On April 8, 2026, the Albany County Supreme Court issued a consolidated decision, order, and judgment annulling the New York State Department of Environmental Conservation’s (NYSDEC) promulgation of the Part 664 wetlands regulations, finding that the NYSDEC’s State Environmental Quality Review Act (SEQRA) review was deficient.
As we previously reported, the NYSDEC issued the Part 664 regulations to implement the Freshwater Wetlands Act’s 2022 amendments, which, among other things, removed the requirement that freshwater wetlands be mapped for them to be subject to state regulation. The NYSDEC’s rollout of these regulations was closely monitored, with construction industry groups and municipalities filing suit soon after their promulgation. Now, nearly a year after filing suit, the Part 664 regulations have been struck down.
In its decision, the court found that the NYSDEC failed to meet the requirements of SEQRA because the agency failed to identify and examine the reasonably foreseeable environmental consequences of its Part 664 regulations, including consequences such as the potential for urban sprawl, or the impacts on aquatic ecosystems, like algal blooms and invasive species. In completing its SEQRA review, the NYSDEC relied on a short-form Environmental Assessment Form (EAF). The court examined this document and found that: “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.” Further, the court noted that the NYSDEC did not address public comments and attempted to provide post hoc reasoning to support its decision. The court concluded that the NYSDEC did not take a “hard look” at the relevant areas of environmental concern and did not make a reasoned elaboration for its determination of non-significance.
As of now, the Part 664 regulations are no longer valid. Although the act’s 2022 amendments remain in effect, project developers who evaluated their projects under the new Part 664 regulations should consider how this decision affects the location and classification of wetlands for their projects. Barclay Damon’s Environmental Practice Area attorneys will continue to evaluate and monitor the impacts of this decision.
If you have any questions regarding the context of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Tom Paul, partner, at tpaul@barclaydamon.com; Matthew Gino, associate, at mgino@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Environmental Practice Area.