ENVIRONMENTAL LAW IN NEW YORK

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1 Developments in Federal and State Law ENVIRONMENTAL LAW IN NEW YORK Michael B. Gerrard Editor Volume 28, No. 07 July 2017 IN THIS ISSUE The Unsettled World of Wetlands Regulation: Wetlands Case Law Update for 2016 into 2017 The Unsettled World of Wetlands Regulation: Wetlands Case Law Update for 2016 into LEGAL DEVELOPMENTS ^ ENERGY ^ HAZARDOUS SUBSTANCES ^ LAND USE ^ LEAD ^ OIL SPILLS & STORAGE ^ SOLID WASTE NEW YORK NEWSNOTES WORTH READING UPCOMING EVENTS Wetlands are valuable ecological habitats, but their preservation often conflicts with the constant demand for residential and 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 Lauren Baron Trump administration, meaning wetlands will likely continue to be a prevalent topic in litigation through 2017 and beyond. The discussion below 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. I. Federal Regulation of Wetlands: Significant Nexus or Not? Wetlands regulation is grounded in one of the Clean Water Act s (CWA s) essential principles the prohibition of any discharge of pollutants from point sources to navigable waters without a permit. 1 Pursuant to the Clean Water Act s charge to protect the integrity of the Nation s waters, 2 and in recognition of the critical role wetlands play in maintaining essential habitat, the CWA prohibits the deposition of dredge or fill material into waters of the United States. In 2015, the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (the Army Corps) the two federal agencies having the most critical role in the protection of wetlands under the CWA promulgated the waters of the United States rule (the WOTUS Rule). 3 The WOTUS Rule was intended to clarify federal wetlands jurisdiction after the United States Supreme 1 33 U.S.C. 1311(a), 1362(7), (12) U.S.C It should be noted the term navigable waters is defined under the Clean Water Act as waters of the United States. 33 U.S.C. 1362(7). 103

2 104 ENVIRONMENTAL LAW IN NEW YORK Court s decision in Rapanos v. United States. 4 The WOTUS Rule included within the CWA s jurisdiction not only traditional navigable waters, such as those waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, but also waters with a significant nexus to, and those that are adjacent to, more traditional water features. 5 The WOTUS Rule was intended to be in keeping with Justice Kennedy s concurring opinion in Rapanos, inwhich he wrote that a water or wetland must possess a significant nexus to waters that are or were navigable in fact or that could reasonably be so made. 6 However, the WOTUS Rule has resulted in numerous challenges, including constitutional claims, and specifically challenges to EPA and Army Corps authority to regulate wetlands based on the critical determination of whether wetlands have a significant nexus to navigable waters. The Sixth Circuit Court of Appeals issued a nationwide stay of the WOTUS Rule in October 2015, finding that the petitioners had demonstrated a substantial possibility of success on the merits of their claims. 7 The U.S. Supreme Court has agreed to review the jurisdictional issue of whether the challenges to the WOTUS Rule should be heard in the district courts or the courts of appeal. 8 On February 28, 2017, President Donald Trump signed an executive order requiring the EPA Administrator and the Assistant Secretary of the Army Corps to revisit the WOTUS Rule, and specifically to consider the interpretation of the term navigable waters as Justice Scalia interpreted that term in the plurality opinion in Rapanos v. United States. 9 Essentially, if Justice Scalia s interpretation of navigable waters were adopted by EPA and the Army Corps, only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams[,]... oceans, rivers, [and] lakes, not including intermittent channels, would fall within the federal purview. 10 Thus, according to Justice Scalia only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so that there is no clear demarcation between waters and wetlands, are adjacent to such waters and covered by the CWA In other words, to be considered adjacent to more traditional water bodies and to constitute navigable waters protected by the CWA, wetlands must have more than an intermittent, physically remote hydrologic connection to such waters. 