New wetlands regulations promulgated by the New York State Department of Conservation (DEC) have been annulled by the Albany Supreme Court, a decision with ramifications for New York municipalities, developers, landowners and environmentalists.
While the important wetlands decision by State Supreme Court Justice Richard Platkin may provide some relief to landowners, businesses and developers, it is likely to be appealed.
Background on 6 NYCRR Part 664
As previously mentioned in several Harris Beach Murtha legal alerts, including a Jan. 12, 2024 legal alert and a July 12, 2024 legal alert, following a 2022 amendment of the state’s Freshwater Wetlands Act, DEC changed 6 NYCRR Part 664, Freshwater Wetlands Mapping and Classification to Freshwater Wetlands Jurisdiction and Classification. The newly adopted regulations defined key terms, described the revised freshwater wetland classification system, presented criteria for the new expanded identification of Wetlands of Unusual Importance, and described procedures DEC uses in making jurisdictional determinations to enhance consistency and conservation. Harris Beach Murtha attorneys previously provided a detailed breakdown on the 6 NYCRR Part 664 changes (New Regulations), which took effect Jan. 1, 2025.
Several parties filed lawsuits over the New Regulations, claiming they were unconstitutionally vague and exceeded legal authority. The plaintiffs included the Chautauqua Lake Property Owners Association, Business Council of New York State Inc., Village of Kiryas Joe, Town of Palm Tree and landowners. The lawsuits were consolidated.
Environmental Assessment Form vs. SEQRA Review
Judge Platkin did not annul the 2022 Freshwater Wetlands Act, only the Part 664 New Regulations. He said the DEC did not conduct the “hard look” required by New York’s State Environmental Quality Review Act (SEQRA).
“Having concluded that DEC did not adequately identify the relevant areas of environmental concern, did not take a ‘hard look’ at them and did not make a reasoned elaboration of the basis for its determination of non-significance, the court concludes that the subject action – the promulgation of the new Part 664 regulations – must be annulled for noncompliance with (the State Environmental Quality Review Act),” he ruled.
Judge Platkin said the DEC determined there would be no, or very little, environmental impact from the New Regulations based on a short-form Environmental Assessment Form (EAF) rather than the more comprehensive SEQRA review. The DEC’s review found that, because the New Regulations would expand wetlands protection, they would only result in positive environmental effects.
The DEC, however, received more than 2,600 written public comments, many of environmental concern, including urban sprawl and negative effects on aquatic ecosystems (algae blooms and invasive species). Many argued the changes would alter development and land-use intensity.
Judge Platkin found the DEC’s use of the shorter Environmental Assessment Form was insufficient and led to insufficiently reasoned SEQRA findings. He said the DEC was required to examine all foreseeable adverse consequences and should have taken a harder look at regulations such as the blanket Class II-designation for urban wetlands, categorical 100-foot buffer zones and extended adjacent wetlands of variable size.
He ruled the New Regulations “have the potential to work significant changes through alteration of development patterns, land-use intensity and/or the capacity of affected lands to support existing uses. Nothing in the Short EAF indicates that DEC identified any of these potential environmental concerns as relevant areas warranting a hard look. The Short EAF’s analysis rests entirely on the narrow premise that expanded wetland protection is inherently beneficial to wetlands, and there is no indication that DEC considered anything other than that objective when it determined that Part 664 had no potential for adverse impacts.”
Project-based SEQRA Review Not Enough
The DEC contends previous courts have held that the agency does not need to investigate every conceivable environmental problem and can use its discretion when selecting relevant environmental issues. Further, DEC pointed out, freshwater wetlands permits are subject to SEQRA review, so any specific adverse effects would be discovered and examined in that process.
Judge Platkin disagreed, writing “review on a project-by-project basis will not, and cannot, assess the cumulative effects of the new regulatory framework on development patterns, land-use intensity and community character throughout the State. And some of the potential adverse impacts may be felt on non-wetlands, which are not subject to Part 663.”
While the Court decided the regulations should have been subjected to a more comprehensive SEQRA review, he denied other challenges to the rules, including that they were adopted in violation of the State Administrative Procedure Act and Home Rule principles; that they violate the due process rights of landowners; that they are arbitrary and capricious; and that they improperly delegate regulatory authority to private actors.
What’s Next on 6 NYCRR Part 664
DEC is likely to appeal the ruling, seeking to continue to enforce the New Regulations. In the meantime, developers, builders and landowners with projects in process that may be affected by 6 NYCRR Part 664 should consult counsel to determine next steps. It is critical for project applicants to consult an integrated team of attorneys and technical professionals who are experienced in navigating DEC’s freshwater wetlands regulatory program. Such counsel is necessary in connection with informed site selection for new projects, the design of expansion projects at existing facilities and the integration of the permitting process as part of an overall schedule for project financing, construction and other development.
Our Environmental Practice Group is closely watching this issue. If you have questions about this or related matters, please contact attorney Amelia McLean-Robertson at (315) 214-2028 and arobertson@harrisbeachmurtha.com; attorney Gene J. Kelly at (518) 701-2740 and gkelly@harrisbeachmurtha.com; or the Harris Beach Murtha attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York State in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains; as well as in Boston, Massachusetts, and Newark, New Jersey.