There will be no home court advantage for the Chautauqua Lake Partnership’s lawsuit against the state Department of Environmental Conservation.

The CLP’s challenge to the state’s Freshwater Wetlands Act regulations was the only one of four challenges statewide to be filed in state Supreme Court in Albany. The other three – one by the Chautauqua Lake Property Owners Association, one by the village of Kiryas Joel and one by a group of business groups led by the Business Council of New York State – had been filed in state Supreme Court in Albany.

The state Attorney General’s Office requested the CLP lawsuit be transferred to state Supreme Court in Albany, and the case has since been transferred.

“This office represents respondents in the above-captioned proceeding, which challenges respondents’ new freshwater wetlands regulations. There are three other challenges to these regulations pending in Supreme Court, Albany County. Matter of Chautauqua Lake Property Owners Association, Inc. u State of New York (index no. 903982-25), Matter of Business Council of New York State, Inc. u New York State Department of Environmental Conservation (index no. 904423-25), and Matter of Village of Kiryas Joel u New York State Department of Environmental Conservation (index no. 904424-25). In an effort to conserve judicial efficiency, the parties request that this Court transfer this proceeding to Supreme Court, Albany County, to be heard together with the other three challenges,” wrote Meredith G. Lee-Clark and Ayah Badran, assistant attorneys general.

CLP officials argued in their initial filing that a challenge based on Chautauqua Lake-specific issues with the Freshwater Wetlands Act should be heard in state Supreme Court in Mayville. It’s an argument the CLP appears to have lost.

“Venue is proper in Chautauqua County pursuant to CPLR 503, 506, 7804(b) because the property subject to regulation — Chautauqua Lake — is located in this county, petitioners are based in Chautauqua County, and the burdens imposed by DEC’s actions are directly and substantially experienced here. The challenged regulations directly impact landowners, municipalities, and lake management organizations within this jurisdiction, giving rise to a substantial local interest in the legality of the agency’s actions,” the CLP’s attorneys wrote in their initial petition.

Similar to the CLPOA lawsuit, the CLP officials say the mapping process for wetlands that was used before the Freshwater Wetlands Act took effect in January included formal due process protections, including individual notices to affected landowners, public hearings and a final recorded designation. Wetlands regulations were typically limited to marshes, swamps, bogs and flats, not lakes. The Freshwater Wetlands Act gave the DEC the authority to make jurisdictional determinations for land where a number of wetlands characteristics may be present, which CLP officials say creates a presumption that all such lands are wetlands, while also creating the “wetlands of unusual importance” that isn’t restricted to the 12.4 acre wetland size used in the past.

While Freshwater Wetlands Act didn’t hamper herbicide applications so far this year, Chautauqua Lake Partnership officials say it is arbitrary and capricious to designate lakes as freshwater wetlands, that the Freshwater Wetlands Act’s incorporation of “wetlands of unusual importance” is arbitrary and capricious and should be void because it is too vague and alleges the DEC didn’t follow the state’s own Environmental Quality Review Act and the State Administrative Procedures Act. CLP officials also say two of the 11 deciding factors in declaring a wetlands in the Freshwater Wetlands Act delegate too much authority to the state DEC without proper safeguards.

Much like the CLPOA lawsuit, the CLP officials raise concerns about the 100 foot buffer zone for in-lake areas that have been declared a wetland. There have been questions locally since last year how the Freshwater Wetlands Act would affect lakefront property owners. In response to questions posed by The Post-Journal in March, DEC officials said in-lake positive jurisdictional determinations may affect landowners, but it depends on the specific area of the lake where landowners live. Each case is site-specific and depends on the conditions present on the parcel being evaluated – so landowners may not have yet received a determination for their property. Offshore positive jurisdictional determinations may extend onshore if weed beds being proposed for treatment are contiguous to the wetlands on the property or if the regulated adjacent area surrounding those specifically identified weed beds extends onshore.

“It is also arbitrary and capricious as none of the changes to the Freshwater Wetlands Law called for the regulation of lakes, particularly here where Chautauqua Lake could have been mapped under the original law at any time,” CLP attorney Alita Giuda of Albany wrote in the CLP’s original court petition. “Requiring an additional freshwater wetlands permit for activities on lakes will significantly increase regulatory burdens on property owners and organizations, such as the CLP who invest substantial resources in maintaining the health and usability of Chautauqua Lake. DEC could have chosen to amend any of its other regulatory programs that CLP must currently use to treat invasive species in the lake to address Chautauqua Lake and other lakes. Instead, DEC, in an arbitrary and capricious manner, determined to subject Chautauqua Lake and other lakes to an entirely new regulatory program with confiscatory and complex implications for the use of the lake and its shorelines.”