As we previously reported, on April 8, 2026, the Albany County Supreme Court annulled the New York State Department of Environmental Conservation’s (NYSDEC) promulgation of the Part 664 wetlands regulations for failure to comply with the State Environmental Quality Review Act (SEQRA). The deadline to file a notice of appeal was May 10, 2026. That deadline has now passed with only the Petitioners in one of the actions filing a notice of appeal.
By way of background, the 2022 amendments to New York State’s Freshwater Wetlands Act expanded the NYSDEC’s jurisdiction by removing the requirement that wetlands be mapped to be regulated, setting the threshold of regulated wetlands to 12.4 acres initially and to 7.4 acres in 2028, and allowing for regulation of smaller wetlands if deemed to have “unusual importance.” With respect to the latter, the 2022 amendments defined 11 categories of wetlands deemed to be of “unusual importance.” The NYSDEC enacted a new Part 664, effective January 1, 2025, to implement the 2022 amendments.
With the NYSDEC choosing not to appeal, Part 664 is no longer in effect even though the 2022 amendments to the Freshwater Wetlands Act are still valid. The state of the NYSDEC’s wetlands jurisdiction is now in flux. The NYSDEC’s website merely states that the agency is “conducting a comprehensive evaluation of the decision and its potential implications on the State’s permitting program.” The hope is that the NYSDEC will issue guidance for the regulated community to rely upon in the absence of new regulations. Until then, the NYSDEC has indicated that it “will evaluate freshwater wetland permit applications and jurisdictional determinations on a case-by-case basis.”
The language of the law provides the regulated community with some clarity. While the 2022 amendments did set forth certain characteristics for wetlands of unusual importance, the definition of “unusual importance” is as follows: “a freshwater wetland, regardless of size, that possesses one or more of the following characteristics as determined by the Department pursuant to regulations.” Arguably, without regulations, there can be no jurisdiction over wetlands that are smaller than 12.4 acres.
By foregoing a challenge, the NYSDEC may be setting up to restart the SEQRA review process for “new” Part 664 regulations. Those regulations could mirror the now invalid Part 664 regulations or be written anew. To that end, perhaps that is why one group of Petitioners—the Chautauqua Lake Property Owners Association, together with a municipality, landowner, and two business associations—have filed a timely notice of appeal. Their non-SEQRA based claims, including procedural due process, Home Rule law, the State Administrative Procedures Act, and typical Article 78 arbitrary and capricious, were rejected by the lower court. A different result on appeal could require the NYSDEC to do more than just a SEQRA redo and result in substantive changes to Part 664.
Barclay Damon’s Environmental Practice Area attorneys will continue to monitor New York State’s wetland permitting scheme and provide further updates.
If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Danielle Mettler-LaFeir, partner, at dmettler@barclaydamon.com; Tom Paul, partner, at tpaul@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Environmental Practice Area.