By JOHN WHITTAKER

jwhittaker@post-journal.com

A lawsuit seeking to invalidate New York’s Freshwater Wetlands Act isn’t going to be heard quickly by the state Supreme Court in Albany.

The state Attorney General’s office has requested – and been granted – an adjournment of an earlier return date as well as a schedule of briefs to be submitted to the court. The state will answer or move in response to the Chautauqua Lake Property Owners Association’s lawsuit no later than July 11, with the CLPOA to respond no later than Aug. 1. The state DEC will have until Aug. 12 to file its reply on any motion. The return date for the court proceeding will be Aug. 22.

The Chautauqua Lake Property Owners Association, town of Ellery, Bemus Point Business Association and Builders Association of the Southern Tier 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.

Among the arguments Hurst makes in Memorandum of Law filed with the state Supreme Court in Albany County is that the new permitting standards included in the Freshwater Wetlands Act, which require landowners to demonstrate that proposed activities are the only practicable alternative and that landowners have to provide a compelling justification impose an undue burden on property rights. Hurst wrote that the new DEC’s standards effectively subject routine land use decisions to an insurmountable threshold without clear statutory support. In the end, he argues, the structure decided upon after the passage of the Freshwater Wetlands Act infringes too much upon landowners’ rights without due process or just compensation.

Hurst also takes issue with the Freshwater Wetlands Act’s delegation of regulatory authority to nongovernmental actors, as permitted under the newly adopted wetlands framework while the state Legislature’s decision as part of the 2022-23 adopted budget to eliminate local governments’ ability to designate freshwater wetlands of “Unusual Local Importance” constitutes an unconstitutional intrusion on local self-governance that Hurst says violates the state constitution and the state’s Municipal Home Rule Law.

“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,” Hurst wrote in his memorandum.