[This is the first of a two-part story about the effects of the proposed changes to the Waters of the US rule. The second installment will be published when detailed maps of the affected wetlands and streams become available.]

1,500 words, 8-minute read

Vast expanses would be lost to development; water and carbon pollution to rise

They could be paved, mined, crammed with concrete, filled with pollutants like GenX or coal ash: More than half of North Carolina’s — and the nation’s — wetlands and streams could be destroyed and their downstream communities — both human and nonhuman — harmed because of a proposed rollback of a cornerstone of the Clean Water Act.

Changes to the Waters of the US (WOTUS) rule could leave half of North Carolina’s 5.5 million acres of wetlands, plus innumerable “ephemeral streams” unprotected under federal law.

“This would be a disaster not only because people could put pollution into those streams,” said Geoff Gisler, attorney with the Southern Environmental Law Center, “but they could destroy them entirely. It’s catastrophic.”

Under the proposed WOTUS rule, “isolated wetlands,” those that lack a surface “navigable” water connection to protected sources, such as rivers, streams and other wetlands, would not be protected under the Clean Water Act. “Ephemeral streams,” those whose flow is often tied to flooding and drought, would also be excluded from protection.

And North Carolina, which under the McCrory administration opposed these federal protections, remains a party to litigation advocating for their elimination.

Heavy industry, mining, agriculture, highway construction: Discharge from all of these uses could pollute isolated wetlands and ephemeral streams, and the polluters could do so without obtaining federal permits or facing legal consequences.

Special business interests, including the North Carolina Department of Agriculture, have long lobbied and sued to prevent the Obama-era WOTUS rules from going into effect. (Agriculture’s involvement though, is a red herring. Ongoing agricultural uses and even timbering are specifically exempted from WOTUS rules.)

“This is an existential threat to protections we’ve had for granted for almost 50 years,” Gisler said. “People will notice. It will show up in dirtier drinking water, where people fish, where our kids play.”

The Trump administration’s curtailment of the WOTUS rules is not just a rebuke to the Obama era, but also an amputation of a major part of the 1972 Clean Water Act.

Passed by Congress, the CWA protected “navigable waters of the United States,” including their tributaries and wetlands from pollution. By placing these waters under federal jurisdiction, the CWA ensured that industries or individuals who planned to discharge pollutants into these waters were, and are, required to obtain a federal permit — an NPDES — short for National Pollutant Discharge Elimination System.

(An NPDES limits the amount of pollutants that can be discharged to a waterway of the US, and prohibits others. The NPDES system was never intended to keep our waterways pristine.)

However, Congress only vaguely defined “Waters of the US,” leaving further clarifications in the lap of the EPA and US Army Corps of Engineers. Agriculture and industry interests petitioned both agencies — and sued them — over the classification of several types of waters, including ephemeral streams and isolated wetlands, as Waters of the US.

The WOTUS issue peaked in 2006, when the US Supreme Court issued a split opinion, 4-1-4, on how federal agencies should protect the integrity of “traditional navigable waters.” But since the court was split, various groups have used the diverging opinions to make their legal cases. The Obama administration interpreted the court’s findings more broadly, which triggered multiple lawsuits. A federal court stayed Obama’s WOTUS rule and it never went into effect nationwide.

In rolling back the rule, the Trump administration is relying on Justice Antonin Scalia’s opinion in the 2006 case: He reined in the federal agencies and more narrowly defined these waters to those that are “relatively permanent” with a “continuous surface connection” to “relatively permanent waters.”

Trump’s Executive Order directed the EPA and the Army Corps of Engineers to rewrite the WOTUS rule to match Scalia’s definition.

In his written opinion, Scalia cited the cost of compliance for undoing the rule, potentially millions of dollars costs to industry. To discharge waste into these waterways would require permits, in some cases, public hearings, and additional expense to comply with the rules — or the payment of fines in the case of noncompliance. However, downstream communities would ultimately pay the price for a decision based purely on economics, not science.

Science shows that so-called “geographically isolated wetlands” are not unnecessary appendages to an ecosystem, but actually serve essential functions for wildlife habitat, pollution filtration and flood control.

