The Environmental Protection Agency is considering a rewrite of the definition of a wetland which could affect the way other rules and laws, including the Clean Water Act, are applied to more than three million acres of wetlands in North Carolina.
The Clean Water Act prohibits discharging pollutants into “waters of the United States,” or WOTUS. This is a legal phrase that has historically included streams, oceans, rivers, and lakes, as well as their adjacent wetlands.
But in 2023, a U.S. Supreme Court ruling redefined waters of the United States, rolling back some of the law’s protections.
In Sackett v. EPA, an Idaho couple backfilled their property to build a house. The EPA said the property included wetlands protected under the Clean Water Act and ordered them to stop, leading to an extended legal fight that went to the Supreme Court.
The court ruled in favor of the Sacketts, saying the Clean Water Act only protects wetlands whose surface water connects to larger, continuously flowing bodies like rivers, lakes, streams or coastal waters. That leaves out non-coastal wetlands that might only hold water after a storm or only have surface water for part of the year.
The EPA said the proposed rule is meant to fully implement that decision. The agency is reviewing public comments and could finalize the rule later this year.
But an analysis from the Environmental Defense Fund said the move opens millions of acres of North Carolina wetlands to potential development, depending on how the EPA enforces the rule.
Building on these previously protected wetlands could have dire consequences, according to state environmental officials and advocacy groups.
Wetlands slow down runoff during heavy rains, reduce flooding in nearby neighborhoods, and help filter polluted water before it runs into drinking water supplies downstream.
“These wetlands do real work for people,” Erin Carey, deputy director of the North Carolina Sierra Club, told NC Local. “When development fills them in, the water doesn’t disappear. It moves faster and floods places where people live.”
Here’s how the new rule would change wetland protections and what it could mean for you:
What is a wetland?
There are different types, but in general wetlands are pockets of land where water covers or saturates the soil. They are often next to larger bodies of water like rivers, lakes or streams, and often have varying amounts of surface water or none at all, depending on recent rainfall.
They are also called marshes, mangroves, mudflats, mires, swamps, deltas, bogs, and floodplains.
North Carolina has about 4.2 million acres of wetlands, which make up about 14% of the state’s land, according to the state Department of Environmental Quality. The Environmental Defense Fund’s report said the EPA’s proposed rule could put upwards of three million acres at risk of losing federal protections.
What’s changing?
In a statement provided to NC Local, EPA said the rule “would ensure that states and tribes only utilize [the Clean Water Act] for its statutory purpose – to protect water quality – and not as a weapon to shut down projects for reasons untethered to statutory requirements and appropriate and applicable regulations.”
But in formal public comments submitted earlier this month, environmental groups and the North Carolina Department of Environmental Quality said the EPA’s new rule goes beyond the scope of the Sackett decision, stripping protections from wetlands that might not fit the agency’s definition, but still mitigate flooding and protect water quality.
North Carolina law ties wetland protections directly to the federal definition of waters of the United States. That means limiting federal protections would apply statewide unless North Carolina lawmakers step in to create their own standards.
What is a “wet season?”
Under the EPA’s proposed rule, a wetland would qualify for federal protection if it has standing or flowing water “during the wet season.”
The proposed rule describes an area’s “wet season” as “when average monthly precipitation exceeds average monthly evapotranspiration,” or months when the amount of rainfall is higher than the amount of water lost to natural processes like evaporation and transpiration. If you think of it like a bank account in which you hold water instead of money, the wet season would be all the months you take in more water than you spend.
The EPA told NC Local the agency believes “landowning citizens and trained professionals understand their local ‘wet season,’” and that the proposed rule talks about using an online tool called WebWIMP, a database that shows water balances everywhere on Earth down to each half degree of longitude and latitude.
But environmental groups said this method still leaves too much uncertainty.
“That ignores the variability of nature,” Adam Gold, senior manager of Coasts and Watersheds Science at the Environmental Defense Fund, told NC Local.
Gold, who is Raleigh-based, wrote the group’s analysis of wetlands at risk after the Sackett decision. He also created an interactive map that shows where and how many acres of wetlands might lose protection based on how strictly the EPA defines a wet season.
