Isolated Wetlands and Streams:North Carolina’s Response to the SWANCC Decision

Presented by John DorneyN.C. Division of Water Quality

October 21, 2002

Web site: h2o.enr.state.nc.us/ncwetlands

Background - North Carolina’s Wetlands

“Original” “Present”Total 11 million 5.7 millionBottomland hardwood 1.5 1.2

Wet flats (savannas) 5.8 2.2

Pocosins 1.4 0.7

Salt Marsh 0.2 0.2

Other 2.4 1.4

Millions of acres (appx.)

Isolated Wetlands

Uncertain

Generally lack surface connection

Often perched groundwater

Estimates from 2% to 60%

Likely < 10% of total

US Fish and Wildlife Service - 17 to 24%

In error, many streams missing fromUSGS topo maps

Extent

Definition

Types and Distribution of Isolated Wetlands

Carolina Bays (some) Inner coastal plain

Sinkhole depressions Outer coastal plain

Mafic depressions Piedmont

Floodplain depressions Entire state

Drained ponds Entire state

Frog PondScotland County

Sinkhole PondCarteret County

Mafic DepressionMecklenburg County

summer

Mafic DepressionMecklenburg County

spring

Floodplain depression

Functions and Values of

NC Isolated Wetlands

Terms:

Function = What is provided by wetland.Value = A function that is protected by law.

• Water storage and flood prevention

• Aquatic life habitat - esp. amphibians

• Wildlife habitat

• Endangered species habitat

• Pollutant removal (uncommon)

• Groundwater recharge (rarely)

Isolated Streams in North Carolina

NOT an oxymoron!

DefinitionStream segments separated by upland“Disappearing” streams (underground flow)

ExtentUnknown but probably small

Uppermost end of streamsWhere small channels enter larger floodplainsUnusual geology (i.e., fractured, porous rock)

LocationMostly in piedmont

Regulatory Background in North Carolina

Purpose for discussion - Set stage for NC’s response to SWANCC

1996 - NC Environmental Management Commission passes:

401 Water Quality Certification RulesWetland standardsespecially, maintain natural hydrology except

with Permit or Certification to allow fill

Rules Controversial

Draft rules to Stakeholder groupPublic hearingsLegislative Study CommissionProposed Legislation to void rules

- did not passRules adopted October 1996Court appeals (details to follow)

Underlying Policy Questions regarding rules

I. Can state regulate wetlands?Attorney General and Gov. Hunt - yesCourt case underway

Are “wetlands” “ waters of the state”“wetland” not in statute

“Swamp” and “all other waters” in statuteSuperior Court judge = yes, in 2001State Court of Appeals = heard Sept. 2002State Supreme Court?

II. Should the state regulate wetlands?

Basic question - why regulate when the USACE already does?

Tulloch Rule and Its Demise

Tulloch rule - need 404 Permit to ditch wetlands

Fourth Circuit case in 2000 - no 404 Permit needed

Wetland standards apply - delay enforcement to allow public notification

Response - extensive wetland ditching and draining 12,000 acres; 100 sites

Subsequent state and federal compliance and enforcement

Conclusion - Most ditching done illegally esp. lack of sediment control

Response in North Carolina

Subsequent resolution

• 22 % (development) in compliance• 27 % still unclear - most claim

forestry exemption• 50 % being restored (past violations)

Important context of Tulloch Rule debacle

I. Division of Water Quality showedthat wetland standards applied to activities in wetlands even without 404 Permit

II. Massive wetland impact can occur without needing 404 Permit

III. State can (and does) have important role in wetland management

IV. State can (and should) adopt new rules regarding

exempt activities

Legal Logic of NC’s Isolated Wetland Rules

I. Wetlands are waters of the state.

II. State Permit needed for discharges of waste to state waters and to createan outlet to state waters.

III. “Waste” includes “sediment, and all other substances” in definition.

IV. Therefore, NC has existing authority for a State permitting program for

discharges to isolated wetlands and waters.

Activities exempt from 404 Permitting - How to comply

with wetland standards?

Adoption of new rules - transfer 404 exemptions into state rules with clarifications

Rules adopted in 2001.

Isolated Wetland RulesBasic philosophy -

• No wetland impact without Permit

• Develop permit process similar to 404/401 process

• Clarify 1996 rules

Environmental Management Commission action

April 2001 - original (1996) intent to regulate isolated wetlands

Stakeholder group - meet four times,reviewed and modified draft Rules

September 2001 - adopt temporary rules

October 2001 - overrule ALJ regarding temporary rule authority

October 22, 2001 - effective date of temporary rules

Permanent RulesNovember 2001 - draft rule publishedFebruary 2002 - EMC approved

permanent rule for hearingApril 2002 - Public hearings (four)July 2002 - Adoption by EMCOctober 2002 - Approval by

Rules Review CommissionJanuary 2003 - Before NC Legislature

Remaining Steps for Rules

• To date, 21 Permits or approvals issued

• NC Legislature review

• Develop General Permit to streamline process

• Coordinate with Corps of Engineers

Corps role• Determine if site is wetlands• Determine if site is isolated

If isolated, refer to stateIf not, follow 404/401 process

State role•If isolated, follow Isolated

Wetland process•If not, follow 401 Certification process

Prognostications• State role increases as federal role

narrowed by court cases. Process not over• Need strong administrative and legal

support• Expect controversy• Demonstrate need for state role• Have long term strategy and be flexible

Pretty Pond BayRobeson County