Court Strikes Down NYS DEC Wetlands Regulations

 Dear NYSFOLA Members and Stakeholders, 
 

Summary

Following a New York State Supreme Court decision on April 8, 2026, the DEC’s freshwater wetlands classification regulations under 6 NYCRR Part 664 were invalidated due to noncompliance with the State Environmental Quality Review Act (SEQRA). The ruling leaves applicants and lake associations facing uncertainty, delays, and possible changes in permit processing, as DEC regulations to implement 2022 statutory amendments are now void. Legal observers expect further guidance and a likely appeal, but for now, Part 664 is no longer in effect and affected projects may require reevaluation.

 

The Issue

On April 8, 2026, Justice Richard M. Platkin of the New York State Supreme Court rendered a decision that invalidated 6 NYCRR Part 664 in its entirety due to noncompliance with the State Environmental Quality Review Act (SEQRA). The court determined that the regulations in question are “null and void.” Importantly, this ruling did not overturn the 2022 statutory amendments themselves; instead, it invalidated the DEC regulations established to carry out those amendments.
 
Additionally, the court either rejected or declined to address other challenges presented, including claims of vagueness, improper delegation, and home rule. As a result, there is now significant uncertainty around how DEC will handle freshwater wetland jurisdictional determinations and permit processing in the near term. Legal observers have noted that an appeal is likely, but as of now the court’s order means the Part 664 regulations are no longer in effect.
 
This decision (linked below) will prevent the NYSDEC from issuing jurisdictional determinations, and issuing permits based on the revised procedure in the 2022 Amendments.
STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY CONSOLIDATED DECISION, ORDER & JUDGMENT
 

Background

The litigation was brought in four consolidated cases by several petitioners, including the Chautauqua Lake Property Owners Association, the Business Council of New York State, the Village of Kiryas Joel, the Town of Palm Tree, and the Chautauqua Lake Partnership, among others. The petitioners raised multiple claims challenging the 2022 wetlands amendments and the implementing regulations. Ultimately, the court annulled Part 664 based on SEQRA noncompliance, concluding that DEC had not taken the required “hard look” at potential environmental impacts when adopting the regulations.
 

Questions for 2026

At this point, it is reasonable to expect that DEC will provide additional guidance and may appeal the ruling. Until that happens, applicants and lake associations should be prepared for delays, uncertainty, and possible changes in how jurisdictional determinations and permits are handled. Some legal summaries have noted that projects reviewed under the now-annulled Part 664 rules may need to be reevaluated in light of the court’s decision. (Harris Beach Murtha)
 
There is also uncertainty regarding reliance on related freshwater wetlands general permits that were developed under the new regulatory framework. Associations and applicants should not assume that prior expectations, coverage terms, or review timelines will remain unchanged until DEC issues formal direction. That part of the situation is still developing. (Barclay Damon)
 

Recommended Steps

While awaiting a response from the DEC, each association should evaluate their current status on an individual basis. Based on our available information, we suggest the following:
 
1. Requesting Permit Status
If your association is waiting for a permit or planning an activity that may require approval, it is important to formally request the status of your Article 24 permit application in writing. Be sure to include the application number, the name of the permit administrator, the designated contact person listed on the application, and the proposed action dates for treatment or other management activities.
2. Maintaining Records
Keep hard copies of all correspondence related to your permit application and activities. This includes emails, letters, and any additional communications with DEC or other relevant parties.
3. Following Up on Requests
If you do not receive a response to your email request within seven calendar days, send a follow-up letter by mail. This ensures your inquiry is documented and increases the likelihood of receiving a timely update.
4. Tracking Correspondence
Maintain a detailed log of all dates and communications regarding your application. Accurate tracking helps demonstrate diligence and may be useful if delays or issues arise.
5. Providing Documentation to NYSFOLA
For NYSFOLA to assist effectively in permit-related matters, associations must provide copies of all submittals, application dates, and other relevant documents. While NYSFOLA is unlikely to intervene in individual permit situations, we hope to consolidate the issues and understand and communicate DEC process and actions that result from this decision. fola@nysfola.org
6. Monitoring Delays in General Permit Activities
Efforts are ongoing to investigate delays associated with the 2022 Amendments to General Permit activities. However, obtaining clear and accurate information remains challenging and time-consuming. Associations should be patient and proactive in seeking updates.
 
 
Sincerely,
 

David Carr, Executive Director

 

For More Information On Chautauqua Lake & County Real Estate and Living Visit: www.chautauqualakehomes.com