The Chautauqua Lake Property Owners Association, town of Ellery, Bemus Point Business Association and Southern Tier Builders Association are asking the state Supreme Court to annul, vacate and set aside the 2022 amendments to the state’s Freshwater Wetlands Act that took effect Jan. 1, 2025. The local organizations are represented by William A. Hurst of Young Sommer in Troy. The lawsuit argues the Freshwater Wetlands Act changes violate the State Administrative Procedure Act, violate state and federal due process protections in the state and U.S. constitutions, that the amendments are arbitrary, capricious and irrational; that the DEC’s newly created jurisdictional determination process constitutes an improper delegation of authority; and that the Freshwater Wetlands Act changes violate the state’s Municipal Home Rule Law by taking authority designated to local governments.

In 2023, the U.S. Supreme Court limited the federal government’s authority to police water pollution into certain wetlands, the second decision in as many years in which a conservative majority narrowed the reach of environmental regulations. The justices boosted property rights over concerns about clean water in a ruling in favor of an Idaho couple who sought to build a house near Priest Lake in the state’s panhandle. Chantell and Michael Sackett objected when federal officials identified a soggy portion of the property as a wetlands that required them to get a permit before filling it with rocks and soil.

The court’s decision in Sackett v. United States overturned a 17-year-old opinion that allowed regulation of what can be discharged into wetlands that could affect the health of the larger waterways. The court had ruled wetlands that have a “significant nexus” to larger bodies of water had been the standard for evaluating whether permits were required for discharges under the 1972 landmark environmental law. Opponents had objected that the standard was vague and unworkable.

Hurst argues that New York’s changes to its Freshwater Wetlands Act don’t comply with the Supreme Court’s decision in Sackett v. U.S. and, in fact, fall in line with previous court law that has now been overruled.

Docks are pictured on Chautauqua Lake in this file photo. P-J file photo

“The timing could not be more revealing,” Hurst wrote in his Memorandum of Law filed alongside the lawsuit. “Just as the nation’s highest court underscored the constitutional dangers of vague and boundless environmental regulation, New York chose to double down–empowering its environmental agency with the very kind of unfettered discretion the Court explicitly warned against. Where the Supreme Court drew a hard constitutional line to protect landowners from capricious enforcement, New York blurred every line it could find. The DEC’s regime now rests not on fixed definitions or clearly drawn jurisdictional maps, but on presumption, abstraction, and limitless agency discretion. In doing so, the State has effectively dared to fill the regulatory vacuum left by the federal rollback–using a blunt state-law instrument to impose a wetlands regime arguably more expansive than the one the court just struck down. In short, while Sackett reaffirms that there are constitutional boundaries to environmental authority, New York’s response has been to sidestep them entirely.”

Due process concerns lie in what the CLPOA and its fellow plaintiffs say is the elimination of procedural safeguards afforded to property owners, including prior requirements that there be individualized notice, public hearings and an established administrative record before property is designated a regulated wetland. The lawsuit states landowners no longer have an meaningful opportunity to contest wetland designations, in part because the DEC now presumes to have jurisdiction that can only be overturned through a costly and burdensome administrative process.

“These legal infirmities are particularly acute when the consequences of regulatory designation are as severe as those imposed under DEC’s new rules,” Hurst’s memorandum states. “Courts have recognized that where a regulation imposes “extraordinary burdens” on property use, the procedural and substantive rigor of agency action must be proportionally heightened. Here, DEC’s expanded regulatory regime subjects routine activities–such as aquatic weed management, septic repairs, and construction of modest improvements–to a permitting gauntlet that is functionally indistinguishable from a development moratorium. In sum, the DEC’s recent regulatory overhaul–with its sweeping jurisdictional presumptions, abandonment of statutory mapping procedures, and effective elimination of administrative and judicial recourse–exceeds the bounds of lawful agency action. It imposes unlawful burdens on a lake community that has long partnered with the State in good faith and in reliance on the prior, well-established legal framework. This court should declare the challenged rules and policies invalid, enjoin their enforcement, and restore the constitutional and statutory protections that New York landowners are entitled to expect.”

Jim Wehfrritz, Chautauqua Lake Property Owners Association executive director, speaks during a recent Chautauqua County Legislature meeting. P-J photo by Gregory Bacon

A crowded room is pictured during a recent Chautauqua Lake Property Owners Association meeting. During the meeting Jim Wehfritz, CLPOA director, told those in attendance the organization was going to file a lawsuit against the state DEC over implementation of the state’s Freshwater Wetlands Act. P-J file photo by Christopher Blakeslee