NORTH CAROLINA — Governor Roy Cooper signed an executive order this week his office describes as the most ambitious environmental restoration executive action in state history — but questions remain as to how it will interact with conflicting state laws.
READ MORE: ‘Not paying attention to history’: Environmentalists concerned over loosened wetlands rules
The order directs the state to support new and ongoing conservation projects, avoid or minimize developments that would adversely impact wetlands, directs state agencies to pursue federal funding to protect and restore wetlands, and calls the Department of Natural and Cultural Resources to research the impact of climate change on the state’s biodiversity.
It also sets new statewide targets for 2040, including:
- Permanently conserve 1 million new acres of natural lands with an emphasis on wetlands.
- Restore 1 million new acres of forests and wetlands.
- Plant 1 million new trees in urban areas.
The order also instructs state agencies to study the economic, environmental, and social value of protecting wetlands. It emphasizes studies of wetlands that recently lost state and federal protections; the North Carolina Department of Environmental Quality estimates about 2.5 million acres of wetland lost protection in the state after major changes to federal and state regulations in 2023.
The definition of “waters of the United States” under the Clean Water Act has long been a controversial subject. Environmentalists favor an expansive definition to put more waterways under federal protection, while critics such as the home-building and agricultural industries, support a limited definition, arguing broad regulations hurt businesses and constitute federal overreach.
The Biden administration updated the WOTUS definition in 2022 to give federal protection to wetlands adjacent to large waterways — including wetlands with a “relatively permanent” surface water connection and those with a “significant” ecological nexus to other water bodies.
In Feb. 2023, Congressman David Rouzer (R-NC) of North Carolina’s 7th district and Rep. Sam Graves (R-MO) co-introduced a resolution to overturn the Biden administration’s updated WOTUS definition.
In a speech before the House, Rouzer argued the WOTUS rule constituted federal overreach and was dangerously ambiguous. He described it as “the equivalent of a nuclear warhead” aimed at “farmers, communities, home builders, road builders and private property owners among many others.”
“Land in areas like North Carolina’s Seventh District where storms can bring heavy rain and water often lingers for short periods of time could easily be classified as a ‘wetland’ depending on the viewpoint of the bureaucrat making the judgment,” Rouzer said in a statement.
The House and Senate passed the Rouzer-Graves resolution before President Biden vetoed it in April 2023. The House failed to override Biden’s veto before the Supreme Court ruled against the president’s WOTUS definition in May 2023; the landmark decision Sackett v. EPA removed federal authority of wetlands without a “continuous surface connection” with other bodies of water — known as “isolated wetlands.”
Protections were further diminished by a provision in the 2023 North Carolina Farm Act, which barred the state from regulating isolated wetlands that lost federal protection from the Supreme Court ruling. The North Carolina General Assembly overrode Cooper’s veto of the bill in June 2023.
Wetlands are generally the lowest area of a landscape and naturally absorb flood water.
They also filter pollutants through a combination of biological and chemical processes; building impervious surfaces on former wetlands can allow pollutant-containing runoff to enter other nearby water bodies.
Environmentalists argue wetland preservation has an economic benefit. For example, a 2017 study published in Scientific Reports found coastal wetlands in the northeastern United States reduced Hurricane Sandy direct flood damages by $625 million.
“We’ve spent a lot of money in the budget the past several sessions to work on flooding and protect communities from flooding,” Southern Environmental Law Center North Carolina director Mary Maclean Asbill told PCD. “And it just doesn’t make sense to just turn around and then roll back nature’s solution to flooding, which is protection for wetlands.”
Local Impact
While Cooper’s recent executive order is not a law, it has authority to impose a course of action on agencies within the executive branch of government.
It remains to be seen how the General Assembly will react to the EO after passing the Farm Act. Asbill told PCD she thought it could indicate to the legislators there is broad public support for stronger wetlands protections, with the hope they would introduce a revised bill.
“It would be really unusual, I believe, for them to take some kind of legislative action to block this executive order,” she said.
