Protecting New York’s freshwater wetlands is now more important than ever
February 8, 2024
Drew Gamils
Senior Attorney
Photo: Laura Heady
Though wetlands provide critical habitat, reduce flood risk, improve water quality, and purify drinking water, they continuously fall victim to unchecked development, pollution, degradation, and climate change impacts. Wetlands are also at risk due to shifting federal protections. Most recently, in May 2023, the U.S. Supreme Court drastically narrowed the scope of wetlands protected under the Clean Water Act in the case of Sackett v. EPA. It is now more important than ever to strengthen New York’s regulations to protect the state’s freshwater wetlands to the maximum extent possible.
What is a wetland?
There are four main characteristics that identify a wetland area: hydrology, soil type, vegetation, and species. Wetlands are, as you might expect, distinguished by the presence of water. They also have unique soil characteristics, support vegetation specifically adapted to inundation and/or wet conditions, and contain species adapted to flourish under these conditions.
In truth, wetlands are not easily defined and vary dramatically as a result of regional and local differences in soils, topography, climate, hydrology, water chemistry, vegetation, and other factors, including human disturbance. There is not a single definition of wetland that all agencies, scientists, policymakers, or landowners use. This inconsistency often makes it difficult to recognize and protect wetland areas.
Officially, the United States Environmental Protection Agency defines wetlands as “areas where water covers the soil or is present either at or near the surface of the soil all year or for varying periods of time during the year, including during the growing season.” New York State Department of Environmental Conservation (DEC) defines wetlands as “areas saturated by surface groundwater sufficient to support distinctive vegetation adapted for life in saturated soils.”
Why are wetlands important?
Wetlands carry out many functions that make them valuable to society, including providing critical habitat, reducing flood risk, improving water quality, storing carbon, and purifying drinking water – all of which become more important with increasing climate impacts.
- Fish and wildlife habitat: Healthy wetlands are centers of biological diversity. Their often shallow, nutrient-rich waters and flourishing plant growth form the base of the food web. The richness of wetland habitat supports a wide variety of birds, insects, aquatic organisms, and fish species, many of which either need fresh water to complete their life cycle or are attracted to wetlands to exploit the forage opportunities. Wetlands are especially critical habitats for amphibians, which depend on water for all or part of their life cycle. Amphibians are classified as “anamniotes,” which means their eggs and larvae must pass through an aquatic stage. Because amphibian survival is directly linked to the presence of water, they are highly susceptible to pollutants and the overall health of aquatic habitat. While populations of aquatic organisms in general are decreasing faster than other species, amphibians are the fastest declining of the vertebrate species largely due to a combination of human causes. Wetlands are essential habitat areas that require strong protections to ensure the vitality of amphibians and many other species.
- Flood control: Wetlands are vital to flood and stormwater control because they are the channels through which excess rain and snowmelt flow, and they act to slow runoff. Wetlands act as natural sponges that absorb, store, and slowly release surface water, rain, snowmelt, groundwater, and flood waters. In this way, wetlands act as natural flood buffers, protecting communities and reducing the cost of damages. This is especially important now as the severity and frequency of flooding increase as a result of climate change.
- Water quality: Wetlands improve water quality by removing from surface waters pollutants such as soil particles, fertilizers, pesticides, road salts, and grease and oil from cars and trucks. Wetlands can remove pollutants through sediment trapping, nutrient removal and retention, and chemical detoxification. The efficiency of these systems is so high that constructed treatment wetlands have been widely implemented as a component of domestic and industrial wastewater treatment, and are often as effective as conventional tertiary treatment. For this reason, wetlands are often referred to as the “kidneys” of the watershed.
- Carbon storage: Wetlands are one of the most efficient ecosystems for sequestering and storing carbon. (Wetlands are often referred to as carbon sinks because they store a tremendous amount of carbon). They capture carbon through plant photosynthesis and by acting as sediment traps for runoff. The carbon is stored in the wetland plants themselves and in the wetland soils. Losing wetlands results not only in the loss of an important carbon sink but also in the release of the carbon stored in that wetland.
- Drinking water protection: Wetland protection is critical to safe drinking water. Protecting wetlands protects drinking water quality, eases the burden of pollution, and reduces treatment costs for communities. For example, wetlands can reduce the concentration of nutrients in water such as nitrogen and phosphorus, thereby reducing the likelihood of harmful algal blooms in water sources, and disinfection byproducts in tap water. Toxic chemicals can also be absorbed by wetland soils and taken up by plants in wetlands, thereby reducing the concentrations entering drinking water sources.
