NORTH CAROLINA — A federal ruling and state law last year removed protections for vast expanses of North Carolina’s wetlands, but appropriate enforcement of regulations remains in controversy.
The Biden administration’s 2022 Waters of the United States definition gave 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. A year later, the Supreme Court struck down the rule in its landmark decision Sackett v. EPA. The ruling removed federal authority of wetlands without a “continuous surface connection” with other bodies of water — known as “isolated wetlands.”
Adam Gold, director of climate resilient coasts and watersheds with the Environmental Defense Fund, published a study last week finding different interpretations of the Supreme Court ruling that would leave between 17 million to almost 90 million acres of non-tidal wetlands without federal protection.
“When you’re using subjective and undefined terminology, there’s a lot of different interpretations,” Gold said, “which leads to extreme uncertainty around what’s fairly protected.”
Gold told Port City Daily the figure ranges from about 500,000 to 3.6 million acres in North Carolina. The Department of Environmental Quality estimated 2.5 million acres could lose protection after the General Assembly passed SB 582 in June 2023, which barred the state from regulating isolated wetlands that lost federal protection from the Supreme Court ruling.
Gold emphasized the importance of North Carolina wetland protections following Hurricane Helene’s devastation in Florida. It became a tropical storm and left western North Carolina regions, like Asheville and Boone, decimated by landslides due to more than 20 inches of rain. This came only one week after severe flooding caused by potential tropical cyclone eight also dropped 20 inches of rain in Carolina Beach and Brunswick County, causing damaged roadways and flooding.
“Wetlands aren’t going to prevent all flooding, but if you get rid of wetlands you’re going to have significantly worse flooding,” Gold said.
Wetlands naturally absorb flood water and filter pollutants through a combination of biological and chemical processes; building impermeable surfaces on former wetlands can contribute to stormwater runoff.
Gold emphasized a question raised by Judge Brett Kavanaugh in his concurring opinion for the Sackett ruling: How wet must a wetland be to qualify as a wetland? He used different methods of quantifying wetness and other variables in the WOTUS definition to demonstrate a vast range in potential interpretations.
UNCW geologist Roger Shew told Port City Daily similarly the federal ruling and state law leaves a wide range of potential wetlands that may be considered non-jurisdictional. Jurisdictional wetlands are under federal oversight.
“I don’t believe wetness is the best criteria,” he said. “A wetland has already been defined for numerous years: contains hydric soils, supports hydrophytic vegetation, and has standing water for part of the year.”
Advocates for less restrictive WOTUS definitions, including the National Home Builders Association and Congressman David Rouzer (R-NC), have also expressed frustration regarding ambiguity in post-Sackett wetland regulations. Rouzer co-introduced a resolution to overturn the Biden administration’s WOTUS definition months before the Sackett decision in February 2023.
In a Water Resources and Environment Subcommittee meeting last month, Rouzer raised concerns that Novo Nordisk’s $4-billion expansion in Johnston County was being stalled due to delays with the site’s jurisdictional determination for wetlands.
“Novo Nordisk cannot conduct on-site avoidance and minimization analysis before they know what parcel of property must be avoided,” he said. “Nor can they conduct an off-site alternatives analysis without a clear concept of how their site works against other sites that may or may not have similar issues. This is just one example of many instances across the country where economic investment and job creation — and in this case, public health as well — are stalled due to this vague process.”
In a Sept. 19 email, Army Corps of Engineers regulatory specialist Matthew Martin requested more information from Novo Nordisk — which has donated $17,500 to Rouzer’s campaign throughout his time in Congress — before approving its request to permanently fill approximately 17.3 acres of potentially jurisdictional wetlands. Martin said the company would need to show there are no alternative methods of development with less detrimental environmental impacts.
The Wilmington Army Corps of Engineers received four public comments regarding Novo Nordisk’s expansion proposal. Each unnamed resident was opposed. Three expressed concerns about the impact of using discharged fill material on water quality; one respondent said they were in the process of coordinating with neighbors to file legal action.
Wilmington Army Corps of Engineers regulatory chief Mickey Sugg told Port City Daily the agency uses the Biden administration’s 2023 amended WOTUS definition to determine jurisdictional wetlands. The amended rule changed provisions rendered invalid by Sackett, such as removing the “significant nexus” test that included wetlands connected to other water bodies in the 2022 rule.
Litigation over North Carolina’s wetland regulations is being carried out in the ongoing case White v. EPA. Business owner Robert White of Elizabeth City sued the federal agency earlier this year for enforcing wetland regulations outside the scope of the Sackett decision; district court judge Terrence Boyle refused White’s requests for injunctions to stop EPA enforcement in June and August.
Residents including Kayne Darrell, the leader of local organization Citizens for Smart Growth, have raised concerns about the impact of uncertain wetland protections on large proposed projects in the tri-county region. Darrell pointed to Hilton Bluffs — a 4,000 unit subdivision across 4,039 acres in Castle Hayne that contains approximately 3,072 acres of wetlands. She said it inspired her to push back against excessive development in the county.
In a September email to planning director Rebecca Roth and planning coordinator Katherine May, Darrell requested data on the collective impact of recent development including total acreage of destroyed wetlands and how much completed projects have contributed to flooding in New Hanover County.
“It would seem that any decisions made moving forward without this information would be extremely irresponsible,” she wrote. “And so I’m wondering if that data is available without having to look at each individual application?”
The New Hanover County Technical Review Committee will review applicant Copper Builders’ master plan Wednesday. Soil and Water Conservation director Dru Harrison recommended the applicant contact the U.S. Army Corp of Engineers and Department of Environmental Quality before disturbing possible wetland areas in preliminary TRC documents last month.
Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.
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