DEC Wetland Regulations Annulled by New York Supreme Court
Posted on April 9, 2026
On April 8, 2026, the New York State Supreme Court in Albany County issued a decision which annulled the wetland regulations promulgated as 6 NYCRR part 664 in their entirety for non-compliance with the State Environmental Quality Review Act (“SEQRA”).
In December of 2024, the New York State Department of Environmental Conservation (“DEC”) filed a final rule making package which revised the then current wetland regulations applicable to the state. Specifically, 6 NYCRR part 664 was repealed and replaced, the purpose of such was to clarify certain amendments to the regulations to implement the changes to the wetlands law which were passed in 2022 (“2022 Amendments”). The modified Part 664 (“new Part 664”) effectively modified the criteria for the designation of wetlands in New York State. The regulations, among other things, imposed a blanket Class II classification on all “urban wetlands”, extended certain regulated adjacent areas, and provided criteria for determining wetlands of “unusual importance.”
Four separate Article 78 proceedings challenging the new Part 664 regulations, including one filed by Young/Sommer and certain aspects of the 2022 Amendments were subsequently commenced in the New York State Supreme Court of Albany County. The consolidated suits raised various arguments including but not limited to (1) violation of the State Administrative Procedure Act (“SAPA”), (2) violation of due process, (3) violation of Home Rule principals, (4) noncompliance with SEQRA, (5) unconstitutional vagueness, and (6) that the Part 664 regulations are arbitrary and capricious.
Ultimately, the Court found that DEC’s SEQRA review was insufficient for failure to take a hard look at relevant areas of environmental concern. In assessing compliance with SEQRA, the Court examined whether the DEC identified the relevant areas of environmental concern, took a “hard look” at them to make a reasoned elaboration of the basis for the determination. The judge found that “DEC exercised substantial judgment and discretion in implementing significant aspects of the 2022 Amendments through the new Part 664 regulations, and those discretionary policy judgments and choices are subject to SEQRA review.” Although the DEC conducted a review under SEQR by completing a short environmental assessment (“EAF”) form to evaluate whether Part 664 would have any significant adverse impacts on the environment, the Court determined that “nothing in the Short EAF indicates that DEC identified any of these potential environmental concerns as relevant areas warranting a hard look.” Court subsequently concluded that the promulgation of the new Part 664 regulations – must be annulled for noncompliance with SEQR.
The decision will likely impact review of pending and future land use applications throughout the State, including small solar and battery storage. It is not likely to have significant impacts on large-scale development, but the full implications are not yet fully assessed. It is not clear if the parties will appeal the decision or how DEC will address the deficiencies identified by the Court. We will have additional information on the next steps as new developments occur.