11 The litigation over the WOTUS Rule and President Trump s executive order have cast uncertainty over the future of federal wetlands regulation, likely assuring that the U.S. Supreme Court will revisit the issue of jurisdictional wetlands relatively soon. II. Wetlands Regulation in New York State: An Established System The CWA gives states the authority to implement the CWA through their own permitting programs, and New York State has received such approval for its program. 12 The New York State Environmental Conservation Law and associated regulations pertaining to wetlands regulation and permitting have not been significantly amended since their enactment in the 1970s. In New York, the New York State Department of Environmental Conservation (DEC) implements the state wetlands protection program, which protects both freshwater and tidal wetlands, 13 and provides [n]o person,... may excavate from or place fill, either directly or indirectly, in any of the navigable waters of the State or in...wetlands that are adjacent to and contiguous at any point to any of the navigable waters of the State, and that are inundated at mean high water level or tide, without a permit. 14 New York State only regulates wetlands that are adjacent and contiguous at any point with navigable waters as the term is defined in the regulations, and only regulates those wetlands that have been formally mapped by DEC. 15 In New York, dredge and fill permits are required for activities that will 4 Rapanos v. United States, 547 U.S. 715, , 789 (2006). In Rapanos, a plurality of the United States Supreme Court determined the U.S. Environmental Protection Agency (EPA) did not have the authority to regulate an isolated wetland located near ditches or artificial drains that eventually reach navigable waters because such wetlands are not adjacent to waters of the United States. For a more detailed discussion of the WOTUS Rule, see Michael B. Gerrard & Edward McTiernan, Jurisdiction Over Wetlands: New Uncertainties, N.Y.L.J., Sept. 8, 2016, at 3, and Kathy Robb, The 2015 Waters of the United States Rule Under the Clean Water Act, 27ENVTL. L. IN N.Y. 73 (May 2016) Fed. Reg. 37,054 (June 29, 2015). 6 Rapanos v. United States, 547 U.S. 715, 759 (2006). 7 Ohio v. U.S. Army Corps of Eng rs (In re EPA & DOD Final Rule), 803 F.3d 804 (6th Cir. 2015). 8 Nat l Ass n of Mfrs. v. U.S. Dept. of Def., 137 S. Ct. 811, 196 L. Ed. 2d 595, 2017 U.S. LEXIS 690 (2017) (granting certiorari to review In re U.S. Dept. of Defense & EPA Final Rule, 817 F.3d 261 (6th Cir. 2016) (holding that Sixth Circuit had jurisdiction to hear case), reh g & reh g en banc denied, 2016 U.S. App. LEXIS 9987 (6th Cir. Apr. 21, 2016)). 9 Exec. Order No. 13,778; 82 Fed. Reg. 12,532 (Mar. 6, 2017). 10 Rapanos v. United States, 547 U.S. 715, 716 (2006). 11 Rapanos v. United States, 547 U.S. 715, 742 (2006). 12 See 33 U.S.C. 1342(b). 13 N.Y. ENVTL. CONSERV. LAW (1), (1); 6 N.Y.C.R.R N.Y.C.R.R Navigable waters are defined as all lakes, rivers, streams and other bodies of water in the state that are navigable in fact or upon which vessels with a capacity of one or more persons can be operated notwithstanding interruptions to navigation by artificial structures, shallows, rapids or other obstructions, or by seasonal variations in capacity to support navigation. 6 N.Y.C.R.R 608.1(u). See also N.Y. ENVTL. CONSERV. LAW ,

3 JULY impact freshwater or tidal wetlands that are adjacent and contiguous at any point to a navigable water of the State. 16 Worthy of note is that Justice Scalia s interpretation of navigable waters in Rapanos is similar to the standard described in New York s regulations; 17 however, New York State takes wetlands protection a step further by prescribing an additional buffer zone prohibiting development near wetlands, and also by allowing local municipalities to regulate freshwater wetlands that may not be included on the official state map because of their smaller size. 18 In mapping the boundaries of wetlands, the DEC Commissioner can revise or clarify wetlands maps, and property owners can request clarification as to the boundaries of the wetland. 19 III. Challenging the Designation of Federal Wetlands: The Impact of U.S. Army Corps of Engineers v. Hawkes In 2016, the United States Supreme Court decided U.S. Army Corps of Engineers v. Hawkes Co., Inc., an important decision pertaining to wetlands and administrative law. In Hawkes, peat miners that owned property in Minnesota applied for a CWA permit from the Army Corps of Engineers, to allow them to conduct peat mining operations on their property. 