicial recourse to compel that inspection.
The Court noted that when a land owner receives property subject to a permit that allowed the wetlands to be impacted the land owner takes the land without a reasonable expectation of full privacy. The property owner does have some measure of privacy but it is reduced. That reduced level of privacy means that the DEP does not have the right to enter residential property over the objection of the landowner. If the landowner objects, than the DEP commission can issue an order requiring compliance with DEP’s right to inspect the property including monetary penalties for non-compliance. If that does not work, and I do not expect it will in many cases, DEP can then seek a judicial order permitting the inspection. The Court was also careful to note that the standard to issue the court-ordered entry is lesser than the probable cause necessary to get a search warrant in a criminal case. But the Court did not set out the standards for issuing the court-ordered entry.
The Court also left undecided, DEP’s argument that it also had a property right in the land because there was a conservation easement recorded as a result of the Freshwater Wetlands Permit. In essence since the State owned the easement they did not need the owners of the rest of the property to consent to the search. The Court did not decide whether under the New Jersey Conservation Restriction and Historic Preservation Restriction Act DEP had a property right to the effected land therefore it did not need a warrant. This issue will likely be litigated in the future. In the Courts decision it indicated that it probably would not find constitutional a permit requirement to allow such inspections. It is not clear whether the property interest in the easement would pass constitutional scrutiny with the Court.
Under the current statutory and regulatory provisions, if DEP wishes to inspect a wetland it must request permission from the property owner after showing proper credentials. If the property owner refuses permission for DEP to inspect the property, than the DEP employee can request that that the Commissioner of DEP issue an administrative order compelling compliance under NJSA 13:9B-21(b). This statute authorizes the DEP Commissioner who finds a person in violation of any provision of the act or regulation or permit to issue an order:
- Specifying the provision(s) of the act, regulation, or permit violated;
- Citing the action constituting the violation;
- Requiring the person to comply with the cited provision.
So in the instances of the case, once the Hubers declined to allow DEP’s inspection (note that there is a dispute as to whether the Hubers consented or not); the DEP employee could have asked Commission Martin to find the Hubers in violation of NJSA 13:9B-21(m). This provision authorizes DEP the “authority to enter any property, facility premises or site for the purposes of conducting inspections, sampling of soil or water . . . and otherwise determining compliance with the provisions of the act.” The Commissioner would than issue the order requiring the Hubers to allow DEP to inspect the wetlands and transition areas. If the Hubers did not comply with that order DEP could then have filed suit seeking a court order to compel the inspections.
It is with this last step that the Court has left DEP and the public hanging. What does DEP have to show to a judge for the judge to issue an order compelling the inspection? Does DEP have to show that there were or might have been wetlands/transition areas on the property; thus subject to the regulation of DEP and that the property owner did not permit DEP to inspect? Or will DEP have to show that they have some level of information that not only was or wetlands on the property but that those wetlands have been impacted in violation of the Act and that they requested permission to inspect and were denied by the property owner? How much information or proof does DEP have to show to order to get a Court order?
Also, this also brings into question how many resources will DEP bring to bear on this issue? Will they seek penalties and judicial orders compelling compliance against all property owners that refuse inspection? Or will they in a time of increasing budget cuts, lack of resources and a lack of political will to enforce environmental protections not seek to enforce the law. Will property owners with wetlands be able to do what they want because DEP will not enforce? If so, NJ’s wetlands will suffer and in return all of New Jersey will suffer.