Archive for the ‘Wetlands’ Category

DEP does not need a search warrant to inspect wetlands

Written by Mike Pisauro on April 16th, 2013 in Courts, land use, Wetlands | No Comments »

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.

 

Does DEP need a search warrant to investigate wetlands on your property?

Written by Mike Pisauro on December 5th, 2012 in Courts, Wetlands | 4 Comments »

 

There is an interesting case awaiting a decision by the NJ Supreme Court.  The issue before the Court is whether a property owner has any Fourth Amendment right to require the DEP to obtain a warrant before inspecting a property for compliance with environmental regulation.  This case was argued before the Supreme Court on 10/23 and awaiting their decision.

As way of background, the DEP entered the Huber’s property, after receiving complaints, to determine whether the Hubers had encroached or filed in wetlands or the transition area.  The department determined that portions of the Huber’s deck, patio and retaining wall encroached into the wetlands and the transition area.  The DEP also determined that the Hubers had filed in part of the wetlands.

The Huber’s challenged all of the DEP’s findings, as well as the existence of the conservation easement that was recorded on the property.  At the hearing before the administrative law judge, the Hubers also challenged the admissibility of the evidence.  The Hubers asserted that the DEP’s inspection was a search under the Fourth Amendment and required DEP to obtain a warrant.  Therefore, the evidence should be suppressed as it was gathered in violation of the Fourth Amendment.    This is the question under consideration by the NJ Supreme Court.

As we probably all know, the Fourth Amendment of the U.S. Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

NJ’s Constitution has a very similar provision:

Art. 1, Sec. 7.   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.

The Hubers argued, before the Appellate Court and before the Supreme Court, that DEP was required to obtain a warrant before they inspected the wetlands and the buffers on their property.  The Appellate Division found that the Freshwater Wetlands Protection Act provided the authority for the DEP to perform its warrantless inspections.  In particular the Court noted, NJSA 13:9B-21(m) provides:  “The department shall have the authority to enter any property, facility premises or site for the purpose of conducting inspections, sampling of soil or water, copying or photographing documents or records, and for otherwise determining compliance with the provisions of the act.”    The Appellate Court also cited to the enabling legislation of DEP which provides for a very similar general power to the Department.

The question is whether the Freshwater Wetlands Protection Act provides authority to DEP to perform warrantless inspections.  And even if the statutes give the authority to the DEP that does not necessary mean that the inspections pass constitutional must.  Or in another way, do the provisions of the Freshwater Wetlands Act pass constitutional requirements under the Fourth Amendment?  The Courts have generally accepted that inspections as part of an administrative process to enforce regulatory programs can fall under the Fourth Amendments’ requirements.

In general the Courts have accepted warrantless inspections in highly regulated industries.  The Court noted that wetlands were a highly regulated area.  It would appear that the fact that wetlands were a highly regulated “brought it directly under the regulatory arm of the DEP just as much as if it was regulated industry.”    The Hubers have challenged this assumption.  They believe that a homeowner and their house/surrounding yard are entitled to more protection than a regulated industry.  In short, because homes are highly protected by the 4th Amendment, DEP should have gotten a search warrant prior to performing the inspection.

One Justice was very interested in learning that if DEP had to get a search warrant in order to inspect any wetland in order to insure that it was not impacted in violation of the statute, how DEP would be able to convince a judge they had probable cause to justify the warrant.  If it was very difficult to show probably cause didn’t that mean that DEP’s ability to enforce its regulations would be in jeopardy?  On the other hand, another Justice was asking the State’s attorney how far could DEP go without getting a warrant.  Could they drive a backhoe and remove significant amounts of dirt during their “inspection.”  In short was there any limit on their ability to perform a warrantless search.

While the State’s attorney tried to make the point that the property and the wetlands were subject to a conservation easement, I am not sure, at least from the questioning, that issue was weighing heavily on the Court.  DEP argued that since there was a conservation easement, DEP had a property right in the land; therefore, they as a property owner had every right to go onto the property and inspect the condition of their property.  It may have not weighed heavily in the Court’s mind because it would appear that the DEP inspector was not aware that a conservation easement regarding the wetlands existed.

This case has several unanswered questions which may impact DEP’s ability to enforce its regulations not only in wetlands cases but others.

  • Does DEP need a search warrant to do a site inspection?
  • What standard of proof does DEP have to demonstrate in order to have probable cause for a search warrant?
  • Do conservation easements in of themselves provide some additional right to DEP to perform an inspection without a warrant?
  • Does DEP have to know that it has a conservation easement in order to validate a warrantless inspection?

We will see how this decision will impact DEP’s ability to perform inspections and enforce its regulations.

