Posted on September 20, 2023
In response to written questions from N.C. Environmental Management Commission (EMC) Chair Robin Smith, a state Department of Justice attorney confirmed Thursday that the state no longer has any jurisdiction over isolated wetlands.
The EMC met in the Wayne West Building on the Carteret Community College campus off Arendell Street.
Smith formed her questions after a July meeting in which the EMC discussed wetlands issues after the N.C. General Assembly in June passed the North Carolina Farm Act of 2023, which includes a provision to “Clarify Definition of Wetlands.”
It restricts wetlands that the state can regulate to those considered “waters of the United States.”
The U.S. Environmental Protection Agency, because of a Supreme Court decision, now defines “waters of the United States” to be consistent with the Supreme Court’s decision that the U.S. Clean Water Act only extends to “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.”
As a result of the Farm Bill and the Supreme Court decision, neither the federal government nor the state government have jurisdiction to regulate what state attorney Taylor Crabtree called “bogs and basins” during the meeting Thursday.
“The state of North Carolina no longer has isolated wetlands to protect,” Crabtree said.
Environmentalists and some of their representatives in the legislature strongly opposed the farm bill provision and believe it will open the possibility of development in areas that are important for wildlife habitat and water quality.
They’ve estimated the new law affects as many as 2.5 million acres of what have been considered wetlands in the state.
Smith and other EMC members said Thursday the change in the wetlands definition will impact many other regulations and laws adopted by the policy-making EMC and enforced by its parent agency, the Division of Environmental Management (DEM).
Several of the commissioners Thursday wondered aloud if the commission should start the process of updating the regulations or removing them.
Smith said she didn’t think that would be prudent. Some supporters of the farm bill provision think the bill went farther than they intended, she said, and there might be “discussions” among legislators before the next session of the General Assembly begins.
It’s always possible, she added, that the legislature will make some changes to the bill at some point.
In addition, Smith said, “It will take a while to see how (U.S. Army) Corps of Engineers (ACE) reacts” and to see the actual impact of the change. The ACE is the federal agency with jurisdiction over wetlands.
But Smith said DEM will implement the law as outlined in the legislation.
She also noted that all of the DEM rules will be reviewed, as required by the General Assembly years ago, beginning in 2024 and lasting into 2027.
The EMC heard a presentation on that process earlier Thursday.
Jennifer Everett, rule-making coordinator for DEM, said each regulation will be reviewed by staff, as required by the legislature, and labeled as either “necessary or unnecessary.” Once that is done, there will be public comment periods, after which a spreadsheet with the rules and comments, which can be anonymous, will go to the state Regulatory Review Commission. Some rules could be deleted, and those that aren’t will have to be readopted.
The farm bill passed both houses of the General Assembly, but Gov. Roy Cooper vetoed it, saying it “severely weakens protections for wetlands” and “means more severe flooding for homes, roads and businesses, and dirtier water for our people.”
The Republican-controlled legislature than overrode the veto, and the bill became law.