Gold said he fears federal regulators could use the rule to arbitrarily create wet seasons that last almost year-round, meaning wetlands would need to have surface water almost constantly to be protected.
For example, the proposed rule would define the wet season through WebWIMP in New Bern, N.C., as July through May. The wet season in Durham would be September through May, and in Asheville, October through May.
“You could have a dry spell with the normal variability of the weather, and you’d have a change in Clean Water Act protections,” Gold said, calling the wet season rule a “foundational problem.”
Under the proposed rule, decisions about whether a wetland meets the wet season test would largely fall to the U.S. Army Corps of Engineers, which would make site-specific determinations based on climate data and professional judgment.
Gold and other environmentalists said the process will lead to inconsistent decisions and make protections harder to enforce.
Why this matters in your neighborhood
Wetlands act like sponges, soaking up rain and releasing it slowly. Losing federal protection would not automatically allow wetlands to be developed, but it would remove federal building permit requirements under the Clean Water Act.
“It requires the permittee to avoid jurisdictional wetlands when they can. If they can’t, it requires them to minimize the harm to those wetlands. If they can't do that, to mitigate the harm by purchasing other wetlands or restoring other wetlands so that you're trying to avoid any loss of valuable wetlands,” said Mark Sabath, a senior attorney with the Southern Environmental Law Center. “And that goes away when you don't have the requirement to get a permit.”
According to the North Carolina Division of Water Resources, one acre of wetland can hold up to 1.5 million gallons of floodwater.
Environmental groups point to Wilmington’s Northchase neighborhood as an example of what happens when those natural buffers disappear.
In the 1990s, developers drained and filled wetlands to build houses in Northchase. When Wilmington took a direct hit from Hurricane Florence in 2018, the National Weather Service described Northchase as being hit particularly hard, with some residents reporting as much as three feet of water inside their homes.
“Wetlands aren’t just scenery,” Erin Carey of the North Carolina Sierra Club said. “They’re protection. When they’re gone, communities feel it.”
The North Carolina League of Conservation Voters echoed those concerns in a recent statement, calling the potential loss of wetlands protections “a disaster.”
State concerns go beyond the environment
In NCDEQ’s official public comment on the proposed rule change, Deputy Secretary Sushma Masemore said the EPA is putting North Carolina’s public safety at risk.
“Over the past decade, the state has faced three separate 1,000‑year storm events,” Masemore wrote. “Wetlands provide an important and low-cost line of defense against flooding. Without the storage capacity of North Carolina’s remaining wetlands, flood damage from these storms could have been even more catastrophic.”
Masemore warned that weakening federal protections could shift costs to homeowners, local governments and businesses if communities have to pay for higher flood damage, more infrastructure repairs and more extensive water treatment.
But the EPA said flood control falls outside the scope of the Clean Water Act.
“Implementation of the Clean Water Act addresses water quality, not water quantity,” EPA’s statement to NC Local said.
NCDEQ also raised concerns about how the rule could affect industries that depend on clean water, including commercial and recreational fishing, tourism, and agriculture, all of which significantly contribute to North Carolina’s economy.
What happens next
The EPA said it is reviewing feedback on the proposed rule from a public comment period that ended earlier this month. The agency received more than 217,000 comments. Then it will work to finalize the rule.
The EPA maintains the proposed rule is designed to bring clarity and consistency to federal water protections following the Sackett Supreme Court case, and to make sure the agency does not overstep its legal authority under the Clean Water Act. But the agency acknowledged state and local governments could establish their own protections.
“EPA supports the role of states and tribes as primary regulators, managing their own land and water resources,” EPA’s statement to NC Local said. “Nothing in the proposed rule would affect their ability to apply and enforce independent authorities over those resources under state or tribal law, including above the minimum federal standards required by the CWA.”
Erin Carey of the North Carolina Sierra Club said she expects legal challenges if the EPA finalizes the rule as written. The group may also put more pressure on state lawmakers to reconsider how North Carolina defines and protects its wetlands.
“For communities that have already seen repeated flooding, this isn’t an abstract policy debate,” Carey said. “It’s about whether we keep the natural protections we still have or learn the hard way what happens when they’re gone.”
This article first appeared on NCLocal and is republished here under a Creative Commons Attribution-NonCommercial 4.0 International License.
