Prepared By: Marc Romanowski
On April 8, 2026, the Albany County Supreme Court issued a consolidated decision annulling the New York State Department of Environmental Conservation’s (“NYSDEC”) new freshwater wetlands regulations, 6 NYCRR Part 664, in their entirety. The court held that DEC failed to comply with the State Environmental Quality Review Act (“SEQRA”) when adopting the regulations. The decision leaves intact the 2022 statutory amendments to the Freshwater Wetlands Act but vacates the principal regulations DEC adopted to implement those amendments.
Critically, the NYSDEC had to file its Notice of Appeal by May 11, 2026 but failed to do so. The challenged regulations will therefore remain annulled and without effect unless and until DEC undertakes new rulemaking or other future judicial or administrative action occurs.
For developers, builders, infrastructure owners, municipalities, and others involved in land use and permitting, the ruling and NYSDEC’s decision not to appeal is significant. While the court rejected the constitutional and other facial attacks on the 2022 amendments, it invalidated the implementing regulations that expanded and operationalized NYSDEC’s jurisdiction.
What changed under the 2022 amendments
The Freshwater Wetlands Act historically relied on DEC wetland mapping. Under the prior framework, wetlands generally were regulated only if shown on DEC’s final wetlands maps. The 2022 amendments changed that structure in a fundamental way by removing the mapping prerequisite and replacing it with a definition-based system. Under the amended statute, mapped and unmapped areas meeting the statutory definition of freshwater wetlands are presumptively regulated, subject to rebuttal through DEC’s jurisdictional determination process. The amendments also established 11 categories of wetlands deemed of “unusual importance,” which are regulated regardless of size.
The court emphasized that these statutory changes remain in place. It did not invalidate the 2022 amendments themselves.
What Part 664 did
DEC adopted new Part 664 to implement the 2022 amendments, with an effective date of January 1, 2025. Among other things, the regulations addressed wetlands classification, unusual-importance criteria, adjacent-area rules, and procedures for jurisdictional determinations. The court highlighted several aspects of the regulations as discretionary choices made by DEC, including:
- classifying all wetlands in urban areas as Class II wetlands;
- establishing a categorical 100-foot adjacent area around regulated wetlands;
- authorizing extended adjacent areas of up to 300 feet for nutrient-poor wetlands and up to 800 feet for vernal pools in certain circumstances; and
- adopting numeric criteria to implement some of the unusual-importance categories.
Those provisions had potentially major consequences for developable land, project layout, density, and permitting risk, particularly in urban and suburban settings.
The court’s ruling
The court annulled Part 664 in its entirety because DEC’s SEQRA review was found deficient. Specifically, the court held that DEC failed to:
- identify the relevant areas of environmental concern;
- take the required “hard look” at those concerns; and
- provide a reasoned elaboration for its negative declaration.
DEC had prepared a short environmental assessment form and concluded that the regulations would not result in any significant adverse environmental impacts, reasoning largely that expanding wetland protections would reduce harm to wetlands through the existing permitting process. The court found that explanation too narrow and inadequate. In the court’s view, DEC focused almost entirely on the intended benefits of wetland protection, without sufficiently analyzing reasonably foreseeable adverse environmental consequences of its regulatory choices, including consequences for land use, development patterns, urban growth, and non-wetland areas.
The court also rejected DEC’s effort to defend its analysis through litigation affidavits, holding that SEQRA requires a contemporaneous written explanation of the agency’s reasoning.
As a remedy, the court declared Part 664 “annulled in its entirety” and “null and void.” Because DEC did not pursue an appeal prior to the May 11, 2026 deadline, the annulment has become permanent.
Claims the court rejected
The decision is equally notable for the claims the court did not accept. The court rejected facial challenges asserting that the 2022 amendments and Part 664:
- violated procedural due process by eliminating jurisdictional mapping;
- were unconstitutionally vague;
- improperly delegated authority to private parties; and
- violated municipal Home Rule protections.
In practical terms, the court endorsed the Legislature’s move to a definition-based wetlands regime, even while rejecting DEC’s implementing regulations on procedural SEQRA grounds.
Why this matters to the development and construction industries
This decision creates immediate uncertainty for projects involving wetlands, wetland-adjacent areas, and properties that may have become newly regulated under DEC’s post-2022 framework.
Several takeaways stand out:
1. The statute survives, but the implementing regulations do not.
The 2022 amendments remain on the books, so the expanded statutory framework has not disappeared. But the principal regulations DEC adopted to operationalize that framework have been vacated. That creates an unsettled regulatory environment until further judicial or agency action occurs.
2. Jurisdictional questions may remain difficult.
Because the court upheld the Legislature’s move away from mapped-only jurisdiction, landowners and project sponsors should not assume that unmapped areas are outside state jurisdiction. Site-specific wetland and adjacent-area analysis remains critical.
3. Urban, infill, residential, and mixed-use projects may be especially affected.
The court singled out DEC’s blanket treatment of urban wetlands and categorical adjacent-area rules as discretionary choices with potentially significant land-use consequences. Those issues are likely to remain central in any future agency action.
4. Existing and pending permits should be reviewed carefully.
Applicants with pending jurisdictional determinations, delineations, permit applications, or project planning assumptions based on Part 664 should evaluate whether and how the decision effects strategy, timing, and agency interactions.
5. Further proceedings are likely.
Given the importance of the wetlands program statewide, combined with the DEC’s choice not to appeal the decision by the applicable deadline and the uncertain regulatory environment created by the court’s annulment, further DEC guidance and/or the undertaking of new rulemaking should be expected.
Key practical considerations for clients
Clients in the development and construction sectors should consider taking the following steps now:
- Reassess project sites for potential wetlands and adjacent-area constraints under the statute, even where reliance had been placed on the now-annulled regulations.
- Review active files involving DEC jurisdictional determinations, wetlands delineations, and permit applications to determine whether the decision creates new opportunities or new uncertainty.
- Revisit project schedules and diligence assumptions, especially for acquisitions, subdivision work, site-plan approvals, utility projects, infrastructure improvements, and large residential developments.
- Coordinate early with wetland consultants and counsel on properties with unmapped wet areas, urban wetlands, vernal pools, or potential unusual-importance features.
- Monitor further DEC guidance, rulemaking activity, and related judicial developments closely, as the legal framework may change again quickly.
Bottom line
The court’s decision is a major development for New York wetland regulation. It does not undo the Legislature’s 2022 expansion of freshwater wetlands jurisdiction, but it does eliminate the regulations DEC adopted to implement that expansion. For the development and construction industries, the result is both meaningful opportunity and meaningful uncertainty.
Project sponsors, landowners, builders, and investors should assume that freshwater wetlands issues in New York remain highly active and should evaluate pending and future projects accordingly.
For more information about how this decision may affect a specific project, permitting strategy, acquisition, or development timeline, please contact a member of our land use, environmental, or construction team.