Isolated Wetlands and Streams:
North Carolina’s Response to the SWANCC Decision
Presented by John DorneyN.C. Division of Water Quality
October 21, 2002
Web site: h2o.enr.state.nc.us/ncwetlands
Background - North Carolina’s Wetlands
“Original” “Present”
Total 11 million 5.7 million
Bottomland hardwood 1.5 1.2
Wet flats (savannas) 5.8 2.2
Pocosins 1.4 0.7
Salt Marsh 0.2 0.2
Other 2.4 1.4
Millions of acres (appx.)
Isolated Wetlands
Uncertain
Generally lack surface connection
Often perched groundwater
Estimates from 2% to 60%
Likely < 10% of total
US Fish and Wildlife Service - 17 to 24%
In error, many streams missing fromUSGS topo maps
Extent
Definition
Types and Distribution of Isolated Wetlands
Carolina Bays (some) Inner coastal plain
Sinkhole depressions Outer coastal plain
Mafic depressions Piedmont
Floodplain depressions Entire state
Drained ponds Entire state
Frog PondScotland County
Sinkhole PondCarteret County
Mafic DepressionMecklenburg County
summer
Mafic DepressionMecklenburg County
spring
Floodplain depression
Functions and Values of
NC Isolated Wetlands
Terms:
Function = What is provided by wetland.
Value = A function that is protected by law.
• Water storage and flood prevention
• Aquatic life habitat - esp. amphibians
• Wildlife habitat
• Endangered species habitat
• Pollutant removal (uncommon)
• Groundwater recharge (rarely)
Isolated Streams in North Carolina
NOT an oxymoron!
DefinitionStream segments separated by upland“Disappearing” streams (underground flow)
ExtentUnknown but probably small
Uppermost end of streamsWhere small channels enter larger floodplainsUnusual geology (i.e., fractured, porous rock)
LocationMostly in piedmont
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
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)
Underlying Policy Questions regarding rules
I. Can state regulate wetlands?Attorney General and Gov. Hunt - yesCourt case underway
Are “wetlands” “ waters of the state”“wetland” not in statute
“Swamp” and “all other waters” in statuteSuperior Court judge = yes, in 2001State Court of Appeals = heard Sept. 2002State Supreme Court?
II. Should the state regulate wetlands?
Basic question - why regulate when
the USACE already does?
Tulloch Rule and Its Demise
Tulloch rule - need 404 Permit to
ditch wetlands
Fourth Circuit case in 2000
- no 404 Permit needed
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
Response in North Carolina
Subsequent resolution
• 22 % (development) in compliance
• 27 % still unclear - most claim forestry exemption
• 50 % being restored
(past violations)
Important context of Tulloch Rule debacle
I. Division of Water Quality showedthat wetland standards applied to activities in wetlands even without 404 Permit
II. Massive wetland impact can occur without needing 404 Permit
III. State can (and does) have important role in wetland management
IV. State can (and should) adopt new rules regarding
exempt activities
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 createan outlet to state waters.
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.
Activities exempt from 404 Permitting - How to comply
with wetland standards?
Adoption of new rules - transfer 404 exemptions into state rules with clarifications
Rules adopted in 2001.
Isolated Wetland Rules
Basic philosophy -
• No wetland impact without Permit
• Develop permit process similar
to 404/401 process
• Clarify 1996 rules
Environmental Management Commission action
April 2001 - original (1996) intent to regulate isolated wetlands
Stakeholder group - meet four times,reviewed and modified draft Rules
September 2001 - adopt temporary rules
October 2001 - overrule ALJ regarding temporary rule authority
October 22, 2001 - effective date of temporary rules
Permanent RulesNovember 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
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
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
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
Pretty Pond BayRobeson County
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