It has been nearly two years since the North Carolina General Assembly ordered the Environmental Management Commission to adopt a rule that aligns the state’s definition of wetlands with the federal definition, which was narrowed by a May 2023 Supreme Court decision.
Despite the vocal objections from conservation organizations and what the commission claims to be “differences” with the state agency it oversees, members are expected to consider during its meeting Thursday in Raleigh going to public notice and hearing for the proposed amendment to the state’s definition of wetlands, one of the many steps required in the rulemaking process.
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The 15-member commission adopts rules for several divisions of the North Carolina Department of Environmental Quality, including the divisions of Air Quality, Land Resources, Waste Management and Water Resources.
The General Assembly directed the commission in a 2023 law to implement the rule that reads, “Wetlands classified as waters of the State are restricted to waters of the United States as defined by (the Code of Federal Regulations).”
The current definition of Waters of the United States, or WOTUS, effective Sept. 8, 2023, includes navigable waters, its tributaries and adjacent wetlands, but excludes isolated wetlands, which are wetlands without a surface water connection to the jurisdictional waters. The federal definition is part of a decades-long discussion, and, in some cases, disagreement, linked to the Clean Water Act enacted in 1972.
A DEQ spokesperson told Coastal Review in an email that the Division of Water Resources began implementing the new definition of wetlands following the General Assembly’s adoption of that law, also called the 2023 Farm Act, which included a revised definition of wetlands found in the state administrative code.
“The rules that are moving forward in the N.C. Environmental Management Commission are codifying the new definition in the rules. The process of codifying a rule requires approval by the EMC and a public hearing,” they added.
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Grady O’Brien, water policy manager for the North Carolina Conservation Network, explained that the change to the wetlands definition rule the commission is considering is required by the law from the 2023 legislative session.
“Unfortunately, this means there’s no room to alter the language at this point; any further change would require legislative direction. It’s important to note that the state didn’t have to make this change — North Carolina had a state-level definition for wetlands that could have remained,” he added.
That definition covers wetlands not directly connected to other bodies of water.
“By passing the 2023 Farm Act that ordered the EMC to adopt this rule to gut North Carolina’s wetlands protections, North Carolina’s legislature failed to protect our water quality, communities, economy, and special natural resources. With this rulemaking, 2.5 million acres of flood-storing, water-filtering wetlands will be at risk of pollution and destruction,” Southern Environmental Law Center Senior Attorney Julie Youngman told Coastal Review.
During its Jan. 8 meeting, the commission’s water quality committee approved taking the request before the full commission. During the March 13 meeting, members are to be asked to consider initiating the rulemaking process by proceeding to public notice and hearing and to amend “Definitions” to comply with the 2023 session law, according to agenda documents.
“The revised definition of ‘wetlands’ in the rule proposed for amendment is applicable to all wetlands in North Carolina. Any effects of the changes are effects imposed by the Session Law and are not caused by the proposed rule amendments directly,” according to the division.
If the commission decides to move forward on Thursday and follows the staff’s suggested timeline, the public comment period could start April 15. A public hearing would be held no sooner than June 2 but before the comment period ends June 16.
But that public comment period might just be an exercise in futility.
Youngman explained that the way that section 15 of the 2023 Farm Act is written, “the General Assembly clearly intended to take away the public’s right to participate meaningfully in the rulemaking process and forbid anyone from challenging the elimination of wetlands protections in court.”
Section 15 states “The Commission shall adopt a rule to amend the Wetlands Definition Rule consistent with subsection (c) of this section” and “the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of subsection (c)of this section,” which shows that the commission is being ordered to adopt the rule exactly as the General Assembly phrased it, she said.
The next sentence, the “Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes,” is where the General Assembly is saying that no one can challenge the rule, she said. That state law refers to the rules review process.
“DEQ will consider all public comments received during the public comment period for the EMC’s consideration prior to it adopting the final rule,” a DEQ representative explained.
Youngman said that “we hope that the time lag in the EMC adopting the rule has given the General Assembly an opportunity to realize how harmful the anti-wetlands provision of the 2023 Farm Act is and pass a new law to protect wetlands after all.”