20 In connection with the permitting process, the Army Corps issued what is known as an approved jurisdictional determination, 21 and found that the peat miner s property contained waters of the United States because the wetlands on the property had a significant nexus to a river located about 120 miles from the property. 22 As a practical matter, the jurisdictional determination meant the peat miner property owners would be required to avoid such wetlands or undertake measures to mitigate any impact to wetlands from their operations, which can be costly. After the peat miners pursued an administrative appeal of the initial jurisdictional determination, the Army Corps reissued a revised jurisdictional determination and the peat miners challenged it in court. The Supreme Court held that an approved jurisdictional determination satisfies the requirements of finality pursuant to the Administrative Procedure Act because it is issued after extensive fact finding and mark[s] the consummation of the [Army Corps ] decisionmaking. 23 The Court also reasoned that an approved jurisdictional determination has direct and appreciable legal consequences because if the Army Corps finds a property does not contain jurisdictional waters, both the Army Corps and EPA are bound to adhere to that determination for five years and cannot bring a civil enforcement proceeding under the CWA. 24 Finally, the Court determined that the peat miners had no adequate alternative but to bring a proceeding in court challenging the determination instead of waiting for the Army Corps to enforce the CWA, which could result in potentially large civil penalties. 25 Hawkes was an important decision for administrative law because property owners may now challenge an approved jurisdictional determination before incurring costs to obtain a CWA permit or incurring significant fines for failing to comply with the CWA. Prior to Hawkes, applicants seeking to challenge a jurisdictional determination had to proceed with the CWA permitting process and if the permit was denied or issued on conditions that were not satisfactory to them, then bring a challenge in court. Although Hawkes was an important case for the applicable administrative procedure regarding federal wetlands designation, the underlying dispute in Hawkes was whether federal jurisdictional wetlands were even present on the property in the first place and the controversy over the interpretation of waters of the United States. Since the Hawkes decision, plaintiffs have attempted to apply the reasoning in Hawkes in other CWA cases, as well as in a myriad of different types of administrative cases outside the CWA, including labor and employment and immigration litigation. 26 United States v. Acquest Transit LLC represents another example of the use of the jurisdictional determination process as a tool in litigation. In Acquest, the government brought a CWA enforcement action against property owners in Amherst, New York, and the court granted a preliminary injunction enjoining defendants from placing additional fill or performing any additional earthmoving work at the property in order to protect 16 6 N.Y.C.R.R See Rapanos v. United States, 547 U.S. 715, 742 (2006) (holding only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so that there is no clear demarcation between waters and wetlands, are adjacent to such waters and covered by the Act ). 18 N.Y. ENVTL. CONSERV. LAW N.Y. ENVTL. CONSERV. LAW (5), (6). 20 U.S. Army Corps of Eng rs v. Hawkes, 136 S. Ct. 1807, 1813 (2016) C.F.R ( Approved jurisdictional determination means a Corps document stating the presence or absence of waters of the United States on a parcel or a written statement and map identifying the limits of waters of the United States on a parcel. ). 22 U.S. Army Corps of Eng rs v. Hawkes, 136 S. Ct. 1807, 1813 (2016). 23 U.S. Army Corps of Eng rs v. Hawkes, 136 S. Ct. 1807, 1813 (2016) (citing Bennet v. Spear, 520 U.S. 154 (1997)). 24 U.S. Army Corps of Eng rs v. Hawkes, 136 S. Ct. 1807, 1814 (2016) (citing Bennet v. Spear, 520 U.S. 154, 178 (1997)). 25 U.S. Army Corps of Eng rs v. Hawkes, 136 S. Ct. 1807, 1815 (2016). 26 See, e.g., 6801 Realty Co., LLC v. U.S. Citizenship & Immigration Services, 2016 U.S. Dist. LEXIS (E.D.N.Y. Nov. 30, 2016).

