New York State law could protect Long Island wetlands after new Clean Water Act restrictions

Just a short hike into a 200-acre woodland in Manhasset lie a series of shallow basins in the forest floor left behind by retreating glaciers. After a dry August, the basins are empty, but in spring they will fill with snowmelt and rain and teem with wildlife: spotted salamanders and wood frogs, waterthrushes and rusty blackbirds, woodland bats and a resident pair of coyotes.

Small freshwater wetlands like this provide habitat for dozens of species, offer protection against flooding and help clean water that filters into underground aquifers such as on Long Island. But in May, the U.S. Supreme Court declared they don’t merit protection under the federal Clean Water Act, which for the past 50 years has empowered the Environmental Protection Agency to prevent polluting of the nation's waterways.

“I was so disappointed by the ruling,” said Nicole Maher, senior coastal scientist at The Nature Conservancy in New York. "It really is unfortunate that these cases don’t require scientific consultation."

Last month, the EPA issued a new rule to align with the court’s decision, confirming the agency would no longer regulate the great majority of inland marshes, blackwater swamps, ephemeral streams and vernal ponds across the country. That leaves landowners, developers and industrial agriculture operations free to dredge, fill in, build over or release waste into these freshwater wetlands without objection from the agency. The ruling went into effect immediately.

The court's decision upended decades of precedent by restricting the EPA's jurisdiction to “navigable” waterways. A smaller body of water, such as an inland marsh, is now protected only if it maintains a year-round surface connection to larger, regulated bodies of water like oceans, lakes and rivers. 

The tidal wetlands that fringe Long Island’s coasts therefore remain protected under the Clean Water Act, but hundreds of vernal pools and other freshwater wetlands across the Island are not.

New York's Freshwater Wetlands Act, passed in 1975 and significantly expanded before the court's ruling, should help safeguard the state's boggy ecosystems, according to wetlands specialists.

"But there are still wetlands at risk," said Enrico Nardone, executive director of the Seatuck Environmental Association, based in Islip.

'All water is interconnected'

The case before the court, Sackett v. EPA, involved an Idaho couple who planned to build a house next to a lake and objected when the EPA ordered them to stop. The agency said they could not fill the lot with gravel, as part of it was a protected wetland. The court's ruling was a victory for property rights over clean water protections.

The decision is troubling for several reasons, environmentalists said. The court's distinction between bodies of water that are "connected" and those that are not disregards how a watershed actually works, Maher said.

Water from wetlands may flow out through ephemeral streams in rainy periods, and it can seep into groundwater and slowly migrate toward the coasts. Any contaminants dumped into those wetlands will migrate, too.

“All water is interconnected, including ephemeral systems,” Maher said.

The court's decision also overlooks the ecological importance of freshwater wetlands, experts said.

"Wetlands are hugely important to biodiversity," Maher said. They are havens for songbirds and wading birds like herons; amphibians such as spring peepers and salamanders; and mammals including beavers, foxes, bats and even river otters. Vernal pools provide critical habitat to amphibians like the endangered tiger salamander because there are no fish to devour their eggs, and for fairy shrimp, a favorite food for waterfowl.

Long Island has hundreds of these vernal pools, Nardone said. “In spring, there’s a flush of life coming out of these waterways,” he said.

"There's an entire set of fauna that wouldn't be here without the vernal pool," said Stephane Perreault, a naturalist for the Greentree Foundation, as he surveyed the Manhasset-based nonprofit's wetlands on a muggy September day. "It's these jewels that we are protecting."

Seatuck has been working on an interactive map that identifies ephemeral ponds on Long Island — 340 of them mapped so far — and will allow users to learn what species inhabit each one. About a quarter to a third of them are on privately owned land, and the group has prepared a manual with advice on how to protect them and the creatures that depend on them: Avoid using pesticides, herbicides or chemical fertilizers, for example, and don't clear the plants or fallen leaves around the water's edge that are important habitats for small critters.

Ecologists note that wetlands also help mitigate flooding — an especially important ecological service at a time of intensifying storms — and they filter stormwater as it seeps into the ground, important on Long Island, where drinking water is drawn from an aquifer.

They also serve another crucial function: “Freshwater wetlands are one of nature’s most efficient mechanisms for removing carbon dioxide from the atmosphere,” said former state Assemb. Steven Englebright, a longtime advocate of environmental causes. When wetlands are protected, he said, “We protect our biosphere from the effects of climate change. We are protecting everybody, not just salamanders.”

New York State law offers protection

Englebright led a legislative effort last year to substantially expand the New York State Freshwater Wetlands Act, which will now shelter 1 million acres of wetlands that previously fell outside state regulatory authority.

New York environmental groups had been trying for years to strengthen the legislation, said Erin McGrath, senior policy manager at the National Audubon Society. When the Supreme Court agreed in January 2022 to hear Sackett v. EPA, activists mobilized to get ahead of the ruling. The revised state law passed in April.

The original act covered only wetlands 12.4 acres or larger, and only those that appeared on the Department of Environmental Conservation’s wetlands map.

“But marshes migrate,” Maher said, and “maps are static.” The DEC said its maps, written in the 1980s, overlooked wetlands that since have been identified through better aerial photography and geographic information systems technology.

The revised law also protects wetlands 12.4 acres or larger, but regardless of whether they appear on the maps. Smaller areas that are of “unusual importance” — if they provide habitat for endangered or threatened species, contribute to water quality or are located in areas prone to flooding, for example — can be protected as well.

Many small wetlands, McGrath said, should be “captured” by these criteria.

Starting in 2028, the threshold for protection will be 7.4 acres, and the “unusual importance” criteria can be invoked to protect wetlands even smaller.

"New York is in a better position to protect its wetlands than other states," John Turner, senior conservation policy advocate at Seatuck, said as he stood at the shady edge of a muddy vernal pool. "The catch will be how they interpret 'unusual importance.'"

"These pools can easily be overlooked as meaningless puddles," Perreault said. But he said he hopes people will come to appreciate "the value that vernal pools bring to the forest ecosystem."