EPA’s New Navigable Waters Protection Rule Puts Wetlands in Jeopardy

On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) finalized the Navigable Waters Protection Rule  that changes the definition of “Waters of the United States” thus changing the protection to wetlands and streams across the Nation.

Link to EPA Website:  https://www.epa.gov/nwpr/navigable-waters-protection-rule-step-two-revise

The new Navigable Waters Protection Rule reduces federally-regulated waters of the US to four categories:

  • Territorial seas and traditional navigable waters,
  • Perennial and intermittent tributaries to those waters,
  • Certain lakes, ponds, and impoundments, and
  • Wetlands directly adjacent to jurisdictional waters

The Navigable Waters Protection Rule describes 12 categories of exclusions, features that are not regulated as “waters of the United States,” including groundwater; ditches, (except those constructed in intermittent or perennial streams), and ephemeral streams.

What is wrong with the new rule? How is the new rule endangering wetlands?

The new rule greatly reduces wetland protection across North and South Carolina meaning that thousands of acres of marsh, pocosins, bogs, and wet pine flats can be filled, drained and ditched without regulatory review or compensatory mitigation.  E&E News report states that “the change removes protections for 18% of streams and 51% of wetlands in the U.S.”, [According to an EPA slideshow obtained by E&E News under a Freedom of Information Act request.] 

Even NCDEQ Secretary Michael S. Regan expressed his grave concern in a January 24, 2020 memo stating “We are highly concerned about the impact of the revised “Waters of the U.S.” rule on North Carolina’s wetlands. The rule clearly ignores the science-based recommendations provided by this department to ensure the protection of the state’s water quality, unique natural resources and the economic benefits associated with them. 

Even NCDEQ Secretary Michael S. Regan expressed his grave concern in a January 24, 2020 memo stating “We are highly concerned about the impact of the revised “Waters of the U.S.” rule on North Carolina’s wetlands. The rule clearly ignores the science-based recommendations provided by this department to ensure the protection of the state’s water quality, unique natural resources and the economic benefits associated with them. 

Source. Memo: Statement on Revision to Water of the United States Rule

Even NCDEQ Secretary Michael S. Regan expressed his grave concern in a January 24, 2020 memo stating “We are highly concerned about the impact of the revised “Waters of the U.S.” rule on North Carolina’s wetlands. The rule clearly ignores the science-based recommendations provided by this department to ensure the protection of the state’s water quality, unique natural resources and the economic benefits associated with them. 

Source. https://deq.nc.gov/news/press-releases/2020/01/24/memo-statement-revision-water-united-states-rule

What about State laws to protect wetlands?

It is complicated – North Carolina statute prohibits the state from adopting rules more stringent than the federal government.  In South Carolina, state law protects tidal wetlands but not non-tidal wetlands, which constitute a large portion of the state’s wetlands. 

North Carolina

In 2011, the NC General Assembly enacted a law prohibiting state agencies from adopting rules “for the protection of the environment or natural resources” that imposes “a more restrictive standard, limitation, or requirement than those imposed by federal law or rule, if a federal law or rule pertaining to the same subject matter has been adopted.”  Source: N.C. Gen. Stat. § 150B-19.3(a)

South Carolina

South Carolina does not have a regulatory program under state law addressing dredge and fill activities in its nontidal waters and wetlands. It relies solely on federal regulations to define protection for non-tidal waters.  Tidal waters and wetlands are regulated by SCDHEC’s Office of Ocean and Coastal Resource Management (OCRM) under the state’s Coastal Zone Management Act. This statute authorizes the OCRM to regulate “coastal wetlands, mudflats, and similar areas that are contiguous or adjacent to coastal waters and are an integral part of the estuarine systems involved.” 

Source:  S.C. Code Ann. § 48-39-10(G); S.C. Code Ann. Regs. 30-1.

Stories of Wetlands That Could be Impacted 

Pocosins: Eastern North Carolina has thousands of acres of pocosin wetland, which perform important functions in terms of carbon sequestration, habitat for commercially important and endangered species, and water storage. These important wetlands are desirable for agriculture (when drained) because they have deep fertile peat soils. Pocosin wetlands will now lose protection because they are fed by rainfall and generally not adjacent to jurisdictional waters.

Mountain Bogs: North and South Carolina mountains are home to bog wetlands, which form at the base of slopes and are filled by rainwater runoff from the mountains. Like pocosins, they are generally not adjacent to jurisdictional waters, and therefore will lose protection under this rule. Mountain bogs are becoming increasingly rare open spaces in mountain landscapes, and they provide critical habitat for a large number of endangered plant and animal species, including the very rare tiny bog turtle. The National Park Service recently recognized the importance of these mountain bogs by creating a national park containing several mountain bogs, but there are many more that need protection.

Other Articles:

Southern Environmental Law Center: EPA announces move to strip Clean Water Act protections

NC Coastal Review:  Narrower Rule Replaces Waters of the US