4 106 ENVIRONMENTAL LAW IN NEW YORK existing wetlands. 27 However, the property owners failed to abide by the injunction. When the government sought to enforce the injunction, the property owners argued that a pending jurisdictional determination absolved them of any wrongdoing for violating the injunction because if the federal government found there were no jurisdictional wetlands on the property, the fact that Acquest violated the preliminary injunction would be irrelevant and the government s suit would be moot. The Western District of New York flat out rejected this argument and held that such an argument would eviscerate the power of a preliminary injunction and would encourage others to risk violating a preliminary injunction in the hopes of ultimately prevailing in an action. 28 As in Hawkes, an underlying theme in Acquest was whether any federal jurisdictional wetlands even existed on the property. 29 In Hawkes, the Supreme Court noted the peat miners had the right to challenge the jurisdictional determination because if the Army Corps had not made a jurisdictional determination and [i]f respondents discharged fill material without a permit, in the mistaken belief that their property did not contain jurisdictional waters, they would expose themselves to civil penalties. 30 While not explicitly mentioning Hawkes, the Western District in Acquest made it clear that violating a preliminary injunction while waiting for a jurisdictional determination was not the type of risk the Supreme Court intended to protect property owners from in Hawkes. Insum,propertyownersshould not risk violating the CWA or court orders by dredging and filling wetlands while waiting for a jurisdictional determination, and according to Hawkes, property owners no longer need to risk violating the CWA as they now have the ability to challenge jurisdictional determinations much earlier in the application process. IV. The State Environmental Quality Review Act and Wetlands: A Happy Marriage After either federal or state jurisdictional wetlands have been found on a property, the environmental impact of a project on those wetlands must be evaluated. In New York, the environmental impact of a potential project can be evaluated through the State Environmental Quality Review Act (SEQRA) review process. Several recent cases illustrate the dynamic between SEQRA and wetlands protection. Lucente v. Terwilliger speaks to the SEQRA review process and the timing of the municipal approval process. In Lucente, a property owner brought an action against a Town seeking default approval of a site plan application based on New York Town Law 276(8), which provides that where a municipality fails to decide on an application before it in a timely manner, the application is deemed approved. 31 The property owner had submitted a preliminary site plan application, which proposed to manage stormwater runoff by directing it into existing wetlands on the property and detaining it there. 32 However, DEC rejected the proposed stormwater management plan, and the property owner submitted a revised stormwater management plan with his final site plan application. The previous SEQRA review that was conducted for the project and prior negative declaration issued by the Town were never revisited despite the potential change to the project s impact on wetlands resulting from the change to stormwater management. 33 The Appellate Division, Third Department, found that because all SEQRA requirements were not completed, the time limit for the Town Planning Board to complete its decision on the site plan application never accrued. Therefore, the Town could not be forced to issue final approval based on the default approval provision in New York Town Law. 34 Lucente is just one example where the SEQRA review process and consideration of environmental impacts on wetlands can affect other aspects of the municipal approval process, and it is evident from Lucente that it is important for municipalities to thoroughly consider the potential impacts a project may have on nearby wetlands. Stein v. Town of New Castle exemplifies a typical scenario where approval of a project is challenged due to the lack of detailed SEQRA review conducted by a municipality. In Stein, neighboring property owners challenged the Town of New Castle s approval of the construction of a single-family home with a septic system. 35 While the original application provided that the basement was to be left unfinished, the applicants submitted a revised plan that included a finished basement with a bathroom. 36 The neighbors claimed the Town failed to reevaluate the capacity of the septic system despite the addition of a bathroom, and that the applicants failed to obtain a wetlands permit or to comply with applicable environmental statutes, including SEQRA United States v. Acquest Transit LLC, 2016 U.S. Dist. LEXIS (W.D.N.Y. June 29, 2016). 28 United States v. Acquest Transit LLC, 2016 U.S. Dist. LEXIS 84523, at *2 (W.D.N.Y. June 29, 2016). 29 At this time, the Acquest civil case is ongoing. See United States v. Acquest Transit LLC, 09-CV-55S(F) (W.D.N.Y.). A related case involved criminal charges against the property owner. See United States v. Huntress, No. 1:13-cr WMS-JJM (W.D.N.Y.). 30 U.S. Army Corps of Eng rs v. Hawkes, 136 S. Ct. 1807, 1815 (2016). 31 Lucente v. Terwilliger, 144 A.D.3d 1223, 1226 (3d Dept. 2016). 32 Lucente v. Terwilliger, 144 A.D.3d 1223, 1225 (3d Dept. 2016). 33 Lucente v. Terwilliger, 144 A.D.3d 1223, 1225 (3d Dept. 2016). 34 Lucente v. Terwilliger, 144 A.D.3d 1223, 1226 (3d Dept. 2016). See also N.Y. TOWN LAW 276(8). 35 Stein v. Town of New Castle, 50 Misc. 3d 1209(A), 2016 N.Y. Slip Op (U) (Sup. Ct. Westchester County 2016). 36 Stein v. Town of New Castle, 50 Misc. 3d 1209(A), 2016 N.Y. Slip Op (U), at *2 (Sup. Ct. Westchester County 2016). 37 Stein v. Town of New Castle, 50 Misc. 3d 1209(A), 2016 N.Y. Slip Op (U), at *2 (Sup. Ct. Westchester County 2016).

