Standard Operating Procedure

DES SOP #:101

DES Employee Entry onto Private Property

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Purpose:

The purpose of this policy is to establish procedures to be followed by DES staff when undertaking activities such as scientific studies, surveying, environmental assessments, or other data-gathering projects that require entry onto private property that is not specifically authorized by law. In the absence of a statutory authorization for DES staff to enter private property to perform the activity, written permission is required. In some situations, it may be appropriate to rely on oral permission from a property owner. Oral permission must be documented in the agency’s files. Information about the use of data collected or obtained on private property should also be provided to the owner.

This standard operating procedure does not apply to activities such as regulatory inspections or other investigations undertaken pursuant to statutory authority specifically authorizing entry onto private property for purposes of determining compliance with state statutes or rules. The relevant statute and the procedures in Chapter IV, Inspections and Information Requests, of the DES Compliance Assurance Response Policy (CARP) (http://des.nh.gov/organization/commissioner/legal/carp/documents/ch-4.pdf) should be followed to ensure that DES staff are legally authorized to enter private property.

Procedure:

  • In the planning stages, identify each parcel of private property of interest.
  • Formalize the purpose and need for the proposed activity on the subject property.
  • Identify each current owner of a possessory interest in the property, including each owner’s address and other contact information and the type of interest owned. (A possessory interest is ownership in fee simple or ownership of an easement or right-of-way that includes authority to exclude other uses.) If ownership is unclear, consult with the DES Legal Unit.
  • Identify the boundaries of the property on the project’s working map, and designate the specific areas of interest for the upcoming activities, if known in advance.
  • Define the scope and extent of the activity to be performed on each parcel.
  • At least 10 days in advance, prepare and send a “request to enter” letter to each owner of a possessory interest in the property, outlining the purpose of the proposed activity, its scope, extent, timeline, and anticipated results, including the how any data or samples collected on the property will be used.
  • Include with the letter a right of entry form (or directions to an online form) that, when executed, will demonstrate that formal, express permission has been granted by the property owner for specified agency staff to enter for the purposes declared. The right of entry must be substantially in the following form: “RIGHT OF ENTRY Property owner permission is hereby granted to the Department of Environmental Services and its employees and agents to enter upon property located at ______for the purposes of ______. This right of entry will terminate on ______unless renewed.” The right of entry must be signed by a property owner of record or an authorized agent.
  • Keep each signed form in the file for the project to which it relates. If a property owner will be present on the day of the visit and indicates that the signed form will be provided at that time, document this for the file and ensure that the signed form is obtained.
  • Oral permission from a property owner to enter private property is sufficient to authorize entry by DES staff. A record of the details of an owner’s oral expression of permission to enter property must be kept and maintained in the agency’s files.
  • If access is denied, whether explicitly or implicitly (i.e., by an owner not returning a signed form or granting oral permission), agency staff should not pursue any activity on that property until conferring with supervisors and the DES Legal Unit and reassessing the situation.
  • Projects requiring access to large numbers of properties should be discussed with a division director, the Legal Unit or the Assistant Commissioner, as necessary, to develop a feasible plan for acquiring advance permission to enter the properties.
  • If access is granted, agency staff may pursue the planned visit.
  • Within a reasonable time before the proposed visit, confirm with the property owner that the visit will occur on a specific day, time, and location. Identify for the property owner the name, position, and area of expertise of each staff member expected to participate in the proposed visit.
  • Document whether the property owner or an owner’s agent will accompany DES staff during the visit. If an agent is designated, include the agent in all subsequent correspondence.
  • Conduct the specified activities as described and within the shortest practical timeframe. If the property owner or agent accompanies DES staff during the visit, prior to leaving the property express the agency’s appreciation for the right to enter the property and conduct the work.
  • Leave the property in the same condition you found it, unless other arrangements have been made with the property owner. Operate any vehicles and equipment used in a manner that minimizes disturbances of domesticated animals, livestock, wildlife, etc.
  • Share the results of the work with the property owner as soon as the findings are transformed into a meaningful format, with a cover letter that expresses the agency’s appreciation for the right to enter the property and conduct the work.
  • Do not engage in compliance-related discussions with the property owner or agent, even if the work on the property results in the discovery of potential violations of environmental laws, rules, or standards.
  • If potential violations are discovered as a result of accessing private property under this standard operating procedure, report the information to the administrator of the bureau in which the relevant program is located. If such reports are received, the procedures in Chapter IV, Inspections and Information Requests, of the DES Compliance Assurance Response Policy (CARP) (http://des.nh.gov/organization/commissioner/legal/carp/documents/ch-4.pdf) will be followed.

Adopted: June 4, 2009

Thomas S. Burack

Commissioner

Standard Operating Procedure – DES Employee Entry onto Private Property –06/04/09

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