Second in a series on the Clean Water Act revisions

TYRRELL COUNTY– Farmlands and wetlands in the flat coastal plain in the northeast corner of North Carolina are often overlapping neighbors. And as pressures increase from environmental and economic forces, they’re proving to be competing assets.

The Trump administration’s new law that replaces revisions in the Nixon-era Clean Water Act, known as the Navigable Waters Protection Rule, strips away protections for ephemeral waterways that link watersheds, such as a creek that flows into a sound only during the rainy season, as well as isolated wetlands.

“The way our drainage is set up with all of our ditches,” said Jeff Sparks, president of Black Land Farm Managers Association, “if you have to have 100-foot buffers around ditches, a 20-acre field would become an 8-acre field.”

Sparks, owner of 6,000-acre Green Valley Farm, located 7 miles south of Columbia in Tyrrell County, said that farming in the region is “an astronomical” driver of the local economy, but the industry can’t afford having ditches or “mud puddles in your driveway” regulated like waterways.

Farmers support — and comply with — numerous environmental protections for land and water, Sparks said. Regulations include buffers around natural waterways and nutrient monitoring. If people are concerned about pollution of waterways, he added, they should focus more on runoff in more populated areas.

“You can have 2 inches of rain now and the Neuse River rises a foot,” he said. “If you’re going to regulate (farmland), that needs to be regulated.”

The new rule will be “workable” and “clearly defines” federal jurisdiction, Sen. Thom Tillis, R-N.C., said in a January press release.

“The Waters of the U.S. rule created under the Obama Administration was a massive government overreach that led to confusion and imposed crippling red tape on North Carolina’s farmers and small businesses,” Tillis said in the statement.

But the newly revised version is only the latest reiteration in the troubled history of the law. Although the much-lauded Clean Water Act of 1972 is credited with cleaning up the nation’s polluted waterways, such as the Cuyahoga River in Ohio that had caught fire in 1969, it was considerably weakened by loopholes created by a 2006 Supreme Court decision.

The 2015 rule proposed by the Obama administration was tied up continuously by lawsuits and an injunction. The Obama-era rule was meant to provide clarification of the Clean Water Act in light of the confusion created by the Supreme Court decision, except the 2015 rule didn’t actually go into effect in many states before it was repealed in September 2019 by the Trump administration.

With the new rule, polluting could be permitted in upstream waters, potentially contaminating downstream waterways, according to the Southern Environmental Law Center, which represents numerous environmental groups that will be challenging the new law.

The North Carolina Coastal Federation, which publishes Coastal Review Online, is one of the groups bringing the lawsuit. Todd Miller, the federation’s executive director, said that if the new rule takes effect, it will severely degrade coastal estuaries and fisheries.

“It rolls the clock back to the 1970s when more than a hundred thousand acres of wetlands in eastern North Carolina were ditched and cleared prior to enforcement of the Clean Water Act’s wetland provisions,” Miller said. “The consequence of this new rule will be “No wetlands, no seafood.”

Blan Holman, senior attorney at the Charleston, South Carolina, office of the SELC wrote in The Guardian in January the repeal represented the single largest loss of clean water protections that America has ever seen – and the timing couldn’t be worse.”

“From lead contamination in drinking water to the proliferating threat of toxic industrial chemicals, new threats to water quality are emerging daily.”

The Nature Conservancy, an environmental nonprofit that has worked on numerous water quality protection projects in the Albemarle-Pamlico region, also worries about the new rule.

“Streams, rivers, lakes and wetlands are critical to the well-being of people and nature,” Chief External Affairs Officer Lynn Scarlett said in a statement. “These resources provide valuable — and often irreplaceable — sources of drinking water and habitat for fish and wildlife, and they power local economies and thriving communities. All of these benefits depend on the foundational safeguards embodied in the Clean Water Act.”

Rick Savage, president and founder of Carolina Wetlands Association, a Raleigh-based nonprofit group, said that the impact of the Trump rule is still unclear. For instance, the way the rule seems to be written, he said, it appears that “if a landowner says it’s not a wetland, it’s not a wetland.

“It’s hard to make any on-the-ground assessments until these things are understood better,” Savage said.

But in northeastern North Carolina, he said, the boggy coastal lands will certainly bear the brunt of less protection.

“I think the main thing with a lot of the pocosin is they tend to be isolated,” Savage said. “And if they’re isolated, they’re not going to be protected.”

Savage said that the Pocosin Lakes National Wildlife Refuge recently has been chosen by Carolina Wetlands Association as a 2020 “Wetlands Treasure.”

A spokesperson with the U.S. Fish and Wildlife Service, which manages several refuges in the northeast, including Pocosin Lakes and Alligator River National Wildlife Refuge, was unable to respond to an inquiry about wetlands and the rule’s impacts by Monday afternoon.

One factor in the region’s favor, Savage said, is that more coastal wetland and watershed areas tend to be connected than they would be in more inland areas.

“We have felt that up to 50% of the Carolinas would be affected,” Savage said, referring to the contiguous states. “What the new rule is doing is it is really rolling it back — way back — to the (Supreme Court’s) Scalia decision.”

Still, Savage didn’t seem to think the new regulation will see the light of day anytime soon.

“It’s going to go to the court, and it’s going to be stayed,” he said. “And then we’ll have a new administration and we’ll start all over again.”