5 JULY In applying the standard for an Article 78 proceeding, where the court may not disturb the decision of a municipal body charged with determining land use questions unless that body s decision is arbitrary and capricious, lacks a rational basis, or is an abuse of discretion, 38 the court found there was no dispute that an inadequate septic system could lead to environmental contamination of the adjacent wetlands. 39 In remanding the decision back to the Town s Zoning Board of Appeals to further consider the petitioners concerns, the court noted that it remains troubled by the manner in which the municipal respondents dismissed the environmental and health concerns raised by petitioners, and by the tendency of the same parties to shift responsibility in order to avoid answering the serious questions raised. 40 Despite the fact that the project was merely a singlefamily home, the court in Stein makes it clear that a municipality should not ignore or dismiss the potential environmental impacts a project may have on wetlands. V. Takings Claims: They Can Take My Wetlands, but They Can Never Take My Right to Be Compensated After the applicable agency determines there are federal or state wetlands present, how does the presence of those wetlands impact the market value of that property? The issue of valuation arises in relation to takings claims and tax valuation cases. Takings claims may arise in the context of wetlands because states or municipalities are authorized in some circumstances to condemn portions of private property to implement comprehensive wetland conservation programs. For example, the City of New York has implemented an extensive program for managing important wetlands on Staten Island to naturally protect the coastal areas from flooding threats such as sea level rise by preserving natural drainage corridors. The project is known as the Staten Island Bluebelt. 41 The City of New York may engage in condemnation proceedings pursuant to its eminent domain power to implement the Staten Island Bluebelt program, and if property is condemned, property owners are entitled to compensation. There are also instances when a property owner may be effectively deprived of the use of its property prior to a formal condemnation proceeding, which is known as a de facto taking. For example, if a municipality takes certain actions, such as announcing plans to condemn or constructing storm control infrastructure that results in flooding, and a property owner loses any rental or resale value based on such actions, a de facto taking may have occurred. 42 If a de facto taking occurs prior to a formal condemnation, a property owner is entitled to additional compensation for the deprivation of the use of their property during the de facto taking period. 43 In 2005, as part of Phase 3 of the Bluebelt Project, the City constructed storm control infrastructure that caused flooding on certain property. Eventually, the City formally condemned a piece of the property that was already classified and mapped as freshwater wetlands or wetlands adjacent area, which precluded development on the property. 44 After the condemnation occurred, the property owner argued that a de facto taking had occurred since he was deprived of the use of his property due to the flooding and that he did not have knowledge of the 2005 storm infrastructure until The court rejected petitioner s argument, finding the storm infrastructure was readily apparent in Thus, the Second Department determined the property owner was time-barred by the three-year statute of limitations from claiming a de facto taking occurred and that just compensation was therefore based on the property s value at the time of condemnation. 46 The implementation of DEC s regulations in determining which properties contain or are adjacent to freshwater or tidal wetlands is important for purposes of condemnation. The compensation to which a property owner is entitled based on condemnation takes into account the market value of the property at the time of condemnation, 47 and if property could not be developed because it contains wetlands, the fair market value of the property reflects such a limitation. 48 VI. Wetlands and Pipelines and Federalism, Oh My! A case that will likely be decided in 2017 illustrates the possible tension between federal regulation and states rights. On April 22, 2016 (a/k/a Earth Day), DEC denied a Water Quality Certification (WQC) for a pipeline project known as the Constitution Pipeline, which involves the construction of approximately 124 miles of natural gas pipeline from 38 Stein v. Town of New Castle, 50 Misc. 3d 1209(A), 2016 N.Y. Slip Op (U), at *7 (Sup. Ct. Westchester County 2016). 39 Stein v. Town of New Castle, 50 Misc. 3d 1209(A), 2016 N.Y. Slip Op (U), at *12 (Sup. Ct. Westchester County 2016). 40 Stein v. Town of New Castle, 50 Misc. 3d 1209(A), 2016 N.Y. Slip Op (U), at *12 (Sup. Ct. Westchester County 2016). 41 The Staten Island Bluebelt: A Natural Solution to Stormwater Management, N.Y.C. DEPT. OF ENVTL. PROT., (last visited May 9, 2017). 42 See Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777 (2012); City of Buffalo v. J.W. Clement Co., 34 A.D.2d 24, 31 (4th Dept. 1970). 43 Matter of City of New York [Salvation Army], 43 N.Y.2d 512, 518 (1978). 44 Matter of South Richmond Bluebelt, Phase 3, 141 A.D.3d 672 (2d Dept. 2016). 45 Matter of South Richmond Bluebelt, Phase 3, 141 A.D.3d 672, 674 (2d Dept. 2016). The Second Department also held that the continuous wrong doctrine was not applicable to a de facto taking claim. 46 Matter of South Richmond Bluebelt, Phase 3, 141 A.D.3d 672, 674 (2d Dept. 2016). 47 Matter of South Richmond Bluebelt, Phase 3, 141 A.D.3d 672, (2d Dept. 2016). 48 See, e.g., George A. Donaldson & Sons, Inc. v. Assessor of Town of Santa Clara, 135 A.D.3d 1138, 1141 (3d Dept ) (involving property owner s dispute of tax assessment based on undeveloped portion of property due to the presence of wetlands, steep slopes, and an old landfill).

