Construction and other projects expected to affect waters or wetlands will now be vetted through a newly implemented state process.

Depending on a its impacts to streams and wetlands, some projects will get to bypass a 30-day notice as part of the North Carolina Department of Environmental Quality’s Division of Water Resources Clean Water Act 401 general certifications updates that took effect March 15.

The new certificate of coverage process is anticipated to apply to “many project” currently requiring individual Clean Water Act Section 401 water quality certifications, according to a DEQ release.

Applicants must still apply to the division through the new process, but those that meet thresholds and conditions under the general certification will receive a letter of concurrence, which will allow the project to proceed without a 30-day notice.

Project located in sensitive areas, those with a significant quantity of impacts to waters or wetlands, or those that cannot meet the general certification conditions must still go through the process of a 30-day public notice and project-specific decision letter to obtain individual 401 water quality certification.

The state’s update reflects corresponding U.S. Army Corps of Engineers 404 Nationwide Permits, which have been modified following a 2023 Supreme Court ruling that changed the definition of “waters of the United States,” or WOTUS.

That same year, the North Carolina General Assembly passed session law directing the state Environmental Management Commission to adopt a rule that aligns the state’s definition of wetlands to those of the federal definition.

The latest definition excludes noncontiguous wetlands, or those that are not connected to navigable waters.

The Corps has extended a one-year grace period to projects it has approved for permitting to complete impacts to waters outlined under their existing federal permit. New certifications will not be required for those projects.

DEQ advises permittees to check with their Corps representative to confirm whether the grace period is applicable to their projects.

The division has included a list of frequently asked questions online for general information.

The two agencies that enforce the Clean Water Act have proposed changes to the waterbodies considered jurisdictional, or under federal protection, and the deadline for the public to comment is here.

The Environmental Protection Agency and Army Corps of Engineers published on Nov. 20 in the Federal Register the “Updated Definition of ‘Waters of the United States,’” opening the public comment period that ends 11:59 p.m. Monday, Jan. 5. Information on how to submit comments is on the EPA website.

The agencies said the proposed rule revises “the regulations defining the scope of waters federally covered under the Federal Water Pollution Control Act, as amended, also known as the Clean Water Act, in light of the U.S. Supreme Court’s 2023 decision in Sackett v. Environmental Protection Agency.”

The agencies argue that their proposed amendments to the “waters of the United States” definition when finalized, will provide clarity and align with the Supreme Court’s opinion in the Sackett case that the “Clean Water Act extends to relatively permanent bodies of water connected to traditional navigable waters and wetlands with a continuous surface connection to those waters ‘so that there is no clear demarcation between “waters” and wetlands.’”

Environmental organizations argue that the proposed changes will gut basic water quality protections, which were already compromised by the 2023 Supreme Court decision on Sackett v. EPA that essentially left nontidal wetlands without protection. Nontidal wetlands are usually in floodplains along rivers and streams, in isolated depressions surrounded by dry land, along the margins of lakes and ponds, and in other low-lying areas where the groundwater intercepts the soil surface or where precipitation sufficiently saturates the soil, according to the EPA.

“When it comes to the definition of ‘waters of the United States,’ EPA has an important responsibility to protect water resources while setting clear and practical rules of the road that accelerate economic growth and opportunity,” EPA Administrator Lee Zeldin said in a Nov. 17 press release. “EPA is delivering on President Trump’s promise to finalize a revised definition for WOTUS that protects the nation’s navigable waters from pollution, advances cooperative federalism by empowering states, and will result in economic growth across the country.”

Environmental Defense Fund Coasts and Watersheds Science Senior Manager Dr. Adam Gold told Coastal Review that the “proposed rule could increase the pace of wetlands loss and lead to more flooding impacts for communities. Wetlands loss increases downstream flooding impacts, and at the same time, any new infrastructure built in former wetlands is also at increased flood risk.”

Under the agencies’ proposed rule, the term “waters of the United States” would include “(1) traditional navigable waters and the territorial seas; (2) most impoundments of “waters of the United States;” (3) relatively permanent tributaries of traditional navigable waters, the territorial seas, and impoundments; (4) wetlands adjacent (i.e., having a continuous surface connection) to traditional navigable waters, impoundments, and tributaries; and (5) lakes and ponds that are relatively permanent and have a continuous surface connection to a traditional navigable water, the territorial seas, or a tributary.”

The difference between the existing rule and proposed is that the existing rule includes an interstate waters category and the word “interstate” is in front of the lakes and ponds category. The agencies propose deleting both.

The agencies also recommend revising the existing exclusions from the Clean Water Act permitting process for waste treatment systems, prior converted cropland and ditches, and adding an exclusion for groundwater, as well as definitions for “continuous surface connection,” “ditch,” “prior converted cropland,” “relatively permanent,” “tributary,” “and waste treatment system.”

Carolina Wetlands Association Executive Director Rick Savage also has concerns about the flooding that could be unleashed on communities if these proposed changes go through, and the damage to water quality.

He said communities are going to see developers take wetlands without a permit.

“These wetlands are often buffers against flood waters. if they are developed then guess what happens? The flood waters just go inland to the community,” Savage said, adding that water quality could suffer as well, because of the potential for more pollution to pass into streams.”

North Carolina Sierra Club Deputy Director Erin Carey told Coastal Review that ultimately, “the American public should be very concerned that the federal agency tasked with ensuring clean water, clean air, and the protection of our natural environment seems determined to undermine that responsibility. With this proposed change, the EPA claims to seek clarity in regulation, but this rule would serve only to allow industry to profit from environmental destruction, and the ruination of our natural resources.”

Gold said that according to the fund’s analysis published September 2024 in Science that modeled different interpretations of the Sackett decision, the modeled scenario that best aligns with the proposed rule open for public comment now would result in 82 million acres, or 91%, of nontidal wetlands in the contiguous United States estimated to be without Clean Water Act protections. 

About WOTUS, Sackett decision

The Clean Water Act is the revised and restructured Federal Water Pollution Control Act, enacted in 1948 to protect waterways that are used for or could be used for commerce.

“The 1972 amendments to the Clean Water Act established federal jurisdiction over ‘navigable waters,’ defined in the Act as the ‘waters of the United States,’” according to the Environmental Protection Agency.

But that’s as far as the definition goes, leaving the two agencies that jointly enforce the regulations to define the term under statute, and have had to determine what geographical features such as wetlands, streams and rivers fall under “waters of the United States,” or WOTUS, and, therefore, under federal protection under the Clean Water Act.    

In the decades since, that definition has undergone several amendments, most recently in 2023 to conform to the Supreme Court’s Sackett decision.

The Sacketts are an Idaho couple who were fined by the EPA for backfilling wetlands on their property near Priest Lake. The Sacketts filed a lawsuit asserting that the wetlands were not directly connected to the lake, a navigable body of water protected by the Clean Water Act. Justices ruled in favor of the couple and put parameters on “waters of the United States.”

Justices state in the May 2023 majority opinion that the Clean Water Act’s use of “waters” only refers to geographical features described in everyday language streams, oceans, rivers, and lakes “and to adjacent wetlands that are ‘indistinguishable’ from those bodies of water due to a continuous surface connection.”

The ruling narrowed the definition of “waters of the United States, stripping away protection under the Clean Water Act for isolated wetlands, or those without an obvious connection to navigable waters.

The two federal agencies, under the Biden administration at the time, had published a revised definition in January 2023 that was then amended that September to conform to Sackett.

Shortly after the second Trump administration took office, the agencies began a campaign to change the amended 2023 WOTUS that it called “overly broad” in a news release Monday and “failing to fully implement the Supreme Court’s decision in Sackett v. Environmental Protection Agency.”

Savage explained that the Clean Water Act, passed in 1972, was based on relationships with navigable waters. Then in 1977, the Corps of Engineers came up with the wetlands definition manual, which set the process for how wetlands were defined, based on hydrology, hydrophilic vegetation and hydric soils.

“During that time, almost any wetland was protected because you could find some relationship to​ a navigable water, even if it’s over land, but now you know that’s all changing,” he said, and the reason it started changing was because the Supreme Court got involved.

“That was in 2006 and ever since then, it is going around and around and up and down and through. You know, nobody knows what the rules are half the time. I mean, there’s been a couple of times where half the states were under one set of rules and the other half are under another set of rules because of litigation,” Savage said.

On the state level

Savage said regarding the proposed rule change that there’s two ways to look at it: the federal level and the state level.

“Right now, as far as North Carolina is concerned, it’s not looking good, period,” he said, because of the Farm Bill that made state and federal regulations to protect wetlands the same.

During summer 2023, the General Assembly approved language in Senate Bill 582, often called the Farm Bill, to align the state’s definition of wetlands with the federal. The definition reads: “Wetlands are classified as waters of the State are restricted to waters of the United States as defined by” the Army Corps and EPA.

Savage said he’d heard that a few legislators were starting to reconsider the move, and he said part of it is because the state government is funneling millions of dollars to use nature-based solutions, like wetlands, to mitigate flooding issues. “However, what the heck is this about, not wanting to protect the very resources we need to use to protect our communities? And I think that might be having a little bit of an effect.”

Savage said they’re working with the Southern Environmental Law Center and other groups to make changes, but there’s not a lot that can be done at the state level in North Carolina because of Dillon’s rule, which means that local governments only have as much power as the state specifically allows.

“Anything a locality may want to do to protect wetlands, the state legislature can immediately overturn it” via legislation, Savage said. “So, it’s not a lot that can be done there.”

Southern Environmental Law Center Senior Attorney Mark Sabath told Coastal Review in an earlier interview that, while this proposed rule reduces federal protections, states and tribes still have authority to protect waters, and can fill the void in protecting these resources that the federal government is leaving behind.

Sabath said in some situations, it’s not a possibility because of not having the resources, “and there are examples occasionally of states that do their best to try to fill that gap. But much more often, we see the opposite, like in North Carolina.”

Savage clarified his point in noting that, just because the wetland is not considered protected by the Clean Water Act, it is still a wetland.

“Some people think if it’s not jurisdiction​al, then it’s not a wetland. No, it’s just not a jurisdictional wetland. It’s still a wetland. It meets the Army Corps of Engineers’ definition of a wetland, which is heavily based on science,” Savage said. “I think it’s important to make that distinction. We have jurisdictional wetlands that are protected, and the definition of jurisdictional wetlands is getting tighter and tighter and tighter, so that most of our wetlands are no longer jurisdictional, right? Therefore, they’re not protected, but they’re still wetlands, right? And that’s why we still have to be concerned about them.”

The EPA and Corps committed in a Dec. 22 press release to consider the public input received in developing a final rule.

The two federal branches that enforce the Clean Water Act last month pitched changes to the “waters of the United States” definition, which establishes the types of waterbodies that are federally protected against pollution, and if these amendments pass as written, conservation groups fear millions of acres of nontidal wetlands will be left vulnerable.

The Environmental Protection Agency and Army Corps of Engineers have for decades had the authority to regulate “navigable waters,” which means “the waters of the United States, including the territorial seas,” as written in the 1948 Federal Water Pollution Control Act. Expanded in the 1970s, the measure is typically referred to as the Clean Water Act.

The EPA explains on its website that the Clean Water Act “establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.”

One thing the Clean Water Act doesn’t do is clearly define “waters of the United States.” The EPA calls it a “threshold term in the Clean Water Act and establishes the geographic scope of federal jurisdiction under the Act.”

EPA and Army leadership announced Nov. 17 plans to update the definition, which has been the subject of lawsuits and years’ worth of arguments.

The “Updated Definition of ‘’Waters of the United States’’’ was published Nov. 20 in the Federal Register, launching a 45-day comment period on the proposed changes that closes Jan. 5.  A virtual public meeting is scheduled for 12:30 to 4 p.m. Tuesday, with a 2-2:30 p.m. break. Attendees must register online to speak by 5 p.m. Monday. To listen only, register by the start of the meeting.

This latest attempt, which would exclude isolated wetlands, is directly linked to the Supreme Court’s May 2023 Sackett v. EPA decision. The Sacketts are an Idaho couple fined in the late 2000s for backfilling a section of their property that the EPA considered wetlands.

Judges ruled in the final opinion on the case that the “(Clean Water Act)’s use of ‘waters’” only refers to geographical features described in everyday language “as ‘streams, oceans, rivers and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from those bodies of water due to a continuous surface connection.”

Earlier that year, the EPA had finalized a “Revised Definition of ‘Waters of the United States'” rule that took effect March 20, 2023, and which the Sackett case invalidated. In August 2023, the EPA and Army Corps issued an amendment to align the rule with the Sackett decision.

That final conforming rule is what the EPA and Army Corps leadership are proposing to amend.

The agencies argue that the change “would fully implement” the Supreme Court’s ruling “by ensuring federal jurisdiction is focused on relatively permanent, standing or continuously flowing bodies of water—such as streams, oceans, rivers, and lakes—and wetlands that are connected and indistinguishable from such waterbodies.”

With this proposed rule, the agencies explain in the docket, they “intend to provide greater regulatory certainty and increase Clean Water Act program predictability and consistency by clarifying the definition of ‘waters of the United States.’ This proposed rule is also intended to implement the overall objective of the Clean Water Act to restore and maintain the quality of the Nation’s waters while respecting State and Tribal authority over their own land and water resources.”

Environmental groups argued then, when the Sackett case was ruled, and still maintain that by removing protections from the millions of acres of nontidal wetlands, there will be consequences: Water quality will be jeopardized and flooding will increase, to name just two.

Southern Environmental Law Center Senior Attorney Mark Sabath said in an interview that for 50 years, the Clean Water Act has been the strongest and best federal protection for many of the waters and wetlands around the country.

The law does that “by saying you can’t pollute, you can’t fill, you can’t destroy certain features, certain waters, without a permit,” Sabath said, and the permitting process means that there are certain protections and controls you have to apply to minimize the amount of destruction.

Sabath added that a number of features of the Clean Water Act are dependent on the type of water, and, in addressing its critics, not every puddle in the country covered by the act.

“It’s only things that meet the definition of waters of the United States, and that isn’t defined in the statute itself,” Sabath continued. “Congress didn’t define it, so EPA and the Army Corps, in a series of rules over the years, have tried to define exactly what wetlands are and aren’t covered by the Clean Water Act.”

This proposed rule is the latest revision and it is “by far the most narrow, the most extreme definition,” Sabath continued. “It includes the fewest number of streams and wetlands and other waters of any interpretation of ‘waters the United States’ that we’ve seen.”

North Carolina Wildlife Federation Conservation Policy Vice President Manley Fuller told Coastal Review that with this proposed rule, the bottom line is a massive loss of protection of waters of the United States, which are vital habitats for fish and wildlife.

“This will also negatively affect hunting and fishing, which are a significant part of our natural resource-based economy,” he continued. “Wetlands are also buffers for the built environment and help reduce downstream flooding. Protecting clean waters and wetlands is extremely popular with the public for many reasons and we need to strengthen rather than weaken these programs.”

North Carolina Sierra Club Deputy Director Erin Carey told Coastal Review the rule will effectively remove federal protections from at least 80% of wetlands and over 5 million miles of streams across the country.

“This rule will open millions of acres of wetlands to the threat of development, leaving communities already vulnerable to flooding without the frontline protection afforded by these invaluable habitats. Wetlands act as filters for floodwaters and other runoff, making them critical not only to flood mitigation, but to the preservation of clean water resources,” Carey said.

Environmental Defense Fund Coasts and Watersheds Science Senior Manager Dr. Adam Gold pointed out as well that if the proposed rule is implemented as written, nearly all nontidal wetlands and intermittent streams could be without Clean Water Act protections in North Carolina and across the United States.

While there are many changes in the proposed rule, the most notable are to the definitions of “relative permanence” of waters and a “continuous surface connection” for wetlands, Gold said, adding that the proposed language introduces the concept of a “wet season.”

“Under the proposed rule, wetlands and waters would only receive Clean Water Act protections if they have surface water throughout the ‘wet season,’ described in the rule as ‘an extended period where there is continuous surface hydrology resulting from predictable seasonal precipitation patterns year after year,’” Gold said. “This proposed rule would make it easier to drain or develop wetlands that do not meet the ‘wet season’ surface water requirement, putting our wetlands and the benefits they provide at serious risk.”