NJ is rapidly becoming the City State not the Garden State

Written by Mike Pisauro on August 5th, 2010 in land use, Wetlands | No Comments »

Researchers from Rowan and Rutgers University have recently released a new report looking at the changes in NJ’s land use from 1986 to 2007.  A prior report looked at the changes from 1995 to 2002.  This report adds the period between 2002 to 2007.  This report shows some very amazing facts.

The rate of development in NJ increased by 7% from 2002 to 2007.  From 1995 to 2002 NJ lost an average of 15,123 acres per year to urbanization, but that increased to 16,061 acres per year from 2002 to 2007.  As we continued to increase urbanization in the State of New Jersey we lost forests, wetlands, open space, and forestlands.  These land use changes have ramifications.  For example we lost 66.3 square miles of forest over 21 years.  This loss of land to urbanization has many negative environmental impacts.  The loss of forests has increased the fragmentation of habitat and has created more fringe areas.  Species that rely on large areas of habitat will have less large areas to hunt, bred and to live.  Fringe habitat encourages invasive species to take over.

We continue to lose wetlands to urbanization.  From 2002 to 2007 we lost 8,652 acres of wetlands or the slightly more than the total area of the Hackensack Meadowlands.   It is somewhat surprising at the level of wetlands loss since 1995 as overall federal policy is for zero wetlands loss.  Another issue with NJ’s wetlands loss is NJ’s water quality.  It is well accepted that when a watershed has 10% or more of its land covered by impervious surface that watershed is impacted to various degrees.  Increasing impervious cover will have an impact on water quality as well as flooding.    NJ’s 2008 Integrated Water Quality Report shows that NJ’s waters are not fairing well.  63% of the streams that could be assessed did not meet the standards for aquatic life.   41% of our waters do not meet the designation for recreational use and we do not know enough to determine the status of another 40%.    Interesting, the report reveals that fish and invertebrate communities were commonly impacted in urban areas and that “increase in impervious surfaces was related to a negative response in the aquatic invertebrate community.”   As we continue to pave over NJ our water quality will decrease.  This will also cause continued efforts to clean up our streams, rivers and lakes to be a more expensive proposition.

Another interesting fact the report reveals is that almost 50% of the development has taken place outside of the areas designated for growth within our state plan.  This is contrary to NJ’s State Plan, but a look at this issue will have to wait for another post.

Court allows Threatened Species to exist

Written by Mike Pisauro on December 11th, 2008 in Courts, Endangered Species, Wetlands | No Comments »

In mid-November the Appellate Division handed to DEP a win by finding that the barred owl could be threatened.  In ZRB, LLC. v. NJ Dept. of Environmental Prot., A-6046-06T3, ZRB sought to fill in wetlands under general permit #6.  Under general permit #6, a permittee can fill in limited amounts of freshwater wetlands as long as the freshwater wetlands are not classified as an exceptional resource.  Freshwater wetlands are classified as exceptional, intermediate, or ordinary.

The applicant alleged the wetlands were of intermediate value and could be filled while the DEP alleged because of the property was of exceptional value.  DEP claimed the property was of exceptional value because it was suitable habitat for the barred owl.  In NJ the barred owl is considered to be a threaten species under N.J. Endangered and Non-game Species Act.  While the case is interesting for several reasons, the aspect I am going focus on is whether DEP is authorized to list a species as threatened.

In 1973 both New Jersey and the Federal government enacted endangered species laws.  Under the Federal ESA an “endangered species” is defined:

any species which is in danger of extinction throughout all or a significant portion of its range  . . .  16 U.S.C. 1532(6).

The Federal ESA has a separate definition for “threatened species” and provides a different level of protections.  Under the Federal ESA, “threatened species” are defined as:

any species which is likely to become an endangered species within the foreseeable future throughout all or a signification portion of its range.  16 U.S.C. 1532(20).

The Applicant argued that since the New Jersey Endangered and Non-game statute does not define “threatened,” DEP could not create threatened species in its regulations.  DEP’s regulations define threatened as, “a species that may become endangered if conditions surrounding it begin to or continue to deteriorate.”   NJAC 7:24-4.1.  If there could not be a threatened species, then DEP could not classify the freshwater wetlands as exceptional and the applicant would be able to fill in the wetlands on its property.

The Applicant was only partly correct in its argument.  While the NJ statute does not have a separate definition for “threatened” its definition of endangered is:

“Endangered species” means any species or subspecies of wildlife whose prospects of survival or recruitment are in jeopardy or are likely within the foreseeable future to become so due to any of the following factors . . . NJSA 23:2A-3(C).

According to the Appellate Court, the highlighted section is the lynch pin.  As the DEP’s definition of threaten is actually part of the definition of endangered the Appellate Court found that the DEP did not exceed the authority granted to it under the statute.  Since the DEP was reasonable in creating the threatened category in its implementing regulations and listing species as threatened, its denial of the general permit to ZRB was within DEP’s authority.