Court Strikes Down DEC’s Freshwater Wetlands Regulations On SEQRA Grounds

In a setback for New York’s effort to vastly expand the protection of its freshwater wetlands, the New York Supreme Court in Albany County issued a decision on April 8, 2026 that annulled the New York State Department of Environmental Conservation’s (“DEC”) 2024 freshwater wetlands regulations (6 NYCRR Part 664), holding that the agency failed to comply with the State Environmental Quality Review Act (“SEQRA”).

Background

In 2022, Governor Hochul signed into law a historic expansion of New York’s Freshwater Wetlands Act. Prior to the expansion, the Act only covered (1) freshwater wetlands of 12.4 acres or more or (2) wetlands of “unusual local importance.” This left many smaller wetlands unprotected by state law. More importantly, under the old regime a freshwater wetland would only be regulated and protected if it were officially “mapped”—a cumbersome process which entailed on-the-ground surveys and inventories, plus a notice-and-public-comment process. Maintaining a complete and up-to-date inventory of freshwater wetlands proved quite a challenge for DEC.

The amended law continues to regulate wetlands of 12.4 acres or more and regulates smaller wetlands of “unusual importance,” but jettisons the requirement that a wetland be mapped to be protected. In 2028, freshwater wetlands of 7.4 acres or more come under categorical protection. Further, the amended law requires DEC to judge the “unusual importance” standard against eleven characteristics, the presence of any one of which is sufficient to qualify a wetland for protection. The law creates a “rebuttable presumption” that any area, mapped or unmapped, that meets the definition of a freshwater wetland is regulated under the Act and places the onus on property owners to rebut this presumption by presenting DEC with contrary evidence.

In response to the 2022 Amendment, DEC quickly began the process of developing revised Part 664 freshwater regulations to clarify and implement the expanded law. After extensive public engagement and participation, on December 31, 2024, DEC adopted final revisions to its Part 664 regulations, which took effect January 1, 2025. These regulations, among other things, established jurisdictional determination procedures, standards for what is a wetland of “unusual importance,” and substantial protected “adjacent area” or buffer zones around regulated wetlands.

The Court’s Decision

The Albany Supreme Court issued a decision in four consolidated Article 78 lawsuits challenging DEC’s revised Part 664 regulations and the 2022 legislative amendments. The Court upheld the 2022 amendments against constitutional challenges, including claims that the new standards violate due process and are impermissibly vague. The Court emphasized that a mapping system is not constitutionally required and that DEC’s jurisdictional determination process provides sufficient procedural safeguards.

But the court ultimately struck down the Part 664 regulations in their entirety, holding that DEC failed to comply with its obligations under SEQRA, which requires that state and local agencies review and document whether the actions they take have a significant adverse impact on the environment. The Court found that DEC failed to take the requisite “hard look” at the adverse environmental impacts of the wetlands regulations themselves—despite their sweeping scope—focusing only on the benefits of the regulations. The Court wrote, “SEQRA does not permit an agency to confine its review only to the intended benefits of a contemplated action,” and here the Court determined that DEC failed to consider, among other things, whether the revised regulations would impact development patterns, land-use intensity, or the ability of affected lands to support existing uses. On this basis, the Court annulled DEC’s regulations in their entirety.

For now, the 2022 amendments to the Freshwater Wetlands Acts remain in place, and DEC is left to decide whether to appeal the lower court’s determination and/or re-promulgate the regulations following a SEQRA review consistent with the Court’s order. In the meantime, the Court’s decision creates immediate uncertainty for developers, municipalities, and landowners. Carter Ledyard’s Environmental Practice Group will continue to closely track the litigation and any regulatory response by DEC.

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