SOUTHEASTERN, N.C. — The Environmental Protection Agency and United States Army just finalized a historic rule that removes federal protections for wetlands.
Under the new rule passed last week, wetlands and streams that do not continuously maintain a surface water connection will no longer have federal protections under the Clean Water Act. If implemented, the rule will likely have devastating national impacts on water quality and increase flood-related risks in already vulnerable coastal communities, including the Cape Fear region.
The new ruling redefines Waters of the United States (WOTUS) protected from pollution and obstruction in the Clean Water Act. It ignores subsurface flow (i.e. underground water) connecting wetlands and streams that don’t have a direct surface water connection.
This means wet, low-lying inland features that currently trigger federal and state review in the development process could soon get filled in with little to no oversight.
“We could fully expect to see new development in areas that are very vulnerable to floodwaters,” Keri Allen, coastal advocate at the North Carolina Coastal Federation, said. “Without protections for these wetlands, you’re going to see building there.”
‘No basis in science’
In comments submitted last year, North Carolina’s Attorney General and Director of the Department of Environmental Quality described the rule as having been established “on the basis of arbitrary dividing lines that have no valid basis in science.”
An estimated 17% of North Carolina’s total landmass is comprised of wetlands, at 5.7 million acres. Of these wetlands, 95% are located in the coastal plain. Nationwide, more than half of wetlands will no longer be protected under the new ruling.
Even wetlands still technically defined as a WOTUS directly adjacent to jurisdictional waters would be impacted by this ruling. Should it be implemented, the ruling would open up development in areas protected for decades, leading to unprecedented stormwater runoff and flooding, which inevitably will bear down on the coast.
Thirty-nine days into his presidency, President Donald Trump signed an executive order to initiate repealing the 1972 Clean Water Act. Last year, the new definition opened up to public comment, garnering 620,000 comments on the proposal, according to the EPA. Proponents of the change describe it as removing red tape to give breathing room to property owners who own land containing jurisdictional wetlands or streams.
In announcing the finalized rule last week, the EPA characterized the changes as a simplification of the federal review process that will spur economic growth. Scores of environmental advocacy groups, scientific organizations, and state-level government agencies adamantly oppose the rule’s justification.
“In the process, the agencies have abandoned their expertise,” the Southern Environmental Law Center wrote in its comments, submitted last year on behalf of 80 organizations, including the Cape Fear River Watch.
The change was a top lobbying priority for the National Association of Realtors last year, according to the SELC. While the rule’s economic analysis admits it would increase downstream flooding damages, put a greater cost burden on storm-restoration agencies, and increase costs for drinking water suppliers, it claims removing federal oversight would save money overall.
Environmental groups argue this methodology is flawed and fails to fully quantify the extent of imminent damage, should the rule go into effect.
Soon, the new rule will be published in the Federal Register. After 60 days in the Federal Register, it will become effective — that is, baring delays from legal challenges, which are anticipated.
“These revisions don’t just undo what was done under the Obama Administration,” Allen said. “These set us back decades.”
Below: Wetlands depicted in southeastern, North Carolina. View DEQ’s interactive mapping system.
Wetlands are, in essence, sponges. Often described as nature’s kidneys, wetlands provide critical environmental and economic functions.
Hydrophytic plants (i.e. plants that grow totally or partially submerged in water, or in waterlogged soil) absorb excess nutrients found in stormwater runoff, helping to protect bodies of water from harmful algal blooms and pollution. They both save and generate public money by reducing the need for investments in storm-control costs and spurring economic growth via tourism and commercial fisheries.
One acre of wetlands is capable of storing 330,000 gallons of water. When removed, these waters flow unimpeded, directly to traditional navigable waters, pushing storage capacity limits in storm events, causing rivers and stream to crest and ponds and lakes to overflow.
Ephemeral streams — riverbeds that are alternately dry or filled by stormwater — would also lose federal protection under the new rule.
Currently, if developers wish to impact wetlands or stream features, an extensive oversight process is initiated. Filling or dredging wetland features requires a 404 permit, obtained from the U.S. Army Corps of Engineers, and a subsequent state-level version from the Division of Water Resources with a 401 permit.
Property owners must prove impacts are “unavoidable” before impacting these resources; if such a determination is granted, the owner must invest in a 2:1 ratio in a public mitigation program that restores wetlands and streams.
“Right now we have a pretty thorough process of inter-agency coordination,” Allen said. If the rule is implemented, Allen said the future permitting process is uncertain. “That’s something we don’t know,” she said. “It will definitely be a diminished review process.”
The new WOTUS ruling shifts the burden of oversight responsibility to states — an unwelcome task for North Carolina. Both the DEQ and AG’s Office assert the state is too ill-equipped, over-burdened, and underfunded to pick up the jurisdictional review of these wetland and stream features. And according to the SELC, states lack the “political will” and funds to confront powerful polluters.
It’s also worth noting that water quality issues are driven by interconnected water systems — networks that do not start or stop at state boundary lines.
Below: A screenshot from the EPA’s WOTUS announcement depicting areas no longer federally protected under the Clean Water Act. The features of highest importance, environmentalists assert: streams temporarily filled by stormwater and wetlands that do not have a direct surface water connection to water bodies.
Send tips and comments to Johanna Ferebee Still at email@example.com