Chautauqua Lake is pictured. The Chautauqua Lake Property Owners Association has filed an an appeal of state Supreme Court Justice Richard Platkin’s April ruling that annulled the state’s Freshwater Wetlands Act changes on procedural grounds. The CLPOA is asking the Third Department Appellate Division to declare the changes unconstitutional rather than null on procedural grounds.

Chautauqua Lake property owners won a battle over the state’s Freshwater Wetlands Act, but the Chautauqua Lake Property Owners Association wants to win the war.

The CLPOA- along with the town of Ellery, Builders Exchange of the Southern Tier Inc. and Bemus Point Business Association – filed an appeal of state Supreme Court Justice Richard Platkin’s April ruling that annulled the state’s Freshwater Wetlands Act changes on procedural grounds. Platkin ruled that the CLPOA and its co-plaintiffs had not demonstrated that the state Legislature’s decision to replace jurisdictional maps with a definition-based system to determine the location of wetlands violates the procedural due process rights of the CLPOA and its co-plaintiffs in every conceivable application. Platkin also ruled that the CLPOA hadn’t shown the 2022 Freshwater Wetlands Act changes and Part 664 regulations are impermissibly vague, that the 2022 amendments weren’t an improper delegation of legislative decisions to the DEC and didn’t prove a violation of home rule protections in the state Constitution.

The appeal was filed Monday in the Third Department Appellate Division court.

The Freshwater Wetlands Act and its Part 664 regulations were annulled by Platkin in April, though he did so on procedural grounds. That means that the DEC can go through the correct process and then implement the Part 664 regulations later and, by doing so, resolve the issues Platkin raised in his decision. The CLPOA is asking the appeals court to rule squarely on the act’s constitutionality.

If the appellate court rules in favor of the CLPOA it would start the entire process over with the state Legislature rather than starting with the process of simply writing the regulations.

Of all the arguments made by the local organization, Platkin said the DEC did not do its due diligence on issues raised by organizations like the CLPOA. There are four total lawsuits that were part of a consolidated oral argument on Jan. 30. The first lawsuit was filed by the Chautauqua Lake Property Owners Association, followed by the Chautauqua Lake Partnership. Lawsuits were also filed by the village of Kiryas Joel and the town of Palm Tree as well as the Business Council of New York state with seven co-plaintiffs. The suits raised many of the same issues, though the two Chautauqua County lawsuits raised issues specific to Chautauqua Lake. Only the CLPOA lawsuit, with its co-plaintiffs, is being appealed.

“Having concluded that DEC did not adequately identify the relevant areas of environmental concern, did not take a ‘hard look’ at them and did not make a reasoned elaboration of the basis for its determination of non-significance, the court concludes that the subject action – the promulgation of the new Part 664 regulations – must be annulled for noncompliance with (the State Environmental Quality Review Act),” Platkin wrote in his decision.

Platkin’s decision doesn’t annul the 2022 Freshwater Wetlands Act, only the DEC’s Part 664 regulations that implement the 2022 law. Part 663 is how the DEC established the procedural requirements and standards for the use of regulated wetlands and issuance of permits. Part 664 established standards and procedures for classifying wetlands. The appeal filed Monday asks the Third Department Appellate Division to review Platkin’s decision in an attempt to strike down the Freshwater Wetlands Act changes as unconstitutional.

Platkin said the DEC’s completion of a short-form Environmental Assessment Form indicated there would be no impact, or a small impact, across 11 different dimensions that included whether the new regulations would result in a change in the use or intensity of the use of land. DEC officials had said the new Part 664 regulations would increase the amount of regulated wetlands that would lead to a reduction in adverse impacts on the wetlands as more projects were required to avoid, minimize or mitigate impacts on wetlands. Platkin said the DEC received public comments identifying specific areas of potential environmental concern with the new part 664 regulations in the Freshwater Wetlands Act update, including the prospect of urban sprawl and other growth-inducing impacts; impact to aquatic ecosystems, algae blooms and invasive species; effects on urban communities that included sprawl; and growth-inducing impacts.

“Part 664 affects millions of acres of freshwater wetlands, and DEC’s discretionary regulatory choices – including the blanket Class II designation for urban wetlands, the categorical 100-foot buffer zones and extended adjacent wetlands of variable size – have the potential to work significant changes through alteration of development patterns, land-use intensity and/or the capacity of affected lands to support existing uses,” Platkin wrote. “Nothing in the Short EAF indicates that DEC identified any of these potential environmental concerns as relevant areas warranting a hard look. The Short EAF’s analysis rests entirely on the narrow premise that expanded wetland protection is inherently beneficial to wetlands, and there is no indication that DEC considered anything other than that objective when it determined that Part 664 had no potential for adverse impacts.”