SOUTHEASTERN N.C. — Though the change never truly went into effect, the lower Cape Fear River’s contested classification as “swamp waters” could soon get dropped.
Technically, the classification is still on the books and must go through one final step before it’s officially removed. The switch from protected tidal salt waters (Class SC) to swamp waters allowed the lowermost portion of the river to be acidic and have lower levels of dissolved oxygen, which degrades the aquatic quality of life.
For five years, the re- and declassification has been entangled in a slow, bureaucratic path that eventually will bring the state back to where it started — with a 15-mile stretch of river that’s been officially designated as impaired for more than two decades.
In 2015, industrial dischargers, including International Paper, got behind reclassifying the lower Cape Fear River as swamp waters as part of a formal bid submitted by the Lower Cape Fear River Program, a consortium representing various government, industry, and academic interests.
The state approved the request in Sept. 2015 and waited two-and-a-half years before sending the change to the Environmental Protection Agency (EPA) for final review. A few months after receiving the proposal, the EPA threw it out in July 2018, finding that this stretch of the river did not meet the state’s own definition of swamp waters (swamp waters have low velocities; the lower Cape Fear moves quickly).
“It’s simply not a swamp water,” Southern Environmental Law Center attorney Brooks Rainey Pearson said. As lead attorney for SELC’s efforts in getting the designation removed, Rainey Pearson has advocated on behalf of the Cape Fear River Watch and Waterkeeper Alliance, which successfully petitioned the reclassification last summer.
Wilmington City Council, Representative Deb Butler, Senator Harper Peterson, and other local environmental groups have all helped push the state to ditch the “swamp” title.
In November 2019, the state’s environmental rule-making body, the Environmental Management Commission, agreed to send the reclassification’s removal to public comment — the last step before getting it removed. Then the pandemic hit, further clogging up an already slow endeavor.
On Oct. 20, the Department of Environmental Quality will host an online public hearing on the matter. Rainey Pearson said at first, the state was considering waiting even longer on reviewing the matter, in an attempt to knock out two birds with one stone. Except the other bird, the river’s impaired status, is much more difficult to wrangle.
“This is so easy,” she said. “It’s such an easy, small ask. There’s no opposition to it, EPA said no, we just have to get this swamp water classification off. And then we can figure out what we’re going to do next.”
In 1998, the lower Cape Fear River first landed on the state’s impaired 303(d) list because it was burdened with low levels of dissolved oxygen. It has never been removed. In fact, it has worsened with copper, nickel and increased acidity adding to its catalog of problems.
Under the Clean Water Act, the state is required to establish a Total Maximum Daily Load (TMDL) after a body of water is named to the 303(d) list. This figure represents the total load a body of water can handle and then divides it among permitted polluters. Like the lower Cape Fear River’s perpetual status on the impaired list, a TMDL has never been established.
“It’s easy to craft a TMDL if you have identified discharges,” Rainey Pearson said. Otherwise, “[i]t’s not an easy problem to solve.”
As the state’s most industrialized watershed, the Cape Fear River takes in runoff from the highest concentration of hogs on earth (which produce waste equal to the entire human population in the New York City metro area), according to the SELC.
Agricultural uses like this count as nonpoint source pollution, which is tougher to regulate and track down compared to point source pollution (like discharge coming directly from a water or wastewater treatment plant).
“You’re not going to fix this problem by tightening up the point sources,” Rainey Pearson said. “Even if you tightened up every point source, you’d never resolve these problems because it’s coming from nonpoint source dischargers.”
Coming up with a methodology to keep nonpoint polluters in check will be a far more laborious effort, according to Rainey Pearson. “That’s going to be a bigger fight and a more prolonged process.”
The online public hearing on removing the lower Cape Fear River’s swamp waters classification will take place Oct. 20 at 6 p.m. Written public comments will be accepted through Nov. 2:
- By email: email@example.com
- By mail: Elizabeth Kountis, DEQ-DWR, Planning Section, 1611 Mail Service Center, Raleigh, NC 27699-1611
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