In North Carolina, the impact of the proposed rule is 3.2 million acres, or about 88%, of nontidal wetlands estimated to be without Clean Water Act protections. “Importantly, this analysis relies on wetland ‘wetness’ during the growing season, but the proposed rule uses the ‘wet season,’” Gold said.

About the wet season, Gold continued, there are “fundamental issues with the proposed rule’s ‘wet season’ dataset.”

He said the classification of the “wet season” comes from the Army Corps of Engineers Antecedent Precipitation Tool, but the underlying data this tool relies on is modeled using the average monthly temperature and precipitation between 1950 and 1999. The modeled dataset was published in 2001 and does not use the best-available methods.

“The agencies proposed ‘wet season’ dataset classifies most of the year, and in some cases the entire year, as ‘wet’ for much of coastal North Carolina. So, under this proposed rule, wetlands or streams in Jacksonville would need to have surface water year-round (the whole year is classified as ‘wet’) to have Clean Water Act protections. For New Bern, the ‘wet season’ is 11 months, and for Wilmington or Brunswick County, the ‘wet season’ is 10 months.”

Gold said the proposed rule “which could essentially remove nontidal wetland and intermittent waters from the Clean Water Act, does not align with the goal of the Clean Water Act to ‘restore and maintain the chemical, physical, and biological integrity of the nation’s waters.’ Science shows us that all wetlands, regardless of how ‘wet’ they are, clean our water, provide critical wildlife habitat, and reduce downstream flooding impacts.”

The EPA and Corps also asserted the week the proposed changes were announced that the new rules would provide “the regulatory certainty needed to support our nation’s farmers who feed and fuel the world and advance EPA’s Powering the Great American Comeback initiative.”

Sabath noted that the idea that this will have huge benefits for farming and for farmers is a common refrain when they’re restricting the protections of the Clean Water Act, “but the Clean Water Act actually exempts most farming activities from coverage already, so you don’t need to get a permit for doing regular farming activities, even when they would affect a wetland or stream that would otherwise be covered.”

The idea that this is a huge benefit for farmers is a nicer story, “because they don’t want to say, well, this is a huge benefit for large industrial facilities, industrial polluters, developers,” Sabath said.

Carey sees the proposed rule as demonstrating “that the EPA has abdicated its mandated responsibility to protect the environment and the people who depend on it. Even worse, the agency appears eager to sacrifice our natural resources on the altar of corporate greed.”

The public should be “very concerned that the federal agency tasked with ensuring clean water, clean air, and the protection of our natural environment seems determined to undermine that responsibility. With this proposed change, the EPA claims to seek clarity in regulation, but this rule would serve only to allow industry to profit from environmental destruction, and the ruination of our natural resources,” she added.

White Oak Waterkeeper Riley Lewis said in a statement that the EPA’s new definition of Waters of the United States ignores decades of scientific understanding and generations of Indigenous knowledge.

“By redefining wetlands using ambiguous criteria seemingly designed to maximize developable land and reduce regulatory barriers, the agency is turning a blind eye to the very real, very predictable impacts on our communities,” Lewis said. “Water will continue to move beneath our feet through groundwater and across the landscape during storms, regardless of a federal definition or a construction permit. This rule sets Americans up for flooding, damaged infrastructure, and increased pollution in the waters we rely on for our drinking supply, our food, and our way of life.”

So, why does this actually matter to the public? Sabath said it does in a few ways.

In North Carolina, people who hunt, fish and paddle use wetlands directly and those might be impacted by being destroyed or polluted without a permit.

“Anyone who is in a community that floods during extreme weather, and we all know that that’s happening more and more now, or that’s at risk of flooding,” Sabath said. By losing those wetlands, you lose their ability to protect communities from flooding, and that comes more often now from extreme weather.

“It’s a double whammy. You’re losing the benefits that they provide, and you’re probably creating more problems,” and more potential pollution or channels of pollution at the same time by replacing wetlands, natural areas with pavement or developed areas, he said.

With wetlands being a “good natural sponge” that can absorb huge amounts of water, “if anything, we should be trying to expand wetland coverage rather than take it away, Sabath said.

“In short,” Carey with the Sierra Club continued, “communities will watch rivers and streams in their communities fall victim to unchecked pollution. Without federal protections, industry will discharge and develop at will, destroying habitats, water quality, and flood protection measures as they go. The wetlands and streams of this country belong to all people, not just those who seek to exploit them.”

Updated at 8 a.m. Thursday to include the link to the Federal Register, which published the proposed rules Thursday after the story posted, and public comment information.

The two federal agencies with jurisdiction over navigable waterways have published amendments to the existing “waters of the United States” rule that they say will “establish a clear, durable, common-sense definition” of the term, and a public comment period has opened.

The Environmental Protection Agency and Department of the Army’s changes have heightened worry among conservation groups that federal protections for isolated wetlands might be weakened further than they were soon after the 2023 Supreme Court decision that found wetlands must be connected by surface water to a navigable body of water to fall under the 1972 Clean Water Act.

The EPA and Army Corps of Engineers said in a release Monday that the newly proposed changes were to “fully implement the court’s direction by focusing on relatively permanent, standing or continuously flowing bodies of water—such as streams, oceans, rivers, and lakes—and wetlands that are connected and indistinguishable from such waterbodies.”

As part of the announcement, leadership posted the prepublication notice they planned to submit to the Federal Register, which was published Thursday, starting a 45-day public comment period.

Comments must be submitted by Jan. 5, 2026, and identified by Docket ID No. EPA–HQ– OW–2025–0322, through www.regulations.gov, by email to OW-Docket@epa.gov, or mail to U.S. Environmental Protection Agency, EPA Docket Center, Water Docket, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

Language in the Clean Water Act states that the “term ‘navigable waters’ means the waters of the United States, including the territorial seas.” However, the act doesn’t define what “waters of the United States,” or WOTUS, actually are, leaving the EPA and Corps to determine the geographic scope of the rule.

Over the last five decades, pushback and litigation have forced the two agencies to revise the definition several times.

The current regulatory definition, according to the EPA, was put in place in September 2023 to align with the May 2023 Supreme Court ruling on the Sackett v EPA lawsuit.

The Sacketts filed the lawsuit after the agency ordered the Idaho couple to restore where they had begun backfilling with dirt the section of their property that the EPA considered to be wetlands of a nearby navigable waterbody. The judges sided with the Sacketts that federally protected wetlands must have an obvious connection to waterbodies like streams, oceans, rivers and lakes.

To conform to the Sackett decision, the EPA and Army amended in September 2023 the latest final rule, which had been put in place that January.

EPA Secretary Lee Zeldin and Assistant Secretary of the Army for Civil Works Adam Telle shared with Washington, D.C., lawmakers Monday afternoon an overview of the proposed rules.

“I know that across the country, news of today’s proposal is going to be met with a lot of relief and happiness from farmers, ranchers, other landowners, governments that have been looking for a simple, prescriptive definition that the whole country can operate off of, and would allow individuals to know whether or not there’s a ‘water of the United States’ without having to go hire an attorney or a consultant, having to pay someone to Tell them,” Zeldin said Monday during the announcement livestreamed on the EPA’s YouTube.

The EPA secretary explained that the proposal “includes practical, common-sense revisions that will make a real difference,” and adds definitions for what he called “key terms” such as “’relatively permanent,’ ‘continuous surface connection’ and ‘tributary’ to appropriately limit the scope of what is consistent with” the Sackett case.

“We’re establishing that jurisdictional tributaries must connect to traditional navigable waters, either directly or through other features that provide predictable and consistent flow. We’re adding a new exclusion for groundwater and revising exclusions for certain ditches prior converted cropland and waste treatment systems,” Zeldin continued. “We’re incorporating locally familiar terminology such as wet season to help determine whether a water body qualifies as WOTUS. And we’re strengthening state and tribal decision-making authority by providing clear regulatory guidelines while recognizing their expertise in local land and water resources.”

He explained that the proposed rules were developed based on input from multiple sources, including preproposal recommendations, docket information from nine public listening sessions and consultation comments from states, tribes and local governments.

Telle addressed the audience after Zeldin.

“Since 1972 Americans have struggled to understand what Congress meant when it included the term ‘waters of the United States’ in the Clean Water Act. Did it apply to them? Did it not? The definition of that term has been often abused, sometimes stretched beyond recognition over time, and it’s left Americans uncertain about whether they were complying with the Clean Water Act or not,” he said Monday, adding that “under President Trump’s leadership, the EPA and army Civil Works, which oversees the Corps of Engineers, are kicking off the formal process that will give American certainty about their property once and for all.”

Several Republican officials thanked Zeldin from the podium for initiating the proposed amendments including West Virginia Gov. Patrick Morrisey who said that “for too long there’s been great deal of uncertainty” about the WOTUS rule.

“Unfortunately, it left many people holding the bag. Farmers, contractors, small business owners guessing whether their ephemeral stream or a backyard ditch was going to be classified as a waters of the United States rule and potentially subject them to significant penalties,” he continued.

Alabama Congressman Gary Palmer said he was confident that the rule will prioritize clean water while protecting farmers, ranchers, landowners and businesses alike.

Conservation groups have been vocal about these revisions opening up isolated wetlands to development and degradation since the announcement was made.

“Wetlands are the lifeblood of our coast, and should be held to the highest standards of protection,” North Carolina Coastal Federation Coastal Advocate Kerri Allen explained. “The wetlands most impacted by these proposed rollbacks are the very wetlands that hold water during storms and help protect downstream waters. With the proposed changes, our coast will face irrevocable damage that impacts not only our wildlife and fisheries, but also our coastal economy and communities.” The Coastal Federation publishes Coastal Review.

Southern Environmental Law Center Senior Attorney Mark Sabath said Monday in a statement that this proposed rule, if adopted, “could have catastrophic ramifications for communities already plagued by flooding, water quality concerns, and drinking water shortages. After critical, longstanding protections for clean water and wetlands were drastically narrowed by the Sackett decision, we need stronger protections, not weaker, to safeguard our communities and environment.”

League of Conservation Voters Healthy Communities Program Director Madeleine Foote had a similar reaction.

“The Trump administration’s Polluted Water Rule is another blatant giveaway to big corporate polluters that will jeopardize the waters that our families and communities rely on for drinking, recreation, and fueling our local economies,” Foote said.

“In 2023, the Supreme Court’s devastating Sackett decision stripped federal protections from millions of miles of streams and tens of millions of acres of wetlands, and now corporate polluters are pushing their friends in the administration to go even further in decimating our clean water safeguards. They won’t be happy until the Clean Water Act is nothing more than words on a page and they can pollute our waters with abandon,” Foote continued.

Environmental Defense Fund Associate Vice President Will McDow stated Monday that the new proposed WOTUS rule from the Trump administration that will redefine which wetlands and waters have Clean Water Act Protections. 

“We already spend billions annually responding to disasters that were created by building in risky areas. With today’s proposed WOTUS rule, commercial developers will be allowed to pave over wetlands to build unsafe housing that either floods or increases flooding to neighbors,” he continued. “This rule brings tremendous uncertainty and risk to our nation’s drinking water, flood protections and critical habitats. Based on our peer-reviewed analysis, new requirements for wetland protections could leave nearly all wetlands without Clean Water Act protections. Requirements in the new rule are not based in science, difficult to implement in practice and will create a dangerous lack of clarity.” 

The Environmental Management Commission voted unanimously Thursday to send a rule outlining health-based standards for three per- and polyfluoroalkyl substances to the state Rules Review Commission.

The 15-member commission also wrapped up the rulemaking process to “clarify” the definition of wetlands, as directed by a summer 2023 session law. The draft language now heads to the Office of Administrative Hearings. Per the session law, the rule is exempt from the Rules Review Commission.

During the environmental commission’s meeting held in Raleigh and streamed virtually, members voted on the draft rule that specifically targets PFOA, PFOS, and GenX in groundwater, which supports about half of drinking water in North Carolina.

Under the rule that is now expected to go before the rules commission at its Oct. 30 meeting, permitted releases of PFAS to groundwater will be limited. The rule also establishes goals for cleaning contamination in groundwater and ensures residents whose drinking water exceeds contamination limits receive alternative water supplies.

Comments the N.C. Department of Environmental Quality received on the rule through a public comment period late last year overwhelmingly supported the rule, but, as Commissioner Dr. Jackie MacDonald Gibson noted Thursday, the public also raised concerns that the rule did not set standards for additional PFAS.

“It’s a very emotional issue,” Gibson said. “I went to the (public) hearing in Wilmington and people there, their families have been directly affected by PFAS exposure to the point that some people were afraid to have their kids drink water at school. I think a lot of people are going to be glad that we’re moving forward with this. They’re going to wish we were doing more.”

The environmental commission’s groundwater and waste management committee last year voted to omit five of the eight compounds DEQ staff originally presented to be included in the rule.

The committee chose to focus on PFOS and PFOA, which the U.S. Environmental Protection Agency classifies as likely carcinogens, and GenX, a compound specific to Chemours.

Commissioner Tim Baumgartner, who chairs the groundwater and waste management committee, explained that the compounds that were omitted – PFBS, PFNA, PFHxS, PFBA and PFHxA – are being regulated at the practical quantitation limit, or PQL.

PQL is considered the base line in testing laboratories.

“It’s not that we’re not regulating PFAS. It is a matter of what the quantitative limit is for remediation, or what the target level is,” he said.

Commissioner Robin Smith said she regretted that the commission did not adopt health-based standards for all eight PFAS as initially presented by DEQ.

“It would have actually helped some land owners and some responsible parties who need to clean up groundwater by providing them with a health-based standard that is above the PQL,” Smith said. “I’m going to vote for these. I think this is a good rule, but to me, I can’t follow the reasoning of dropping the other five when, in fact those would have made the rules less stringent, but still would have maintained a health-based standard for those other five.”

Environmental Commission Chair JD Solomon responded, saying that instead of using a health-based equation, one that is subject to change, for the compounds that were omitted, the commission “defaulted to PQL.”

“Keep as much PFAS out of the water as possible,” he said. “So, while PFAS is being debated at the national level, and whatever level, we decided as a body to keep it as stringent as possible, even for cleanups.”

If approved by the rules commission next month, the rule would become effective Nov. 1.

A proposed draft rule requiring monitoring and development of PFAS minimization initiatives for dischargers into surface water will be on the commission’s water quality committee’s agenda in November.

Members of that committee voted 4-2 Wednesday to include the draft rule on their meeting scheduled Nov. 12. The proposed rule would require industries that directly discharge compounds into surface water and all significant industrial users that discharge to publicly owned treatment works to monitor their releases of PFOA, PFOS and GenX.

If the committee approves the rule, it will go to the full commission for consideration Nov. 13.

During staff comments, the commissioners were informed that DEQ is now requiring Chemours to expand the number of private wells eligible for PFAS contamination sampling to about 14,000 additional residences in New Hanover, Brunswick, Columbus and Pender counties.

Related: DEQ requires Chemours to expand PFAS well water testing

The expanded area was identified through additional data analysis conducted by the state and Chemours. Chemours’ Fayetteville Works plant in Bladen County discharged PFAS, including GenX, for decades directly into the Cape Fear River, ground and air.

Wetlands definition rule

The General Assembly with a June 27, 2023, session law directed the commission to adopt a rule consistent with language in the statute that read “Wetlands classified as waters of the State are restricted to waters of the United States as defined by” federal regulations.

Sue Homewood with the Division of Water Resources explained Thursday to the commission that, “We had the session law in 2023, the EMC requested that we move forward with this rule amendment, even though we were implementing the rule and are implementing the session law already.”

Around the same time this session law was drafted and making its way through the state legislature, the U.S. Supreme Court ruled in favor of an Idaho couple, the Sacketts, who sued the Environmental Protection Agency for putting a stop on work to backfill what the federal agency argued was wetlands.

The Sackett v. EPA decision on May 25, 2023, changed the definition of “waters of the United States,” which are navigable waters protected under the Clean Water Act. The definition now excludes noncontiguous wetlands, or those not connected to navigable waters. The EPA aligned its definition with the court case effective Sept. 8, 2023.

