Numerous N.C. wetlands lose protections under Farm Act and SCOTUS case

Each year, the N.C. General Assembly passes a new Farm Act — a bill that creates guidelines for agricultural practices and environmental regulations in the state. 

This year’s Farm Act, Senate Bill 582, included a controversial provision: it keeps the state from having to protect wetlands that do not meet the new federal definition of “navigable waters of the United States.” It was passed in the General Assembly, despite Gov. Roy Cooper’s veto, on June 27. 

The new definition was established in the recent U.S. Supreme Court case, Sackett v. EPA, which was argued in October of last year and decided in May in a 5-4 decision. It changed the definition of waters of the U.S. under the Clean Water Act to only include “wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right," according to Justice Samuel Alito's majority opinion .

The Clean Water Act provides environmental protections, like outlawing the discharge of certain pollutants and establishing wastewater standards. But it only applies to “navigable waters of the United States,” meaning a considerable amount of wetlands are now left without the protections of the Clean Water Act according to the Sackett decision.

"The provision in this bill that severely weakens protection for wetlands means more severe flooding for homes, roads and businesses and dirtier water for our people, particularly in eastern North Carolina," Gov. Cooper said in his veto of S.B. 582.

Kelly Moser, a senior attorney and leader of the Water Program for the Southern Environmental Law Center, said that after the passage of S.B. 582, only the state’s existing ban on paving over wetlands without a permit is protecting North Carolina’s communities from future flooding. 

"It is completely ill-advised that the N.C. General Assembly removed those protections and that they did not allow Gov. Cooper's veto to hold," she said.

The largest swamp in North Carolina, the Great Dismal Swamp, is located in Currituck, Camden, Pasquotank and Gates counties, all rural counties in northeastern parts of the state.

"For those of us here in Chapel Hill, we see how inconvenient and scary flooding can be even in our community," Moser said. "It will be multiplied for rural communities, communities of color and lower wealth communities."

The N.C. Department of Environmental Quality estimates that nearly half of the wetlands in North Carolina – 2.5 million acres – could lose protection due to the Sackett decision and Section 15 of S.B. 582.

"By saying that North Carolina cannot have more strict wetland rules than the federal government, we now have some of the weakest wetlands protections in the nation," Emily Sutton, a riverkeeper for the Haw River Assembly — a nonprofit group based out of Pittsboro dedicated to protecting the Haw River — said.

A large part of the assembly's work is centered around protecting both community members from PFAS, per- and polyfluoroalkyl compounds, in the Haw that have been discharged from industrial facilities in cities like Burlington and Greensboro.

Sutton said that though some parts of the Haw retain Clean Water Act protections, there are multiple parts of the river that lose them due to the new Farm Act, specifically the low-lying wetlands and upland swamps with critical habitats.

"It's going to affect every watershed in the state, every watershed in the country," Sutton said.

Moser said nearly half of the wetlands in the U.S. are now potentially at risk under Sackett.

N.C. Sen. Graig Meyer (D-Caswell, Orange, Person) said if these unprotected wetlands are developed — a possibility now that S.B. 582 has been passed — the state could experience more extensive flooding.

While Meyer represents Chapel Hill and Carrboro in the N.C. Senate, his district also encompasses the rural buffer of Orange County and Caswell and Person counties — areas with a high number of farming communities.

"It's not good for farmers, or good for any of the rest of us, to have laws that will likely lead to increases in flooding," he said.

He also said that farmers — who the annual Farm Act is intended for — are indifferent toward the wetlands protections language in Sackett and S.B. 582 because agricultural property is already exempted from wetlands protections in North Carolina.

"Farmers themselves don't need that provision for any reason," Meyer said. "It's really about the development of wetlands into other uses."

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