6 108 ENVIRONMENTAL LAW IN NEW YORK Pennsylvania through New York State all the way to Schoharie County. 49 A WQC is required if a federal license or permit is needed for a project, including but not limited to a project that may result in the discharge of a pollutant into navigable waters. 50 DEC denied the WQC on the basis that Constitution Pipeline Co., LLC (Constitution Pipeline Co.) failed to address the significant water resource impacts of the project, including impacts to 85.5 acres of freshwater wetlands caused by the proposed route of the pipeline. Constitution Pipeline Co. filed suit against DEC arguing that the decision to deny the WQC was arbitrary and capricious and went against the Federal Energy Regulatory Commission s (FERC s) approval of the pipeline. 51 Arguments in the Second Circuit were heard in November 2016, and a decision is expected sometime in In a November 2016 FERC order denying rehearing on its order authorizing construction and operation of the Constitution Pipeline, FERC acknowledged that NYSDEC has authority to deny a water quality certification if the requirements of [CWA] section 401 are not satisfied. Without the required water quality certification Constitution may not commence construction. 53 Thus, FERC itself does not seem to think that its approval of the pipeline has any impact on New York State s right to issue or deny the WQC, and it will be interesting to follow the progression of this case in 2017 to see if the Second Circuit determines DEC had a reasonable basis to deny the WQC. VII. Conclusion 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 applicable 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 the 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 differing interests concerning wetlands protection. Lauren Baron is an associate at Harris Beach PLLC in Rochester, New York, practicing in the areas of commercial real estate and environmental law with a focus on land use and zoning. Lauren graduated from Pace University School of Law in 2015 with a certificate in environmental law and would like to thank her practice group leader, Joseph D. Picciotti, for his assistance with this article. LEGAL DEVELOPMENTS ENERGY Appellate Division Affirmed Dismissal of Challenge to Hydraulic Fracturing Prohibition The Appellate Division, Third Department, affirmed that an individual who owned properties in Allegany and Monroe Counties did not have standing to challenge the statewide prohibition on high volume hydraulic fracturing (HVHF). The individual sent a letter to the Commissioner of the New York State Department of Environmental Conservation (DEC) seeking permission to conduct HVHF on his properties in December 2014 after Governor Paterson issued and Governor Cuomo continued an executive order prohibiting HVHF permits pending completion of a supplemental generic environmental impact statement. (New York completed the review and officially prohibited HVHF in June 2015). The individual sent another letter in January 2015 asking whether the HVHF ban applied only to commercial entities. After a DEC official responded that the prohibition on HVHF applied to all owners of property rights, the individual filed a lawsuit challenging the determination denying him the 49 See Press Release, N.Y. State Dept. of Envtl. Conservation (DEC), New York State Department of Environmental Conservation Denies Water Quality Certificate Required for Constitution Pipeline (Apr. 22, 2016), See also 6 N.Y.C.R.R N.Y.C.R.R (a). 51 Constitution Pipeline Co. v. Seggos, No (2d Cir.). See also Constitution Pipeline Co. v. DEC, 1:16-CV (N.D.N.Y. Mar. 16, 2017) (dismissing Constitution Pipeline Co. lawsuit challenging other DEC permit requirements); Kat Sieniuc, Pipeline Co. Can t Sue NY Over Permit Delay, Judge Says, LAW360 (Mar. 16, 2017), 52 See Jon Hurdle, Friends and foes of Constitution Pipeline await appeals court ruling,stateimpact (Jan. 2, 2017), /01/02/friends-and-foes-of-constitution-pipeline-await-appeals-court-ruling/. 53 In re Constitution Pipeline Co., Docket No. CP , Order Denying Rehearing, at 5 (FERC Nov. 22, 2016).