When the North Carolina General Assembly put the 2023 session law through that summer, commissioners worked with staff on how best to proceed. The matter was on pause between April 2024 to January of this year, when the water quality committee approved the language to go to the full commission. Members approved in March the proposed text rule and moving ahead to public comment, which was open April 15 to June 30. A public hearing was held June 26.

Homewood said 134 written comments were submitted and 13 oral comments were presented at the hearing, which are in summarized in the hearing officer’s report.

Of all the comments, she continued, only one was in favor of the rule amendment.

“In general, the comments opposed to the rule amendment were concerned about loss of wetland protection in North Carolina,” Homewood said, such as what the rule means for flooding, resiliency and wildlife habitat.

The public also commented that the state is investing in mitigation and flood resiliency that these wetlands could help provide, and there were some comments stating that the General Assembly should not dictate a rule making body on how to implement rules.

The wetlands definition rule was approved with 10 voting for the rule and commissioners Smith, Gibson, Dr. Jennifer Orme-Zavaleta, Dr. Ann Chelminski and Dr. Ilona Jaspers voting against. In a separate vote, the hearing officer’s report passed 13-1, with Orme-Zavaleta voting against no and Gibson abstaining.

Homewood said the next step is to submit the rule to the state’s Office of Administrative Hearings, then to General Assembly, which would be the 2026 session. After that, it needs to be approved by the EPA, because this definition is part of the state’s water quality standards.

Karen Higgins with the water planning section said that the EPA has 60 days to approve, 90 days to disapprove, or nothing happens if they take longer. If the EPA disapproves of the standards change, the agency sends it back to the state.

Solomon said he had been asked what could be done about the rule and the bottom line is “our rules have got to be consistent with state laws. And so while this is a little unusual to say, they did their action, we have to clean up our rules now to make sure the definitions fit.”

He continued by pointing out that the rulemaking process “is more or less procedural” and there are concerns but the commission has to comply with the state laws.

Baumgartner reiterated that it was a statutory directive from the General Assembly and the commission is following the Administrative Procedures Act by making this rule change, which Commissioner Kevin Tweedy acknowledged, but said he’s hoping that the state can disconnect from the federal definition.

“North Carolina has unique resources that I think a lot of people, obviously, from the comments, agree it should be protected. I think we can do that protection in a smart way that that takes into account everybody’s concerns and issues with wetlands. But I think connecting it to the (federal definition) and keeping it that way is just not a good long-term policy,” Tweedy said.

Smith, a longtime attorney, called this “bad policy” and part of the reason is that nothing at the federal level is about which or whether these wetlands are important for ecological or other purposes.

“The only issue at the federal level is federal jurisdiction, and that’s driven by the Commerce Clause of the United States Constitution, and it’s driven by the language of the Clean Water Act,” Smith said. “It’s a jurisdictional issue at the federal level. It has nothing to do with assessment of the value of these wetlands.”

Managing the wetlands is primarily a state responsibility, which is why “it’s a mistake to tie state decisions about the value and protection of wetlands to a federal jurisdictional issue,” Smith said.

Aside from bad policy, she said, it’s bad legislative practice, because there’s a section in the session law that causes the entire session law language to sunset as soon as this rule is adopted.

“What the legislature did not change,” Smith said, is the existing definition of waters of the state in a statute, which will continue to be in effect after the session law expires.

She reiterated a point Solomon made that the commission’s rules cannot be in conflict with state law. “But unfortunately, what the legislature has given us is a situation that will create a conflict with state law.”

Smith voted against approving the rule, saying that she understands “the realities of situation, but between the policy and the legislative process and the, in my view, misuse of the session law in this way, without clarifying a statute, makes this an easy vote against for me.”

Aligning North Carolina’s wetlands definition with that of the federal government’s would put the state’s waterways at risk, erase nature’s pollution filtration systems from the land, and increase flooding, speakers at a public hearing said.

More than a dozen people commented during the Thursday night hearing in Raleigh on the revised wetlands definition the North Carolina General Assembly enacted into law two years ago.

In accordance with the 2023 Farm Act, the state’s definition of wetlands must correspond with the federal government’s, which narrows the description of a wetland to having a continuous surface connection to Waters of the United States, or those protected under the Clean Water Act. The federal definition was changed to be consistent with a May 2023 Supreme Court ruling.

In North Carolina, that alignment equates to the loss of protections for an estimated 2.5 million acres of wetlands, according to the state Department of Environmental Quality.

That agency has been implementing the definition since its approval in June 2023, but the state-appointed Environmental Management Commission, which is responsible for adopting rules that protect, preserve and enhance air and water resources, must go through the rulemaking process to amend the state’s existing wetlands definition.

The law legislators enacted two years ago explicitly directs that the Rules Review Commission cannot challenge the amendment.

Those who spoke at Thursday’s public hearing, a mandated step in the rulemaking process, urged the Environmental Management Commission to work with legislators to rescind the amendment. No one who spoke supported the definition revision.

“I think it’s a shame that the EMC does not have any discretion over what this rule looks like,” said Brooks Rainey, a lobbyist for the Southern Environmental Law Center. “Dictating the text of a rule to a rulemaking body takes away the whole point of having a rulemaking body. The North Carolina General Assembly are not experts on wetlands. The Home Builders Association is not an expert on wetlands. The Chamber of Commerce is not an expert on wetlands. But there are many experts on wetlands at DEQ. When rulemaking works as intended, the experts on the subject matter of the rule are involved in crafting the rule. Otherwise, we have ceded environmental rulemaking to political whims and lobby groups.”

Rainey went on to say that the majority party at the General Assembly make “the majority appointments” on the Environmental Management Commission and that the current commission “has greater sway” with this legislature than any in recent memory.

“I urge this EMC to use that influence and ask the General Assembly to stop sending over rules that have been pre-drafted. Take the politics out of rulemaking. Leave it to the experts. It is insulting to this commission, it is insulting to the agency, and it is insulting to the public who are effectively excluded from having any meaningful input at all,” she said.

That lack of input has frustrated residents, environmental advocates and scientists, who argue that ordering a one-size-fits-all definition will be detrimental to a state where wetlands, particularly on the coastal plain, are critical to reducing flooding, cleaning drinking water and supporting fisheries.

“Tying in wetlands protections to federal definitions that change with every administration leaves our communities vulnerable,” said Kerri Allen, a coastal advocate with the North Carolina Coastal Federation, which publishes Coastal Review. “Why should we hand off our responsibility to protect North Carolina’s natural resources to Washington. Wetlands in North Carolina, like pocosins, Carolina Bays and cypress swamps, deserve to be protected under rules written for our state’s needs, not buried under shifting federal priorities.”

Wetlands provide a host of crucial benefits, said Dr. Adam Gold, coasts and watersheds science manager with the Environmental Defense Fund.

They act as natural flood buffers, provide habitat for recreationally and commercially important wildlife, and filter pollution from waterways.

“Just one acre of wetlands can store up to a million and a half gallons of floodwater,” Gold said.

He cautioned that the federal government may further narrow the definition of wetlands. Earlier this year, the U.S. Environmental Protection Agency’s Lee Zeldin announced plans to revise the definition of Waters of the United States, also known as WOTUS.

“As someone who has worked in the intersection of environmental policy and coastal resilience for over two decades, I’ve seen firsthand how wetland loss leads to increased flooding, degraded water quality and disappearing fisheries habitat,” said Coastal Carolina Riverwatch Executive Director Lisa Rider. “These issues are already being impacted and many rural communities and working waterfront communities are already seeing the impact from what’s going on. Stripping protections further will only accelerate harm to ecosystems and the people here in coastal North Carolina.”

Chris Herndon, director of the North Carolina chapter of the Sierra Club, said rolling back wetlands protections will waste millions of taxpayer dollars in flood recovery and contribute to the loss of the state’s natural resources.

“The revised definition freely gives the decision of which wetlands to protect to the federal government. As a result, our state wetlands protections will be determined by federal officials based on federal priorities without any special consideration of the particular importance of wetlands in our state. North Carolinians should decide which North Carolina wetlands should be protected to the benefit of our local communities and local economies,” he said.

Southern Environmental Law Center senior attorney Julie Youngman said that, though the commission has been mandated to pass the rule, there is no deadline in when the rule must be established.

And, since the state’s leading environmental agency is complying with the law, there is “no harm being done to the will of the legislature by slowing it down and working with the legislature to try to fix the mistake that’s been made,” she said.

“It just defies logic that we are putting our fate in the hands of a federal administration that doesn’t seem to care about the same values that we care about here in North Carolina,” Youngman said. “There is not deadline in the statute. Take your time, work with the legislature, see if you can’t come up with a commonsense way to keep the wetland protections that we have in place, in place.”

DEQ will accept public comments through today via email with the subject line “Wetland Definition Amendment” to Sue.Homewood@deq.nc.gov and by mail to Sue Homewood, Division of Water Resources, 1617 Main Service Center, Raleigh NC 27699-1617.

The EMC is anticipated to hear recommendations on the revised rule during its Sept. 11 meeting. The 2023 Farm Act mandates that the rule cannot become effective until after legislative review, which is anticipated to take place during the General Assembly’s 2026 session.

The Environmental Protection Agency has final approval authority over the rule.

A coastwide clean water advocacy organization is urging the public to speak out next week during a hearing in Raleigh on a rule that would change the definition of what constitutes protected wetlands in the state.

The public may attend in-person or join the June 26 Division of Water Resources hearing by computer or phone.

The nonprofit North Carolina Coastal Federation, which publishes Coastal Review, on Tuesday asked its supporters to comment on the rule change mandated by the legislature in 2023 that “limits wetlands protected under state water quality rules to those under federal jurisdiction.”

The North Carolina General Assembly, via the 2023 Farm Act, effective June 27, 2023, required “immediate implementation of the revision and directed the Environmental Management Commission to adopt a rule consistent with the revised definition.”

The commission has advanced the proposed rule and the Office of State Budget and Management approved the required regulatory impact analysis on the last day of December.

The Coastal Federation in its advocacy email urged people to “send a powerful message to state officials: the new definition puts millions of acres of wetlands – and flood protection, clean water, and wildlife they support – at risk.”

The organization said lawmakers need to understand “the real harm this rule will cause and the need to correct it.”

The Coastal Federation lists 10 issues it said will be made worse as a result of the rule change, including flooding, irresponsible development, rising insurance and other costs, water quality and the loss of natural resources and state controls.

“By forcing North Carolina’s Environmental Management Commission (EMC) to adopt a rule that ties state wetlands protections to federal limits, the General Assembly is leaving valuable state wetlands vulnerable to being developed without the developer having to apply for a permit that would contain protective conditions,” the organization said in its email.

The meeting will be 6-9 p.m. Thursday, June 26, in the ground floor hearing room of the Archdale Building, 512 N. Salisbury St., Raleigh.

To attend virtually, log in via WebEx using Meeting No. 2425 792 4510, password: NCDEQ; or by phone at 415-655-0003 and access code 2425 792 4510.

Register to comment online by noon June 26. Register onsite starting at 5:30 p.m.

Anyone may comment, but speakers may be limited to three minutes.

Written comments may also be submitted by June 30. Email comments to: Sue.Homewood@deq.nc.gov using the subject line: “Wetland Definition Amendment.”

The two federal agencies that are to reviewing the definition of “waters of the United States,” often called WOTUS and a distinguishing characteristic under the Clean Water Act, have scheduled the first round of listening sessions for next week.

The Environmental Protection Agency and Department of the Army, which oversees the Army Corps of Engineers, are holding the public input meetings both virtually and at the EPA headquarters in Washington, D.C.

EPA Administrator Lee Zeldin announced March 12 plans to revise the definition of WOTUS to align with the Supreme Court’s May 2023 decision in the Sackett v. Environmental Protection Agency “while eliminating red tape, cutting compliance costs, and reducing the cost of living,” according to the agency. “To achieve this vision, the agencies will develop a proposed rule to revise the 2023 definition of WOTUS.”

Related: EPA targets remaining federal isolated wetlands protections

Participation in the session set for 9:30 a.m. to noon Tuesday, April 29, is limited to state government agencies and member organizations. The listening session for Tribes will be virtually held 1-3:30 p.m. April 30.

From 9:30 p.m. to noon Thursday, May 1, the input session is for industry and agricultural stakeholders and the 1 p.m. that is to follow is for environmental and conservation stakeholders. Registration is required and can be done on the EPA website.

EPA officials said that listening sessions for local governments and the public will be announced.

“The agencies are committed to obtaining targeted input from a full spectrum of co-regulators and stakeholders on key topic areas related to the definition of ‘waters of the United States’ in light of Sackett v. Environmental Protection Agency, regarding ‘continuous surface connection,’ ‘relatively permanent,’ and jurisdictional versus non-jurisdictional ditches,” according to the EPA.

EPA’s Principal Deputy Assistant Administrator for Water Peggy Brown and Office of Wetlands, Oceans, and Watersheds Division Director Stacey Jensen will be joined by Milton Boyd, assistant counsel with the Corps for the sessions.

Guest Commentary

To stimulate discussion and debate, Coastal Review welcomes differing viewpoints on topical coastal issues. Morty Gaskill is a member of the North Carolina Coastal Federation Board of Directors. The nonprofit advocacy organization publishes Coastal Review, which remains editorially independent.

In 1976, a North Carolina Sea Grant newsletter sounded the alarm: large-scale land drainage was wiping out wetlands that protect our coastal fisheries. Fishermen saw their livelihoods at risk and 3,000 of them pleaded for action.

“We, the undersigned, being commercial and sport fishermen who use the creeks, rivers, and bays adjacent to Pamlico Sound and the waters of Pamlico Sound, petition the Marine Fisheries Commission and state officials as follows: … to investigate the effect of changing salinity in said waters upon the economy of Pamlico Drainage areas and to initiate proper controls to insure the continued health of commercial and sport fishing in this area.”

They saw it coming. But there was hope — state and federal leaders acted. For decades, farming, forestry, development, and fisheries co-existed under federal and state wetland safeguards — rules that carefully balanced economic growth and environmental protection. These safeguards didn’t create unbearable hardships; they provided stability for all.

Yet here we are again, nearly 50 years later, facing the same crisis — not just for our fisheries, but for our homes, businesses, and communities. Given the changing economic and environmental conditions of many coastal communities across North Carolina, it could not come at a worse time.

This time, the rollback of wetland protections isn’t coming from local drainage operations. It’s happening due to recent federal and state government actions. The Supreme Court’s Sackett v. EPA decision has dramatically narrowed the definition of federally protected wetlands. The North Carolina General Assembly followed suit, choosing to adopt the weaker federal standard instead of maintaining the stronger state level protections that had been in place for years. And now, under new leadership, the Environmental Protection Agency (EPA) is further diluting the Waters of the United States (WOTUS) rule, stripping even more protections from wetlands and streams that feed our coastal estuaries.

The consequences? More wetlands drained. More freshwater rushing unchecked into saltwater nurseries. More flooding. More property damage.

Costly gamble

History has already shown us what happens when we fail to protect our wetlands. In 1976, Rose Bay fisherman Troy W. Mayo spoke out as catches dwindled.

“Twenty-five years ago, I owned a 26-foot shad boat. We used to go out in Rose Bay, two people, for five or six hours and we’d catch 35 to 40 tubs of oysters—that was two men pulling by hand,” said Mayo. “Today you go out in this same area with a power winder and all modern equipment, and I’d be surprised if you catch 10 tubs of oysters.”

Scientists confirmed what fishermen already knew. “Salinity is a major ingredient for survival in the estuaries”; reported the North Carolina Division of Marine Fisheries. Preston Pate, who studied juvenile shrimp in Rose Bay, found that freshwater intrusion “definitely disrupted the salinity of small creeks in the area. The result was a smaller shrimp harvest by fishermen.”

But wetland loss isn’t just bad for fisheries. Wetlands absorb floodwaters, buffer storm surges, and keep pollution out of our waterways. Every acre lost means more homes and businesses at risk.

