Isolated wetlands, such as this scene at Boiling Spring Lakes Preserve in Brunswick County, include diverse plant species, serve important water quality and flood-protection roles, and may not always look to the public like wetlands. Photo: Kristie Gianopulos/NC Wetlands

USA - Decades of water quality safeguards erased, advocates say

Second of two parts. Read part 1. The final rule ending federal protections for isolated wetlands that the Environmental Protection Agency and Department of the Army issued last week is another setback in the more than 40-year battle to protect North Carolina’s water quality.

Issued Aug. 29, the amendment to the final “Revised Definition of ‘Waters of the United States’” rule published in the Federal Register in January reflects the Supreme Court’s May 25, 2023, Sackett v. EPA decision that only wetlands with a “continuous surface connection” to waterbodies are considered “waters of the United States.”

The two agencies enforce the Clean Water Act put in place in 1972 that prohibits the discharge of pollutants from a point source into “navigable waters,” or those defined as waters of the United States, or WOTUS.

The amended rule, coupled with the North Carolina Farm Act passed June 27 that aligns the state definition of wetlands to the federal definition, opens up 2.5 million acres of isolated wetlands to being developed, according to an estimate provided earlier this year by the state.

A Department of Environmental Quality representative told Coastal Review Friday that the agency was still “reviewing the final rule released by EPA this week and is unable to provide a specific estimate of wetlands impacted based on the rule change.”

With these two rule changes, North Carolina Coastal Federation Executive Director Todd Miller said to expect “a mess and a real threat to the health of our coastal estuaries that support the marine fisheries of North Carolina.

“We can also expect to see more closures of waters for swimming,” Miller said.

Southern Environmental Law Center Senior Attorney Derb Carter Jr. echoed Miller’s concern.

“The state estimates that up to 60% of the wetlands in the state will no longer be protected or regulated under the Clean Water Act,” Carter told Coastal Review. “I don’t think the public is quite aware of the scope of this and its potential impact on wetlands, on water quality and on the natural heritage of the state.”

Carter said the Sackett case that began in the late 2000s happened when the EPA told the Idaho couple, who had begun to backfill their property adjacent to a lake to prepare for construction, that they needed a permit. “They weren’t told they can’t do it. They were told they needed a permit. Instead, it became a challenge to whether Congress can regulate wetlands at all under the Clean Water Act,” he said.

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