The Supreme Court in Albany County has annulled the 2025 wetland regulations adopted by the New York State Department of Conservation (DEC) after finding that the DEC failed to comply with the requirements of the State Environmental Quality Review Act (SEQR).
In 2022, the State Legislature amended the Freshwater Wetlands Act (FWA) by altering how regulatory jurisdiction over wetlands is established. The DEC previously held responsibility for investigating and mapping wetlands in order to regulate them. Under the FWA amendments, this longstanding practice was eliminated.
In its place, property owners are now responsible for obtaining DEC’s verification of site-specific delineations of wetlands. These amendments also established a rebuttable presumption that mapped or unmapped property meeting the definition of a wetland are regulated and eliminated the minimum regulated size for wetlands of “unusual importance”.
These changes, taken together, widely expanded the State’s jurisdiction over wetlands. In 2024, DEC promulgated the final revisions to 6 NYCRR Part 664 replacing the historic jurisdictional map-based regulatory program. These revised regulations took effect January 1, 2025. They provided additional guidance on the procedures for obtaining jurisdictional determinations from DEC and established criteria for identifying the eleven types of wetlands of unusual importance, amongst other changes.
Four separate CPLR Article 78 proceedings were initiated to challenge the 2022 statutory amendments and 2025 regulations. Petitioners included municipalities, business and trade groups, nonprofit organizations, and property owners. The challenges were combined and oral arguments heard in January 2026.
On April 8, 2026, the Court issued a Consolidated Decision, Order, and Judgment annulling the 2025 DEC regulations in their entirety for DEC’s failure to comply with SEQR during its promulgation of the regulations. In its Decision, the Court rejected the Petitioners’ arguments that (1) the 2022 statutory amendments violated municipal home rule authority; (2) the 2022 statutory amendments and 2025 regulations violated due process and were void for vagueness; and (3) the 2025 regulations constituted improper delegation to non-government actors.
The Court found that the DEC violated SEQR for failing to adequately identify the relevant areas of environmental concern, take a hard look at those areas, or make a reasoned elaboration of the basis for its determination of non-significance on the impact of the regulations. The Court recognized that DEC exercised substantial discretionary policy judgement in promulgating regulations thus subjecting it to review under SEQR. Examples of DEC’s discretionary decisions cited by the Court included the blanket Class II designation on all urban wetlands, extended wetland buffers of up to 300 feet for nutrient poor wetlands and 800 feet for vernal pools, and specific numeric criteria for proximity thresholds and egg-mass counts for vernal pools.
The Court then found that the Short Environmental Assessment Form completed by DEC failed to identify relevant areas of environmental concern and instead erroneously rested upon the “narrow premise that expanded wetland protection is inherently beneficial to wetlands” without any assessment of the consequences to non-wetland areas. The Court concluded that DEC’s failure to identify any potential adverse impacts of the regulations were not supported by any contemporaneous reasoned elaborations and annulled the regulations in their entirety.
It remains to be seen whether the State and DEC will appeal the Decision and/or conduct a more comprehensive SEQR, which may include preparation of an Environmental Impact Statement affording a broader assessment of the environmental impact of new wetland regulations. In the meantime, Applicants and property owners remain obligated to obtain site-specific jurisdictional determinations and delineations under the 2022 statutory amendments.
Cuddy & Feder’s Land Use & Zoning and Energy & Environmental attorneys have significant experience advising design teams on the State wetland regulatory program. Our attorneys can advise developers and property owners on how this Court decision may affect upcoming or current projects, environmental review timelines, and development strategy.