In North Carolina, our coastal communities have already been battered by hurricanes, rising insurance costs, rising property taxes, lack of affordable housing, and an aging drainage infrastructure that can’t keep up with heavier rains. Weakening wetland protections only adds fuel to the fire. It shifts costs onto property owners, local governments, and taxpayers — many of whom will be left paying for flood damage that could have been prevented.

Commonsense approach to conservation

Those lessons from the 1970s helped shape policies that kept North Carolina’s wetlands intact for decades. But now, history is repeating itself. The rollback of WOTUS protections and the state’s decision to weaken its own rules mean more wetlands will be drained, increasing flooding, pollution, and economic losses.

This shouldn’t be a divisive political issue. Wetland protections aren’t just about environmental policy — they’re about practical economics, public safety, and community well-being. They help prevent costly flood damage, safeguard private property, and support the resilience of coastal economies that depend on fisheries, tourism, and clean water.

Jim Brown of the Division of Marine Fisheries put it best nearly 50 years ago:

“We love beans and beef, and we have a serious need to extend agricultural operations. At the same time, we dearly love shrimp and oysters. There exists a very serious need for imposing compatibility between the two. Can it be done? That’s the question. Or do we just keep plodding along with our fingers crossed?”

If we ignore history, we aren’t just crossing our fingers — we are guaranteeing a grim future for our coastal communities. The fishermen of Rose Bay warned us decades ago. Will we listen this time? Or will we, once again, pay the price for failing to protect the wetlands that sustain our way of life?

Opinions expressed by the authors are not necessarily those of Coastal Review or our publisher, the North Carolina Coastal Federation. See our guidelines for submitting guest columns.

Environmental Protection Agency Administrator Lee Zeldin said last week that he plans to make good on a commitment to revise the “waters of the United States” definition, leading conservation groups to worry what will happen to federally protected waters and wetlands.

One advocate says the new administration’s approach turns a blind eye to science showing how all wetlands — most especially those to be erased from federal jurisdiction – serve vital protective functions.

Sworn in Jan. 29 to lead the federal agency with the mission to protect the nation’s human health and environment, Zeldin explained during a press briefing March 12 that while going through the confirmation process, he had spoken with senators who “were passionately advocating on behalf of their farmers, their ranchers and other land owners” about issues concerning waters of the U.S., often called by the acronym WOTUS.

He vowed that as soon as he got into office, he would do everything in his power to fix “WOTUS once and for all” and the agency is “pursuing a definition that is simple, that is durable and it will withstand the test of time,” Zeldin said.

The federal definition has been the focus of a fair number of lawsuits, since it was first approved as part of the Clean Water Act, which is administered by the EPA and Army Corps of Engineers. Enacted in 1972, the act prohibits discharging pollutants without a permit from a point source into “navigable waters,” defined in the statute as “the waters of the United States, including the territorial seas.”

The EPA calls “waters of the United States” a threshold term that “establishes the geographic scope of federal jurisdiction” under the Clean Water Act. The term “waters of the United States” is not defined within the Clean Water Act. Agencies were given the authority at the time to determine what qualifies, and the definition has undergone a few modifications since then.

The most recent change is the result of a May 2023 Supreme Court decision known by the plaintiffs’ surname, Sackett v. EPA. Judges ruled in favor of the Idaho landowners, who argued that the section of their property they were fined for backfilling was not considered “waters of the United States” because the wetlands were not adjacent to navigable waters. The case led to the federal definition of WOTUS being amended to exclude noncontiguous wetlands.

The EPA stated March 12 in a press release that the Sackett case, “which stated that the Clean Water Act’s use of ‘waters’ encompasses only those relatively permanent, standing or continuously flowing bodies of water forming streams, oceans, rivers and lakes,” will guide the review.

As part of the process, the agencies said in the announcement that there were plans to hold at least six listening sessions over the next few months both virtually and in person. Registration and dates are to be posted on the EPA website.

Zeldin said during the press conference that, “what we’re looking for is to simply follow the guidance from Sackett. It gave us a clear path in determining what waters are waters of the United States. It found that only those wetlands with a quote, ‘continuous surface connection,’ to a relatively permanent water are waters of the United States,” Zeldin said, adding that the court also struck down the long-used “significant nexus test, leaving only those wetlands that abut or are adjacent to waters of the United States as jurisdictional.”

Republican senators and representatives offered their support during the briefing as well as Farm Bureau President Zippy Duvall.

“WOTUS has been a pain in the side for our farmers and ranchers. Our farmers and ranchers want to do what’s right; they just want to know what right is,” Duvall said, adding that the last administration had “vague wording like ‘relatively permanent.’ Can anybody define that,” Duvall asked. “We look forward to that clarity.”

In a statement last week, National Association of Home Builders Chairman Buddy Hughes, a home builder and developer from Lexington, said the organization “commends the EPA for moving to make changes to the WOTUS rule that will protect our nation’s waterways and provide builders and developers the clarity and certainty they need in the federal wetlands permitting process to help house America’s citizens.”

Opposition in the week since the announcement has been at least as equally vocal and perhaps more strongly worded.

The Environmental Protection Network, an organization of more than 650 former EPA career staff and political appointees, said in a release that it “strongly condemns” the EPA’s “rollback of federally protected waters and wetlands, coupled with the release of a new guidance that significantly narrows the scope of the Clean Water Act.”

A former EPA office director Betsy Southerland warned in a statement from the network that “The ‘Sackett’ decision excluded about 60% of wetlands and all ephemeral streams from federal protection. With this guidance, Administrator Zeldin is now codifying an even narrower interpretation of ‘relatively permanent waters,’ which could strip protections from countless seasonal and intermittent streams. Scientific evidence is unequivocal: These waters are vital to maintaining the health of major rivers and lakes. Without them, drinking water quality will decline, and the nation’s waters will be further imperiled.”

Adam Gold, Coasts and Watersheds Science manager for the Environmental Defense Fund, told Coastal Review that with the Trump administration’s intention to narrowly implement the 2023 Supreme Court Sackett v. EPA decision was, “to collect public comment on ambiguous terms from the Sackett decision, like a ‘continuous surface connection.’ This process will likely further limit protections for North Carolina’s wetlands.”

Gold said that while it remains to be seen if there will be a new WOTUS rule from this process, the new EPA announcement seems to point toward “a potential wetness test or surface water requirement where wetlands may be excluded from Clean Water Act protections if they dry out, even for part of the year, and therefore do not have a ‘continuous surface connection’ to water bodies.

“This approach ignores the science that clearly shows how all wetlands, especially those that would be most likely to lose protections, provide essential flood reduction, water quality and ecologic benefits.”

On the state level

Around the same time the U.S. Supreme Court ruled in favor of the Sacketts, the North Carolina General Assembly directed the state Environmental Management Commission in the 2023 Farm Act to align the state definition of wetlands with the federal definition. This removed any state wetlands protections beyond those meeting the federal definition.

The law required that the commission insert the sentence, “Wetlands classified as waters of the State are restricted to waters of the United States as defined by” the federal code as it was written into the state’s wetlands definition, and the wording may not be contested by the Rules Review Commission.

The North Carolina Department of Environmental Quality began implementing the definition when the act was passed in June 2023 and the Environmental Management Commission has been going through the steps to codify the rule.

“The EPA guidance confirms that federal protection for wetlands will be limited and millions of wetlands, including coastal wetlands, will be at risk,” Grady O’Brien, water policy manager for the North Carolina Conservation Network, told Coastal Review.

“However, federal jurisdiction has no relationship to North Carolina’s interest in protecting wetlands for flood storage,” he continued. “In fact, the Sackett decision stated that the Supreme Court expected states to protect wetlands independent of federal jurisdiction. Now would be a good time for the North Carolina General Assembly to revisit state wetlands protections to prevent additional flooding.”

Gold, with the Environmental Defense Fund, said that if wetlands must have surface water connections nearly year-round to have Clean Water Act protections, the organization’s research published last year in Science estimates that this could leave up to 3.2 million acres of nontidal wetlands in the state without that layer of federal protection.

“The lack of state-level wetlands protections in North Carolina means that the only layers of protection left could be local protections or ‘protected’ public lands. With forthcoming changes to the WOTUS definition, we can expect increasing wetlands loss and increasing risks to people and homes due to more dangerous flooding, declining water quality and the loss of vital habitat,” Gold said.

Southern Environmental Law Center Senior Attorney Julie Youngman told Coastal Review that Trump’s EPA announced that it intended to roll back federal wetland protections even further, “endangering North Carolinians because the General Assembly has tied us directly to whatever the federal government does, no matter how harmful to North Carolinians. In light of EPA’s malicious actions, the General Assembly must protect North Carolina’s wetlands at the state level, to protect communities from flooding, hurricanes, and harm to our water supplies and seafood industry.”

Related: Commission OKs proposed wetlands rule for public comment

Jessie Ritter, associate vice president of water and coasts with the National Wildlife Federation, told Coastal Review that North Carolina’s wetlands and waterways are essential to the health of our coasts because they buoy our fisheries, support the economy and buffer communities from extreme weather.

“A Supreme Court decision in 2023 left many North Carolina wetlands and streams without federal protection and a state law passed later that year also eliminated state protections for these waters,” Ritter said. “The recent announcement from the EPA suggests the agency plans to remove federal safeguards for even more water bodies. If this happens, coastal communities will see increased development immediately upstream, leading to more flood-prone rivers that carry dirtier water to our bays.”

Coastal Carolina Riverwatch Executive Director Lisa Rider told Coastal Review that as a lifelong coastal North Carolinian, she knows firsthand that wetlands are more than just a word being debated over definitions.

“Wetlands are our first line of defense against flooding, acting like natural sponges that absorb stormwater before it can rush into our communities “One acre of wetland can hold up to 1.5 million gallons of water, reducing flood risks and protecting our homes and businesses. They also filter out pollution and prevent runoff from overwhelming our coastal waters,” Rider said.

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.

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.

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.

Related: Commission set to further curb state wetlands protections

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.”

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.

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 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.

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.   

This post has been updated.

North Carolina environmental organizations are celebrating a recent decision in a coastal North Carolina man’s challenge to remaining federal wetland protections under the Clean Water Act.

The case is ongoing.

Robert White of Pasquotank County, who operates various businesses in area, brought the case in March, challenging what he contends are illegal provisions in Environmental Protection Agency and Army Corps of Engineers rulings and seeking “to restore his own right to make use of his own land.” White seeks to operate a sand mine adjacent to Big Flatty Creek and near the Pasquotank River.

The Southern Environmental Law Center intervened in the case on behalf of the National Wildlife Federation and the North Carolina Wildlife Federation. Those nonprofit groups say White seeks to virtually eliminate federal protection of wetlands, after the U.S. Supreme Court nearly gutted existing protections last year in its Sackett v. EPA decision.

In January 2023, the EPA brought a civil enforcement action against White after he allegedly discharged pollutants into jurisdictional waters without a permit when he built and filled bulkheads in open water and wetlands, both marsh and forested, at his parcels on the Pasquotank River and Big Flatty Creek. This enforcement action is ongoing. Last fall, White asked the court to stay an enforcement action pending against him. When that failed, White turned from defense to offense, as Boyle noted in his ruling.

White in April asked the court to preliminary enjoin federal agencies from enforcing Clean Water Act regulations as they pertain to him and his properties.

Related: Wildlife groups seek to intervene in Pasquotank man’s case

But Judge Terrence W. Boyle on June 17 issued a scathing decision for the U.S. District Court for the Eastern District of North Carolina denying White’s motion for a preliminary injunction.

“White has failed to show that he is likely to succeed on the merits of either of his claims,” Boyle ruled.

“We are disappointed with the court’s ruling,” said Paige Gilliard, an attorney with the Pacific Legal Foundation, which is representing White in the case . “The Supreme Court was clear in Sackett that federal jurisdiction over wetlands requires both a continuous surface connection and indistinguishability from jurisdictional waters. The CWA regulates navigable waters, not land, so indistinguishability is a critical part of the Sackett test. The Amended Rule’s lip service to continuous surface connection is not enough under Sackett.”

The Pacific Legal Foundation represents challengers to environmental laws free of charge and “defends Americans’ liberties when threatened by government overreach and abuse,” according to its website.

White had alleged that the “adjacent” wetlands provision in the new federal rule is inconsistent with the Sackett test for jurisdiction over wetlands. He asked the court to find the new rule unlawful and set it aside as “arbitrary, capricious, an abuse of discretion.” White contended for those same reasons that the new regulations exceeded the agencies’ statutory authority and must be set aside.

Boyle ruled that White failed to show that he was likely to suffer irreparable harm without a preliminary injunction, “that the balance of the equities tip in his favor; and that an injunction would be in the public interest. Boyle called that failure “fatal to his motion.”

Boyle ruled that “White’s challenge to the waters of the United States, or WOTUS, rule that resulted from the Sackett decision, “smacks up against the Rule’s fidelity to ‘waters of the United States’ and Sackett’s test to determine when an adjacent wetland meets that definition.”

White faltered, Boyle ruled, by isolating a phrase in the Sackett decision “from its logical connection to the remainder of the opinion.” Boyle referenced the words of former Supreme Court Justice Oliver Wendell Holmes Jr., applying his “familiar admonition to a different context: White is thinking words not things. The thing that makes a wetland practically indistinguishable from an adjacent ‘water of the United States’ is the presence of a continuous surface connection. Thus, the Amended Rule faithfully conforms to the definition of ‘waters of the United States’ as interpreted by Sackett.”

Michael and Chantell Sackett, the people behind the case name, had purchased property in Idaho and began backfilling their lot so they could build a house. The EPA informed the Sacketts that their property included wetlands and they needed a permit because they were discharging pollutants into “waters of the United States.” The Sacketts sued, and after nearly 15 years their case made it to the U.S. Supreme Court, where they prevailed.

In its 5-4 decision, the nation’s highest court ruled that “waters of the United States,” pertains to only wetlands that have “continuous surface connection.”

Advocates said the revised rule leaves water quality in North Carolina unprotected and increases the chance of flooding.

The North Carolina League of Conservation Voters said in May that White’s case “could finish killing off federal rules protecting wetlands.”

CHAPEL HILL — Environmental organizations are seeking to intervene in a federal lawsuit brought by a North Carolina commercial seafood business operator that they contend seeks to virtually eliminate remaining federal wetlands protections that were dramatically scaled back last year.

The Southern Environmental Law Center said Wednesday it had filed in the U.S. District Court for the Eastern District of North Carolina a motion to intervene and memorandum in the case, which it says could strip provisions that protect waterways that support fishing, hunting and outdoor recreation and undermine their related economies. The law center is representing the National Wildlife Federation and the North Carolina Wildlife Federation.

The case was brought in March by Robert White of Pasquotank County. White is challenging what he contends are illegal provisions in Environmental Protection Agency and Army Corps of Engineers rulings “to restore his own right to make use of his own land,” according to his attorneys, and to ensure both agencies comply with — and courts apply — the 2023 U.S. Supreme Court ruling that dramatically narrowed Clean Water Act protections.

Pacific Legal Foundation, which specializes in property rights cases, is representing White, who plans to operate a sand mine on river-adjacent land he owns. Pacific Legal said the Supreme Court’s decision requires that wetlands must be indistinguishable from navigable waters to be regulated. “Land such as Robert’s, which does not bear this connection to the two waterways — cannot be subject to federal regulation under the Clean Water Act.”

The nonprofit law firm known for property rights advocacy contends that the high court’s 5-4 majority opinion in Sackett v. EPA held that the Clean Water Act extends to only wetlands with a continuous surface connection to bodies that are “waters of the United States.” Pacific Legal lawyers had successfully represented Chantell and Mike Sackett in their dispute with the EPA.

“Last term in Sackett the Supreme Court made clear that the Clean Water Act forbids the type of wetlands regulation at issue in Mr. White’s case,” Pacific Legal Foundation attorney Charles Yates said in a statement in response to Coastal Review’s query. “That the Clean Water Act only authorizes the regulation of wetlands that are ‘indistinguishable’ from covered waters, is beyond dispute. Yet rather than adhering to Sackett’s rule, the Agencies have doubled down and are transparently seeking to evade the judgment of the highest court in the land. All Mr. White seeks is a declaration that, per Sackett, the Agencies may no longer regulate his property. The interveners in this case are unsatisfied with the statute Congress actually passed and the Supreme Court’s ruling insisting that it means what it says; the proper audience for their complaints is the legislative branch.”

