How to pry with maps: the Fourth Amendment privacy implications of governmental wetland Geographic Information Systems (GIS).

AuthorFlannery, Peter M.

Cut the bank for the fill./ Dump sand/ pumped out of the river/ into the old swale// killing whatever was/ there before--including/ even the muskrats. Who did it?/ There's the guy.// Him in the blue shirt and/ turquoise skullcap./ Level it down/ for him to build a house// on to build a/ house on to build a house on/ to build a house/ on to build a house on to ... --William Carlos Williams (2) I. INTRODUCTION

In recent years, the United States Environmental Protection Agency ("EPA"), Congress, and various state governments, among others, have championed the cause of "smart growth" environmental policies. (3) Although definitions of smart growth may vary, the term generally involves the management of urban growth so as to preserve the natural environment. (4) The EPA, in describing the environmental benefits of smart growth, states that "Smart Growth promotes practices that can lessen the environmental impacts of development including: compact development, reduced impervious surfaces and improved water detention, [and the] safeguarding of environmentally sensitive areas." (5) Environmentally sensitive areas include wildlife habitats, wetlands, open space and watersheds. (6)

Consequently, the federal government and many state governments have also championed the use of Geographic Information Systems ("GIS") (7) in order to further safeguard environmentally sensitive areas, a tenet of smart growth. (8) GIS, essentially a computerized mapping system based on a database, (9) can be an efficient and comprehensive tool for the monitoring of environmental phenomena associated with smart growth. (10) The environmental data upon which such GIS are based frequently take the form of aerial photography, satellite imagery, or maps based on these data sources. (11) Thus, for example, GIS may be used to monitor the deterioration of a government-protected wetland area on private land through "before" and "after" photographs, therefore allowing the government agency to assess a penalty on that violator-property owner. (12)

Aerial photography and satellite images used in this manner, however, may run into difficulties with the privacy guarantees of the Fourth Amendment. (13) In Dow Chemical Company v. United States, (14) for example, the Supreme Court stated that a warrantless administrative search employing aerial photography may be in violation of the Fourth Amendment where such a search infringes upon the intimate areas around the home, a violation of the common law curtilage doctrine. (15) As the warrantless administrative search in Dow Chemical involved the EPA's monitoring of the Dow Chemical Company for possible violations of the Clean Air Act, administrative search jurisprudence is especially relevant to environmental monitoring. (16)

This Note shall examine how warrantless administrative searches involving aerial surveillance, and correspondingly, GIS, by government regulatory agencies might infringe upon the Fourth Amendment privacy rights of individuals under the current law. Specifically, it shall focus on a government's environmental monitoring of freshwater wetlands ("wetlands") and the reasonable privacy expectations of the individuals upon whose lands those wetlands are found. (17) Wetlands have been chosen due to their ubiquitous nature and the fact that they may be difficult for many individuals to detect, i.e., qualities that affect reasonable privacy expectations. (18) The Note shall also focus primarily on the New Jersey Department of Environmental Protection's ("NJDEP") rules and polices, and corresponding New Jersey law, as New Jersey operates one of the most comprehensive wetlands monitoring programs in the United States. (19)

In addition, it is worth noting that although much legal commentary exists with regard to the Fourth Amendment privacy issue, such commentary is mostly concerned with warrantless criminal searches; few legal commentators have addressed the issue of warrantless administrative searches. (20) Further, of those commentators who have addressed the administrative side of the Fourth Amendment privacy issue, none have explored the nexus between governmental wetlands monitoring, GIS and reasonable privacy expectations, as this Note attempts to do. (21) Thus, this Note approaches the Fourth Amendment privacy issue from a fresh perspective.

This Note begins with Part II, a "Wetland GIS Primer," defining wetlands and briefly describing basic GIS and aerial surveillance technologies for wetland monitoring. Part III introduces the state and federal statutory and regulatory framework for wetland monitoring, especially with regard to New Jersey. Part IV briefly examines Fourth Amendment jurisprudence as it relates to administrative searches, focusing on a property owner's expectation of privacy. Finally, Part V analyzes how government regulatory agencies that employ GIS technology for wetland monitoring might infringe upon individuals' Fourth Amendment privacy rights under the current law.

