An upcoming legal action in North Carolina will test how federal courts interpret a 2023 decision by the Supreme Court of the U.S. The ruling in Sackett v. EPA narrowed the definition of wetlands that qualify as waters of the United States.
Father and son Melton E. “Val” and Skip Valentine acquired 1,700 acres of timberland in 2016 along the Roanoke River in Martin County. Their objective was to develop roads to harvest trees, manage the forest and for recreational hunting and fishing.
The U.S. Army Corps of Engineers has alleged the Valentines’ unauthorized construction of roads and other filling activities within wetlands restrict the flow and circulation patterns of waters of the United States. In 2018, the Army Corps issued a cease and desist order to the Valentines and requested a proposal for remediation or a permit.
In December 2022, the U.S. Department of Justice filed a complaint in the Eastern District of North Carolina in the federal court system on behalf of the Army Corps against the Valentines, alleging violations of the U.S. Clean Water Act.
The Pacific Legal Foundation, representing the Valentines, has moved to dismiss the complaint, stating the case is built on an interpretation of the CWA’s navigable waters rule that was rebuked by the decision in Sackett v. EPA.
Federal versus state power
Defined by the U.S. Clean Water Act, or CWA, the term “waters of the United States” refers to bodies of water used for interstate or foreign commerce, plus other waters such as lakes, rivers and streams whose degradation or destruction could affect interstate or foreign commerce.
The CWA is enforced and regulated by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.
At stake is the amount of wetlands that will lose federal oversight due to the Sackett decision. The Southern Environmental Law Center estimates that roughly 1 million acres of wetlands in North Carolina will no longer be subject to federal jurisdiction.
Damien Schiff, a Pacific Legal Foundation attorney, said the EPA and the Army Corps have defined the CWA’s key jurisdictional phrase — “waters of the United States” — beyond what Congress intended.
Schiff presented the oral argument on behalf of the Sacketts to the Supreme Court in October 2022.
“There are certain powers that Congress has been granted,” Schiff said. “All powers not granted to Congress are reserved to the states and local governments. Among them is the state’s traditional authority over the development of land.”
Schiff told CPP that environmental law has to strike a balance between the use of a waterway for commerce or other uses while maintaining water quality standards or ecosystem services, such as flood control . Any land use, such as expanding an airport or timber harvesting may have a productive component, Schiff explained, but may also generate “externalities” such as water pollution, which may be “socially intolerable”.
“The question is how you strike that balance,” Schiff said. “The underlying activity by the Sacketts was just homebuilding; a normal activity that’s perfectly permitted under local and state law, but runs afoul of the federal interpretation of the CWA.”
The court ruled that regulating routine activities that aren’t an immediate threat to health or safety, the federal government must provide clear standards for individuals to adhere to in advance, Schiff explained.
In defense of the Valentines, however, PLD argues that establishing a continuous connection between a wetland and river isn’t enough to require federal regulation of the wetland. Instead, the “connection between wetland” and a river or tributary must be “so intense that you can’t distinguish between the two,” Schiff said.
The Valentines’ property, said Schiff, is clearly distinguishable from navigable waters and cannot be subject to federal regulation. A summary of the case on PLD’s website said that “it would be obvious even to a child where the timberlands end and the navigable waters begin”.
Wetlands are always distinguishable
If the court accepts the PLD’s arguments in the Valentine case, attorney Kelly Moser of the Southern Environmental Law Center said it could further limit wetlands protected under the Clean Water Act because it would require a wetland to be indistinguishable from a river or other US waterway in order to be protected.
The argument overstates what the Supreme Court requires, Moser said. If the court rules in favor of the Valentines, then “there are no isolated wetlands that are protected by the Clean Water Act” because wetlands are always distinguishable from navigable waterways.
“Wetlands are always distinguishable: they have different soils; they have different vegetation; they have different hydrology; which is what makes them so important and unique. We’re watching the case very closely, because it’s a case that could have a real impact on the future of the CWA and the safety of people that rely on clean water,” Moser said.
Local communities and county governments can take steps to protect wetlands within their boundaries. However, wetlands are a common resource, that is, changing or removing a wetland may generate private benefits to the wetland user, but the impacts and costs, such as the loss or changes of ecosystem services are shared collectively.
“If the downstream county protects its wetlands and streams, but the upstream county doesn’t; the downstream county’s actions are futile through no fault of their own,” Moser said.
“That’s why we need the CWA in the first place. Counties can’t do the job by themselves. States can’t do the jobs by themselves. We need a consistent, robust set of federal clean water protections so that families and communities across the country are protected against industrial pollution.”
Waters of the United States and NC wetlands law
Even if individuals support less development and more land preservation for ecological benefits, Schiff said, the federal government won’t impede. While the Sackett decision reduces federal wetland regulation, state governments retain the authority to regulate wetlands.
However, the 2023 NC Farm Act changed the state’s description of the term “wetland,” making it identical to the Sackett definition that a wetland must have a continuous surface connection to a relatively permanent body of water.