Pacific Legal said that White owns “low-lying,” flood-prone land on Big Flatty Creek and the Pasquotank River. Seeking to make improvements to minimize flooding and for business endeavors including agriculture and sand mining, White became engaged in permitting disputes with the EPA and the Corps regarding the “navigable waters” provision in the Clean Water Act.

He faces “crushing civil enforcement action,” according to Pacific Legal.

The Southern Environmental Law Center said the relief the plaintiff seeks would effectively write most wetlands out of the Clean Water Act.

“A ruling adopting this extreme view could have devastating effects on waters in North Carolina and throughout the nation,” said Mark Sabath, senior attorney at the Southern Environmental Law Center. “Wetlands are vital to help protect drinking water supplies, wildlife and fisheries, and our communities from flooding. If the wetlands along our coastal waters like the Albemarle Sound are developed and destroyed, communities will be wrecked by job loss, wildlife loss, and flooding.”

The National Wildlife Federation and the North Carolina Wildlife Federation say that the ruling stands to have large economic repercussions. They say healthy fish and wildlife depend on clean water, and that valuable waterways threatened by the lawsuit support fishing, hunting, and outdoor recreation, as well as the jobs these activities sustain. They contend that the clean water that hunters, anglers and other outdoor enthusiasts expect is a pillar in a $788 billion outdoor recreation industry.

“We care about the water quality and wetlands of North Carolina for both people and wildlife,” said Tim Gestwicki, CEO of the North Carolina Wildlife Federation. “We cannot protect fisheries if the wetlands and streams flowing into estuaries are polluted or destroyed. We cannot ensure that critical wildlife habitat is preserved for fishing, hunting, birdwatching, and outdoor recreation if wetland protections are weakened.”

The groups say nearly all of the commercial catch and over half of the recreational harvest in the Southeast are fish and shellfish that depend on wetlands, and wetlands provide important flood protection for communities.

“What the plaintiff in this case is seeking could make it more difficult to protect wetlands and other waters that are critical to fish, waterfowl, shellfish, and other wildlife, and allow widespread destruction and degradation of those critically important waters along with pollution and flooding downstream,” said Jim Murphy, senior director of legal advocacy for the National Wildlife Federation. “Strong Clean Water Act protections safeguard critical wetlands and other waters that sustain our nation’s wildlife and people.” 

White is currently facing a separate federal enforcement action for building and filling a bulkhead on wetlands without a permit on his property on the Pasquotank River and Big Flatty Creek. His attorney did not respond to questions pertaining to that case.

Gov. Roy Cooper has launched an ambitious initiative to conserve and restore wetlands that lost state protections last year when legislators passed a law that aligns with more narrowly defined federal wetland rules.

Cooper announced late Monday afternoon that he had signed Executive Order No. 305, which establishes a goal by 2040 to permanently conserve 1 million new acres of forests and wetlands, restore or reforest 1 million news acres of forests and wetlands, and plant 1 million trees in urban areas.

“North Carolina’s rich natural beauty is not only critical in our fight against flooding and climate change, but important to our economy,” Cooper stated in a release. “As our state continues to grow, we must be mindful to conserve and protect our natural resources and this historic Executive Order sets clear goals and puts a plan in place that will help us leave our state better than we found it for generations to come.”

Cooper last summer failed to stop the annual legislative exercise, the Farm Bill, which includes a provision that boxes in how the state can define and, ultimately, protect wetlands, from becoming law after North Carolina legislators overrode his veto of the bill.

Wording tucked into the North Carolina Farm Act of 2023 aligned how the state defines wetlands with that of the U.S. Supreme Court, which ruled last May that waters of the United States, or WOTUS, applies only to wetlands that have “continuous surface connection.”

Looking back: Digging into the Farm Act

The Farm Bill strips longtime state-enacted safeguards and compensatory mitigation for more than 2 million acres of wetlands unique to North Carolina like Carolina bays and pocosins, which have no inlet or outlet.

According to the order, pocosins cover a substantial portion of North Carolina, “offer extensive benefits through carbon storage and sequestration; enhance water quality through storage and filtration; contribute to biodiversity and ecological resilience and mitigate flood and fire risk that cause substantial economic cost.”

Looking back: Wetlands left unprotected

Under the order, state agencies are directed to avoid or curtail new projects that would harm these types of wetlands, including mountain bogs.

“The governor’s action today recognizes how vital wetlands are to North Carolina’s people and wildlife, fisheries and flood protection,” Mary Maclean Asbill, director of the North Carolina offices of the Southern Environmental Law Center, stated in a release. “North Carolina’s legislature set the wrong example by failing to protect our wetlands, increasing the risk of flooding to our communities and endangering North Carolinians and fisheries.”

The order also requires state agencies to study the social, economic and environmental value of protecting these and other types of wetlands and seek federal funding to protect and restore wetlands to minimize flooding, improve water quality and capture carbon.

Leaders of environmental organizations and state agency heads praised the order.

“Now more than ever, North Carolina needs to conserve our working lands—including wetlands and forests that reduce flooding, clean our drinking water, and sustain fish and wildlife,” Grady O’Brien, policy associate with North Carolina Conservation Network, said in a release. “We’re grateful for the robust commitment this executive order makes toward protecting natural resources and providing good stewardship of our state’s valuable lands.”

Katherine Skinner, executive director of The Nature Conservancy North Carolina Chapter, said efforts to protect and restore natural areas is “vital” for the state’s future.

“They ensure clean air, clean water, and recreational opportunities in a rapidly growing region,” she said in a release. “And, they are also crucial to our continued economic growth, most of which is centered on our natural resources.”

The state is experiencing more intense hurricanes, flooding, extreme temperatures, droughts, sea level rise and saltwater intrusion – all effects of climate change that have caused more than $250 billion in damages over the last few years, according to the executive order.

North Carolina has responded by investing millions in climate mitigation efforts, including the creation of the statewide Flood Resiliency Blueprint.

The goals and directives set in the order are derived in large part from the 2020 North Carolina Natural and Working Lands Action Plan, which was created with input from a group of nearly 100 expert stakeholders under the direction of the state Department of Environmental Quality, or DEQ. The plan lays out specific actions the state may take to reduce the impacts of climate change.

Looking back: Interactive maps show benefits of natural, working lands

Katie Warnell, a senior policy associate at Duke University’s Nicholas Institute for Energy, Environment & Sustainability, is part of the working group on natural and working lands.

“It is inspiring to see recommendations from the state’s Natural and Working Lands Action Plan being elevated as priorities in this executive order,” she stated in a release. “The order’s ambitious goals for land conservation and restoration will preserve and enhance the many benefits North Carolina’s natural and working lands provide to everyone who lives in or visits the state. The executive order also addresses many data gaps and limitations previously highlighted in the action plan, which hinder planning for the sustainable management of North Carolina’s lands and waters.”

The executive order also includes the following stipulations:

• A native plant policy for all future state-owned projects.
• Promotion and support from state agencies for new and ongoing conservation and restoration, and climate resiliency efforts within tribal communities.
• Research climate impacts on the state’s biodiversity.

“This Executive Order positions North Carolina to take a science-based approach to achieving mutually beneficial goals relating to environmental quality, economic development, resiliency, and ecosystem enhancement by identifying and protecting our forests and natural and working lands,” DEQ Secretary Elizabeth S. Biser stated in a release.

U.S. Fish and Wildlife Service Nature Based Resiliency Coordinator Sara Ward said the goal set in the order is a “game-changing target.”

“The U.S. Fish and Wildlife Service is particularly excited about the emphasis on the state’s internationally significant peatlands, known as pocosins, in today’s action,” she said in a release.

North Carolina Wildlife Resources Commission Executive Director Cameron Ingram called the order ambitious and important.

“Given all the tremendous pressures facing North Carolina’s lands and waters, we are excited to be a part of this ambitious and important initiative,” he said in a release. “We look forward to continuing to work with our State agency and non-profit partners to support the conservation of land to benefit wildlife and their habitats while providing opportunities for North Carolinians to enjoy hunting, fishing, boating, and wildlife associated recreation.”

When the North Carolina Environmental Management Commission meets this month, members are to hear recommendations concerning a new law to amend the state’s wetland rules.

The committees will meet from 9 a.m. to 4:30 p.m. Wednesday, Jan. 10. The full commission meeting is to start at 9 a.m. Thursday, Jan. 11. The public may attend the meeting in the Ground Floor Hearing Room of the Archdale Building in Raleigh in person or join the meeting by computer or phone.

In the 2023 North Carolina Farm Act, the commission was directed to amend the state’s wetland rules to be consistent with the federal “waters of the United States” or WOTUS, revised in 2023 because of the U.S. Supreme Court’s decision that isolated wetlands are not protected under the Clean Water Act.

The agenda also includes a discussion on their case against the Rules Review Commission’s for “unlawful objection to EMC’s proposed rule amendments codifying its pre-existing narrative standards for the carcinogenic toxin 1,4-Dioxane,” and an update on the revision to a discharge permit from seafood packing and rinsing, aquatic animal operations, and similarly designated wastewaters for aquaculture.

Meeting information, including draft agendas and additional materials can be found on the commission website.

Guest commentary

In 2018, Hurricane Florence made landfall near Wilmington, North Carolina, taking 42 lives and costing more than $16 billion in estimated damage. Now, five years later, many residents and communities are still reeling from the storm’s floodwaters. Blue tarps remain on unpatched roofs, businesses have not returned and communities have experienced disproportionate recoveries. 

The immediate and residual impacts from hurricanes Florence and Matthew, Tropical Storm Fred and other subsequent unnamed flooding events have had long-lasting impacts on communities. As a result, these events have encouraged state leaders to take action to better prepare for future storms.

Environmental Defense Fund thanks leaders, as well as businesses, conservation groups and community members, for working to build a more flood-resilient North Carolina. Let’s look at how far we’ve come in the last five years. 

Leaders develop Flood Resiliency Blueprint 

Working in collaboration with state agencies, local governments and nongovernmental organizations, Sen. Jim Perry, R-Lenoir, and Rep. John Bell, R-Wayne, led the authorization of the state’s first Flood Resiliency Blueprint. 

The blueprint will be used as a support tool to guide statewide decisions around resilience and is informed by advanced hydrologic and hydraulic modeling, which demonstrates how much water is flowing and where that water goes during a flood. Ultimately, this information will help guide investment of local, state and federal resilience funding toward cost-effective solutions to reduce flood vulnerability. 

The Flood Resiliency Blueprint will also provide accurate and timely information on flood risks and effective solutions for communities and landowners. This will help guide local efforts to manage and abate flooding within watersheds and river basins and help communities manage risks beyond traditional jurisdictional boundaries. In addition, it helps ensure funding is locally supported and regionally effective. 

Lawmakers expand funding for natural infrastructure

After Hurricane Florence, North Carolina’s state legislature appropriated more than $300 million toward flood mitigation efforts. Included was support to advance natural infrastructure projects and stream improvement efforts through programs at the state’s Department of Agriculture, Department of Cultural and Natural Resources (DCNR) and Department of Environmental Quality (DEQ). 

The Stoney Creek effort is one example where DEQ’s Division of Mitigation Services has engaged private-sector environmental restoration firms to work with landowners and the town of Goldsboro. They have developed a watershed-scale approach to regional flooding using natural infrastructure projects, such as enhancing and restoring wetlands to store storm water and incorporating natural berms or in-ditch structures to slow the flow of storm water. 

Part of the $300 million also went to the DCNR’s Land and Water Fund to advance 17 proposals to implement natural infrastructure projects and to support the planning and construction of additional flood mitigation projects. 

Experts advance research 

State legislators and agency leaders have also advanced new studies through the University of North Carolina Collaboratory and state agencies to research the benefits of flood mitigation solutions and develop new datasets to inform the Flood Resiliency Blueprint and community solutions. 

For example, Dr. Barbara Doll from North Carolina State University led a 15-person research team to explore natural infrastructure solutions in the Neuse River Basin. The study found potential flood reductions of up to 45% in areas of high natural infrastructure adoption.

While Dr. Miyuki Hino from the University of North Carolina collaborated with colleagues and graduate students to examine floodplain management. Through her research, she found that for every building removed from the state’s floodplains, 10 new structures were built, raising concerns that floodplain buyouts are not keeping pace with new development. 

A look toward the road ahead 

Overall, these initiatives have been instrumental in helping North Carolina better prepare for the ongoing and growing threat of flooding and storm risk. We thank North Carolina leaders and collaborators for their recent efforts and ongoing commitment to address flooding. 

But even with this advancement, experts agree that many flood challenges still lie ahead. For instance, due to the Environmental Protection Agency v. Sackett ruling, millions of acres of North Carolina wetlands are now unprotected, leaving communities at risk of losing valuable, flood-reducing ecosystems. This Supreme Court decision shifts responsibility for the conservation and management of certain wetlands from federal agencies to the states. Whether and how North Carolina policymakers address the potential loss of wetlands, in addition to how much development occurs in the state’s floodplains, will significantly impact the story that is told after future storms. 

We call on leaders to prioritize state-level coordination and increase local capacity to identify and implement watershed-scale solutions, recognizing that flood solutions can’t be developed within traditional jurisdictional or landowner boundaries.

We also encourage leaders to ensure protection of wetlands and other natural flood defenses to enable communities, landowners and all North Carolinians to better prepare for and quickly recover from the next flood or storm.

To stimulate discussion and debate, Coastal Review welcomes differing viewpoints on topical coastal issues. See our guidelines for submitting guest columns. Opinions expressed by the authors are not necessarily those of Coastal Review or our publisher, the North Carolina Coastal Federation.

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.”

First in a series.

Nearly a month has passed since the North Carolina legislature overrode Gov. Roy Cooper’s veto of the annual Farm Bill that includes a provision boxing in how the state can define and, ultimately, protect wetlands.

Though Senate Bill 582, otherwise known as the North Carolina Farm Act of 2023, covers more than 30 topics hitting on everything from padding buffers by trout streams and upping the penalty for animal waste spilled along state roads, to mandating muscadine grape juice in all public K-12 schools.

But the provision that prompted the governor’s veto and that raised the loudest alarm bells among environmentalists strips state-enacted safeguards and compensatory mitigation for wetlands that have been in place for years by aligning the law with a recent U.S. Supreme Court decision.

In May, the nation’s highest court ruled that the definition of waters of the United States, or WOTUS — the Environmental Protection Agency’s Clean Water Act jurisdiction — applies only to wetlands that have “continuous surface connection.”

“What qualifies as surface conveyance?” asked Norton Webster, treasurer and consultant with the Carolina Wetlands Association and chief strategy officer at Eco Terra, an Atlanta-based environmental services company that specializes in mitigation and alternative energy. “This is what the (Army Corps of Engineers) and the EPA are wrestling now.”

Webster, who works out of Eco Terra’s Cary office, explained that North Carolina has unique wetlands features like Carolina bays and pocosins, which have no inlet or outlet, can be wet for part of the year, and in some cases take up a large part of the landscape in the state’s coastal plain.

“They are wetlands, but some of them may not have federal protection now because they don’t have that surface conveyance,” he said.

The degree to which the wetlands provision’s effect will have on future protection of wetlands in North Carolina will not likely be fully understood until the Environmental Agency and Corps issue a final rule on revisions to the definition of “waters of the United States,” or WOTUS. That ruling is expected to be issued by Sept. 1.

“It’s really difficult at least at this moment to be able to quantify what the exact impacts are because we, unfortunately, really can’t predict the future,” Webster said.

The overwhelming consensus among environmental groups: It’s not going to be good.

Proponents of the Farm Act argue environmentalists are overstating the impact of the wetlands provision.

Mike Carpenter, general counsel for the North Carolina Home Builders Association, told the Associated Press that the provision pertains to isolated wetlands and was “not as gloom and doom and disastrous as our friends in the environmental community would like to believe it is.”

