Tag Archives: WOTUS

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

February Message from Rick

Hello Wetland Enthusiasts!

I hope everyone had a fantastic World Wetlands Day and was able to get out and explore a wetland.

Recently, the US EPA announced the changes to the definition of Waters of the US (WOTUS) which has serious implications for the protection of streams and wetlands especially. We know that fewer wetlands will be under federal protection under the Clean Water Act, but just how many wetlands will lose their protection is still to be determined.

One estimate based on an EPA internal presentation is that 18% of the streams would lose protection and 51% of the wetland would lose protection across the United States. Based on data we have for North Carolina, we estimate that 26% of forested headwater wetlands could lose protection and depending on interpretations, it could be much more. We also know that many basin wetlands like pocosins, wetland flats, and Carolina bays could lose their protection.

So, you may wonder, what does it mean for a wetland to lose their protection. When a wetland is to be impacted usually with some development project, a permit has to be granted by the US Army Corps of Engineers to approve the impacts (I.e., draining and filling) and after efforts are made to first avoid or minimize the impact. A second permit is needed from the North Carolina Department of Enironmental Quality. This permit is also based on the Clean Water Act but deals with water quality issues with the proposed impact. Both permits are required before a wetland can be filled or altered. If a wetland loses protection under the Clean Water Act, then a developer can directly impact a wetland or stream without a permit — there is no legal mechanism to prevent or minimize (or mitigate) the wetland impact.

Some states like California and Minnesota have state rules that protect wetlands and streams beyond the federal government. However, the state of North Carolina currently cannot have stricter laws than the federal government. South Carolina is not under this same restriction but would require legislative action to pass new rules.

Of course, there will be lawsuits and probably the implementation of the new rules will be delayed. The Carolina Wetlands Association will be speaking up for the protection of wetland across North and South Carolina. We need to hear your stories about wetlands that will be impacted by the changes in definition of Water of the US. Please contact me, rick.savage@carolinawetlands.org.

Be sure to watch our webpage for the latest information as we learn more about what these new rules will mean to our wetlands. We should all be concerned about the impact to our ecosystem services provided by our wetlands.

Thanks all and let’s spread the word about how we need to protect our wetlands,

Rick

Trump’s proposed Clean Water Rule is devastating for our wetlands

The EPA has issued a proposed rule (Waters of the US rule) to replace the current federal protections for wetlands and streams. Soon the proposed rule will be publish and the public can submit comments. Then EPA will respond to comments by revising the rule before issue the final version of the rule. (Note, the new rule was announced on February 14. )

Everyone needs to understand the impacts of this rule and speak up to the EPA, legislators, governors, and state agencies. The Carolina Wetlands Association will issue an announcement when the public comment period opens.

Explanation of the new proposed rule

In the new rule, wetland protection is dependent on stream protection. Stream protection will be drastically reduced, covering only perennial streams and some intermittent streams. In order for a wetland to be federally protected, it must directly abutt a jurisdictional stream or be an “adjacent wetland” with continuous surface flow to a jurisdictional stream part of the year. This means all bays, depressional wetlands, isolated wetlands, and floodplain wetlands will lose protection. North Carolina and South Carolina have extensive acreage of these types of wetlands.

The new rule will result in huge losses of our wetlands and streams.

The EPA is asking for comment on particular topics. Nearly all these topics lean toward additional loss of protection. They are asking questions such as:

  • Should we protect only perennial streams (not intermittent)?
  • Should we change the definitions and naming of streams to “seasonal”? (intermittent streams would have to flow at particular times of the year to be protected)
  • Should we protect only streams with a minimum flow? (eliminating protection on some perennial streams)
  • Should the definition of a wetland be changed?
  • Should we set a maximum distance of protection from a jurisdictional stream? (eliminate wetlands further out even if they flow to a protected stream)

The proposed rule is devastating to wetlands, but the final rule will be worse, as indicated by the tone of the EPA’s questions for comment. This EPA is hiding behind the idea of giving jurisdiction to the states if they want to protect these streams and wetlands. They even go so far as to say there may be no real loss of streams and wetlands because states can make up for the lack in protection from the EPA. This is unlikely to happen soon in North and South Carolina, so the new rule will result in huge losses of our wetlands and streams.

