New York Court Annuls DEC’s Part 664 Freshwater Wetlands Regulations  

Albany County Supreme Court finds DEC failed to comply with SEQRA in adopting new wetlands rules

In a decision with significant consequences for landowners, developers, and municipalities throughout New York State, the Albany County Supreme Court has annulled in their entirety the New York State Department of Environmental Conservation (“DEC’s”) recently promulgated Part 664 freshwater wetlands regulations, holding that the DEC failed to satisfy its obligations under the State Environmental Quality Review Act (“SEQRA”).

Background: The 2022 Amendments and Part 664

In 2022, the Legislature substantially expanded New York’s Freshwater Wetlands Act, replacing the prior jurisdictional mapping system with a definition-based approach, lowering the acreage threshold for regulated wetlands, and establishing new “unusual importance” criteria. To implement those legislative changes, the DEC promulgated 6 NYCR Part 664, which, together with the 2022 Amendments, is projected to bring more than one million additional acres of freshwater wetlands under state regulatory jurisdiction.

The Consolidated Challenges and Core Holding

Petitioners in four consolidated proceedings (initially NYSCEF Index Nos. 903982-25, 904423-25, 904424-25, & 905313-25) challenged Part 664 on multiple grounds, including alleged violations of the Home Rule provisions of the New York Constitution and noncompliance with SEQRA.

The core of the decision is the Court’s conclusion that DEC’s SEQRA review was fundamentally deficient. DEC issued a negative declaration based on a short-form Environmental Assessment Form (“EAF”), reasoning that because Part 664 would expand wetlands protection, only beneficial environmental effects would result. The Court found this analysis legally insufficient on multiple grounds:

• Failure to identify relevant areas of concern. Public comments flagged specific concerns, including urban sprawl, growth-inducing impacts, effects on aquatic ecosystems, and impacts on urban communities. The Court concluded that DEC’s EAF did not acknowledge or address any of these concerns.
• Failure to take a “hard look.” DEC’s discretionary policy choices, including the blanket Class II designation for all urban wetlands, the categorical 100-foot buffer zone, and the extended adjacent areas of up to 300 feet (and 800 feet for vernal pools), had clear potential to alter development patterns, land-use intensity, and the capacity of affected lands to support existing uses. The Court found that DEC did not take a “hard look” at the potential impacts of these policy decisions.
• Confining review to intended benefits. The Court held that SEQRA does not permit an agency to look only at the intended benefits of a proposed action, and that DEC was bound to examine all reasonably foreseeable adverse consequences, including the regulations’ impact on non-regulated lands.
• Inadequate reasoned elaboration. DEC’s contemporaneous explanation (essentially that broader protection necessarily yields better environmental outcomes) was insufficient as a matter of law, and an after-the-fact affidavit submitted by DEC could not cure this deficiency. The Court reaffirmed that post hoc rationalizations cannot substitute for the contemporaneous reasoned elaboration that SEQRA requires.

Having found that DEC did not adequately identify relevant areas of environmental concern, failed to take a “hard look,” and did not provide a contemporaneous reasoned elaboration, the Court ordered that Part 664 be annulled in its entirety for noncompliance with SEQRA.

Other Holdings

The Court rejected challenges based on purported violations of the Home Rule provisions of the New York Constitution, holding that the 2022 Amendments preserved a substantial degree of local regulatory control. The Court also rejected arguments alleging that the 2022 Amendments and Part 664 violated due process by eliminating the procedural safeguards associated with the prior system of jurisdictional maps, that the Amendments and regulations were unconstitutionally vague, and that they constituted improper delegation by the Legislature. Consequently, the 2022 Amendments to the Freshwater Wetlands Act remain in effect despite the annulment of the implementing regulations.

Key Takeaways

As of the date of the decision, the Part 664 regulatory framework has been invalidated. Landowners and developers with pending or completed projects implicated by Part 664 should reassess their regulatory posture and consult counsel regarding the status of jurisdictional determinations, permit applications, and project timelines.

DEC is likely to appeal the decision, and may, in parallel, undertake a more robust SEQRA review with an eye towards re-promulgating Part 664. As the underlying 2022 Amendments were preserved by the Court, it is also expected that DEC will continue to enforce the law in the interim. Impacted parties should monitor developments closely, as the regulatory landscape may shift again on relatively short notice.

How We Can Help

The Hodgson Russ Environment & Energy Team is actively advising clients on the implications of this decision, including the status of pending jurisdictional determinations, project planning, and strategy for monitoring DEC’s anticipated response. Please contact Jeffrey Stravino, Charles Malcomb, Daniel Spitzer, Michael Hecker, Michael Boncardo, or any other member of our Environment & Energy Practice to discuss how this decision impacts your projects and operations.

Disclaimer

This Client alert is a form of attorney advertising. Hodgson Russ LLP provides this information as a service to its clients and for other readers for educational purposes only. Nothing in this client alert should be construed as, or relied upon as, legal advice or as creating a lawyer-client relationship.