Carolina Wetlands Association Executive Director Rick Savage disagrees.

“Realize it’s more than isolated wetlands,” he said. “It’s a lot more with the (Supreme Court) case. It really is.”

How a new definition may cut mitigation

The North Carolina Department of Environmental Quality estimates that more than half of the state’s wetlands – as much as 2.5 million acres – could lose protection.

Opponents of the wetland provision point out that the state is allocating millions of dollars to create nature-based solutions, including wetlands, to mitigate flooding of riverside communities, yet state lawmakers have enacted a bill that diminishes protecting those wetlands and curbing water pollution.

In his written objection and veto of the bill, Cooper stated that severely weakened wetlands protections will equate to more flooding and dirtier water, especially in eastern North Carolina. According to Savage, 90% or more of the state’s wetlands are east of Interstate 95.

“This bill reverses our progress and leaves the state vulnerable without vital flood mitigation and water purification tools,” the governor wrote.

Nonjurisdictional wetlands, or those not defined under WOTUS, have under state statute been included in the state’s Stream and Wetland Mitigation Program, but that may no longer be the case with the passage of the Farm Bill.

“Mitigation was created to allow for landscape changes, but to try to make sure that the overall quality in those respective areas were not diminished,” said Amanda Mueller, program director of North Carolina State University’s Kenan Institute, Engineering, and Technology Science Climate Leaders Program and a former environmental specialist with DEQ. “That’s come up, especially now with the increased frequency of flooding in a lot of areas. I started to say coastal, but it’s not just coastal any more. So, the services and values of those wetlands, even though they are not continuous with the waters of the U.S. as they’re termed, those services have the potential of being removed by those wetlands not being protected.”

Webster said the answer as to how the state wetland provision will affect the future of wetlands mitigation is simple.

“If a wetland’s not jurisdictional it’s not going to be protected under the Clean Water Act,” he said. “If (wetlands) aren’t jurisdictional and because the state’s protections are gone there will be no mitigation required for those. It’s that simple, unfortunately. The reason it’s going to hurt the mitigation industry is because there’s going to be less mitigation required because there’s going to be less jurisdictional wetlands.”

The state’s compensatory mitigation program is designed to offset what are deemed unavoidable impacts to wetlands by a proposed development.

There are three options for compensatory mitigation: mitigation banks where an applicant can buy credits from an approved bank; in-lieu fees where credits may be purchased through the North Carolina Division of Mitigation Services; and project-specific mitigation, which allows an applicant to mitigate at the project at or off the site.

A mitigation plan must be implemented or constructed before the developer can build.

Mitigation bank sites are the physical acreage in which wetlands can be established, restored, enhanced or preserved.

Sites are vetted through requirements established by a handful of federal agencies, including the Corps and EPA, that look at features including the size of the area, hydrologic sources and watershed management plans.

The system works like a commercial bank, but instead of having a cash asset to loan, mitigation banks loan mitigation credits to sell to anyone who has to offset mitigation debits.

In North Carolina, more than 400 mitigation banks have been approved and “many more” are in the review process, according to Joseph Pitchford, division public information officer.

Nearly 300 of those banks are Division of Mitigation Services sites and 123 are private.

Mitigation must occur within the same geographical service area, or watersheds, as the area in which wetlands are being impacted.

In areas of the state where it is difficult to establish a mitigation bank, particularly small watershed, developers have the option of paying in-lieu fees, when the permittee of a development project pays an in-lieu fee sponsor, such as a public agency or nonprofit organization.

North Carolina has one of the largest and oldest in-lieu fee programs in the country, according to DEQ.

The agency credits the success of the program to Division of Mitigation Services’ partnership with the North Carolina Department of Transportation, which accounts for about 80-90% of mitigation in the state. DOT forecasts an estimate of the department’s mitigation needs and provides that information to the division.

“For mitigation banking we have to have regulation because that’s what defines our market,” Webster said. “And, right now I don’t believe from a political perspective people really see what the value of clean water is because if you look at how dire the environment was back in 1972 when we had the National Environment Policy Act, the Clean Air Act, the Clean Water Act, all these environmental regulations came to be because we were having all these issues and now it’s like, oh well everything’s good, we’re on the status quo, we don’t need to protect these resources anymore. Generally, if you look at the amount of land that has been protected through mitigation and you look at some of the pretty significant wetland banks – there’s some pretty large areas in the coastal region that have been protected and they’ve been protect in perpetuity because there are conservation easements.”

Gov. Roy Cooper on Friday vetoed recently passed legislation that he said would undo protections for half of the state’s wetlands.

Language in Senate Bill 582, the 2023 Farm Act, would restrict the wetlands that the state can regulate to those that are considered waters of the United States, often called WOTUS. This means that the state would no longer have the authority to protect federally nonjurisdictional, or isolated, wetlands.

“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,” Cooper said in a statement.

“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,” he continued. “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.”

Related: Bill limiting NC wetland protections sent to Gov. Cooper

The North Carolina Department of Environmental Quality, in a memo Thursday, said that based on preliminary analysis and data, a recent U.S. Supreme Court decision combined with Section 15 of the bill could result in loss of wetland protections for an area that’s more than 7% of the state’s total landmass.

Based on data from a 1990s analysis, DEQ researchers put areas such as pocosin, maritime forests, managed pinelands and pine and hardwood flats at high risk of losing the protections if the Farm Bill were to be enacted.

The estimates were qualified based on the age of the data, DEQ noted. “Some of these wetlands may no longer exist or may no longer be protected under existing state law. The estimate also does not include wetlands smaller than an acre.

Southern Environmental Law Center Senior Attorney Derb Carter applauded the veto and sent a letter to Cooper. 

“Our wetlands have incredible value with the ability to retain flood waters, filter pollution, replenish groundwater that most of our citizens rely on for drinking water, and provide habitat to fish and wildlife,” Carter said in a statement, adding that he couldn’t think of another single action taken during his 40-year career that would have “a greater long-term adverse impact on North Carolina’s water quality and natural resources than abandoning state wetlands protections — harm that will be made even worse by the loss of federal protections from the recent Supreme Court decision in Sackett v. EPA. From our unique mountain bogs to namesake Carolina Bays, bottomland swamps, and unique pocosins, our wetlands are a state natural treasure.”

A veto-override is expected unless a Republican can be persuaded otherwise.

Cooper also on Friday signed into law numerous other bills. One with potential environmental implications was Senate Bill 673. The Wastewater Regulatory Relief Act sets requirements for sewer line extension permitting, including engineering evaluations of projected needs. It features a provision that allows counties with projected yearly population growth above 2% to allocate wastewater treatment  system capacity beyond the system’s design as long as a contract to expand the plant is signed or ongoing expansion is to be complete within prescribed time periods.

Senate Bill 22 renames the Outdoor Heritage Advisory Council to the North Carolina Youth Outdoor Engagement Commission. The commission is under the North Carolina Wildlife Resources Commission for organizational and budgetary purposes only and advises state agencies and the General Assembly “on the promotion of outdoor recreational activities, including, but not limited to, hiking, horseback riding, boating, sport shooting and archery, bird watching and wildlife watching, camping, swimming, hunting, trapping, and fishing in order to preserve North Carolina’s outdoor heritage for future  generations and  use grants and programming to promote the outdoor recreational activities …” according to the measure.

Cooper’s office said the governor declined to sign into law House Bill 130, which among other things sets requirements for decommissioning and site restoration for utility-scale solar projects, including financial assurances. But the measure also bars counties from adopting ordinances that limit “energy choice,” such as those that prohibit connections to certain energy sources or against the sale or installation of appliances such as gas stoves.

A bill that significantly scales back wetland protections is now on Gov. Roy Cooper’s desk.

The 2023 Farm Act restricts state regulation of wetlands to those classified as waters of the United States, often called WOTUS, and a Clean Water Act definition that the U.S. Supreme Court narrowed in May to include only wetlands that have “continuous surface connection” to other water bodies.

The measure was ratified Monday and sent to the governor Tuesday.

The bill removes the state’s regulatory authority that now protects federally nonjurisdictional wetlands. Advocates and scientists say these isolated wetlands serve important hydrological and ecological functions.

“The anti-wetlands provision in the Farm Act is disappointing and dangerous. If it becomes law, we estimate that the provision will leave at least half of the state’s 4 million acres of wetlands without federal or state protection. Wetlands hold and slow floodwaters. When they are paved over, downstream communities and farmland suffer increased flooding and dirtier water,” North Carolina Conservation Network Policy Director Grady McCallie said in a statement.

An analysis by the Southern Environmental Law Center found that, in the Neuse and Cape Fear River basins alone, about 900,000 acres of wetlands could be put at risk of pollution and destruction.

“Protecting wetlands protects our communities,” said Geoff Gisler, program director at the Southern Environmental Law Center. “By eliminating laws that have been in place for years, the legislature puts wetlands and our communities in harm’s way. This bill is the single most destructive action taken in North Carolina in decades — the legislature has abandoned our great natural resources, the rivers we depend on, and communities across the state.”

The bill — a 28-page mashup of agricultural and other provisions — passed the House 77-38 June 7 with the Senate voting 37-6 to concur with House amendments the next day. The primary sponsors were Sen. Brent Jackson, R- Bladen, Duplin, Jones, Pender and Sampson; Sen. Norm Sanderson, R- Carteret, Chowan, Dare, Hyde, Pamlico, Pasquotank, Perquimans and Washington; and Sen. Buck Newton, R-Greene, Wayne and Wilson.

It’s unclear whether Cooper will veto the measure, sign it or allow it to become law without his signature. The vote margins point to a likely veto override.

The North Carolina Home Builders Association had pushed for the rollback of wetland protections.

“This bill contains an important provision that restores the state definition of wetlands to language consistent with what remained in place for almost three decades in North Carolina,” Association Director of Legislative Affairs Steven Webb, said in an online video posted earlier this month.

The definition established by the Environmental Protection Agency and Army Corps of Engineers in the 1980s included all waters, wetlands and intermittent streams which, if degraded, could affect interstate or foreign commerce. This included wetlands adjacent to waters. The definition has been targeted numerous times over the years by litigation.

The Obama administration in 2015 expanded protections under the Clean Water Act, protections the Trump administration in 2020 repealed and replaced with the Navigable Waters Protection Rule, which narrowed the definition of waters and wetlands subject to regulation. The definition was revised yet again and expanded by Biden administration this year, but the Supreme Court in May scaled it back in its decision.

“The uncertain meaning of ‘the waters of the United States’ has been a persistent problem, sparking decades of agency action and litigation,” according to the opinion written by Justice Samuel Alito and known as “Sackett v. EPA,” which also stated that, “The EPA’s insistence that ‘water’ is ‘naturally read to encompass wetlands’ because the ‘presence of water is ‘universally regarded as the most basic feature of wetlands’ proves too much.”

Mary Maclean Asbill, director of the North Carolina offices of the Southern Environmental Law Center, said it was difficult to describe how harmful the Farm Act is to North Carolina’s water quality, wildlife, fisheries and communities.

“North Carolina is setting the wrong example by failing to protect our wetlands after the Sackett opinion,” she said.

The law center noted that an acre of wetland can store about a million gallons of water, “so when developers and industry destroy wetlands, communities lose flood protection.”

It also noted that the state’s nearly $300 million wild-caught seafood economy could be put at risk.

The Supreme Court ruled Thursday against the Environmental Protection Agency in a longstanding case that will narrow what defines a wetland.

In its decision, the nation’s highest court ruled that the definition, “waters of the United States,” or WOTUS, applies only to wetlands that have “continuous surface connection.”

The ruling ends a more-than-15-year battle brought on by Idaho couple Michael and Chantell Sackett, who were ordered by the EPA to restore land they had backfilled on their lot to build a home.

EPA officials at the time notified the Sacketts that they were in violation of the Clean Water Act because wetlands on the property were near a ditch, which feeds into a creek that runs into Priest Lake.

The Sacketts sued, initiating a case that ultimately challenged the legality of the testing method used for determining wetlands as “waters of the United States” under the Clean Water Act.

The court’s ruling Thursday is hailed as a victory for property owners, but environmentalists have argued such a decision will have far-reaching implications for wetlands protections.

“In the wake of the Supreme Court’s decision in Sackett v. EPA, the only thing now protecting many North Carolina communities from being flooded in the coming years is the state’s existing ban on paving over wetlands without a permit. The NC General Assembly should not remove that protection – it is literally protecting lives and property,” said Grady McCallie, policy director with the North Carolina Conservation Network.

North Carolina legislators are considering a law that limits the state to use the WOTUS rule to identify wetlands.

The N.C. Farm Act of 2023 would strip the state’s ability to fill in gaps to protect federally nonjurisdictional wetlands, including isolated wetlands, which are those not directly connected to any body of water, but are hydrologically and ecologically valuable, environmentalists say.

This story has been updated to clarify study findings.

Thousands of acres of wetlands in North Carolina stand to lose state protections under a new farm bill that would restrict how the state’s wetlands are defined.

The N.C. Farm Act of 2023 proposes to limit the definition of “wetlands to waters of the United States,” a rule that is currently being challenged in the nation’s highest court.

Environmentalists say the bill, if enacted, would strip the state’s ability to fill in gaps to protect federally nonjurisdictional wetlands, including isolated wetlands, which are those not directly connected to any body of water, but are hydrologically and ecologically valuable.

Concerns are also being raised about a provision in the bill that would change a rule requiring gases captured from hog waste lagoons be used to produce renewable energy.

The North Carolina General Assembly in 2015 passed a law regulating impacts to isolated wetlands, and the state Environmental Management Commission has adopted a temporary permitting rule for wetlands the state has identified as federally nonjurisdictional.

Those protections would be eliminated if the new farm bill passes, said Julie Youngman, a senior attorney with the Southern Environmental Law Center.

“Wetlands act like a sponge in that they can absorb a lot of water,” she said. “When you have big storms and protected wetlands that are healthy and functioning as they should be functioning upstream, they’re absorbing water and keeping massive amounts of water from moving downstream and flooding downstream communities. To the extent you protect fewer wetlands you’re reducing that capacity.”

Isolated wetlands recharge groundwater and can store a lot of water, a function particularly important during coastal storms.

A U.S. Environmental Protection Agency-funded study several years ago assessed isolated wetlands in an eight-county area of southeastern North Carolina and northeastern South Carolina. The study concluded that there are about 50,000 isolated wetlands in the study area, including about 30,000 in the North Carolina portion, each averaging about two-thirds of an acre.

“The General Assembly passed a law setting aside tens of millions of dollars to help local governments prepare for flooding and recover from flooding and it just seems irresponsible and kind of wasteful of government resources and our taxpayers dollars to, on the one hand, pass a law designed to react and prevent and prepare and recover from flooding and then within a year and a half or two years, pass a law that will inevitably increase flooding or reduce the state’s ability to prepare for flooding,” Youngman said.

Earlier this year, the Biden administration released its final rule defining “waters of the United States”, or WOTUS.

Related: House falls short in move to override WOTUS-rollback veto

The rule reinstates federal protections for millions of acres of wetlands in North Carolina, putting back into place longstanding clean water protections for streams, lakes, ponds and upstream wetlands that significantly affect what are considered traditional navigable waters. Those include waterways that are used for commercial recreational use, territorial seas and interstate waters.

Both the U.S. House and Senate voted to overturn the Biden WOTUS rule, but efforts to halt the rule fell short last week when the House failed to clear the two-thirds mark needed to override Biden’s April 6 veto.

The final rule will ultimately be determined in the courts.

The U.S. Supreme Court is expected to rule any day now on a case challenging the legality of the testing method used for determining whether wetlands are “waters of the United States” under the Clean Water Act.

There are also cases in Kentucky, North Dakota and Texas challenging the rule.

Solely relying on the WOTUS rule to classify wetlands would leave states at the mercy of a change in the federal landscape.

Grady McCallie, policy analyst with the N.C. Conservation Network, said the provision in the farm bill would hook the state to a contested question of the limit of federal authority under the U.S. Constitution.

That should not decide state policy, he said.

