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Wetlands Hang in the Balance

North Carolina environmental regulators are nearing finalization of a rule protecting a major category of wetlands left vulnerable to destruction by a Trump-era clean water rule change. Meanwhile, the new conservative U.S. Supreme Court supermajority agreed to hear a case that could result in massive destruction of critical wetlands nationwide. 

In Raleigh, the state Environmental Management Commission (EMC) approved new standards to protect wetlands which are connected to navigable waters only through groundwater. Those wetlands were written out of Clean Water Act safeguards by the Trump Administration’s Dirty Water Rule. In order to close that gap, the EMC approved a temporary rule for reviewing impacts to those wetlands last year. The state Rules Review Commission, which assesses all permanent rules, must approve the final version next month to avoid reopening the gap.

Sue Homewood, the Wetlands Rulemaking Lead for the state Division of Water Resources, explained the final rule to EMC members earlier this month. “We ended up here because of changes back in 2020 to the Clean Water Act federal jurisdiction for wetlands in certain landscape positions,” she said. “Those changes in 2020 created a permitting gap. It did not change the definition of wetlands at the federal or the state level, it did not change what was a wetland, it did not change the protections in North Carolina…. It solely changed how the federal agency implemented the Clean Water Act, and therefore changed how permitting was happening under Section 404 of that Clean Water Act.” 

Meanwhile in Washington, the Biden Administration is finalizing a rule to put a similar fix into effect nationwide. Ominously, however, the U.S. Supreme Court has just agreed to hear a new challenge to the Clean Water Act’s coverage of these wetlands.

Over the past 20 years, the high court has already repeatedly narrowed the scope of the Clean Water Act’s protections for “waters of the United States.” Observers are concerned the court’s conservative majority will use the case as an opportunity to even further curtail federal controls on development’s destruction of these critical resources.

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