New York Wetlands Ruling: What Municipal Project Sponsors Should Do Now
New York’s freshwater wetlands regulatory framework is again in transition following a recent court decision vacating the State’s implementing regulations. For municipalities and other public entities planning projects near wetlands, the decision creates practical questions concerning wetlands jurisdiction, permitting, environmental review, and projects already underway. Understanding the current regulatory landscape early in project planning can help avoid permitting delays and the need to revisit environmental analyses later in the approval process.
In Chautauqua Lake Property Owners Association v. State of New York, the New York State Supreme Court, Albany County, annulled the New York State Department of Environmental Conservation’s (“DEC”) freshwater wetlands regulations, 6 NYCRR Part 664, intended to implement the legislature’s 2022 amendments to the Freshwater Wetlands Act, because DEC failed to comply with the State Environmental Quality Review Act (“SEQRA”) when it adopted the regulations. Specifically, the court found that DEC failed to take the requisite “hard look” at areas of environmental concern because its significance analysis considered only wetlands protection, not potential adverse environmental impacts to other resources because of the proposed rules.
After the court’s vacatur of Part 664, DEC’s position is that the previously promulgated Part 664 now governs implementation of the 2022 legislative amendments to the extent it does not conflict with them. However, the previously published freshwater wetlands maps upon which the existing Part 664 relies are no longer effective under the 2022 legislative amendments, thereby leaving uncertainty regarding how DEC will administer its expanded wetlands authority. While DEC is sent back to the rule-making drawing board, that uncertainty will continue.
DEC’s current guidance states that applications are required for projects affecting previously mapped freshwater wetlands or wetlands of 12.4 acres or greater. DEC’s current jurisdictional-determination guidance provides that certain determinations issued between January 1, 2025 and April 8, 2026 may be eligible for reassessment. Pending projects should be reviewed for reliance on wetlands assumptions, jurisdictional determinations, or environmental analyses affected by the ruling.
Going forward, early wetlands review, coordinated permit planning, and carefully drafted consultant scopes can identify risks before design and approvals are locked in. Sponsors of pending projects near wetlands should now verify the jurisdictional basis, update the environmental record where necessary, and align consultant responsibilities with the lead agency’s SEQRA obligations. Attention to ongoing DEC efforts to reintroduce the rules will be necessary to forecast how DEC may view its obligations with respect to freshwater wetlands going forward.
Attorneys at West Group Law (“WGL”) have represented municipalities and public entities across the country for more than 30 years in connection with water and wastewater matters, litigation, environmental and regulatory matters, solid waste issues, transportation, general municipal law, civic projects, structuring requests for proposals, contract negotiations, alternative project delivery methods, land use and development, energy, construction law, animal management services, and more. WGL attorneys have a wealth of knowledge and can assist municipalities and public entities in a variety of matters.
For more information, please contact Managing Partner Teno West at:
twest@westgrouplaw.com or at 917-922-6226.