“What should decide our policy is what do we need to protect North Carolina communities and residents,” McCallie said. “In this case, it’s really clear we need to protect wetlands because they hold water and they prevent flooding downstream. That’s the chief reason this provision is a bad idea. We need to protect our wetlands for our own reasons. It doesn’t matter what the federal government does.”

Will Hendrick, the network’s environmental justice director, explained that the proposed bill would allow digesters, which are used to capture methane gas produced by hog waste, to be permitted, but not used.

“We’re particularly concerned that it could allow constant flaring of that gas,” he said.

North Carolina Pork Council Director of Government Affairs and Sustainability Angie Maier told WRAL that farmers are not going to invest hundreds of thousands of dollars to install digesters and not sell the gas.

The farm bill would require a new 25-foot buffer between farms and trout streams and raise the penalty for spilling animal waste along state roads.

The U.S. House last week failed to override President Joe Biden’s recent veto of a resolution that would have rolled back federal clean water regulations, but the future for those rules remains cloudy as the Supreme Court weighs a case that could restrict the Environmental Protection Agency’s authority to regulate ephemeral waters and streams.

House Republicans had sought to reverse the administration’s new waters of the United States, or WOTUS, rule that included regulations that the EPA and Army Corps of Engineers’ reinstated in January. The protections apply to millions of acres of North Carolina wetlands and were repealed by the Trump administration.

The GOP last week fell short of the two-thirds majority required to override Biden’s veto of the resolution sponsored by Water Resources and Environment Subcommittee Chairman Rep. David Rouzer, R-N.C., and Transportation and Infrastructure Committee Chairman Sam Graves, R-Mo.

Related: NC farm bill would restrict how state defines wetlands

The 227-196 vote included all seven North Carolina House Republicans and 1^st District Democratic Rep. Don Davis voting in favor of the veto override and Democratic Reps. Alma Adams, Kathy Manning, Wiley Nickel, Valerie Foushee and Jeff Jackson opposed. Second District Rep. Deborah Ross, a Democrat, did not vote.

“The Biden Administration’s waters of the United States rule is one of the most damaging in history, with the potential to devastate production agriculture, derail infrastructure projects and harm our economy,” Rouzer, who represents North Carolina’s 7^th District, said Tuesday in a press release. “Congress spoke with a loud bipartisan voice and voted against this overreach, but without enough votes from the other side of the aisle to override the President’s veto. We will continue to work to push back against and defang this onerous rule at every available opportunity.”

Rouzer had previously said that rule expands the federal government’s regulatory control, “cloaked under the guise of clean water.”

Clean water advocates, including the North Carolina Coastal Federation, which publishes Coastal Review, were opposed to the WOTUS rule repeal, saying in 2019 that the rollbacks would “cause significant damage to coastal natural resources and economy” and reverse efforts to protect and enhance thousands of acres of wetlands, hundreds of miles of coastal marshes and thousands of acres of estuarine waters.

Environmental justice groups, such as GreenLatinos, say there has been an ongoing campaign to create confusion around the purpose of the Clean Water Act and who is “burdened by regulations.” The group had urged the April 6 veto that was only Biden’s second.

“With this vote, all present Republicans and some Democrats have aligned with corporate interests and ignored the reality that if we truly value water as a human right, then our waters need to be better protected so that our communities have access to clean, healthy, reliable and affordable water,” GreenLatinos Director of Strategic Initiatives Mariana Del Valle Prieto Cervantes said in a March 29 statement released after the Senate’s 53-43 vote for a resolution of disapproval under the Congressional Review Act, in which a simple majority is sufficient to pass.

The House had also voted 227-198 to reject the rule under the Congressional Review Act.

The Obama administration finalized the controversial WOTUS rule in 2015, expanding its definition and prompting legal challenges backed by agriculture, construction and coal industries.

The Trump administration replaced the WOTUS rule with the 2020 Navigable Waters Protection Rule, which Biden vowed to repeal via executive order upon taking office.

The Biden administration’s revised WOTUS rule was itself dubbed a compromise that included acknowledgement of recent court decisions and a reversion to some Reagan-era policies.

“The 2023 revised definition of ‘Waters of the United States’ carefully sets the bounds for which bodies of water are protected under the Clean Water Act. It provides clear rules of the road that will help advance infrastructure projects, economic investments, and agricultural activities — all while protecting water quality and public health,” according to Biden’s veto message to the House.

Biden said the loss of a clear WOTUS definition would threaten economic growth, including for agriculture, local economies and downstream communities. He said the veto override would have also negatively affected tens of millions of U.S. households that depend on healthy wetlands and streams.

Earlier this month, a federal judge in North Dakota halted implementation of the Biden administration’s WOTUS rule in 24 Republican-led states, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming, pending the outcome of a lawsuit. Another recent injunction had blocked implementation in Idaho and Texas.

Elsewhere, the rule took effect March 20.

The Supreme Court is currently considering the case of Sackett v. EPA, to determine whether a federal appeals court set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act. The case involves an Idaho couple whose home construction violated the Clean Water Act because their lot contains wetlands that qualify as regulated “navigable waters.”

President Biden’s final rule defining “waters of the United States” reinstates federal protections for millions of acres of wetlands in North Carolina.

The rule, announced late last month, puts back into place longstanding clean water protections for streams, lakes, ponds and upstream wetlands that significantly affect what are considered traditional navigable waters, or waterways that are used for commercial recreational use, the territorial seas, and interstate waters.

Kelly Moser, senior attorney and leader of the Southern Environmental Law Center’s Clean Water Defense Initiative, said narrowed clean water rules jeopardized millions of miles of streams and tens of millions of acres of wetlands and other critical waters across the country. The final rule must be published in the Federal Register, which will open a 60-day public comment period, before it will go into effect.

“By finalizing this rule, the Biden administration has once and for all repudiated and repealed the prior administration’s catastrophic rollback of clean water protections, which really hit North Carolina hard,” she said. “In North Carolina, just in the Cape Fear watershed alone, almost 530,000 acres of wetlands lost protection. That’s just one of our watersheds. With the Biden rule, those wetlands stay protected like they have under the administrations of both parties for decades and that’s really critical to our state.”

In 2017 former President Donald Trump announced plans to revise the definition of “waters of the United States,” or WOTUS, addressing federal authority under the Clean Water Act.

WOTUS was replaced in 2020 by the Navigable Waters Protection Rule, one that removed protections for ephemeral bodies of water, including creeks and streams that dry up during certain times of the year.

The change, the Trump administration said, would clarify for states and property owners whether projects would require federal permits and help landowners avoid spending thousands of dollars on engineering and legal professionals.

The North Carolina Department of Environmental Quality, or DEQ, and state Attorney General Josh Stein submitted comments on the revised rule, arguing that it would roll back some protections of the state’s estimated 5.7 million acres of wetlands.

A DEQ spokesperson stated in an email that department staff are reviewing Biden’s final rule.

Rick Savage, president of the Carolina Wetlands Association, said he too was reviewing the rule.

“This is definitely a lot better,” he said. “It’s going in the right direction. It eliminates a lot of the restrictions and puts back in protections for wetlands that were going to be eliminated by the Trump rule. The Trump rule was going to eliminate as much as 50 percent of our wetlands from being protected and this is going to pretty much put those back into being protected.”

Under the rule, normal agricultural activities including plowing, seeding, building and maintaining dikes, irrigation ditches and farm stock ponds, remain exempt from the Clean Water Act.

When Trump’s Navigable Waters Protection Rule went into effect in June 2020 it created a permitting gap in North Carolina for projects that would impact wetlands not subject to the Clean Water Act.

The state Environmental Management Commission adopted a temporary wetlands permitting rule that authorizes a permitting pathway for federally nonjurisdictional wetlands. There are about 300 wetlands in the state that have been identified as federally nonjurisdictional.

The fate of the permanent rule remains in limbo because it has not been signed off by the state Rules Review Commission, the executive agency that reviews and approves rules adopted by state agencies.

Moser said state permitting rules need to stay in place. A change in the federal landscape or ruling handed down from the nation’s highest court could mean another revision to the definition of the WOTUS rule.

“In that, even the Environmental Management Commission’s permitting rule will automatically cover that gap, ensuring that North Carolina’s developers will not be stranded without a way to obtain a permit and they’ll be able to move their projects forward. Seems like the state should maintain its permitting rule to prepare for future situations if they arise.”

The ins and outs of clean water rules have been wrangled in the Supreme Court going back years.

In 2006, the Supreme Court addressed the question of jurisdiction over tributary wetlands.

Then-Justice Anthony Kennedy concluded the Clean Water Act did pertain to waters and wetlands with a significant connection to navigable waters.

Moser explained that the Biden administration has listed a number of functions and factors agencies are to use to determine a water’s or wetland’s material influence on the chemical, physical and biological integrity of traditional navigable waters, interstate waters and territorial seas.

Those functions include filtering pollution, holding back flood waters, and providing habitat and food resources for aquatic species, all things that make North Carolina’s wetlands so important, she said.

“Those sorts of functions are the types of things that the administration and agencies will consider in making the determination whether wetlands significantly affect traditional navigable waters in our waters of the United States,” Moser said.

Wetlands make up about 17% of North Carolina’s land area. Most of the state’s wetlands – 95% – are in eastern North Carolina.

“Without our wetlands our recreational and commercial fishing industry suffer as our shellfish, shrimp, blue crab and oysters become tainted and less available so it really is critical to our culture, our families, and our communities and our businesses to protect these wetlands,” Moser said. “We’re happy that the Biden administration understands the functions that the wetlands provide and is taking into account the value of wetlands in reinstating the longstanding protections that they deserve.”

GOLDSBORO – River conservation organization American Rivers, based in Washington, D.C., announced Monday that it was honoring the Neuse River as its 2022 “River of the Year.”

The river has had a long, troubled history of pollution, and problems with nutrient pollution continue, especially from nonpoint sources – mainly runoff from developed areas.

Along with the Cape Fear River, American Rivers had included the Neuse at No. 7 on its Most Endangered Rivers of 2017 list, as well as in prior years, because of industrial agriculture waste within their basins. But the national recognition announced Monday during an event on the riverbank at Old Waynesborough Park in Goldsboro with congressional, legislative and regulatory officials and community and environmental advocates in attendance was to celebrate progress and serve as a call to action for clean water, said American Rivers President Tom Kiernan.

“It is because of the community, the state, the federal leadership that has worked so hard over the last several decades to improve the health of this river, improve the water quality of this river for the benefit of the people, the communities and nature in this region,” Kiernan said during the event.

Related: Nutrients in the water — too much of a good thing

Tuesday marked the 50^th anniversary of passage of the Clean Water Act. But as 1^st District Rep. G.K. Butterfield, D-N.C., noted during the event, a challenge to a key provision of the law is now before the Supreme Court. 

As the EPA defines it, Section 401 of the Clean Water Act is a tool for states to protect water quality of federally regulated waters within their borders, in collaboration with federal agencies. Butterfield said the provision gives states authority to place conditions on permits and licenses for the construction and operation of any project that could harm rivers or streams.

The case, Sackett v. EPA, challenges methods used to define federal jurisdiction — Waters of the United States, or WOTUS. The case was argued Oct. 3.

Butterfield said that if Section 401 is struck down, “American families will lose protections and continue to face unclean water in some communities.”

Butterfield said that some in Congress were drafting a resolution commemorating the Clean Water Act’s 50th year. “I will be supporting this legislation, and I’m confident that it will enjoy bipartisan support. And I pray that my successor will also support the resolution,” he said.

‘A profound effect’

Kiernan said the Clean Water Act had “a profound effect” on water quality in rivers and water bodies nationwide, including the Neuse River.

“It set in law the obligation to be good stewards of the environment and it set goals and expectations for specific communities on what they needed to do,” Kiernan said, adding that it was a good thing, “because in the mid-1990s, the Neuse River had toxic algae blooms that were sucking all the oxygen out of the river. 

“We had fish kills, we had recreational opportunities that were lost because of the poor water quality. And not surprisingly, during that period, American rivers listed the Neuse on its most endangered rivers list five times back in the ’90s and 2000s. But backed by the Clean Water Act, the communities — you and political leaders in the state and in Washington, D.C., would not accept that fate for the Neuse.”

He said science pointed to excessive pollution coming from the wastewater treatment facilities and from untreated urban and rural agricultural runoff, and he praised the state and local officials for acting. 

“You invested millions of dollars in wastewater treatment facilities, you protected the land along the river, you improved farming practices, and you began addressing the stormwater runoff problem. These efforts saw a dramatic improvement in the water quality.”

Kiernan said the case before the Supreme Court could end up restricting the Clean Water Act in ways that would remove protections from 350,000 acres of Neuse River wetlands.

“The Neuse is a success story that we must continue writing,” said Kiernan, who also applauded the work of Environmental Protection Agency Administrator Michael Regan, who was formerly secretary of the North Carolina Department of Environmental Quality, and Regan’s successor at DEQ, Elizabeth Biser.

Cultural connections

Regan, who hails from Goldsboro, said being back home was a reminder that he had grown up hunting and fishing in eastern North Carolina with his father and grandfather, and that experience had nurtured his passion for the outdoors and environmental stewardship.

“Rivers and streams across this country provide an opportunity for education, cultural connections, and recreation, while existing as magnificent natural resources central to the cities and towns that depend on them,” Regan said. “That’s why our work to preserve and protect and invest in these waters for the next generation is so vital.”

Regan said that not long ago, rivers were so polluted that fisheries collapsed, they were unsafe for recreation, and some were covered in oil slicks and regularly caught fire. He said that Tuesday he would be on the banks of the Cuyahoga River in Cleveland, Ohio, to commemorate the 50th anniversary of the passage of the Clean Water Act. 

“As many of you know, the Cuyahoga River, which was dubbed River of the Year just a few years ago, was one of the major catalysts for the environmental movement that ultimately led to the Clean Water Act,” Regan said. “Like too many waterways across this country, in the 1950s and ’60s, the Cuyahoga River had fallen victim to years of unchecked pollution. I’m talking about the days when many of our rivers were seen as nothing more than dumping grounds for sewage and industrial waste.”

American Rivers had awarded previous River of the Year honors to the Cuyahoga River in 2019 and the Delaware River in 2020.

Regan said that during his travels across the country, he had seen firsthand the results of years of indifference and neglect and what that had done to the nation’s waterways, water systems and the people who rely on them. He called the recently passed bipartisan infrastructure law “the linchpin to the next 50 years of water progress in America.”

State of the river

Biser outlined her department’s mission to provide science-based environmental stewardship for the health and prosperity of all North Carolinians. “And we do that in many ways. On the regulatory side, we have permits to regulate what’s allowed to enter the river. The Neuse River in particular has been plagued by excesses in levels of nitrogen and phosphorus since the 1980s, risking aquatic life habitats and drinking water quality. And in response, as you’ve heard, today, we developed the Neuse nutrient strategy, a set of rules designed to equitably regulate sources of nutrient pollution in the basin.”

Those rules took effect in 1997 and have been updated over the years, “as a comprehensive strategy that takes into account impacts from wastewater, stormwater and agricultural sources,” Biser said. 

“While parts of the river are still impaired, we’ve come a long way,” she said.

Biser said the state had completed the equivalent of 82 miles of stream mitigation, restored 10 square miles of wetlands and removed more than 1.5 million pounds of nitrogen from the water in the Neuse. “In case anybody’s wondering, that amount of nitrogen is equivalent to the same amount of weight as 287 pickup trucks,” Biser said.

She mentioned other programs and initiatives, including the North Carolina General Assembly’s funding of programs such as the statewide Flood Resiliency Blueprint. 

“I’m grateful for Representative Bell’s leadership on this and for helping allocate $20 million that support that effort is going to make us better informed and target our decisions as a state so that we can have the maximum impact with dollars that we’re investing in communities,” she said, referring to state House Majority Leader Rep. John Bell, R-Wayne, who was also on hand for the event.

‘Going the wrong way again’

The state nutrient rules adopted in 1997 aimed to recover the Neuse River estuary within five years. The rules addressed wastewater discharges, cropland agriculture, stormwater runoff and established riparian buffer protections. 

