NC - Temporary Rules Needed to Protect Wetlands
This week, the North Carolina Environmental Management Commission will consider approving a proposed “temporary” regulation to restore a permitting system to authorize activities in wetlands that federal agencies determine are no longer protected under the federal Clean Water Act.
The Department of Environmental Quality has recommended the temporary regulation. State commissions and agencies are allowed to adopt temporary rules in limited circumstances, such as the need to respond to the recent enactment of a law or federal regulation or a recent court order. Temporary regulations go into effect immediately, followed by the permanent rulemaking process, which can take years.
So what has given rise to the need to adopt temporary regulations to create a process for authorizing activities in wetlands, since the state has been requiring authorization of activities in wetlands for over two decades?
The short answer is North Carolina’s wetlands are protected by law as “waters of the State.” If the Department of Environmental Quality lacks a process to authorize activities that would impair or destroy wetlands, the wetlands are categorically protected and those activities are prohibited.
The longer answer requires an understanding of the interplay between federal and state law, and recent missteps by the Environmental Protection Agency and North Carolina General Assembly.