Isolated NC wetlands face loss of protection following federal ruling

The shallow vernal pools at the Hemlock Bluffs Nature Preserve in Cary are packed with salamander eggs in February and March, according to Rick Savage. Amphibians thrive in these wetlands because few predators live in such shallow bodies of water that have no permanent inlet or outlet.

“Most of these isolated wetlands get some runoff during the rainy season and during the summer they look pretty dry, but they are critical habitat ,” said Savage, executive director of Raleigh-based Carolina Wetlands Association .

Roughly 95% of the state’s wetlands are on the Coastal Plain . Nevertheless, Piedmont wetlands, such as the Hemlock Bluffs vernal pools are an important component of the environment’s well being, Savage explained.

“They clean water, hold back floodwaters, stabilize shorelines, replenish aquifers, and provide habitat,” he said. “They do everything there is to water that needs to be done.”

The 150-acre area containing the vernal pools is protected by the state and the Town of Cary.

However, changes to the definition of “waters of the United States” in the U.S. Clean Water Act following a ruling by the U.S. Supreme Court decision in Sackett v. EPA, and recent legislation by the NC General Assembly mean that thousands of acres of other isolated wetlands across North Carolina will no longer be regulated.

The Southern Environmental Law Center estimates the federal government could lose jurisdiction over nearly a million acres of wetlands in North Carolina, raising concerns about the potential loss of their ecological services.

The US Fish and Wildlife Service’s National Wetlands Inventory includes 4.2 million acres of wetlands in North Carolina — that is, land areas covered by water for at least a portion of the year.

On March 13, the state’s Environmental Management Commission, a 15-member body overseeing the NC Department of Environmental Quality, or DEQ, began the process of revising the definition of wetlands to align with a provision of the 2023 NC Farm Act using the new U.S. Supreme Court interpretation of U.S. waters.

The change will diminish the state’s ability to protect isolated wetlands by removing protections on all wetlands that are not Waters of the US.

“We tried everything we could to get it out of the Farm Act, but to no avail,” Savage said. “Now, we can’t do anything more to protect wetlands than what the federal government says. That’s very unfortunate.”

Regulating U.S. Waters

The 1972 Clean Water Act, or CWA, regulates discharges of pollutants into U.S. waters.  Enforced by the U.S. Environmental Protection Agency, the law also established a permit system administered by the Army Corps of Engineering to regulate dredging or filling U.S. waters, including wetlands.

The Army Corps requires a “Section 404” permit application if a private or public project discharges material into “jurisdictional” federal waters, such as a wetland. Wetlands are jurisdictional “waters of the United States” if they connect to a larger, navigable waterway, such as a river or a sound.

CPP examined several pending permit applications in the Army Corps’ Wilmington, N.C. district office. For example, the Johnston Regional Airport in Smithfield is seeking an application to expand facilities to discharge dredged or fill material into wetlands. The plan includes filling an 18.7 acre patch of wetland near Swift Creek in the upper Neuse River basin.

“Through the permitting process, the Army Corps requires the developer to try to avoid wetlands that are protected under the act,” said attorney Kelly Moser of the Southern Environmental Law Center.

Typically impacted wetlands are mitigated “by restoring wetlands or purchasing mitigation credits at a mitigation bank,” Moser said. “Wetlands mitigation is never as good as keeping the original wetlands intact, but it does make up for some of the loss.”

According to the application, the Army Corps performed a site visit in September 2023 and determined the area in Johnston County included potential wetland waters. Since the wetlands are connected to the Neuse River, they are considered “jurisdictional” waters of the U.S. and require a Section 404 permit application before construction.

Sackett v. EPA

Following the Supreme Court’s Sackett v. EPA decision, some future projects that include wetlands, however, may no longer require a Section 404 permit.

After purchasing property in 2004 near Priest Lake, Idaho, Michael and Chantell Sackett backfilled land with dirt to prepare for construction. The EPA intervened, claiming the property contained wetlands and violated the Clean Water Act.

The EPA ordered the Sacketts to restore the site or face penalties of more than $40,000 per day. Disputing the EPA’s classification of their property as “waters of the United States,” the Sacketts sued.

In May 2023 the Supreme Court decided 5-4 in favor of the Sacketts, saying the CWA does not extend to the wetlands on their property.  To be considered waters of the U.S, according to the decision, a wetland must have a continuous surface connection to a relatively permanent body of water connected to traditional interstate navigable waters.

The decision may reshape the EPA’s rulemaking, implementation, and authority under the Clean Water Act. According to Moser, the decision will cut the Army Corps’ Section 404 permit program “in half”.

“When we analyze the number of acres in the Neuse River watershed there are at least 364,000 acres of wetlands and over 500,000 acres of wetlands in the Cape Fear watershed that will lose protection,” Moser said.

According to the NC Department of Environmental Quality, or DEQ, many wetlands occur far from open water in low-lying areas where rainwater collects or on land where the groundwater is often at or near the soil surface. Some areas contain water all year, others may appear dry during periods of low rainfall.

Savage said the court ruling didn’t use the best science available to identify isolated waters meriting protection.

“There’s language in the ruling that says wetlands must have a clear visual connection to a navigable stream,” he said. “Clear visual evidence is not scientific. It’s subjective. In the summertime you often won’t have any evidence of a visual connection in vernal ponds when there’s little rain.”

Wetlands and the NC Farm Act

Most states including North Carolina have relied on the Army Corps’ Section 404 permitting program to protect wetlands.

If the Army Corps determined a wetland was not a U.S. water, “we still had a backstop, under North Carolina law,” Moser said. “But we don’t anymore.”

The 2023 NC Farm Act, made changes to the state’s agricultural and wastewater laws. The General Assembly enacted the bill in June 2023, overriding Gov. Roy Cooper’s veto. Among the Farm Act’s provisions is clarifying the term “wetland,” making it identical to the Sackett definition that a wetland must have a continuous surface connection to a relatively permanent body of water.

“The NC General Assembly effectively repealed the permitting program with state legislation, by restricting North Carolina’s ability to protect wetlands beyond the scope of federal law, ” she said.

Moser is referring to an NC DEQ’s permit program for isolated and other non-404 jurisdictional wetlands and waters.

According to the NC DEQs website, since the ratification of the Farm Act, a permit is no longer required for impacts to any isolated or other non-jurisdictional wetland.

“With Sackett, members of the community don’t have the same seat at the table to engage on big real estate and industrial developments that could impact their water and their quality of life,” Mosher said.

Editor’s note: This article is the first of two examining changes in how wetlands are defined and regulated.