According to information DEQ provided Tuesday, nutrient loading to the estuary improved after the rules were enacted, but over time those gains were lost. Reductions in nitrate-nitrogen reaching the estuary were offset by organic nitrogen inputs, returning total nitrogen loading to levels seen before the rules. DEQ said the reasons were “complex and not entirely clear.”

Dr. Nathan Hall at the University of North Carolina Institute of Marine Sciences regularly monitors Neuse River water quality. He told Coastal Review Tuesday that yes, there was definitely progress between the early 1980s and 2000, “but since then things have started going the wrong way again.” He shared figures illustrating how nitrogen concentration trends in the river “are heavily driven by hydrology rather than nutrient management.”

State officials pointed to recent studies that have shown that a substantial increase in the frequency and severity of tropical cyclone activity such hurricanes and other big storms in coastal North Carolina driven by climate change played a significant role in the increased organic nitrogen reaching the Neuse River estuary.

Staff with the DEQ Division of Water Resources said rules addressing stormwater runoff from new development need to be strengthened. They said amendments to the Neuse stormwater rule that took effect in 2020 help, but further measures were likely needed, along with management actions to reduce runoff from existing developed lands that predated or otherwise were not addressed by current stormwater rules.

“Significant progress has been made in agricultural nitrogen loss reduction, and the agricultural community in the Neuse Basin consistently reaches its 30% reduction goal. However, the measurable effects of management changes and conservation practice implementation on overall in-stream nitrogen reduction may take years to develop due to the nature of non-point source pollution,” according to the North Carolina Department of Agriculture and Consumer Services 2022 annual report on the Neuse Agricultural Rule.

The division is in the process of a comprehensive review of management progress to date, watershed changes, current science and management recommendations going forward. That report is to be completed by April 2023.

Need for greater investment

Sound Rivers Executive Director Heather Deck called the river “the lifeblood of our communities.” Deck began her advocacy career 20 years as the Pamlico-Tar Riverkeeper. She said that everyone can agree that access to clean water and healthy rivers was vital. 

“We’ve come a long way since the early days of dumping toxins directly into the Neuse, but many still bear the burdens of pollution, outdated infrastructure, and flooding,” Deck said. “Working together to address these issues in our watershed, that work begins with our most vulnerable communities. What we need is greater investment in our communities on the river. And right now, right now we have a unique opportunity to make significant changes for the Neuse River, and all the people who rely on it, and to right the many environmental injustices that continue to stand.”

Deck said that river needs state and community leaders to prioritize investment in safeguarding residents from flooding and helping the Neuse watershed become resilient to climate change, “updating sewer infrastructure still starting in our most vulnerable communities on the Neuse, investing $20 million in the state swine buyout program to remove toxic pollution such as swine waste from flood-prone areas of the Neuse and its tributaries, and restoring funding to our regulatory agencies so that they’re fully staffed and equipped to enforce the protections for the Neuse watershed.”

Pursuit of environmental justice

Deck called for community-focused executive action in the pursuit of environmental justice. “It’s our role to write 50 more years of progress into the next chapter of the Neuse River,” Deck said.

Dr. Dawn Baldwin Gibson is executive director of the Peletah Institute for Building Resilient Communities, a faith-based organization based in New Bern. She said the organization she and her husband founded in 2011 had fed thousands and assisted thousands more in getting back into homes after storms. The group had also led numerous projects in partnership with other faith organizations to build community resiliency in underserved areas. She said that in celebrating the American Rivers recognition, efforts to address climate impacts on the most vulnerable must continue.

“These are our neighbors who struggle every time there is a rain event by the impacts of flooding due to living in low-lying communities that are too often under resourced, that have lived on this river for decades and some for generations. We need the resources, the funding, the technical assistance to build our communities strong, resilient and equitable,” she said.

Rep. Bell told attendees that Wayne County had a “love-hate relationship” with the Neuse. He said residents are proud of the river and understand its economic importance. “But when we have disasters, hurricanes and storms that come in, this area floods. So we want to do everything we can to, at the state level, to mitigate that damage — to mitigate the property damage, mitigate the business damage to our economic engines and mitigate the loss of life — and that’s why your state in a bipartisan fashion has committed hundreds of millions of dollars to that effort.”

Second District Rep. Deborah Ross, D-N.C., noted that nearly 2.5 million people live within the Neuse River basin, “including communities I represent in Wake County, from Goldsboro, to Raleigh, millions of people rely on this river and its tributaries for clean water. They walk the miles of hiking trails that wind around this beautiful area, and they use the river to power economic growth throughout the state,” she said.

For the last year and a half, since the Trump administration’s Navigable Waters Protection Rule went into effect in June 2020, there has been a permitting gap in North Carolina for projects that would impact wetlands not subject to the Clean Water Act.

The state Environmental Management Commission voted earlier this month to approve permanent rules to cover the gap on these federally nonjurisdictional wetlands. Some members said it would be best to postpone the vote to allow for more public input amid concern with recent changes at the federal level to the definition of “waters of the United States,” or WOTUS. The push to get the permanent rules approved was because temporary rules put in place last May to address the regulatory gap are set to expire March 12.

The proposed permanent rule, Impacts to Federally Non-Jurisdictional Wetlands and Classified Surface Waters, and a rule amendment to Discharges to Isolated Wetlands and Isolated Classified Surface Waters are now set to go before the Rules Review Commission when it meets Feb. 17 in Raleigh.

North Carolina Division of Water Resources Wetlands Rulemaking Lead Sue Homewood played an integral part in developing both the temporary rules and the proposed permanent rules. She explained the process during the Environmental Management Commission’s online meeting Jan. 13.

“We ended up here because of changes back in 2020 to the Clean Water Act federal jurisdiction for wetlands in certain landscape positions,” she said. “Those changes in 2020 created a permitting gap. It did not change the definition of wetlands at the federal or the state level, it did not change what was a wetland, it did not change the protections in North Carolina for those wetlands. It solely changed how the federal agency implemented the Clean Water Act, and therefore changed how permitting was happening under Section 404 of that Clean Water Act.”

Homewood said that the gap meant the state had no permitting mechanism to authorize impacts to federally nonjurisdictional wetlands.

The Army Corps of Engineers determines whether a site is a wetland under section 404 of the Clean Water Act based on vegetation, soil and hydrology. The Corps identified about 300 wetlands in North Carolina as federally nonjurisdictional.

The Clean Water Act is a federal program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. The Clean Water Act provides discretion for Environmental Protection Agency and the Corps to define WOTUS.

The two agencies published in April 2020 the Navigable Waters Protection Rule in the Federal Register, which finalized a revised definition of WOTUS under the Clean Water Act. “In this final rule, the agencies interpret the term ‘waters of the United States’ to encompass: The territorial seas and traditional navigable waters; perennial and intermittent tributaries that contribute surface water flow to such waters; certain lakes, ponds, and impoundments of jurisdictional waters; and wetlands adjacent to other jurisdictional waters,” according to the Navigable Waters Protection Rule.

Because of the then-new rule, a type of wetlands classified under and protected by state law were no longer under federal Clean Water Act jurisdiction and there was no permitting mechanism to authorize unavoidable impacts to this group of wetlands.

Essentially, the rule created the category of federally nonjurisdictional wetlands, which are not isolated wetlands. These are wetlands with a direct connection to downstream waters, according to the division. The rule was vacated in August 2021, but the permitting gap remains.

“The state of North Carolina already had permitting mechanisms in place for federally jurisdictional wetlands, we have permitting mechanism in place for isolated wetlands, and those are wetlands that don’t have a direct connection to downstream waters. But the changes in 2020 created this middle category for which we didn’t have a permitting mechanism. And all that we are proposing is the ability for people to have these projects permitted (that) impact these nonjurisdictional wetlands,” she said.

Once that permitting gap was identified, the department moved as quickly as possible to propose temporary permitting rules, Homewood said.

“We proposed temporary rules because this permitting gap was a big problem for the regulated community, whether that was agriculture, state and local agencies trying to build roads and schools or development. So, temporary rules provided for the fastest process to provide expedited relief while the division continued the more detailed process of permanent rulemaking,” she said.

The temporary rules were adopted in May 2021 and set to expire March 12, 270 days after they were published in the Federal Register.

Homewood said public input during the temporary rulemaking process helped the staff address numerous concerns and also made the permanent rulemaking process go more smoothly.

The draft permanent rules were released for public review in September.

The Biden administration in June announced its plans to revise the definition of WOTUS. Then in August, a federal judge in Arizona vacated the Trump-era Navigable Waters Protection Rule. For now, the EPA and Corps are interpreting WOTUS using pre-2015 rules.

The EPA and the Corps announced Nov. 18 a proposed rule to revise the definition of the WOTUS, which was published Dec. 7 in the Federal Register and is currently in the public comment process that ends Feb. 7.

The federal agencies have released guidance on the changes and continue to update that guidance, as recently as a couple of weeks ago, Homewood said at the time.

The draft permanent rules went through the public notice process in late 2021, after the Navigable Waters Protection Rule was vacated, but only after one set of guidance was issued by the Corps of Engineers. There has been more recent information since the close of the public comment period and the drafting of this hearing officer’s report, she said.

Homewood presented the results, which are included in the Hearing Officer’s Report of Proceedings Public Hearing and Comment Period.

Homewood said that while many of the public comments were in support of the proposed permanent rules, the division did hear some opposition. A written comment from the North Carolina Farm Bureau states, “Do not believe that there is a need for the proposed rule given recent vacatur of the Navigable Waters Protection Rule and announcements from EPA and the USACE stating that they are beginning rulemaking regarding the definition of Waters of the United States.”

The agency responded that until litigation is final, there’s potential that the 2020 rule could be reinstated. “More importantly, approximately 300 wetlands have been identified as non-jurisdictional by the USACE during the period of time when the NWPR was in effect and these determinations remain valid until the expiration date established by the USACE (typically 5 years) irrespective of the status of the proposed federal rule revising the definition of ‘Waters of the Unites States.’ Project proponents who have unavoidable impacts to these wetlands would be prevented from proceeding with their proposed projects without a permitting mechanism. These rules provide certainty to the regulated community in both cases.”

While newer guidance has been interpreted differently by various entities, organizations and consultants, Homewood said the goal is to provide certainty at the state level regardless of the process at the federal level.

Despite the new guidance from the feds, the Division of Water Resources received confirmation from the Corps that the permitting gap still exists in North Carolina, Homewood said.

“The department has done as much investigation as possible. We have talked to various entities, most importantly directly to the Corps of Engineers,” she said. “A permitting gap does still exist, albeit narrower than we identified at the beginning of process, it is still there. Without these rules, there are wetlands out there who may not have the ability to be impacted. For whatever reason somebody would choose to impact them, we need these tools available so that the division can authorize those impacts.”

Speaking before Homewood’s presentation, Environmental Management Commission member Maggie Monast said that the confusion is “going to be ongoing and this is certainly not the last potential shift in the federal landscape on this issue, and so, for me, that just reinforces the need for clear state standards so that we can both protect wetlands appropriately and provide a stable environment for businesses, homes, agriculture, et cetera.”

A recent ruling to end the Navigable Waters Protection Rule, reverting back to the pre-2015 definition of “waters of the United States,” or WOTUS, and a proposed rule to revise the definition of WOTUS, has raised some questions that the North Carolina Cooperative Extension hopes to answer during a virtual meeting.

The “WOTUS and Agriculture” webinar is set for 10:30 a.m. Tuesday. The discussion will explore the proposed changes and their expected effects on farms and farm properties. Register online for the Zoom meeting.

Andrew Branan, assistant extension professor in the Department of Agriculture and Resource Economics at North Carolina State University, is expected to discuss the differences in the former, current and proposed rules from a legal viewpoint. Chad Poole, assistant professor and extension specialist in the Department of Biological and Agricultural Engineering at North Carolina State University, is expected to explore the changes from an engineering perspective.

The Environmental Protection Agency and the Army issued on April 21, 2020, the Navigable Waters Protection Rule, “a final rule defining the scope of waters federally regulated under the Clean Water Act,” According to the Federal Register from April 2020. “The Navigable Waters Protection Rule is the second step in a comprehensive, two-step process intended to review and revise the definition” of WOTUS, consistent with then-President Trump’s executive order dated Feb. 28, 2017.

Following an executive order signed January 2021 by President Joe Biden directing federal agencies to review certain regulations, the agencies reviewed the rule and found that it “did not appropriately consider the water quality impacts of its approach to defining ‘waters of the United States’ and that the rule’s reduction in the scope of protected waters could have a potentially extensive and adverse impact on the nation’s waters,” according to the Federal Register.

The agencies announced June 2021 intentions to revise the definition of “waters of the United States.”  The forthcoming rule proposes to restore the regulations defining “waters of the United States” in place for decades until 2015, updated to be consistent with relevant Supreme Court decisions.

After a federal district court decision vacated the rule Aug. 30, 2021, the agencies began interpreting “waters of the United States” consistent with the pre-2015 regulatory regime.

The EPA and Corps announced Nov. 18, 2021, the signing of a proposed rule to revise the definition of WOTUS. The proposed rule was published Dec. 7, 2021, in the Federal Register. The public comment period continues until Feb. 7.

The Department of Environmental Quality has scheduled an online public hearing on proposed revisions to surface water quality standards and classifications.

The proposed changes and revisions include updates to standards for cadmium, cyanide, selenium, 1,4-dioxane and other technical corrections. The proposed changes and revisions are available online.

The hearing is set for 6 p.m., Tuesday, July 20. Attendees and participants may join starting at 5:45 p.m.

DEQ’s Division of Water Resources is holding the online public hearing via WebEx link. Event number is 185-803-7435, WebEx password is ncdwr. To join by phone, call 415-655-0003 and use access code 185-803-7435. Register to join and to speak during the hearing.

Written public comments will be accepted through Aug. 3.

Water quality standards are state regulations or rules put in place to protect lakes, rivers, streams and other surface waters of the state from the damaging effects of pollution, according to DEQ. Surface water classifications are surface water body designations — streams, rivers, lakes — that define the best uses to be protected within these waters, such as swimming, fishing and drinking water supply, and have a water quality standards in place protect those uses.

Federal and state laws require the Environmental Management Commission review North Carolina surface water quality standards every three years and include a review of existing water quality standards, The Environmental Protection Agency’s national recommended water quality criteria, other scientific information and proposed revisions to the standards based on new or updated ecological, health and toxicological information, according to the state.

The federal Clean Water Act requires that states adopt Surface Water Quality Standards to protect surface waters, which are protected based on their established uses.

Comments are also being accepted on water quality standard variances, the fiscal note prepared for the proposal, and other water quality standard topics not otherwsise addressed, such as adoption of statewide recreational E. coli standards and adoption of other published EPA national recommended water quality criteria. For additional information on these proposed changes, visit the Division of Water Resources’ Water Planning website.

All comments must be received by Aug 3 to be considered in the review of the proposed changes. Written comments may be submitted by email to 15ANCAC02B_SWTriRev_Comments_2021@ncdenr.gov or by mail to Christopher Ventaloro, NC DEQ-DWR Planning Section1611 Mail Service Center, Raleigh, N.C. 27699-1611.

After considering all of the comments received, a hearing officer’s recommendation is to be presented to the Environmental Management Commission, tentatively scheduled for the commission’s regularly scheduled meeting in November.  If approved by the commission, the proposed effective date for the amendments is Jan. 1, 2022.

Officials have published the new rule that says which bodies of water are federally protected under the Clean Water Act, the green light for an expected round of legal challenges by environmental advocates.

The Environmental Protection Agency and the Department of the Army published Tuesday in the Federal Register the final replacement rule defining the scope of waters federally regulated under the Clean Water Act. The rule is to take effect June 22.

Agricultural interests had fought the broader Obama-era rule, calling it federal overreach.

“This final rule implements the overall objective of the Clean Water Act to restore and maintain the integrity of the nation’s waters by maintaining federal authority over those waters that Congress determined should be regulated by the Federal government under its Commerce Clause powers, while adhering to Congress’ policy directive to preserve States’ primary authority over land and water  resources,” according to the Federal Register.

Environmental organizations said they are reviewing the rule. Legal challenges are expected to be filed within a week.