Second of two parts. Read part 1.

The final rule ending federal protections for isolated wetlands that the Environmental Protection Agency and Department of the Army issued last week is another setback in the more than 40-year battle to protect North Carolina’s water quality.

Issued Aug. 29, the amendment to the final “Revised Definition of ‘Waters of the United States’” rule published in the Federal Register in January reflects the Supreme Court’s May 25, 2023, Sackett v. EPA decision that only wetlands with a “continuous surface connection” to waterbodies are considered “waters of the United States.”

The two agencies enforce the Clean Water Act put in place in 1972 that prohibits the discharge of pollutants from a point source into “navigable waters,” or those defined as waters of the United States, or WOTUS.

The amended rule, coupled with the North Carolina Farm Act passed June 27 that aligns the state definition of wetlands to the federal definition, opens up 2.5 million acres of isolated wetlands to being developed, according to an estimate provided earlier this year by the state.

A Department of Environmental Quality representative told Coastal Review Friday that the agency was still “reviewing the final rule released by EPA this week and is unable to provide a specific estimate of wetlands impacted based on the rule change.”

With these two rule changes, North Carolina Coastal Federation Executive Director Todd Miller said to expect “a mess and a real threat to the health of our coastal estuaries that support the marine fisheries of North Carolina.

“We can also expect to see more closures of waters for swimming,” Miller said.

Southern Environmental Law Center Senior Attorney Derb Carter Jr. echoed Miller’s concern.

“The state estimates that up to 60% of the wetlands in the state will no longer be protected or regulated under the Clean Water Act,” Carter told Coastal Review. “I don’t think the public is quite aware of the scope of this and its potential impact on wetlands, on water quality and on the natural heritage of the state.”

Carter said the Sackett case that began in the late 2000s happened when the EPA told the Idaho couple, who had begun to backfill their property adjacent to a lake to prepare for construction, that they needed a permit. “They weren’t told they can’t do it. They were told they needed a permit. Instead, it became a challenge to whether Congress can regulate wetlands at all under the Clean Water Act,” he said.

The Sackett case would not be as big of a concern in North Carolina, Carter explained, “because the state program had been in place to backstop the federal program and ensure at the end of the day, that all the wetlands are protected.”

But the 2023 Farm Act changed that.

Gov. Roy Cooper vetoed the bill June 23, because of the provision “severely weakens protection for wetlands” which will lead to “more severe flooding for homes, roads and businesses and dirtier water for our people, particularly in eastern North Carolina,” he said in a statement at the time. The 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.”

The legislature overrode the veto.

Carter continued, “Literally in one sentence this General Assembly at the behest some special interest in the legislature summarily repealed all of that, so there is no backstop supplementary protection for wetlands that are no longer regulated under the federal Clean Water Act after the Sackett decision.”

Going forward, the Farm Act says the only wetlands that are protected by state law are those that are determined to be protected at the federal level, under the Clean Water Act, after the Sackett decision.

Early days of wetlands advocacy

Miller told Coastal Review that the nonprofit he founded became active in this type of conservation because wetland drainage in the Albemarle-Pamlico peninsula had led to a federally funded proposal in 1982 to strip mine 120,000 of peat lands to make methanol. The land would have been reclaimed as farmland. 

“The commercial fishermen in Pamlico Sound witnessed the direct harm the drainage was doing to the estuary, and were crying out for help, having sent a petition from Hyde County to Raleigh with over 3,000 signatures about the harm the drainage was already doing, without this new project,” Miller explained. “We got involved in that project as one of the first things the Federation ever did, thus our bumper sticker:  No Wetland, No Seafood.”

Carter, who had worked alongside Miller while representing the National Wildlife Federation to stop the wetlands project, said that these pocosins on the Albermarle-Pamlico peninsula were not considered wetlands and would be opened up to peat mining then converted to agriculture.

“Coastal Federation volunteers worked with residents out there to help them understand this was a big decision that could have a lot of impact on commercial fishing, fisheries, and recreational fishing — that’s a big part of the economy out there — but we’re literally talking about tens of thousands of acres of wetlands that were proposed to be converted into agriculture with drainage into the estuaries of Pamlico Sound,” Carter said, adding they represented the case.

Historian David Cecelski, the Coastal Federation’s first volunteer, was on the ground, spending just shy of a year living in Swan Quarter spreading the word in mostly fishing communities about the consequences of the strip-mining project that was going to cover parts of the Dare, Beaufort, Hyde, Washington and Tyrrell counties.

During that time, he said he was welcomed by the community and took an interest in its history.

“Even to understand how to build bridges amongst people like between the Coastal Federation and those African American communities, I always felt like you had to dig deeper. You had to know the story of those communities,” he said.

