Warrantless Inspections are Not Warranted under the Freshwater Wetlands Protection Act

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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.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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