What is devastating for our wetlands, will be devastating for us.

Our wetlands do so many things for us – for free! If we lose protections of our wetlands and streams, we will lose the benefits they give us all.

We need to speak up against this proposed rule. Speaking up is an important role of CarWA, especially at this time. We can talk about why these wetlands matter to all people, and why they deserve continued protection.

Some of our Wetland Treasures would not be protected from development under this proposed rule (eg. Lewis Ocean Bay, Antioch Bay, Green Swamp, Hemlock Bluffs vernal pools). North and South Carolina have so much at stake; please plan to make a comment when the time comes and speak to your representatives.

Message from the President

Happy New Year to all of our wetland supporters!  The past year has seen a lot of changes for Carolina Wetlands Association and with that, the new year brings some serious challenges.

First, we are very fortunate to have two new Board members.  Heather Clarkson holds a J.D. degree from the University of South Carolina and works for the Defenders of Wildlife where she is Outreach Representative.  Tara Allden works for Kimley-Horn in Columbia, SC, where she is a Natural Resources Specialist.  Tara deals with aquatic resource mitigation, wetlands delineation, permitting and local governments.  She also has a law degree from the University of South Carolina. Both Heather and Tara strengthen our board with their diverse experience and their SC connections. We want to thank the two departing Board members, John Dorney and Stratford Kay.  John is a founding member of Carolina Wetlands Association and was the Secretary on the Board for three years. Both  John and Stratford continue to serve on committees for Carolina Wetlands Association. We are so thankful for the dedicated service of John and Stratford for playing critical roles in the formation of the organization.

Second, we had our third round of Wetland Treasures of the Carolinas announced in May: Pink Beds, Black River Swamp, Hemlock Bluffs, Lewis Ocean Bay, and Sparkleberry Swamp.  The tours were well attended, and all had a great time. The Wetland Treasures program remains a very successful Program Committee program.  We also participated in events at the Town of Cary’s Arbor day, Reptile and Amphibians Day at the NC Natural Science Museum, and Mud Day at the Walnut Creek Wetlands Park.  We continue to be a significant part of the Wetland Forest Initiative with myself serving as one of three co-chairs of the Steering Committee. Heather Clarkson, Chad Guthrie, and I participate in the Watershed Alliance run by the NC Conservation Network and the Carolina Wetlands Association became affiliated with Wake NaturePerserve.  We are also involved with Albemarle Pamlico National Estuary Partnership’s Wetland Assessment team.

In November we had our first “Wetlands Matter” networking and information event.  We were overwhelmed by the great response to this event with over 100 people in attendance. A special thank you to our keynote speaker, Mr.  Derb Carter of the Southern Environmental Law Center, who talked about proposed changes the Waters of the US (WOTUS) by the US EPA. We ended the year with our annual Giving Campaign – thanks to your generosity we were able to raise over $4,000!

In 2019, we are faced with challenges from both within and outside the organization.  We have set an ambitious goal to raise $40,000 to implement our core competencies and hire a small staff.  We have plans to strengthen our partnership with our Wetland Treasures sites, publish the first State of the Wetlands report for the Carolinas, and host more networking events and tours throughout both states. The other big challenge we all face is the revisions to the Waters of the US rule which threatens over 50% of our wetland resources and many headwater streams. We are preparing a media campaign and working with many other organizations to be sure our wetland and stream resources are protected.  This is a critically important issue and we are counting on you to help with our efforts!

Your Carolina Wetlands Association has a lot going on this year and your help is needed.  Please contact me, one of our board members, or register on our website to be a volunteer.   Lastly, be sure to go out and explore a wetland!

Rick Savage

President