Since our April 8, 2026, alert regarding the Albany County Supreme Court’s annulment of DEC’s Part 664 freshwater wetlands regulations, several significant developments have further clarified the current state of freshwater wetlands jurisdiction in New York.
DEC Declines to Appeal
The deadline for DEC to appeal the Albany County Supreme Court’s decision has now passed without DEC filing a notice of appeal. As a result, the Court’s annulment of the new Part 664 regulations remains in effect. Although the underlying 2022 amendments to the Freshwater Wetlands Act remain valid, the implementing regulations adopted by DEC effective January 1, 2025, are no longer operative.
DEC has confirmed that it will continue administering the Freshwater Wetlands Act with respect to wetlands that remain jurisdictional under the surviving statutory framework.
Current Scope of DEC Jurisdiction
After evaluating the decision and its potential implications on freshwater wetlands permitting and enforcement programs, DEC has indicated that, pending future rulemaking, its jurisdiction is presently limited to:
Previously Mapped Freshwater Wetlands; and
Wetlands of 12.4 acres or greater, regardless of whether they were previously mapped.
DEC has further stated that it will continue requiring permit applications for projects impacting such wetlands and their regulated adjacent areas.
Importantly, smaller wetlands that would have been regulated solely under the “unusual importance” framework contained in the annulled Part 664 regulations presently appear to fall outside DEC jurisdiction unless independently qualifying as Previously Mapped Freshwater Wetlands or satisfying the 12.4-acre threshold. While the 2022 amendments to the Freshwater Wetlands Act retained statutory references to wetlands of “unusual importance,” those amendments contemplated that such determinations would be made “pursuant to regulations.” In the absence of operative implementing regulations, DEC currently lacks the regulatory framework previously relied upon to assert jurisdiction over such smaller wetlands.
DEC Guidance and Jurisdictional Determinations
DEC has also issued interim guidance and new Standard Operating Procedures (“SOPs”) describing how the agency will continue making freshwater wetland jurisdictional determinations (“JDs”) through remote GIS-based analysis, aerial imagery, LiDAR data, hydrologic mapping, and other spatial datasets. The SOPs confirm that DEC’s current jurisdictional determinations are limited to wetlands that are previously mapped or at least 12.4 acres in size.
According to DEC, JDs remain an important tool for project planning and regulatory compliance because they formally determine whether a parcel contains jurisdictional wetlands and/or regulated adjacent areas. DEC has encouraged project sponsors and landowners to seek JDs early in the development process to avoid permitting delays and uncertainty.
Notably, DEC has also established a reassessment process for jurisdictional determinations issued between January 1, 2025, and April 8, 2026, during the period in which the now-annulled Part 664 regulations were in effect. This reassessment process may provide an opportunity for applicants to revisit determinations that relied upon the invalidated “unusual importance” framework or other provisions of the annulled regulations.
Continued Litigation and Future Rulemaking
Although DEC declined to appeal the decision, at least one petitioner group has separately filed a notice of appeal relating to constitutional and procedural claims that were rejected by the lower court. Accordingly, further appellate litigation concerning the scope and implementation of New York’s freshwater wetlands program remains possible.
At the same time, DEC may ultimately pursue a renewed rulemaking process supported by a more extensive SEQRA review. Any future regulations could substantially mirror the invalidated Part 664 framework or could reflect more significant substantive revisions depending on the outcome of future litigation and policy considerations.
How We Can Help
The Hodgson Russ Environment & Energy Team is actively advising clients on the implications of this decision, including the status of pending jurisdictional determinations, project planning, and strategy for monitoring DEC’s anticipated response. Please contact Jeffrey Stravino, Charles Malcomb, Daniel Spitzer, Michael Hecker, Michael Boncardo, Jenna Rackerby, or any other member of our Environment & Energy Practice to discuss how this decision impacts your projects and operations.
Disclaimer
This Client alert is a form of attorney advertising. Hodgson Russ LLP provides this information as a service to its clients and for other readers for educational purposes only. Nothing in this client alert should be construed as, or relied upon as, legal advice or as creating a lawyer-client relationship.