What legislation protects freshwater wetlands in New York?
The State Legislature passed The Freshwater Wetlands Act (aka Environmental Conservation Law Article 24) in 1975 with the intent to preserve, protect, and conserve freshwater wetlands, and to regulate their use and development - to secure their natural benefits in line with the general welfare and positive economic, social, and agricultural development of the state. In April 2022, the New York State Legislature enacted amendments to incorporate several important changes to the way the state’s freshwater wetland program will be administered. First, beginning January 1, 2025, the state will rely primarily on aerial imagery and available remote data to determine jurisdiction over freshwater wetlands as opposed to relying on existing maps depicting these wetlands. Secondly, beginning on January 1, 2025, new criteria will be established to identify smaller wetlands of “unusual importance” to be regulated by the state Department of Environmental Conservation (DEC). And lastly, starting in 2028, the default threshold for regulated wetlands will decrease from 12.4 acres to 7.4 acres.
Environmental advocates fought for decades for these reforms to the Freshwater Wetlands Act. These amendments will protect endangered and threatened wildlife, strengthen defenses against climate change, mitigate flooding, and preserve clean water in the Hudson River basin and across the state. This historic legislation will allow DEC to protect more than one million acres of critically important freshwater wetlands that are currently unmapped and tens of thousands of smaller wetlands that are of “unusual importance.” In light of the Supreme Court’s curtailment of federal wetland protections, state protections are more important now than ever before.
How will DEC implement the recent changes made to the Freshwater Wetlands Act?
Because of the 2022 changes to the Freshwater Wetlands Act, DEC must amend some of its regulations. To start this process, DEC will seek input from any interested parties on the proposed criteria that will be used to identify newly protected wetlands of unusual importance.
In order to develop strong regulations that substantially protect and conserve the state’s freshwater wetlands and vernal pools, Riverkeeper maintains that DEC must ensure that the criteria proposed to identify small wetlands of unusual importance addresses these concerns:
- DEC’s draft regulations only protect vernal pools that are known to be productive for amphibian breeding. Vernal pools (aka spring pools) are observable as shallow, wet depressions in mountainous forest habitat and are often dry at times. DEC has proposed regional criteria to identify protected vernal pools based on the presence of certain amphibian species and the presence of a specific number of egg masses of each species. Riverkeeper contends that DEC must refrain from using specific egg mass counts to identify vernal pools. DEC’s proposed criteria to identify vernal pools does not take into account the fact that a vernal pool may be more productive one year compared to others based on varying environmental conditions. The presence of an individual amphibian species (egg, larvae, or adult) should be enough to protect a vernal pool. Vernal pools are extremely important to amphibians, and to other organisms that forage upon juvenile and adult-stage amphibians such as raccoons, mink, herons, egrets, and muskrats.
- To truly protect and preserve vernal pools, DEC must regulate activities within 300 feet of such vernal pools. DEC currently regulates and protects land adjacent to a protected wetland that is located within 100 feet of such wetland. A 100-foot buffer is insufficient to maintain viable populations of amphibians in the adjacent area around a vernal pool. Avoiding impacts to significant vernal pools and their surrounding habitat is important because many amphibian species are “pool specific,” meaning they must return to the pond in which they were born to breed.
- DEC’s proposed criteria fails to protect wetlands located in surface drinking water supply watersheds or aquifer recharge areas. These wetlands must be protected for their regional and local significance in supporting drinking water quality. Drinking water source protection includes maintaining the health of wetlands as a key approach to ensuring safe drinking water. Wetlands are critical parts of the state’s natural water infrastructure to improve water quality in drinking water sources.
Riverkeeper will be submitting detailed technical and legal comments on DEC’s proposed criteria to identify small wetlands of unusual importance. We are optimistic that DEC will use the feedback it receives to develop strong protections for freshwater wetlands of all sizes to support natural flood control, protect wildlife habitat, and filter pollutants from drinking water sources. Riverkeeper looks forward to working with DEC to ensure future regulations are strong and grant the state’s freshwater wetlands and vernal pools the protection they and future generations deserve.