First in a series on the Clean Water Act revisions

The new definition of federally protected waterways will soon go into effect.

Revisions to the “waters of the United States,” or WOTUS, rule addressing federal authority under the Clean Water Act will likely be buffeted by lawsuits from environmental organizations that argue the changes roll back water quality regulations by drastically scaling back wetland protections.

The repeal, finalized in January under the Navigable Waters Protection Rule, omits streams that only contain water during or after rainfall, groundwater, most roadside and farm ditches, converted cropland, stormwater control features and waste treatment systems.

Federally regulated waters are now identified as traditional navigable waters, tributaries to those waters, certain ditches, lakes and ponds, impoundments of jurisdictional waters and wetlands adjacent to jurisdictional waters.

The revision clarifies the Obama-era 2015 rule, one that gives federal agencies near unlimited, subjective regulatory authority over everything from farm ditches to small, isolated wetlands that are not connected to “navigable waters,” supporters say.

But opponents argue the new rule ignores research by the U.S. Environmental Protection Agency showing ephemeral streams and isolated wetlands affect downstream waters. The EPA’s Science Advisory Board said in a Feb. 27 comment letter that the proposed revision “lacks a scientific justification, while potentially introducing new risks to human and environmental health.”

The EPA and Department of the Army signed the proposed rule revisions last December under a 2017 executive order of President Donald Trump to replace the 2015 rule and pre-2015 regulations.

The Trump administration said the new rules clarify which projects require federal permits, which will cut down applicants’ costs on engineering and legal professionals, but protect navigable waters.

State opposition

The North Carolina Department of Environmental Quality and state Attorney General Josh Stein submitted comments last year to the federal government opposing the changes, noting that the new rule would roll back wetland protections.

In its 14-page letter dated April 15, 2019, to EPA Administrator Andrew Wheeler and R.D. James, the assistant secretary of the Army for Civil Works, DEQ noted that North Carolina has an estimated 5.7 million acres of wetlands, which make up about 17% of the state’s land area.

State Division of Water Resources Public Information Officer Sarah Young Perkins said in a March 17 email responding to questions that the new federal rule will mean fewer of the state’s wetlands will be considered waters of the United States.

“Wetlands that are not WOTUS will not require a federal permit to discharge dredge or fill material within the wetland,” she said.

DEQ officials raised several concerns about the WOTUS revisions, including the following:

• Increased flooding risks in low-lying areas as nearly 95% of all wetlands in North Carolina are in eastern North Carolina.
• Negative effects on wetlands’ ability to filter the water supply and increased stormwater runoff.
• Economic concerns regarding certainty for farmers and developers employing responsible environmental practices around the state’s wetlands.
• Negative effects on species dependent upon wetlands.
• Threats to the recreational and commercial fishing industries’ products, such as shellfish, blue crabs, fish and shrimp.
• A drastic decrease in federal wetland protections creating a huge regulatory gap that would need to be filled by new rules, laws and personnel to protect wetlands.
• An increased burden on underfunded, understaffed regulatory agencies that work in partnership with the federal government to protect wetlands nationwide.

The state does not have a database of ephemeral streams or ditch streams.

“DEQ is still evaluating the proposed final rule, it’s implications in North Carolina and options moving forward,” Perkins said.

‘Devastating impacts’

Cape Fear River Keeper Kemp Burdette did not reply to a request for comment, but in a video posted in February 2019, he warns listeners about the effects the WOTUS repeal will have on water quality in the Cape Fear.

“Those rollbacks would have devastating impacts here in the Cape Fear,” Burdette said. “Here in rural parts of the Cape Fear basin tens of millions of animals are confined in industrial meat operations producing staggering amounts of waste. Swine farms are more heavily concentrated here than any other place on earth. Many streams in this area have been channelized into ditches. These rollbacks that the Trump Administration is proposing would specifically exempt these ditch streams from protection under the Clean Water Act.”

The repeal, he said, will benefit industrial swine and poultry meat operations in the state while threatening public trust waterways downstream that are a source of drinking water, fishing, recreation and swimming.

“Loss of clean water protections upstream has far reaching impacts downstream,” Burdette said. “Dangerous pathogens will threaten human health. Drinking water supplies will be a risk from harmful algae blooms. Communities of color will suffer even greater injustices when compared with whiter and wealthier communities. Important fish habitat in the Cape Fear River estuary will be at risk with clear negative impacts on local and statewide economies.”

‘Clarifying’ regulations

The American Farm Bureau Federation, which has been a staunch supporter of the repeal, argue the 2015 rule “make it impossible” for farmers and ranchers to identify whether ditches and ephemeral streams on their land are WOTUS.

“The rule will make water and land protection, management and planning more efficient and effective by drawing clearer lines between areas subject to federal versus state jurisdiction and clarifying that usually dry areas should no longer be considered federally regulated waters,” according to the AFB website.

Farmers and ranchers have enrolled millions of acres of land, including wetlands, under the Conservation Reserve Program, according to the website.

Next: What’s at risk on North Carolina’s coast 

Cape Fear River Keeper Kemp Burdette, in a video posted in February 2019, warns about the effects the WOTUS repeal will have on water quality in the Cape Fear. Video: Waterkeeper Alliance