In a 2015 article in the peer-reviewed journal BioScience, the authors underscored that the term “isolation” may not be appropriate. Although such a wetland might be separated from other surface waters, “it may still exchange organisms, water and energy with the surrounding landscape and downstream ecosystems” and navigable waters. These outliers are actually connected underground via elaborate groundwater systems. Just because we can’t see the connections doesn’t mean they don’t exist.

The vulnerable coastal plain could be particularly devastated by the effects of the proposed rule. Some wetlands include mountain bogs, for example, but most of them, like the pocosins and Carolina bays, lie in the coastal plain, where they provide vital flood control and habitats for fisheries. “Some of the biggest implications will be on public safety,” said Heather Clarkson, an outreach representative with Defenders of Wildlife, who lives in Durham. “Many wetlands that don’t continuously hold surface water all year long will be subject to conversion” — developed or drained for agriculture — if this WOTUS rule goes into effect.

Each acre of wetlands can hold about one million gallons of water. The EPA even reported that had the natural wetland system been intact along the Gulf Coast, damage from Hurricane Katrina could have been less severe.

“These low-lying areas are Mother Nature’s water tanks during extreme storm events, and if they are developed or converted to agricultural lands, the water will have nowhere to go,” Clarkson said.

In addition to providing wildlife habitats, wetlands store carbon, a critical need for curbing climate change, which has contributed to the historic hurricanes and flooding that have imperiled eastern North Carolina. “With potentially half of our wetlands becoming unprotected,” Rick Savage, president of the Carolina Wetlands Association. “we could be losing a lot of carbon storage that we desperately need.”

Particularly in the coastal plain, state and independent sampling data shows, waterways are already polluted with fecal coliform, phosphorus, nitrogen and ammonia from livestock and agricultural operations — the very contaminants that wetlands can help filter. Water treatment plants would have to contend with these additional pollutants, requiring additional costs for downstream customers.

“This is clearly going in the wrong direction,” Savage said. The rewrite of the WOTUS rules, Savage added, “has the potential to do a lot of harm on many fronts.”

Nonetheless, in 2015, under Gov. Pat McCrory and DEQ Secretary Donald van der Vaart, North Carolina joined 12 other states in litigation challenging the Obama administration rules. In effect, North Carolina became complicit in removing protections for isolated wetlands and ephemeral streams.

In 2017, several media outlets, including Policy Watch, reported on an announcement by the Cooper administration that North Carolina was no longer involved in the litigation. That’s not entirely true. A court filing from June 2018 shows that North Carolina is still a party to a lawsuit filed by several states in a federal district court.

At the time, DEQ spokeswoman Megan Thorpe confirmed to Policy Watch that the agency remains a party to that suit. Contacted this week, Thorpe clarified that DEQ’s “involvement is limited,” and the agency has signed on to only one issue the case: Whether the changes EPA made between proposed and final rule should have gone back out to public notice and comment.

Gisler called that stance “unacceptable.” “There’s a much better way to deal with public comment then to join a lawsuit supported by heavy industry and stripping away clean water regulations, he said. “That’s using a sledgehammer to kill a fly.”

Thorpe said DEQ will use the administrative process to ensure that rules intended to protect North Carolina wetlands and streams do just that.”

However, DEQ is hamstrung by the legislature to protect these vulnerable wetlands and streams that are under attack. State law prohibits DEQ from enacting regulations that are more stringent than the federal government’s.

Like isolated wetlands, ephemeral streams serve important ecological roles. The term “ephemeral streams” is vaguely defined in the proposed rule, but it’s thought to mean streams that do not flow year round, or run dry during droughts. Depending on how the term is eventually defined, 40 percent to 45 percent of all streams in North Carolina would lose federal protection.

The definitions are so are poorly constructed, an industry could divert its discharge from a perennial to an ephemeral stream and avoid regulation.

The Neuse River Basin is 248 miles long and encompasses 6,000 square miles, including many ephemeral streams. “It’s a two-fold destruction of the watershed,” said Upper Neuse Riverkeeper Matthew Starr. “On an individual level, these streams could be filled in or paved over. That would obviously destroy that stream, but it’s going to destroy the watershed. Water pollution doesn’t stop just because reaches regulated stream. We have to stop it at the source.”