In 2024, New York State amended the Freshwater Wetlands Act (Article 24 of the Environmental Conservation Law) to significantly expand the State’s regulation and protection of wetlands. Thereafter, the Department of Environmental Conservation (“DEC”) adopted regulations to implement those statutory amendments (the “Amendments”).
These major statutory Amendments took effect on January 1, 2025 and have had sweeping effects on development projects, expanding DEC’s regulations to freshwater wetlands beyond those that were depicted on DEC maps to wetlands that are either: (a) at least 12.4 acres or, (b) smaller than 12.4 acres but found to be of “unusual importance.”
Not only have the Amendments resulted in a lengthier process with the DEC (applicants must await DEC’s jurisdictional determination) on projects, but the “unusual importance” threshold has drastically increased the number of projects that require freshwater wetland permits. This definition expanded significantly the reach of the State’s jurisdiction, as it includes sites within many Cities, Towns and Villages within the Hudson Valley and Long Island that are within an “urban area” as defined by the US Census Bureau.
This week, the New York State Supreme Court, County of Albany, issued a consolidated opinion from four separate lawsuits that were filed in April 2025 challenging the legality of the DEC’s Amendments, ruling against the State and DEC and annulling the Amendments. Chautauqua Lake Property Owners Ass’n, Inc. v. State of New York, Index No. 903982-25 (Sup. Ct. Albany Cnty. Apr. 8, 2026) (Platkin, A.J.S.C.) (the “Decision”).
The Court concluded that the DEC’s adoption of the Amendments did not comply with the requirements of SEQRA, since “the DEC did not adequately identify the relevant areas of concern, did not take a ‘hard look’ at them and did not make a reasoned elaboration of the basis for its determination of non-significance,” making the Amendments inapplicable statewide. Id. As a result, the court annulled the Amendments. This Decision – for the time being – means that the Amendments would not apply state-wide. Instead, the DEC’s Regulations as they existed prior to the Amendments are re-instated.
The State and DEC will likely appeal the Decision and may make a motion to stay the Decision pending such appeal, however such an appeal would not automatically stay the Decision during the appeals process. Automatic stays pursuant to CPLR 5519(a)(1) (where the moving party is a State or agency of the State) only apply to “executory” decisions, i.e., decisions that require the government to act. Where a decision is “self-executing,” like the invalidation or nullification of a regulation as exists here, there is no automatic stay. See CPLR 5519(a)(1); see also Pokoik v. Dep’t of Health Servs. of Cnty. of Suffolk, 220 A.D.2d 13, 17 (2d Dep’t 1996).
Should the State and DEC lose their prospective motion to stay the Decision and/or lose their prospective appeal, we are left with the question of whether the new areas that were encapsulated by the Amendments will be subject to any regulation. Notably, the United States Army Corps. of Engineers reduced its federal jurisdiction over the majority of wetlands several years ago, limiting their jurisdiction only to wetlands “with a continuous surface connection” to bodies that are “waters of the United States.” See Sackett v. EPA, 598 U.S. __ (2023).
Zarin & Steinmetz will continue to monitor this important case and navigate clients whose development projects are currently moving through the entitlements process where DEC jurisdiction is at play.