Rep. Deb Butler had a different view. She noted the legislature could seek to rescind the order through litigation.
“Here’s what we always know,” Butler told PCD. “When a disagreement ensues, we all head to the courts.”
PCD reached out to Sen. Michael Lee’s office to ask if he had an opinion on the executive order and if he believes the General Assembly will take action in response. His legislative assistant Candace Bowden said she would speak with him about the issue and be in touch; this will be updated upon response.
It remains unclear how the EO will interact with conflicting state law prohibiting regulation of isolated wetlands.
New Hanover County spokesperson Alex Riley told PCD the county is currently in the process of reviewing it to fully understand its impact on development in the region.
“We certainly need to protect our natural resources, including our wetlands,” Commissioner Dane Scalise told PCD. “I am currently studying the EO and evaluating its actual and potential implications.”
Pender County spokesperson Brandi Cobb said the recent change in interpretation of wetlands has “resulted in a lack of information regarding its potential implications.” She noted the regulation of wetlands falls under the jurisdiction of the U.S. Army Corps of Engineers.
Mickey Sugg of the USACE Wilmington district’s regulatory division said he did not know how the order might impact development but recommended inquiring with the North Carolina Department of Environmental Quality; DEQ did not respond to PCD’s inquiry by press.
In September 2023, the DEQ’s Division of Water Resources (DWR) issued a memo for permittees confirming isolated wetlands would no longer require permits for development so long as they have received approval from USACE that the wetlands are not under WOTUS rule.
In October, USACE public affairs chief Dave Connolly told PCD the organization had not had sufficient time to implement the regulatory changes and could not speculate as to how they may accelerate future wetland filling and development projects.
Also in October, UNCW biological oceanographer and limnologist Larry Cahoon told PCD the removal of past permitting requirements for isolated wetlands will make development more economically feasible and therefore likely. Permits previously required developers to mitigate losses by paying into a wetland bank or creating artificial wetlands in another location.
UNCW geography professor Richard Shew and ecologist Andy Wood cited projects in the Island Creek Basin, a 14,000-acre region in northern New Hanover and southern Pender counties, as vulnerable. They’re now made easier to develop after the weakening of state and federal regulations.
Woods also noted the Williamson Tract in Oak Island — a 3,200-acre mixed use development including 7,200 dwelling units and a commercial area — as a development involving wetlands enabled by the absence of stronger regulations.
The developer contended the allegation in a 2022 rezoning submittal, asserting the project would address most potential negative environmental impacts by clustering development outside wetland and floodplain areas.
PCD reached out to Oak Island spokesperson to ask for the status of the project and if the developer’s requested USACE wetlands permits had been granted but did not receive an answer by press. It is unclear if the developer would still need the permits after last year’s regulatory changes.
Wood fears diminished regulations would allow developer-hired environmental consultants to determine wetland delineations rather than the U.S. Army Corps of Engineers. He is concerned they could “skew the data” to encourage development in vulnerable areas.
On Wednesday, Wood told PCD he believed some of the governor’s executive order is “posturing” but thought aspects of it strengthened the case for natural resource protection for human benefit and cost savings from avoiding building in flood-prone areas.
“Not hypotheticals,” he said. “This is in play already. And just imagine the taxpayer price tag for any Cape Fear River West Bank developments. Look to the millions being spent on the Battleship today, in response to river flooding.”
The battleship broke ground on a $4.5 million project this week. Due to increased flooding around the attraction tides rise in the area up to 4 or 5 feet, often impeding the parking lot. The plan is to build up the wetlands and the parking lot with ecological solutions, including a living shoreline and bioswale — a channel designed to direct water runoff. This will restore the natural habitat for marine life, and the inclusion of native trees, shrubs, and marsh plants will help migratory birds.
Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.
Want to read more from PCD? Subscribe now and then sign up for our morning newsletter, Wilmington Wire, and get the headlines delivered to your inbox every morning.
