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).