A provision in last year’s North Carolina Farm Act declared that state wetlands protections could not be any stricter than those defined by the federal Clean Water Act, a change that exposes more than 2 million acres of the state’s isolated wetlands to development.
Mike Carpenter, general counsel for the N.C. Home Builders Association, which sought the change, said at the time that it was not the threat that environmental advocates were claiming. “What we’re talking about here is isolated wetlands,” he said in an Associated Press report, “It’s not as gloom and doom and disastrous as our friends in the environmental community would like to believe it is.”
No, it may be worse.
Just weeks before the Republican-controlled General Assembly passed the Farm Act over Gov. Roy Cooper’s veto, the U.S. Supreme Court in Sackett v. EPA narrowed the definition of wetlands covered by the federal Clean Water Act (CWA).
Now two eastern North Carolina landowners who have been cited for CWA violations are fighting back by saying the Sackett ruling means their properties are no longer subject to the law. In one case, father and son landowners Melton Valentine Jr. and Melton Valentine III, are defending their infilling of swampy land along the Roanoke River in Martin County by saying their land is outside the Supreme Court’s new definition of wetlands covered by the CWA.
In another case, landowner Robert White was cited for CWA violations on land he owns along the Pasquotank River in Pasquotank County. White is contesting the citation but also has taken the additional step of suing the EPA on grounds that its regulations exceed the Sackett ruling.
If the defense arguments or White’s lawsuit succeeds in federal court, it could set a precedent for gutting wetlands protections across the nation.
Derb Carter, senior attorney with the Southern Environmental Law Center (SELC), said the cases “will sort out what the Supreme Court’s (narrowed definition) means not only for North Carolina wetlands, but all the wetlands in the country.”
Wetlands are important for water quality, but they also provide habitat for wildlife, nurseries for fish and act as sponges to reduce flooding.
Both White and the Valentines are represented by the Pacific Legal Foundation, a conservative group that seeks to roll back government regulations. The group also represented the Idaho couple who sued the Environmental Protection Agency in the Sackett case.
Under a prior Supreme Court ruling, the CWA was interpreted to cover all streams and wetlands that had a ”significant nexus” to a navigable waterway. The Sackett ruling narrowed that definition to wetlands that have a have a continuous surface connection to a larger, regulated body of water.
The SELC has intervened in the White case on behalf of the North Carolina Wildlife Federation (NCWF). In court documents, NCWF members said White’s challenge could end protections for sensitive and vital parts of the environment.
Jane Plough of Elizabeth City, a co-founder of a NCWF chapter called Wildlife Habitat Stewards of Northeastern North Carolina, said, “A decision in favor of the plaintiff threatens to critically impair the natural resources and ecological processes that I have dedicated much of my life to protecting and the recreational opportunities that I have enjoyed for decades.”
Carter said the legislature should have paused to assess the Sackett ruling before rolling back state wetlands regulations. ”Instead, they just went with the home builders,” he said.
Now state law is yoked to a reduced federal standard that could be further narrowed by the landowners’ legal challenges. Removing millions of acres of wetlands from government oversight will please developers, but it would have disastrous effects on water quality, wildlife habitats and flood protection in North Carolina and the nation.
This story was originally published May 26, 2024 4:30 AM.