Tag Archives: waters of the us

October Message for the Board

Dear Wetland Supporters,

For those of us who love wetlands, there is no term that has more significance legally than “waters of the United States.” If a wetland is a water of the United States, it is protected by the Clean Water Act; if not, then it is left unprotected by federal law. The last several years have been challenging for wetland supporters because the U.S. Environmental Protection Agency and Army Corps of Engineers stripped away the protections provided by the Clean Water Act from most of the wetlands in the Carolinas. In June 2020, the agencies finalized those efforts by redefining wetlands out of waters of the United States—leaving states to decide whether or not to protect wetlands and the multitude of benefits they provide.

Wetlands in the Carolinas were particularly vulnerable under the 2020 definition. Pocosins, seeps, non-riverine swamps, hardwood flats, pine savannas, pine flats, floodplain pools, and headwater forest wetlands were vulnerable for the first time in decades because the definition required a surface water connection to a stream or river for a wetland to be considered a water of the United States. In North and South Carolina, millions of acres of wetlands likely lost federal protection under the 2020 regulation.  

 Fortunately, the 2020 definition has been revoked. In two lawsuits filed by Native American tribes in the Southwest, federal judges determined that the 2020 definition of waters of the United States was causing significant harm to wetlands and streams across the country and that the EPA and Army Corps of Engineers failed to consider the consequences of the regulation on the streams and rivers at the heart of the Clean Water Act. In Arizona, the court found that the 2020 definition had “fundamental, substantive flaws that cannot be cured” without significant changes. Next door, in New Mexico, the court found that the rule resulted in “a very real possibility of serious environmental harm.” Both courts sent the definition back to the agencies for reconsideration and vacated the regulation, leaving in place the set of regulations that preceded the 2020 definition.

The court decisions throwing out the 2020 regulation are not the final chapter. The current EPA has announced a plan to improve on the existing protections by clarifying the reach of the Clean Water Act by proposing and finalizing a new definition before the end of President Biden’s first term.  For more information, visit SELC’s page

When that process starts, it will be vital for wetland supporters to let the EPA know that wetlands matter. Carolina Wetlands Association will keep you updated on how you can make your voice heard.  

Geoff Gisler, Board of Directors

Written by: 

Geoff Gisler, Carolina Wetlands Association Board Member and lawyer for the Southern Environmental Law Center

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.

Wetlands Matter: Networking and Information Sharing Event

Wednesday, November 28, 2018 from 5:30 PM – 7:30 PM

 

Come learn about the Carolina Wetlands Association and the work the organization is doing to advance the understanding, protection and enjoyment of wetlands throughout North and South Carolina.  Our 2019 calendars featuring our Wetland Treasures, magnets, and t-shirts will be available during the event.

AGENDA 
5:30    Networking Time

6:00    Guest Speaker: Derb Carter, Southern Environmental Law Center 
Mr. Carter will discuss the status of proposed changes the Waters of the U.S. rule and what that means for wetland protection and restoration.

6:30     Overview of the Carolina Wetlands Assocation
Learn about our efforts to get a Ramsar wetland designation in North Carolina, the Wetland Treasures of the Carolinas Program, and our effort to issue a State of the Wetlands report.

7:00    More Networking Time

7:30    Meeting Ends

Food and drinks will be provided!  Please register so we know you are coming.