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Fortunately, the 2020 definition has been revoked.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
Geoff Gisler, Carolina Wetlands Association Board Member and lawyer for the Southern Environmental Law Center