Client Alert: Court Strikes Down NYS Wetland Rule

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Court Strikes Down NYS Wetland Rule

This week the New York State Supreme Court invalidated the Department of Environmental Conservation's (DEC) wetlands regulations, 6 NYCRR Part 664, in their entirety. The agency violated the State Environmental Quality Review Act, ruled the state Supreme Court.

As part of the 2023 state budget, lawmakers expanded the definition of a wetland and extended DEC’s jurisdiction. The environmental agency implemented the budget amendments by making new rules surrounding how wetlands are classified, which significantly expanded the amount of land subject to the agency’s wetland permitting requirements.

Acting Supreme Court Justice Richard Platkin ruled that DEC failed to comply with the State Environmental Quality Review Act in adopting the regulations, finding that the agency:

• Did not take the required "hard look" at potential impacts
• Failed to identify or analyze adverse impacts
• Did not provide a reasoned explanation for its conclusions

As a result, the regulations are null and void; the state must restart the regulatory process

Importantly, the court did not strike down the 2022 amendments to the state's wetlands statute, and this decision is based on process failures, not the underlying policy. Finding the SEQRA violations sufficient to strike down the rule, the court did not rule on issues regarding SAPA compliance, nor on arguments that components of the rule are arbitrary and capricious.

This ruling is a major reset. The court found that DEC adopted significant changes affecting millions of acres without properly analyzing the real-world impacts on construction, housing, infrastructure delivery and economic development. The DEC has thirty days to decide whether to appeal this ruling, which would stay the state Supreme Court's decision, and result in an additional round of litigation. This decision ensures that future wetlands regulations must be developed transparently, lawfully and with full consideration of industry impacts.

Brown & Weinraub will continue to share updates with our clients as it becomes available. Please reach out to your team member with any questions.