Miller said that the Alligator River and Pocosin Lakes national wildlife refuges protect more than 100,000 acres.

He continued that in the time since, the Coastal Federation has invested heavily in buying lands that should be wet, and restoring their hydrology, including the North River Wetlands Preserve where alone nearly 5,000 acres were restored, and has been directly involved in restoring around 20,000 acres of wetlands with its partners.

Federal, state laws over the decades

Miller said that since the early 1980s, both federal and state laws and rules have progressively gotten stronger and more consistent, with some back-and-forth, but nothing overly dramatic.

“Enforcement of those laws and rules has always been a challenge, and a shortcoming to the effectiveness of the standards that are written in laws and rules. The current rollback at the federal and state levels means that we are back to where we started before the peat mining proposal — large wet areas of coastal North Carolina are no longer protected,” he said.  

The Coastal Federation advocates that wetlands are critical not only as habitat, but also to maintain water quality and the productivity and health of coastal estuaries. 

“When you alter hydrology and drain runoff off, the land that would normally have infiltrated and soaked into the ground, you change water quality and make our coastal waters unsafe for shellfish harvest and swimming. That runoff, even when not mixed with human development or sewage, contains high levels of harmful bacteria, nutrients, and sediment,” he said.

With wetlands protections, the most important time related to state regulations was in the early 2000s, Carter said. Also noting that there’s an interplay between federal and state laws.

From shortly after the Clean Water Act was enacted until 2000, the Corps of Engineers issued permits and the state issued water quality certifications, both under the act.

Carter said that was not without controversy. In 1985, the Supreme Court in a lawsuit unanimously decided that the EPA and the Corps had properly determined that wetlands are regulated under the Clean Water Act. Then, in 2001, the Supreme Court ruled in a 5-4 decision against the Corps’ addition to the wetlands definition that any wetland used by migratory birds is regulated under the Clean Water Act.

“The court said just the use of migratory birds of otherwise isolated wetlands that aren’t connected to any other waters is not enough to regulate activities on those wetlands under the federal Clean Water Act,” Carter said.

This prompted a response by the Environmental Management Commission.

The late Dr. Pete Peterson at the University of North Carolina Institute of Marine Sciences based on Morehead City was serving as chair of the commission’s Water Quality Committee. He was concerned that nobody knew the scope of wetlands that may no longer be protected. The commission initiated an effort to continue state protection of those wetlands.

The commission reached out to the attorney general to see if the state law at the time clearly encompassed protecting wetlands. The attorney general issued a formal opinion stating that when the General Assembly enacted the State Water Quality law in 1974, the definition of waters of the state regulated under that law was broad and encompassed wetlands.

“This is noteworthy. I keep trying to emphasize this to people, the attorney general also pointed out that the state constitution that the people amended in 1972 — and it’s still in the state constitution — says explicitly that it is the policy of the state and the will of the people in amending the constitution to protect wetlands in the state. The state has an explicit constitutional provision enacted by the people saying it’s the policy of the state to protect our wetlands by name,” Carter said.

The commission then enacted state regulations and established a state permitting system for those wetlands that were not under federal protection. These were challenged by the North Carolina Home Builders Association, which filed a lawsuit in state court contending that state law does not allow the commission to regulate wetlands.

“We intervened in that case. I represented the Coastal Federation and other organizations intervening on the side of the state to help defend those regulations and the EMC’s authority,” Carter said. The state Court of Appeals unanimously upheld the state’s authority to regulate wetlands as waters of the state.

Another decision by the Supreme Court in 2006 set up what became a new rule to assess wetlands that had been the policy up until the Sackett decision earlier this year.

“That was the genesis of the state regulations,” he said. “Now you have two things that happened in 2023. You have a much more political Supreme Court that’s willing to write its own definition of wetlands and, in my view, ignore what Congress actually intended to do in the Clean Water Act when it ruled in the Sackett case.”

With the longstanding state law based on the state constitution, the initial enactment of the Clean Water Act in the early 1970s, the attorney general’s opinion that the commission had authority in 2001, and the North Carolina Court of Appeals decision in 2002, the state had full authority to regulate wetlands, Carter said.

The Farm Act of 2023 ignores the will of the people, “And instead, responded to special interests in removing any state wetland protection beyond what the federal government provides, and they did it in ignorance,” he said. “They have no idea how many wetlands are now going to be at risk for loss and they have no idea what the impact of that is going to be on the state’s wetlands, the state’s water quality, all those things that rely on wetlands from fishery resources to avoiding downstream flooding. It is completely irresponsible and ignores the will of the people.”

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.”