Three different groups have filed lawsuits this month challenging the New York State Department of Environmental Conservation’s (NYSDEC) recently promulgated wetland regulations (6 NYCRR Part 664), which were effective January 1, 2025. Two of the lawsuits additionally challenge the constitutionality of the amendments to the state’s Freshwater Wetland Act that was enacted in 2022, which formed the basis for the new wetland regulations. Together, the 2022 amendments and the new wetland regulations have substantially expanded NYSDEC’s jurisdiction over wetland areas in the state.
The Chautauqua Lake Property Owners Association is the leading petitioner in the first of the three lawsuits, which was filed on April 18, 2025. On April 30, 2025, two additional groups of petitioners filed similar lawsuits—one group is comprised of the Village of Kiryas Joel and the Town of Palm Tree, and the second group includes the Business Council of New York State, Inc., the New York State Economic Development Council, the New York State Builders Association, Inc., the New York Construction Material Association, Inc., and the Associated General Contractors of New York State, among others. The first two of these lawsuits challenged both the 2022 amendments and the new wetland regulations, while the petitioner group led by the Business Council has challenged only the new regulations.
Collectively, the primary concerns presented by these groups are that the 2022 amendments to the Freshwater Wetlands Act and the corresponding new regulations, which increase the area of wetlands and associated buffers regulated by the NYSDEC by 1.2 million to 3.5 million acres statewide, will only exacerbate New York’s housing crisis. The groups also argue that the changes negatively impact commercial and industrial investment and development, particularly in urbanized and suburban areas where local municipalities have already invested significant taxpayer money to support this growth.
Under the new regime, the NYSDEC now regulates all wetlands, regardless of whether they are mapped or not, that are 12.4 acres (reducing to 7.4 acres in 2028) or larger and a subset of smaller wetlands of “unusual importance,” as determined by the NYSDEC. The new regulations give the NYSDEC discretion to assert jurisdiction over wetlands of unusual importance based on 11 newly established statutory criteria. Notably, any wetlands “located within or adjacent to urban areas” are deemed to be wetlands of unusual importance. The new regime also substantially expands the NYSDEC’s jurisdiction over wetland buffers (referred to as “adjacent areas” under the law) for some wetland areas. See our prior legal alert for more information.
The three lawsuits were all combined petitions, filed in the Supreme Court for Albany County, alleging claims under CPLR Article 78 and seeking declaratory judgments. Collectively, the challenging groups have asserted that the NYSDEC failed to comply with the procedures set forth in the State Environmental Quality Review Act (SEQRA), the NYSDEC’s own procedural regulations in 6 NYCRR Part 617, and the State Administrative Procedures Act (SAPA) in promulgating the new regulations; that the 2022 Amendments (in two of the lawsuits) and the new regulations are unconstitutionally vague; and that the new regulations are arbitrary and capricious in various respects. The petitioners argue that the new regulations result in a dramatic increase in regulated wetlands and adjacent areas, foreclosing development without an expensive and time-consuming permit process, and are unconstitutionally vague because they fail to give property owners adequate notice of the areas that are subject to the NYSDEC’s wetlands jurisdiction. According to these petitioners, a burden is now improperly placed on property owners, who could formerly rely on the NYSDEC’s freshwater wetland maps, to obtain a “jurisdictional determination” from the NYSDEC. Given the NYSDEC’s expanded jurisdiction, it is also more likely that a permit will be needed, which can be a costly and time-consuming process.
The petitioners are requesting that the new wetland regulations, as well as the 2022 amendments in one of the lawsuits, be annulled, vacated, and set aside and that the NYSDEC be enjoined from enforcing the new wetland regulations. As of this alert, the new wetland regulations are still in effect and there have been no pending motions filed to enjoin their enforcement. Barclay Damon will be following these proceedings closely.
If you have any questions regarding the content of this alert, please contact the author, Emma Marshall, associate, at emarshall@barclaydamon.com, or another member of the firm’s Environmental Practice Area.