Andrew Goodell is no longer a New York state Assembly member – but he is bringing an insider’s perspective to a lawsuit over the state’s 2022 Freshwater Wetlands Act revisions.

Goodell recently filed an affidavit in State Supreme Court in Albany supporting the Chautauqua Lake Partnership’s lawsuit seeking to have the wetlands regulations, which took effect Jan. 1, declared unconstitutional.

Goodell’s first point is that the definition of freshwater wetlands was amended to eliminate the requirements that wetlands be shown on a freshwater wetlands map, exclude tidal wetlands and adds a reference to wetlands less than 12.4 acres in size that are of unusual importance. That means, legally, there should be no substantive change in the statutory definition of freshwater wetlands for wetlands that are larger than 12.4 acres in size.

“Thus, the New York State Legislature did not grant the Department of Environmental Conservation any additional statutory authority to regulate wetlands larger than 12.4 acres, much less grant the DEC authority to designate the entire littoral zone of Chautauqua Lake as a wetland or designate millions of other acres across New York state as new freshwater wetlands larger than 12.4 acres,” Goodell said in his affidavit. “Because there were no substantive changes in the definition of a freshwater wetland larger than 12.5 acres in size, the amendments to the definition were not flagged for debate and no debate occurred regarding those provisions.”

Goodell said the 2022 legislation does add a new definition of wetlands of unusual importance that includes an unlimited delegation of authority for the DEC commissioner to designate wetlands of unusual importance if the commissioner determines the wetlands to be of significant importance to protecting the state’s water quality. That delegation contains no safeguards, standards or limits – but Goodell said that shouldn’t matter for Chautauqua Lake, which is more than 12.4 acres.

“In any event, it is clear from the statutory language that the definition of a wetland of ‘unusual importance’ applies only to wetlands that are smaller than 12.4 acres,” Goodell wrote.

Goodell also takes issue with the wetland revisions’ place in a budget bill despite the fact that no appropriations were included in the legislation. That, Goodell said, violates Article 7, Section 6 of the state Constitution. Goodell requests that the state Supreme Court declare the amendments to the DEC regulations that expand the scope of regulatory authority over wetlands larger than 12.4 acres are beyond the DEC’s authority and not authorized by the state Legislature, that the definition of wetlands of unusual importance is an unlawful delegation of legislative authority and that amendments to the wetlands regulations contained in the 2022 budget bill violate the constitution because they did not relate to a specific appropriation.

At the same time, attorney Alita Giuda, representing the CLP and CLP board members Dr. James Cirbus, Mary Hutchings and Mike LaTone, referred to Goodell’s affidavit in her memorandum of law in reply to the state’s reply to the CLP filing.

Giuda argues that Goodell’s experience in the state Legislature shows lawmakers had no intent to use Environmental Conservation Law Article 24 to regulate lakes since the article is intended to regulate marshes, swamps and wetlands. While the DEC argues that the Freshwater Wetlands Act has long defined freshwater wetlands as lands and submerged lands and included in its definitions the waters above those lands, Giuda said Article 24 doesn’t mention lakes, surface waters or other language indicating surface body water was intended to be included in the law.

Lakes and surface waters are regulated unded Environmental Conservation Law Article 15, something Giuda said the state Legislature has repeatedly stated governs lakes and rivers because its definition of waters includes lakes, bays, sounds, ponds and all other bodies of surface or underground water.

“The Part 664 amendments, with respect to the regulation of lakes, should be annulled because they bear no rational relationship to the statutory scheme and disregard both the plain language of Article 24, as compared to Article 15,” Giuda wrote. “While an agency’s expertise may warrant deference, such deference is not unlimited and cannot sustain regulations that contradict statutory directives or rest on vague, undefined standards.”

argues that amicus briefs filed by Hudson Riverkeeper, Save the Sound and other environmental groups should not be allowed to be entered into the record in the CLP lawsuit. The environmental groups argue they have strong interests in the CLP challenge to the wetlands regulations because of its potential impact on the integrity of freshwater wetland ecosystems. Giuda argues they should not be allowed to weigh in on the CLP lawsuit because the CLP action is specifically focused on Chautauqua Lake.

“Notwithstanding this argument, with no expertise relevant to Chautauqua Lake, and the regulations in general, they are not affected by the questions involved in CLP’s challenge,” Giuda wrote in a recently filed affidavit. “They offer, ultimately, an interpretation of law that bears no weight, given that the agency charged with regulating freshwater wetlands, and the regulated community (CLP) are parties. Therefore, the movants have failed to articulate a clear and strong interest in the matter.”

At the same time, attorney Alita Giuda, representing the CLP and CLP board members Dr. James Cirbus, Mary Hutchings and Mike LaTone, argues that amicus briefs filed by Hudson Riverkeeper, Save the Sound and other environmental groups should not be allowed to be entered into the record in the CLP lawsuit.

Riverkeeper Inc., Save the Sound and other members of the Save New York State Wetlands Coalition, including Catskill Mountainkeeper, Chautauqua-Conewango Consortium – a group comprised largely of Chautauqua County residents, Buffalo Niagara Waterkeeper, Sierra Club, Scenic Hudson, Seatuck Environmental Association, Natural Areas Conservancy, the New York State Ornithological Society, and Environmental Advocates NY. The groups’ combined amicus curie brief filed at the end of July asks the state Supreme Court to dismiss the lawsuits filed by the CLPOA, CLP, village of Kiryas Joel and Business Council of New York State.

The environmental groups argue they have strong interests in the CLP challenge to the wetlands regulations because of its potential impact on the integrity of freshwater wetland ecosystems. Giuda argues they should not be allowed to weigh in on the CLP lawsuit because the CLP action is specifically focused on Chautauqua Lake.

“Notwithstanding this argument, with no expertise relevant to Chautauqua Lake, and the regulations in general, they are not affected by the questions involved in CLP’s challenge,” Giuda wrote in a recently filed affidavit. “They offer, ultimately, an interpretation of law that bears no weight, given that the agency charged with regulating freshwater wetlands, and the regulated community (CLP) are parties. Therefore, the movants have failed to articulate a clear and strong interest in the matter.”