Environmental Law in New York, published by LexisNexis™, featured an article authored by Lauren Baron entitled “The Unsettled World of Wetlands Regulation: Wetlands Case Law Update for 2016 into 2017.”
Wetlands are valuable ecological habitats, but their preservation often conflicts with the constant demand for commercial development. This dichotomy can result in courtroom conflicts involving the protection of wetlands by both the federal and New York state government. The threshold question for much of wetlands litigation concerns whether jurisdictional wetlands, those protected by applicable law, actually exist on a particular property and, if so, whether the development of a project will impact those wetlands. Recently, the issue of federal wetlands regulation has drawn the attention of the White House and the Trump administration, meaning wetlands will likely continue to be a prevalent topic in litigation through 2017 and beyond. The article provides an overview of recent federal and New York state court decisions concerning wetlands controversies, as well as an overview of the current and potential future state of wetlands regulation. Specifically, the article addresses key topics such as: Federal Regulation of Wetlands: Significant Nexus or Not?; Wetlands Regulation in New York State: An Established System; Challenging the Designation of Federal Wetlands: The Impact of U.S. Army Corps of Engineers v. Hawkes; The State Environmental Quality Review Act and Wetlands: A Happy Marriage; Takings Claims: They Can Take My Wetlands, but They Can Never Take My Right to Be Compensated, and Wetlands and Pipelines and Federalism.
Wetlands perform critical hydrogeological functions by helping to control flooding and operating as stormwater control, performing pollution control and nutrient cycling functions, and maintaining habitat for fish and wildlife. As discussed in the cases analyzed in this article, when wetlands are present on a property, the interests of the property owner or applicant may clash with those of the regulatory body seeking to protect those wetlands. Future controversies involving wetlands will continue to proceed from the same threshold question: are federal or state jurisdictional wetlands located on or near a property and if so, what steps may be needed to protect them?
In New York State, DEC continues to robustly exercise its authority to protect state wetlands by enforcing application regulations. New York courts also expect local municipalities to perform their obligations under SEQRA to take a hard look at potential environmental impacts a project may have on the environment, including on wetlands. At the federal level, in light of the Trump executive order and other priorities enunciated by the Trump administration, the future of the WOTUS Rule is unknown, as is the extent of EPA and Army Corps regulation of federal wetlands. The future of the WOTUS Rule will also depend on disposition of the case now pending in the Sixth Circuit and other litigation. Over the next four years, however, the extent of federal authority over certain wetlands may be diminished as the Trump administration limits the reach of the CWA. If the current administration successfully reduces federal control over wetlands and leaves such regulation up to the states, projects such as the Constitution Pipeline that cross state lines will undoubtedly begin to shed light on the states’ different interests concerning wetland protection.