WOTUS Update

by Rick Savage

Background
Waters of the US (WOTUS) defines waters that are protected by the federal government. The Rivers and Harbors act of 1899 prevented any impact to navigable water, which often crossed state lines. In 1972, the Clean Water Act made water quality part of this protection and extended federal protection to tributaries and wetlands associated with navigable waters, even isolated wetlands. (Mountain bogs, pine flats, and pocosins are examples of possible isolated wetlands; wetlands without a surface water connection to a waterbody).

Isolated wetland in NC

A major challenge to federal jurisdiction over isolated wetlands under the Clean Water Act occurred with the Supreme Court Case of Rapanos vs. the US in 2006.  Raponos argued that isolated wetlands were not jurisdictional because they were not connected to navigable waters.  The result of this case was a 4-4-1 split decision, with half the court including isolated wetlands under protection and half the court excluding them.  Justice Kennedy was the lone vote, saying that for isolated wetlands to be jurisdictional, there needed to be a “significant nexus” with navigable waters. 

Current Condition
Under the Obama administration, the rule was rewritten to include near all surface waters and wetlands as Waters of the US.  For the environmental community, this rewrite was well received, and isolated wetlands were again protected.  However, under the Trump administration, another rewrite of the Waters of the US rules to removed federal protection of isolated wetlands.  

The Southern Environmental Law Center currently is part of a case against the Trump EPA WOTUS rewrite, because it fails to protect so many small streams and wetlands. This is an important topic and determines how wetlands are protected and the rules for mitigation for wetlands that are impacted. There could be a ruling on this case soon!

What’s Happening in North Carolina
North Carolina  (N.C. Gen. Stat. 143-212(6) has a broader definition of Waters of the State and includes protection for isolated wetlands even though they are now no longer protected by the federal definition of Waters of the US.  However, because isolated wetlands are no longer regulated by the federal process, NC Department of Environmental Quality (DEC) has no way to approve (or permit) projects that impact these wetlands.

In November, the NC DEQ initiated development of temporary rules to establish  permitting procedures for wetlands no longer under federal jurisdiction. Without a permitting process, developers are at a standstill without a way to legally impact these wetlands. The Carolina Wetlands Association with track the developments of this effort and keep you informed when there is a need for public input on the rule.

We will bring you updates as they happen, so stay tuned!