Stage Set For Battle Over Clean Water Rule

A fisher is shown at the Scuppernong Interpretive Boardwalk in Columbia, part of the Pocosin Lakes National Wildlife Refuge. Photo: NC Wetlands/N.C. Division of Water Resources

Second in a series on the Clean Water Act revisions

TYRRELL COUNTY– Farmlands and wetlands in the flat coastal plain in the northeast corner of North Carolina are often overlapping neighbors. And as pressures increase from environmental and economic forces, they’re proving to be competing assets.

The Trump administration’s new law that replaces revisions in the Nixon-era Clean Water Act, known as the Navigable Waters Protection Rule, strips away protections for ephemeral waterways that link watersheds, such as a creek that flows into a sound only during the rainy season, as well as isolated wetlands.

Environmental groups, which are expected to file legal challenges to block the law’s implementation, say the new rule will expose waterways to pollutants and endanger human and ecosystem health. But some developers and farmers, among other landowners, contend that the prior rule went overboard with protections for temporary water bodies.

“The way our drainage is set up with all of our ditches,” said Jeff Sparks, president of Black Land Farm Managers Association, “if you have to have 100-foot buffers around ditches, a 20-acre field would become an 8-acre field.”

Sparks, owner of 6,000-acre Green Valley Farm, located 7 miles south of Columbia in Tyrrell County, said that farming in the region is “an astronomical” driver of the local economy, but the industry can’t afford having ditches or “mud puddles in your driveway” regulated like waterways.

Farmers support — and comply with — numerous environmental protections for land and water, Sparks said. Regulations include buffers around natural waterways and nutrient monitoring. If people are concerned about pollution of waterways, he added, they should focus more on runoff in more populated areas.

“You can have 2 inches of rain now and the Neuse River rises a foot,” he said. “If you’re going to regulate (farmland), that needs to be regulated.”

The new rule will be “workable” and “clearly defines” federal jurisdiction, Sen. Thom Tillis, R-N.C., said in a January press release.

“The Waters of the U.S. rule created under the Obama Administration was a massive government overreach that led to confusion and imposed crippling red tape on North Carolina’s farmers and small businesses,” Tillis said in the statement.

But the newly revised version is only the latest reiteration in the troubled history of the law. Although the much-lauded Clean Water Act of 1972 is credited with cleaning up the nation’s polluted waterways, such as the Cuyahoga River in Ohio that had caught fire in 1969, it was considerably weakened by loopholes created by a 2006 Supreme Court decision.

The 2015 rule proposed by the Obama administration was tied up continuously by lawsuits and an injunction. The Obama-era rule was meant to provide clarification of the Clean Water Act in light of the confusion created by the Supreme Court decision, except the 2015 rule didn’t actually go into effect in many states before it was repealed in September 2019 by the Trump administration.

With the new rule, polluting could be permitted in upstream waters, potentially contaminating downstream waterways, according to the Southern Environmental Law Center, which represents numerous environmental groups that will be challenging the new law.

The North Carolina Coastal Federation, which publishes Coastal Review Online, is one of the groups bringing the lawsuit. Todd Miller, the federation’s executive director, said that if the new rule takes effect, it will severely degrade coastal estuaries and fisheries.

“It rolls the clock back to the 1970s when more than a hundred thousand acres of wetlands in eastern North Carolina were ditched and cleared prior to enforcement of the Clean Water Act’s wetland provisions,” Miller said. “The consequence of this new rule will be “No wetlands, no seafood.”

Blan Holman, senior attorney at the Charleston, South Carolina, office of the SELC wrote in The Guardian in January the repeal represented the single largest loss of clean water protections that America has ever seen – and the timing couldn’t be worse.”

“From lead contamination in drinking water to the proliferating threat of toxic industrial chemicals, new threats to water quality are emerging daily.”

The Nature Conservancy, an environmental nonprofit that has worked on numerous water quality protection projects in the Albemarle-Pamlico region, also worries about the new rule.

“Streams, rivers, lakes and wetlands are critical to the well-being of people and nature,” Chief External Affairs Officer Lynn Scarlett said in a statement. “These resources provide valuable — and often irreplaceable — sources of drinking water and habitat for fish and wildlife, and they power local economies and thriving communities. All of these benefits depend on the foundational safeguards embodied in the Clean Water Act.”

Rick Savage, president and founder of Carolina Wetlands Association, a Raleigh-based nonprofit group, said that the impact of the Trump rule is still unclear. For instance, the way the rule seems to be written, he said, it appears that “if a landowner says it’s not a wetland, it’s not a wetland.

“It’s hard to make any on-the-ground assessments until these things are understood better,” Savage said.

But in northeastern North Carolina, he said, the boggy coastal lands will certainly bear the brunt of less protection.

“I think the main thing with a lot of the pocosin is they tend to be isolated,” Savage said. “And if they’re isolated, they’re not going to be protected.”

Savage said that the Pocosin Lakes National Wildlife Refuge recently has been chosen by Carolina Wetlands Association as a 2020 “Wetlands Treasure.”

A spokesperson with the U.S. Fish and Wildlife Service, which manages several refuges in the northeast, including Pocosin Lakes and Alligator River National Wildlife Refuge, was unable to respond to an inquiry about wetlands and the rule’s impacts by Monday afternoon.

One factor in the region’s favor, Savage said, is that more coastal wetland and watershed areas tend to be connected than they would be in more inland areas.

“We have felt that up to 50% of the Carolinas would be affected,” Savage said, referring to the contiguous states. “What the new rule is doing is it is really rolling it back — way back — to the (Supreme Court’s) Scalia decision.”

Still, Savage didn’t seem to think the new regulation will see the light of day anytime soon.

“It’s going to go to the court, and it’s going to be stayed,” he said. “And then we’ll have a new administration and we’ll start all over again.”

About the Author

Catherine Kozak

Catherine Kozak has been a reporter and writer on the Outer Banks since 1995. She worked for 15 years for The Virginian Pilot. Born and raised in the suburbs outside New York City, Catherine earned her journalism degree from the State University of New York at New Paltz. During her career, she has written about dozens of environmental issues, including oil and gas exploration, wildlife habitat protection, sea level rise, wind energy production, shoreline erosion and beach nourishment. She lives in Nags Head.