Chautauqua County is leading the league in lawsuits seeking to invalidate the state’s Freshwater Wetlands Regulations.

A second lawsuit asking a court to overturn the regulations was filed Wednesday in state Supreme Court in Mayville by the Chautauqua Lake Partnership and board members Mary Hutchings, Michael LaTone and James Cirbus. Their lawsuit joins a lawsuit filed last week in state Supreme Court in Albany by the Chautauqua Lake Property Owners Association. The DEC has not yet had an opportunity to respond to the lawsuit.

The CLP’s lawsuit comes after the organization finished DEC permit applications for the first round of herbicides that were applied this week in Chautauqua Lake and with another round of herbicide permitting being processed. DEC Region 9 officials approved the largest herbicide application in recent history this year. But, as The Post-Journal reported in March, the process was more difficult and expensive this year than it had been in the past.

“This process was already time and cost intensive, involved many substantive requirements for the location, frequency and type of herbicide treatment used, conditions and limitations to protect the lake and its ecology, as well as procedural requirements to notify neighboring property owners of treatments,” CLP attorney Alita Giuda of Albany wrote in the complaint. “The Part 664 amendments will result in additional and substantial regulation of CLP’s longstanding herbicide treatment applications, which already undergo significant DEC permitting and review each year.”

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.

“The Part 664 amendments will also regulate CLP’s Board of Directors and members, including members Hutchings, LaTone and Cirbus, as any area within the lake designated as a wetland, or on its shores, will include a 100-foot buffer area that will sweep up and significantly decrease the amount of every day activities that CLP’s members, including members Hutchings, LaTone and Cirbus, may pursue, such as clearing driftwood, removing aquatic shoreline weeds, raking, regarding, and performing minor landscaping,” Giuda wrote. “Indeed, it is now questionable whether personal use of herbicides, petroleum products or other everyday homeowner supplies would be permitted on lakefront properties on or within 100 feet of a newly jurisdictional DEC freshwater wetland. The Part 664 amendments will strictly regulate, if not outright prohibit, the modification of driveways or parking aras, constructing or modifying homes or accessory structures on every lakefront property on or within 100 feet of a newly-designated DEC freshwater wetland.”

While the CLPOA lawsuit was filed in state Supreme Court in Albany, the CLP officials argue that a challenge based on Chautauqua Lake-specific issues with the Freshwater Wetlands Act should be heard in state Supreme Court in Mayville because the challenged regulations directly affect landowners, municipalities and lake management organizations in Chautauqua County. 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.

CLP officials say they have been in frequent contact with DEC officials over the past two years, attending presentations, submitting 263 letters during the Advanced Notice of Proposed Rulemaking, a detailed comment letter and more than 120 comments on the Part 664 amendments as well as two yearly meetings with Region 9 officials to discuss herbicide applications and lake management.

“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,” Giuda wrote. “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.”