Since the ratification of the Farm Act, a permit is no longer required for impacts to any isolated or other federal non-jurisdictional wetland.
On March 13, the Water Quality Committee of the NC Environmental Management Commission, or EMC, the board overseeing the NC DEQ, approved the process to amend the state definition of wetlands in the North Carolina Administrative Code. After a regulatory analysis the EMC will vote to approve the definition in May 2024 followed by a public comment period.
A discussion of the motion included comments by EMC commissioner Michael Ellison, who is an environmental consultant appointed to the EMC by the N.C. Senate.
According to Ellison, regulating federal wetland has been a “game of ping pong” that changes from one administration to another.
“There will no longer be a conflict or any sort of difference between what the state is going to regulate when it comes to wetlands and waters,” Ellison said. “I think that’s a big benefit to the people who do the wetland delineations, the permitting, and the economic development people who are relying on some sort of certainty in the process.”
Ellison also questioned the ecological benefits of some wetlands.
“It’s a common misconception that it’s generally thought that all wetlands provide substantial flood attenuation; and many do,” he said. “But many do not, particularly on small riparian wetlands in the Piedmont of NC. They really don’t do much and there’s substantial research to back that up.”
Brooks Rainey Pearson of the Southern Environmental Law Center, who attended the meeting said that “while it’s true that federal protection of wetlands has frequently shifted over the past decades, that makes it all the more important to have a steady and predictable state regulatory landscape for the regulated community, as well as for those who depend on wetlands for flood control and for clean drinking water.”
In South Carolina, a dispute over protecting wetlands near Congaree National Park in Richland County stalled a $2 billion Scout Motors electric vehicle plant, according to reporting by the Post and Courier.
In January 2024, the Army Corps issued a permit to resume construction impacting 70,000 acres of wetlands just north of Columbia.
While wetlands may complicate development, losing them may have ecological consequences. For example, wetlands protect water quality by removing toxins and sediment from stormwater runoff before reaching rivers and sounds. Wetland plants also stabilize shorelines and provide habitat for recreational and commercial fisheries, including blue crabs and shrimp.
Wetlands can also provide resilience to natural hazards such as minimizing the danger of damaging floods by storing water and preventing rapid runoff.
For example, Catfish Lake is a Carolina bay in the Croatan National Forest on the central coast that stores a large volume of water which slows runoff into nearby estuaries. With no feeder stream, the lake level is maintained by rainfall and groundwater and contains a variety of wetland types. Many Carolina bays in NC have been overtaken by vegetation or drained for farmland.
“We’re continuing to see big storms and water quality continues to be a problem in North Carolina,” Moser said. “It’s just not the right time to destroy our best natural filtration systems and our best natural guards against flooding. Not to mention all they do to help combat climate change.”
According to the U.S. National Oceanic and Atmospheric Association, 8.1 million tons of CO2 are absorbed by U.S. wetlands each year and can provide protection from floodinging caused by more extreme weather.
Wetlands that may lose federal and state protection include geographically isolated wetlands, such as cyprus savannas, pocosins, and Carolina bays.
Pocosins are naturally occurring, freshwater, shrub-dominated wetlands of the Southeastern Coastal Plain with deep, acidic, sandy, peat soils. Cypress savannas are rare wetlands that dry in the summer and are shaded by a canopy of cypress trees.
Moser said weaker federal and state wetland protection baseline may create a “race to the bottom” among developers.
“It will be easier to develop in areas where a county or a state does not protect wetlands,” she said. “Developers can certainly take advantage of that.”
The Sackett ruling has also put in motion a dash to protect wetlands.
President Biden’s Bipartisan Infrastructure Law includes $1.4 billion for Ecosystem Restoration and Resilience by collaborating with states, tribes and local communities to invest in habitat restoration, including wetland restoration.
Rick Savage of the nonprofit Carolina Wetlands Association is focused on protecting as many acres of wetland as possible.
A task that, he said, is more urgent following the Court’s Sackett decision and provisions to the NC Farm Act in defining wetlands in relation to waters of the United States.
“I’ve been trying to communicate to (state) legislators that there are millions of dollars coming from the federal government, through the state government down to organizations like mine to use nature-based solutions, like wetlands, to mitigate flooding of communities along rivers on the coastal plain,” Savage said.
“So here’s the state getting all of this money, and then they turn right around and take away all of their protections.”
Governor Cooper’s Executive Order 305 released on February 12 may aid in the protection of wetlands no longer under Federal jurisdiction. Among its objectives is to permanently conserve 1 million new acres of NC natural lands by 2040, with a special focus on wetlands.
“The governor’s executive order is promising,” Savage said. “We’re looking forward to seeing the implementation and steps taken to protect our wetlands.”
Editor’s note: This is part 2 of a two-part report on this issue. For part one, see: Isolated NC wetlands face loss of protection following federal ruling .
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