New federal rule puts 2.5 million acres of wetlands in peril

First of two parts.

The lawsuit an Idaho couple filed in 2008 against the Environmental Protection Agency arguing that wetlands on their property were not protected under “waters of the United States” has resulted in federal protections being stripped from millions of acres of isolated wetlands.

The EPA and Department of the Army, which oversees the Corps of Engineers, issued Tuesday their final rule amending the “Revised Definition of ‘Waters of the United States’” published Jan. 18, 2023. The EPA and Corps enforce the Clean Water Act, which prohibits the discharge of pollutants from a point source into “navigable waters,” defined as waters of the United States, or WOTUS. 

The amended definition conforms to the Supreme Court’s May 25, 2023, decision on the Sackett v. EPA case that the Clean Water Act “extends to only those wetlands with a ‘continuous surface connection’ to bodies that are ‘waters of the United States’ in their own right,” and “the wetlands on the Sacketts’ property are distinguishable from any possibly covered waters,” Justice Samuel Alito writes in the opinion. 

“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” said EPA Administrator Michael S. Regan in a statement.  “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling.”

A public webinar on the new definition is scheduled for 3 p.m. Sept. 12. Register on the EPA’s webpage for the amendments rule. The agencies also plan to host listening sessions this fall.

In 2007, after learning that the couple was backfilling the lot in preparation to build, the EPA ordered the Sacketts to restore their property by Priest Lake, Idaho, or pay $40,000 a day in fines. The EPA said the lot contained wetlands and backfilling violated the Clean Water Act. The EPA classified the wetlands on the Sacketts’ lot as waters of the United States because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. 

The Sacketts sued. 

“We have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Court’s decision in Sackett,” said Assistant Secretary of the Army for Civil Works Michael L. Connor. “With this final rule, the Corps can resume issuing approved jurisdictional determinations that were paused in light of the Sackett decision. Moving forward, the Corps will continue to protect and restore the nation’s waters in support of jobs and healthy communities.”

Issuing the amended final rule on WOTUS comes just two months after the North Carolina General Assembly approved, Gov. Roy Cooper vetoed and then the legislature overrode that veto of the North Carolina Farm Act of 2023, which changed the state’s definition of wetlands to align with the federal definition.

North Carolina Department of Environmental Quality staff members estimate that, as a result of both the Supreme Court decision and Farm Act, around 2.5 million acres of wetlands will be unprotected. That’s nearly half of the wetlands in the state and more than 7% of the state’s total landmass. 

Few satisfied with new rule

The final amended rule has met pushback from different interests and for different reasons. 

Environmental groups worry that the final rule, when considered with the North Carolina Farm Act, leaves critical waters in North Carolina unprotected and will increase the chance of flooding. Homebuilders worry that the final rule leaves too much room for uncertainty and government overreach. 

“While this new wetland definition is in keeping with the requirements of the Supreme Court ruling on the Clean Water Act, it’s a serious blow to our ability to protect water quality and prevent flooding on the North Carolina coast,” North Carolina Coastal Federation Executive Director Todd Miller told Coastal Review Wednesday. “It eliminates many forested wetlands, pocosins, and inland swamps from both federal and state protection. The outcome will be less fish to catch, more illnesses due to exposure to polluted waters, more public health swimming advisories, and more costly property damage from floods.” 

Miller cited Supreme Court Justice Brent Kavanaugh’s dissenting opinion, which Miller said mirrored the Coastal Federation’s concerns: “He said, ‘By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.’”

Sound Rivers Executive Director Heather Deck said Tuesday that, as the state prepares for yet another extreme weather event with potential flooding and the Neuse River is suffering from a significant fish kill, “it is imperative that our legislature reverses course and restores protections for our wetlands and waters.”

Cape Fear Riverkeeper Kemp Burdette told Coastal Review that the EPA’s rule will have serious consequences for water quality and communities throughout the Cape Fear Basin. 

“The Cape Fear is the state’s largest and most diverse watershed and the drinking water source for one in five North Carolinians. It’s also home to the highest concentration of hog and chicken farms in the state, and North Carolina’s most industrialized river,” he said. “Gutting the Waters of the U.S. rule will mean more toxic chemicals and more animal waste in drinking water, more wetlands lost forever and more short-sighted development. In short, more polluter profits over people and the environment.”

Rick Savage, executive director with the Carolina Wetlands Association, said that the Supreme Court has eliminated years of wetland protection under the Clean Water Act and North Carolina could have continued to protect these wetlands, “however the recently passed Farm Bill eliminates that protection,” he said. “We need to brace ourselves for a lot of wetlands no longer being protected and they are the very resource we need to protect our communities from flooding. Expect more communities getting flooded, less clean water, and reduced community resilience.”

North Carolina Conservation Network Policy Director Grady McCallie told Coastal Review that the EPA rule, “does no more and no less than what the US Supreme Court’s Sackett decision requires. Unfortunately, that decision – unwisely echoed in state law by the NC General Assembly in June – stripped protection from over half of North Carolina’s wetlands. State legislators who care about preventing flooding need to re-establish protections for the wetlands that protect our communities.”

Kelly Moser, senior attorney and leader of the Southern Environmental Law Center’s Water Program, said in a statement that the final rule mirrors the Supreme Court’s majority opinion in the Sackett case, “which overturned decades of law and practice and put the safety of our communities and waters at risk. The rule, like the Sackett decision itself, severely restricts the federal government’s ability to protect critical waters including wetlands that shield communities from damaging floods and pollution.”

The homebuilder organizations have different complaints about the amended final rule.

The National Association of Home Builders stated in a news release that the final definition of WOTUS “relies on a fatally flawed version of the 2023 Revised Definition of WOTUS” and that rather than making necessary changes and improvements to the rule, “the EPA and Army Corps did the bare minimum and struck the most egregious and unlawful parts of it.”

They say the 2023 amended rule “doubles down on bad policy and vague terms,” which allows “for continued government overreach.”

Association Chairman Alicia Huey in a statement Tuesday said that the amended rule is a “blow to housing affordability and assures continued uncertainty regarding federal jurisdiction as established by the Supreme Court’s recent Sackett decision that made clear the federal government only has authority over relatively permanent waterbodies.”

She continued that the rule “sets the stage for continued federal overreach, bureaucratic delays during the wetlands permitting process, and regulatory confusion for home builders and land developers,” and will be a barrier to produce new affordable housing.

Associated Builders and Contractors Vice President of Regulatory, Labor and State Affairs Ben Brubeck said in a statement Tuesday that these revisions fail to fully implement the Sackett v. EPA ruling, “which placed clear boundaries on the scope of the federal government’s authority while maintaining reasonable environmental protections for America’s waterways. Instead, this rule, issued without meaningful opportunities for input from the construction industry and other stakeholders, will contribute to continued regulatory uncertainty and unnecessary delays for critical infrastructure projects across the nation.”