I solated W etlands and S treams: North Carolina’s Response to the SWANCC Decision

1. Isolated Wetlands and Streams:North Carolina’s Response to the SWANCC Decision Presented by John Dorney N.C. Division of Water Quality October 21, 2002 Web site: h2o.enr.state.nc.us/ncwetlands

2. Background - North Carolina’s Wetlands Millions of acres (appx.)

3. Definition Extent In error, many streams missing from USGS topo maps Isolated Wetlands

4. Types and Distribution of Isolated Wetlands

5. Frog Pond Scotland County

6. Sinkhole Pond Carteret County

7. Mafic Depression Mecklenburg County summer

8. Mafic Depression Mecklenburg County spring

9. Floodplain depression

10. Functions and Values of NC Isolated Wetlands Terms: Function = What is provided by wetland. Value = A function that is protected by law.

11. Water storage and flood prevention • Aquatic life habitat - esp. amphibians • Wildlife habitat • Endangered species habitat • Pollutant removal (uncommon) • Groundwater recharge (rarely)

12. Isolated Streams in North Carolina NOT an oxymoron! Definition Stream segments separated by upland “Disappearing” streams (underground flow) Extent Unknown but probably small Uppermost end of streams Where small channels enter larger floodplains Unusual geology (i.e., fractured, porous rock) Location Mostly in piedmont

13. 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 Rules Wetland standards especially, maintain natural hydrology except with Permit or Certification to allow fill

14. Rules Controversial Draft rules to Stakeholder group Public hearings Legislative Study Commission Proposed Legislation to void rules - did not pass Rules adopted October 1996 Court appeals (details to follow)

15. I.Can state regulate wetlands? Attorney General and Gov. Hunt - yes Court case underway Are “wetlands” “ waters of the state” “wetland” not in statute “Swamp” and “all other waters” in statute Superior Court judge = yes, in 2001 State Court of Appeals = heard Sept. 2002 State Supreme Court? Underlying Policy Questions regarding rules

16. II.Should the state regulate wetlands? Basic question - why regulate when the USACE already does?

17. Tulloch Rule and Its Demise Tulloch rule - need 404 Permit to ditch wetlands Fourth Circuit case in 2000 - no 404 Permit needed

18. Response in North Carolina 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

19. Subsequent resolution • 22 % (development) in compliance • 27 % still unclear - most claim forestry exemption • 50 % being restored (past violations)

20. Important context of Tulloch Rule debacle I.Division of Water Quality showed that wetland standards applied to activities in wetlands even without 404 Permit II.Massive wetland impact can occur without needing 404 Permit

21. III.State can (and does) have important role in wetland management IV.State can (and should) adopt new rules regarding exempt activities

22. 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 create an outlet to state waters.

23. 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.

24. Activities exempt from 404 Permitting - How to comply with wetland standards? Adoptionof new rules - transfer 404 exemptions into state rules with clarifications Rules adopted in 2001.

25. Isolated Wetland RulesBasic philosophy - • No wetland impact without Permit • Develop permit process similar to 404/401 process • Clarify 1996 rules

26. Environmental Management Commission action April 2001 - original (1996) intent to regulate isolated wetlands Stakeholder group - meet four times, reviewed and modified draft Rules

27. September 2001 - adopt temporary rules October 2001 - overrule ALJ regarding temporary rule authority October 22, 2001 - effective date of temporary rules

28. Permanent Rules November 2001 - draft rule published February 2002 - EMC approved permanent rule for hearing April 2002 - Public hearings (four) July 2002 - Adoption by EMC October 2002 - Approval by Rules Review Commission January 2003 - Before NC Legislature

29. 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

30. Corps role • Determine if site is wetlands • Determine if site is isolated If isolated, refer to state If not, follow 404/401 process State role • If isolated, follow Isolated • Wetland process • If not, follow 401 Certification process

31. 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

32. Pretty Pond Bay Robeson County