SOUTHEASTERN N.C. — The North Carolina Department of Environmental Quality estimates about 2.5 million acres of wetland lost protection in North Carolina after two landmark rulings in 2023 removed federal and state jurisdiction of isolated wetlands.
Those regulatory changes include thousands of acres in the Cape Fear region that environmentalists fear will negatively impact current and future development projects.
“In the past, if you wanted to develop a wetland, you had to apply for a permit from both the feds and the state,” Larry Cahoon, a UNCW biological oceanographer and limnologist, told Port City Daily. “You typically had to mitigate for the loss of wetland by paying money into a wetland bank or creating wetlands artificially somewhere else. Now, that’s no longer required. That’s going to make development cheaper and therefore more economically feasible for developing wetlands.”
In May, the Supreme Court ruling in Sackett v. EPA removed federal authority of wetlands that do not have a “continuous surface connection” with other bodies of water. A provision in the 2023 North Carolina Farm Act — which deals with agriculture, such as exempting farmers from paying sales tax on compost — prohibited the state from regulating isolated wetlands that lost federal protection from the Supreme Court ruling. The North Carolina legislature overrode Gov. Roy Cooper’s veto of the bill in June.
Locally, its aftereffects are entering the conversation of development. In a recent rezoning approval for the Seabreeze community in Carolina Beach, residents cited flooding as a major concern to add 46 units to the area. Attorney Clint Cogburn, who represented the applicant Wes Reynolds of SB Cottages, told the planning board the developer can build on the wetlands since they are no longer federally regulated.
At a review meeting on Aug. 31, Commissioner LeAnn Pierce asked if developers could construct without filling wetlands, to which the response was “possibly.”
Cahoon described flooding, increased runoff, and pollution as consequences of wetland development. Isolated wetlands naturally absorb flood water because they are topographically low. Building impervious surfaces on what used to be wetlands drives runoff that can carry pollutants, into nearby water bodies such as estuaries.
“They retain water when it rains and they allow that water to percolate slowly into the groundwater table,” Cahoon said.
Wetlands serve as filtering systems by absorbing pollutants into sediment and removing them from the water.
Ecologist Andy Wood and UNCW geography professor Roger Shew specified the proposed development Williamson Tract in Oak Island and projects in the Island Creek Basin, a 14,000-acre region in northern New Hanover and southern Pender counties, are vulnerable as well.
The Williamson Tract is a proposed 3,200-acre mixed use development that would include 7,200 dwelling units and a commercial area. Developers of the Williamson Tract refuted flooding concerns in a February 2022 rezoning submittal:
“Suitable design preserving most environmental areas and providing stormwater treatment of proposed impervious areas will eliminate many negative environmental impacts. The preservation of natural features is accomplished by increasing the open space areas and clustering proposed development outside of wetland, floodplain, and stream areas.”
Port City Daily reached out to see if the company’s plans have changed since the passage of the Farm Act and will update upon response.
Wood is concerned with negative impacts from developing the Williamson Tract.
“The developer is proposing rimming that bay with condominiums and other impervious surfaces and that will compromise the health and wellbeing of that public trust property,” he said.
He projects flooding will happen just as has been seen with development in New Hanover County’s West Bay Estates, made up of more than 15 subdivisions, in Ogden.
“We are repeating what we already know is going to happen. We’re not paying attention to history,” Wood said.
He also worries environmental consultants hired by developers will now have more authority to determine wetland delineations rather than the U.S. Army Corps of Engineers.
USACE is responsible for approving wetland delineations and is in the process of implementing the new laws. At this time, its public affairs chief, Dave Connolly, told Port City Daily it’s too soon to understand the effect it will have.
“Since we have not had ample time to implement the new Supreme Court rule, we simply cannot tell if it will, or to what degree it will, accelerate future wetland filling and development projects,” he said. “And it is not appropriate for us to speculate.”
Wood fears developer-hired environmental consultants will “skew the data” in ways that will encourage development in flood-risk areas.
Cahoon said projects in Brunswick and Pender Counties contain watersheds — low topographical areas that absorb flood water — that will lose protection under the change.
The NCDEQ handles most permitting related to wetlands. Its Division of Water Resources (DWR) issued a Sept. 20 memo for permittees confirming the amended definition of wetlands, as well as related rules on soil remediation and monitoring requirements.
“Isolated wetlands and non-jurisdictional wetland permits will not be necessary for properties that have received Approved Jurisdictional Determinations (AJDs) confirming the wetlands on the property are not under the WOTUS rule,” the memo said.
Supporters of the recent rulings, such as the National Home Builders Association, argue previous wetland definitions put an excessive regulatory burden on developers.
NC Home Builders Association legislative affairs director Steven Webb and Wilmington-Cape Fear Home Builders Association executive officer Cameron Moore contend previous state mandates on wetland protections were unlawful. They cited NC state law G.S. 150B-19.3, which forbids state agencies from enacting environmental regulations that are more restrictive than the federal government.
“NCHBA and others in the regulated community advocated for Section 15 of the NC Farm Act in an effort to realign state agency rules back to lawful status,” Webb told Port City Daily.
The NC Home Builders Association’s lobbying on the Farm Act was supported by $350,427 in donations to North Carolina candidates and political committees in the 2022 election cycle according to an analysis by campaign finance investigator Bob Hall.
Campaign finance disclosures show local lawmakers who supported the Farm Bill received donations from The NC Home Builders PAC. In 2022, Sen. Rabon (R-Brunswick) received $5,600, Rep. Ted Davis (R-Brunswick) received $2,000, Sen. Brent Jackson (R-Pender), who sponsored the bill, received $2,000, Sen. Michael Lee (R-New Hanover) received $1,000, and Rep. Carson Smith (R-Pender) received $1,000.
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