Docks are pictured on Chautauqua Lake in this file photo. Two Chautauqua County organizations have filed lawsuits seeking to annul the state’s Freshwater Wetlands Act, with two more lawsuits filed in state Supreme Court in Albany also seeking to annul the new wetlands regulations. P-J file photo

And then there were three. Make that four.

Following the lead of two Chautauqua County organizations, more lawsuits are being filed around the state seeking to invalidate the state’s Freshwater Wetlands Act.

A group of business organizations filed a lawsuit against the DEC on Thursday while the village of Kiryas Joel and the town of Palm Tree filed a lawsuit on Wednesday. Both lawsuits have been filed in the state Supreme Court in Albany. A lawsuit filed last week by the Chautauqua Lake Property Owners Association was also filed in state Supreme Court in Albany while a lawsuit filed by the Chautauqua Lake Partnership and members of its board was filed Wednesday in state Supreme Court in Mayville.

A group of statewide business associations and individual developers have filed a legal challenge against the New York State Department of Environmental Conservation’s updated freshwater wetlands regulation. The rules were finalized in December 2024 and took effect in January after being included in the 2023 approved state budget. It’s the first lawsuit challenging the Freshwater Wetlands Act to be filed by a group outside of Chautauqua County.

Plaintiffs include the Business Council of New York state, state Economic Development Council, state Builder’s Association, New York Construction Materials Association, Associated General Contractors of New York State, New York State Association of Realtors, National Federation of Independent Business and National Waste and Recycling Association.

Individual co-plaintiffs include Barbera Homes and Development Inc., New Hampton Lumber Co., Windsor Ridge Partners LLC, and New York Development Group/Rowland LLC.

The business groups’ lawsuit was filed Wednesday in state Supreme Court in Albany, which is where the CLPOA lawsuit was filed. Business groups make many of the same arguments made by the CLPOA and CLP, including failure to comply with the state Environmental Quality Review Act and violation of procedural requirements under the State Administrative Procedures Act and the imposition of vague and “arbitrary and capricious” regulatory provisions the group say violate the state constitution.

But there are differences as well.

Both the business groups’ lawsuit and the lawsuit filed by Kiryas Joel begin with how the Freshwater Wetlands Act and its expansion of the DEC’s authority could make it harder to build houses in New York, which doesn’t mesh with Gov. Kathy Hochul’s push for more housing construction. The business groups’ lawsuit also argues that the expansion of DEC authority threatens Hochul’s affordability agenda, shovel ready development sites, economic development and generation of renewable energy. Both lawsuits seek to have the regulations annulled and the DEC barred from enforcing them.

“Rather than working to facilitate the development of new housing and other development needed to support the housing market, DEC undermined those important goals by crafting new freshwater wetlands regulations that increased the number of regulated wetlands and their adjacent areas by well more than 3.5 million acres statewide, to a total of 5.1 million acres,” attorney Robert S. Rosborough IV of Whiteman Osterman and Hanna LLP in Albany wrote in a memorandum filed with the business groups’ lawsuit. Rosborough is also representing Kiryas Joel in its lawsuit. “In fact, the total number of acres of newly regulated wetlands and adjacent areas in New York cannot even yet be determined, because DEC has deferred any attempt to give property owners prior notice of the regulations’ impact. Instead, DEC has chosen to place the burden on property owners to ask DEC for a wetlands jurisdictional determination for each and every parcel in the State on which any development is contemplated, creating a rebuttable presumption that wetlands are on every parcel.”

The Kiryas Joel lawsuit takes issue with the wetlands regulations extension of regulated adjacent aras beyond 100 feet for all nutrient poor wetlands and vernal pools, saying those regulations are arbitrary and capricious – verbage that is a theme in all four lawsuits challenging the Freshwater Wetlands Act. While the DEC is required to develop a freshwater wetlands map those maps are not necessarily a determination of whether a wetlands permit is required for a project. The vernal pools regulation is a problem for property owners, according to the lawsuit, because they are temporary, dry up each year and are not connected to any permanent surface waters. They can be regulated under the Freshwater Wetlands Act under the “wetlands of unusual importance” clause in the regulations because amphibians breed in them. But because they are not included on the DEC’s maps, property owners would be required to have a jurisdictional determination to see if a vernal pool is protected under the wetlands regulations or face liability if the DEC determines property owners disturbed a vernal pool without the DEC’s permission. There is also no limits on the size or shape of the regulated adjacent area for a vernal pool, something Rosborough argues on behalf of Kiryas Joel and Palm Tree could eliminate private property from potential housing development.

“Although the draft regulations had simply set an 800-foot buffer around productive vernal pools, the final rule imposed no limits on the size or shape of regulated adjacent areas for vernal pools; those parameters will be determined on a case-by-case basis based on the specific environmental conditions of the vernal pool,” Rosborough wrote. “The impact of such unknown regulated adjacent areas is similarly drastic. For example, of DEC chose to impose an 800-foot buffer around a small vernal pool, it would eliminate a minimum of 46.2 acres of developable land from a site. For most sites, that would eliminate all economically viable use. DEC has proffered no rationale or scientific basis for this extension to the regulated adjacent area for nutrient poor wetlands or vernal pools that drastically impair property owners’ constitutionally protected property rights.”