The Environmental Management Commission voted to send to public notice and hearing a proposed amendment to “clarify the definition of wetlands” Thursday during its meeting in Raleigh.
Commissioners Yvonne Bailey, Marion Deerhake, Dr. Jackie MacDonald Gibson and Robin Smith all voted against the motion to advance new language that codifies reduced state protections.
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The commission, which directs and creates rules for several divisions under the North Carolina Department of Environmental Quality, was ordered close to two years ago in a law called the 2023 Farm Act to insert into the definition of wetlands one sentence that aligns the state’s definition of wetlands to the federal definition, which narrowed Clean Water Act jurisdiction.
The commission’s vote took place the day after Environmental Protection Agency Administrator Lee Zeldin announced plans to revise the definition of “Waters of the United States,” or WOTUS, the acronym given to federally regulation waters.
Sue Homewood, senior branch coordinator with the Division of Water Resources, told the commission Thursday that the law required changing the definition in the state administrative code, “and it specified exactly the language to be changed, that ‘wetlands classified as Waters of the State are restricted to Waters of the United States as defined by’ federal regulations.”
NCDEQ has been implementing the definition since it was approved in June 2023, as directed by the North Carolina General Assembly, while the commission goes through the rulemaking process to add that sentence to the existing definition of “wetlands” in the general statute.
The order contains explicit directions that the amendment had to be included as written and couldn’t be challenged by the Rules Review Commission.
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Smith said she was voting in protest against the motion because it was “extremely bad environmental policy to outsource decisions about protection of state waters to the decision of a federal agency about what federal jurisdiction is. So that’s just fundamentally not a good direction.”
Smith said that a process question also comes up, “that the General Assembly unfortunately has gotten into what I think is the very bad habit of doing what they did with this session law, which is to attempt to dictate the wording of an administrative rule and then cause the session law to expire when the rule is adopted, and without ever changing fundamental general statutes that actually do define what state waters are.”
The state already operates under an existing definition of waters in the statute, she said.
Smith said the existing state waters definition includes “any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek, reservoir, waterway, or other body or accumulation of water, whether surface or underground, public or private, or natural or artificial, that is contained in, flows through, or borders upon any portion of this State, including any portion of the Atlantic Ocean over which the State has jurisdiction.”
This definition in the statute has not been amended by the General Assembly, Smith said, adding that the law expires when the rule is adopted.
“I think it raises questions of whether, looking toward the future, whether the rule will be considered consistent with state law, given the failure of the General Assembly to actually amend the definition of waters in the general statute, and that’s just a bad practice,” Smith said.
She added that she thinks this rule amendment “creates a really unfortunate situation in terms of potential conflict” between Environmental Management Commission rules and the statutes under which the commission operates its water permitting programs. “For that reason, I’m going to vote against. It’s a protest vote. I think it’s just a terrible process legally and administratively.”
Commissioner Steve Keen asked Smith whether she planned “to vote to violate the statute” because the statute directs the rule change.
Smith said she was voting against adoption of the rule, “because I believe the rule will turn out to be inconsistent with a general statute that has not been amended, and the session law that directed the change in the rule will expire as soon as the rule is adopted. That’s in the session law itself.”
Commissioner Kevin Tweedy “completely” agreed with Smith, calling the logic behind the amendment poor in two respects: lost wetlands protections and diminished flood resiliency.
“We’re putting millions and millions of dollars into that,” Tweedy said. “It’s like one thing is fighting the other, and I just don’t think it’s good policy.”
Homewood, with the Division of Water Resources, said that the public comment period for the wetlands definition amendment will likely take place in April, and the public hearing would be between June 2 and June 16, when the comment period is expected to end. After that, a hearing officer’s report will be brought back to the commission in September and if approved, would go to the Office of Administrative Hearings, or OAH.
Because the law exempts the rule change from Rules Review Commission review, its effective date would be pending a legislative review, she said, and that timing would be with the 2026 session.
“Because these rules are part of the water quality standards and the triennial review, the rule amendment post-legislative approval, would have to go to EPA for final approval,” she said, “so we cannot predict an implementation date. But as I said, we are implementing these right now.”
When the Environmental Management Commission was discussing the motion to amend the definition of wetlands on the state level, there was no mention of the EPA’s intention to overhaul the WOTUS definition.
The EPA and Department of the Army, which oversees the Corps of Engineers, announced Wednesday a joint memorandum issuing guidance to field staff on the implementation of “continuous surface connection” consistent with the Supreme Court’s May 25, 2023, decision in the case of Sackett v. EPA.
The Supreme Court ruled in favor of the Sacketts of Idaho who argued that the wetlands they were backfilling on their property did not qualify as jurisdictional wetlands under the federal definition. The EPA adjusted later in 2023 its definition to conform to the Supreme Court decision.
The definition states that wetlands must have a “continuous surface connection” to federally protected waters to qualify as waters of the United States and be protected under the Clean Water Act.
The Clean Water Act was put in place in 1972 and prohibits discharging pollutants from a point source into “navigable waters” unless otherwise authorized. Navigable waters are defined in the Clean Water Act as “the waters of the United States, including the territorial seas.” WOTUS is not defined in the act itself but is in the code of federal regulations.
“We want clean water for all Americans supported by clear and consistent rules for all states, farmers, and small businesses,” Zeldin said in a statement. “The previous Administration’s definition of ‘waters of the United States’ placed unfair burdens on the American people and drove up the cost of doing business. Our goal is to protect America’s water resources consistent with the law of the land while empowering American farmers, landowners, entrepreneurs, and families to help Power the Great American Comeback.”