  1. WETLAND GIS PRIMER

    1. Wetlands Defined

      The EPA defines wetlands as "lands where saturation with water is the dominant factor determining the nature of soil development and the types of plant and animal communities living in the soil and on its surface." (22) Further, wetlands contain great variation due to "regional and local differences in soils, topography, climate, hydrology, water chemistry, vegetation, and other factors, including human disturbance." (23) Wetlands exist on every continent except Antarctica, from the "tundra to the tropics." (24)

      Governments protect wetlands due to their beneficial environmental qualities. In short, they "(1) protect drinking water by filtering out chemicals, pollutants and sediments; (2) provide natural flood control by soaking up water runoff from storms and melting snow; (3) release stored flood waters during droughts; (4) provide wildlife habitats; and (5) provide open space for recreation and tourism." (25) In order to protect wetlands, certain state and federal agencies require individuals to apply for and receive permits before altering or destroying wetlands; non-compliance usually results in a fee or penalty. (26) Americans seem to agree with such protection, too: according to a 1998 National Audubon Society and Clean Water Network public opinion poll, eighty-two percent of 1,000 randomly selected registered voters said it was important to protect wetlands. (27)

      Unfortunately, while great progress has been made in the last twenty years to reduce the loss of wetlands, "[b]etween 1986 and 1997, a net of 644,000 acres of wetlands was lost." (28) An estimated 58,500 acres of wetlands are lost annually. (29) Wetlands have been depleted through the years due to dredging, pollution, land development, and drainage, among other causes. (30)

      Despite the merits of wetland preservation, however, the very nature of wetlands proves compliance with wetland regulation inherently difficult. Some wetlands, especially non-tidal marshes, may be dry during certain parts of the year, may be isolated from other wetlands and water bodies, or may be relatively small and shallow even at their most saturated level. (31) With these types, an individual may not know that wetlands exist on his/her land and may unknowingly alter or destroy an important wildlife habitat or water filter. Consequently, this individual may have to pay a fee or incur some other penalty for the violation. (32)

    2. Basic Wetland GIS

      Most GIS, including wetland GIS, utilize two types of data: spatial and tabular date. (33) Spatial data for wetland GIS consist of features on a map, such as a line representing a river, and are represented in what is called the raster, or grid, format. Raster or grid spatial data are stored in a grid format referenced to a coordinate system--latitude and longitude for example--and require large amounts of hardware storage. (34) This format includes satellite imagery and aerial photography, also called remote sensing. (35)

      Several federal, as well as some state and local, data banks provide valuable spatial data resources for wetlands monitoring. The U.S. Fish and Wildlife Service maintains the National Wetlands Inventory, from which many state agencies and research organizations acquire their data. (36) The U.S. Geological Survey's Earth Science Information Centers provide maps, aerial photographs and other information with regard to land, mineral and water resources. (37) The U.S. Geological Survey itself also provides hardcopy maps and digital map files. (38) The U.S. Census Bureau's Topologically Integrated Geographic Encoding and Referencing system ("TIGER map server") provides computer data for census map features, including rivers, bodies of water, county and municipality data and other features. (39) Local and state governments are also good sources of existing spatial data. (40)

      Linked to and supporting the spatial data are the tabular data. Tabular data consist of figures, numbers and other quantitative data that describe the spatial data. For example, tabular data indicating the name, length, federal/state regulatory jurisdiction and pollution levels of a river might be linked to spatial data depicting that river.

      There are several techniques for analyzing spatial and tabular data for wetlands monitoring, the most basic of these techniques being overlay analysis. (41) Overlay analysis consists of arranging the spatial data in layers such that several different, and sometimes disparate, types of data can be analyzed simultaneously. (42) That is, several computerized maps are placed one on top of the other and viewed together as one map. A map depicting the location of wetlands, for example, might be placed over a map depicting tax lots and a map conveying information about recipients of farm subsidies in order to create a new map depicting the location of wetlands on the lots of those who receive farm subsidies. (43)

      More advanced types of analyses, however, are...

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