New York Builders Win Legal Challenge on Onerous Wetlands Rule
In an important win for New York home builders and housing affordability, the New York State Supreme Court has issued a decision annulling the state’s new definition of what a “freshwater wetland” is based on violations of the State Environmental Quality Review Act (SEQRA).
This has been an issue of great concern to the New York State Builders Association (NYSBA), and the ruling validates concerns that builders have consistently raised.
“When regulations unnecessarily block new housing and infrastructure, it drives up costs and limits opportunity,” said Mike Fazio, executive director of the NYSBA. “This decision is a win for housing, a win for growing communities, and an important step toward improving affordability across New York.”
The court agreed with NYSBA’s position that the New York State Department of Environmental Conservation (DEC) failed to take the required “hard look” at the full range of impacts these sweeping regulations would have across New York.
Instead, the agency focused almost exclusively on potential environmental benefits while failing to meaningfully evaluate the very real adverse impacts associated with regulating millions of acres of land statewide, as well as the impacts on construction, housing, infrastructure delivery and economic development.
Importantly, the court found there was no reasoned explanation for how regulations of this magnitude could be adopted without acknowledging the likelihood of significant impacts, including changes in land use and development patterns. The court also noted that DEC did not meaningfully revise its environmental review despite extensive public comments raising serious concerns.
As a result, the court concluded that the regulations must be annulled for failing to comply with SEQRA.
The state can still appeal this decision. If an appeal is filed, an automatic stay would likely take effect, allowing DEC to continue enforcing the regulations while the appeal is pending.
“While we strongly support protecting truly important wetlands, these regulations went too far — creating uncertainty and stopping housing, infrastructure and manufacturing projects across the state,” said Fazio. “With Governor Hochul’s focus on affordability and smarter, more efficient regulation, we are hopeful the state ill move forward with new rules that protect the environment while allowing communities and our economy to grow.”
Learn more about other environmental issues impacting the housing industry.