Warrantless Inspections are Not Warranted under the Freshwater Wetlands Protection Act

The New Jersey Supreme Court recently held that the New Jersey Department of Environmental Protection (NJDEP) may not conduct a warrantless administrative inspection of a residential property subject to a Freshwater Wetlands Protection Act (“Act”) permit without the consent of the permittee.  The warrantless search exception authorized by the U.S. Supreme Court in New York v. Burger, 482 U.S. 691 (1987), is limited to the administrative inspection of a closely regulated commercial property and does not extend to the inspection of a residential property.

Under the Act, the NJDEP may enter a permittee’s property at reasonable times to conduct inspections and sampling, copy documents or records, and otherwise ensure compliance with the Act once the NJDEP representative presents credentials and the permittee consents to access.  If access is denied, the Act’s regulatory scheme grants the NJDEP the ability to issue an administrative order requiring compliance, assess a penalty for each day access is denied, and seek judicial recourse for court-ordered access.  Accordingly, while the Act does not permit the NJDEP to “forcibly” enter a residential property, where heightened privacy interests lie, it does provide a process consistent with the Fourth Amendment that allows the NJDEP to eventually gain access and achieve compliance.

The New Jersey Supreme Court adopted this view in the case of NJDEP v. Robert and Michelle Huber (April 4, 2013), where the defendants were found to have violated the Act because of improvements they made to their property in violation of an existing wetlands permit.  The parties disputed whether access had been granted, and the defendants argued that the Court should exclude certain evidence based on the Department’s warrantless inspection of their property.  The Court held that court-ordered entry would be required before the NJDEP could access and inspect a permittee’s property.  However, in this case, the Court found sufficient evidence in the record to uphold the violation even with the contested information excluded.