Before You Build: Navigating New York's Changing Wetlands Requirements

Next, you lead me right into my next stuff here.

What survives the annulment? How did the court distinguish between striking down the procedural regulations and upholding the underlying 2022 legislative amendments? And what does that mean for the current regulatory landscape?

So if the law had been found to be unconstitutional or arbitrary, which one of the lawsuits tackled the law itself, the rest of the suits didn't really try to take out the statute.

They were focused on these regulations.

But if the statute had been annulled, then the program's gone.

But the regulations were gone, but the statute was still there.

So there is a legal evaluation that you consider.

And essentially, you are you would look at whether the law has enough detail to allow the agency to go forward.

And if it either says we needed the agency, whether it's DEC or any other agency, to provide information based on studies we want them to go do, then it's not what's called self-executing.

Now here, the law says a lot of things to Part 6642. that you have to get a JD back in 90 days, that it would be valid for five years, that you would have a right to an appeal.

There's a page long definition of wetlands.

And I'm sure in your experience, the determination in the field is made through guidance and experience, not through the definitions a reference point so essentially the department would still be able to have enough detail to say we will still use these jd process and allow for some kind of an appeal the trick of it was the wetlands of unusual importance right in the statute it said it's these 11 factors as set forth by the department and regulation and so because that was in there it indicated that the legislature wanted dec to have more of a role in shaping this so My read of it was that the wetlands of unusual importance would require new regulations.

And the department came out as the 30 day time period to appeal started to run.

They came out with guidance saying they're deciding what to do, they're reviewing the decision, and then they ultimately decided to follow out pretty much what I would expect, that the 12.4 acres and the JD and the appeal are still going to be going forward.

You just don't have Part 664 to carry it out.

That said, if you had a wetland of unusual importance, they say, well, check in with us, but we're not really doing that right now.

It's pretty much my read of what they said.

All I'm gonna say right now is thank goodness we have people like you and Mike here, because the common man like myself would be like,

which was lost

at sea here i mean this is

insane that was one of the arguments about the statute is how could you possibly have due process notice that there's something in your yard how are you going to know if one of the features in the in the full page definition is present let alone If it's not even that feature, it's the adjacent

area.

You guys are leading right into my next question.

You said wetlands of unusual importance.

What features qualify a site as a wetland of unusual importance? What does that mean? What is that?