State's Top Court Curbs How Far DEP Can Go With Wetlands Inspections
DEP inspectors must show ID to homeowners, be granted permission to enter private property.
How much latitude does the New Jersey Department of Environmental Protection have to inspect for violations of the state’s freshwater wetlands protection law?
Perhaps not as much as lawmakers envisioned when they enacted the law in 1987 during former Gov. Thomas Kean’s administration, a measure widely regarded by the environmental community as one of the signature achievements of his terms.
In ayesterday the state Supreme Court upheld a ruling by the agency to impose a civil penalty of $4,500 on homeowners who improperly filled in wetlands on their property in Clinton Township in Hunterdon County. The court also ordered restoration of the impaired wetlands.
The case was far from simple. The court decision had several caveats, which some conservationists believe could make it harder for the agency to enforce the wetlands law, and possibly other environmental statues.
Beyond the technical matter of wetlands violations, the case raised important constitutional issues about how the DEP can inspect potential violations of the wetlands law on residential properties, centering on whether the agency can look for problems without the homeowners’ consent.
The case, which went all the way up to the U.S. Supreme Court and back to New Jersey, involves a couple who bought the house in Hunterdon County in 1999, with a deed restriction governing wetlands on the property.
There was no dispute over whether the wetlands were illegally filled, as the homeowner testified in the proceedings. In a case that wound its way through a long list of courts, the couple ended up arguing that a DEP inspector discovered the violations by entering the property without permission, an allegation disputed by the agency employee.
The couple's lawyer, who did not return a call for comment, argued that the violation should be thrown out because they never consented to allowing the DEP inspector on their property. The homeowners argued that the DEP’s “warrantless’’ intrusion was invalid under the Fourth Amendment of the U.S. Constitution, which protects against unreasonable searches.
The New Jersey Supreme Court essentially punted on this issue, but argued that the state DEP must abide by certain conditions before issuing violations. For one, the DEP employee must provide credentials to a property-owner before carrying out an inspection. If permission is not granted, , the court argued that the state may seek entry by taking action in another judicial proceeding.
“The inspection scheme taken as a whole does not purport to authorize forcible, non-consensual entry into the backyard of a residential property-owner,’’ the court said in its decision. “Such a broad and sweeping interpretation of the subsection risks violating the federal and state constitutional prohibitions against unreasonable searches."
The ruling seems to undermine somewhat the law’s statutory authority to enter properties to determine compliance with the freshwater wetlands act, a law even the court acknowledged is important to protecting drinking water, preventing flooding, and preserving important habitats for fish and wildlife.
Nevertheless, the court said even without the issues involving constitutionality, there was enough evidence to support the DEP’s decision to fine the homeowners and order a restoration of the wetlands.