According to the commission’s annual report about 2024 for the General Assembly, dated Jan. 1, 2025, members “began the rulemaking process per the statute; however, the rulemaking remained in committee due to differences between the EMC and DEQ over the regulatory impact analysis. It is noted that the statute made the changes in law and they are in effect until the new rule is approved.”
The Farm Act of 2023 was filed April 4 of that year and included a “Clarify Definition Of Wetlands” stating that “Wetlands classified as waters of the State are restricted to waters of the United States as defined by 33 C.F.R. § 328.3 and 40 C.F.R. § 230.3″ and was amended a few weeks later to add the exclusion of converted cropland from the wetlands definition.
The next month, the Supreme Court changed the federal definition to waters of the United States.
The court, in its decision in what was known as Sackett v. EPA, ruled in favor of the Idaho landowners. The Sacketts had argued that their property was not considered “waters of the United States” because the wetlands the EPA had fined them for backfilling were not adjacent to navigable waters. The court’s decision led to the federal definition of WOTUS being amended to exclude noncontiguous wetlands.
Then-Gov. Roy Cooper vetoed the state measure on June 23, 2023, because of the wetlands provision, but the veto was overridden four days later, with the law taking effect that same day.
“The provision in this bill that severely weakens protection for wetlands means more severe flooding for homes, roads and businesses and dirtier water for our people, particularly in eastern North Carolina. This provision coupled with the drastic weakening of federal rules caused by the U.S. Supreme Court’s recent decision in the Sackett case, leaves approximately 2.5 million acres, or about one half of our state’s wetlands, unprotected,” Cooper said at the time. “The General Assembly has allocated tens of millions of dollars to protect the state from flooding and my administration is working to stop pollution like PFAS and other contaminants. This bill reverses our progress and leaves the state vulnerable without vital flood mitigation and water purification tools.”
O’Brien told Coastal Review that the effects of the change to the state wetlands definition were “further complicated” by the Sackett decision, which reduced the amount of wetlands protected under the federal definition.
“For instance, North Carolina’s isolated wetlands, previously protected by statute, will likely no longer qualify as wetlands under the new definition and thus not be protected,” he said.
North Carolina Coastal Federation Executive Director Braxton Davis told Coastal Review that, although the U.S. Supreme Court decision in the Sackett case left millions of acres of freshwater wetlands unprotected across the nation, the court recognized the high value of these habitats in reducing flooding, improving water quality, and supporting important wildlife.
“Their decision left the states with the responsibility to protect these systems, but the EMC is now required to move forward with rules that leave vast acreages of freshwater wetlands unprotected in North Carolina. We are hopeful that the General Assembly will revisit this issue in this year’s legislative session,” Davis said.
The Coastal Federation publishes Coastal Review.
Coastal Carolina Riverwatch Executive Director Lisa Rider told Coastal Review that the Environmental Management Commission’s review of wetland definitions comes at a critical time.
“Federal rollbacks have left many of our wetlands vulnerable, and weakening protections at the state level will only make things worse,” Rider said.
“The EMC must not only maintain but strengthen protections for isolated and non-federally jurisdictional wetlands by adopting a state-specific definition that prioritizes coastal resilience,” she said. “The EMC should implement stricter stormwater management, prioritize wetland conservation over mitigation banking, and integrate wetland protections into broader plans. By implementing robust state-level protections, North Carolina can uphold its commitment to preserving vital wetland ecosystems for current and future generations.”
About the meeting
The commission’s committee meetings are scheduled for Wednesday and the full commission is to meet Thursday in the ground floor hearing room of the Archdale Building in Raleigh. The public can attend in person or join the meeting by computer or phone. Instructions to access the meeting are on the website.
Also during this week’s meeting, the full commission is expected to take up rules for air permitting and wastewater design flow rates.
During the water quality committee meeting scheduled for 2:30 p.m. Wednesday, members are expected to hear a presentation of draft per- and polyfluoroalkyl substances, or PFAS, monitoring and minimization rules for industrial direct dischargers and significant industrial users.
A full agenda and related documents are available on the website.
