4.2 Biases in Protection: Which Wetlands Do Our Regulations
Ignore?
The regulatory approach taken by the NWPR, centered around the criteria
of surface-water connection, contracts the distribution of protected
wetlands inwards towards the stream network and exacerbates historical
trends in upland wetland loss (Van Meter & Basu, 2015). By requiring a
connection between surface waters and wetlands, the NWPR introduces a
strong bias against small, geographically isolated features. However, as
a considerable proportion of NYS’s wetland area is concentrated in large
wetlands near the stream network (Figure 2), the NWPR’s spatial
constriction of regulations has an undersized impact on the total area
of wetlands protected (Figure 4). While the CWR has a similar (though
less severe) jurisdictional bias against small wetlands, the existence
of the significant nexus test may serve to protect upload wetlands,
especially as wetland size decreases (Figure 5). The elimination of the
significant nexus test by the NWPR entirely omits protections for these
smaller, distal wetlands.
Although the NWPR results in a mere 11.6% decrease in jurisdictional
wetland area compared to the CWR, its strong bias against geographically
isolated wetlands could result in outsized impacts on water quality,
nutrient cycling, and other ecosystem services (Cohen et al., 2016;
Sullivan et al., 2019, 2020). Small, isolated wetlands cycle nutrients,
carbon, and pollutants at disproportionately high rates due to their
ratio of reactive area to storage and their long residence times (Cheng
& Basu, 2017; Ghermandi et al., 2010; Marton et al., 2015). These
wetlands do not meet the criteria for protection under the NWPR, yet
they are undoubtedly linked to the quality of downstream waters through
hydrological and biogeochemical exchanges along slower subsurface flow
paths (USEPA, 2015; Cohen et al., 2016). The heterogeneous aquatic
habitats provided by isolated wetlands also facilitate biological
connectivity across the landscape, enabling regional species dispersal
and enhancing spatial biodiversity (Cohen et al., 2016; Scheffer et al.,
2006).
The NWPR represents a clear step towards a more homogeneous
wetlandscape. While the CWR attempts to protect wetlands spanning a wide
range of sizes and landscape positions, the NWPR takes a contrasting
regulatory approach, focusing protections on (larger) wetlands near the
stream network. These floodplain wetlands undoubtedly provide extensive
benefits such as peak flow attenuation (Ameli & Creed, 2019). However,
concentrating protections on floodplain wetlands alone could critically
threaten the multitude of ecosystem services provided by isolated,
upland wetlands. Non-floodplain wetlands are inherently heterogeneous,
spanning broad spectrums of size, shape, landscape position,
connectivity, and hydrologic residence time (Evenson et al., 2018;
Golden et al., 2019). The cumulative landscape effects of these diverse
and often isolated wetlands are integral to watershed-scale resilience,
contributing resistance to regime change instigated by hydrological,
biogeochemical, and anthropogenic disturbances (Golden et al., 2021;
Lane et al., 2022). By specifically targeting upland wetlands, the
implementation of regulatory strategies akin to the NWPR could result in
considerable negative impacts on downstream water quality, including
increased peak discharges, sediment and nutrient loading, and
eutrophication (Lane et al., 2022; Yang et al., 2010).