Cooper vetoes Farm Act, which could remove protections from half of NC’s wetlands

Gov. Roy Cooper on Friday vetoed Senate Bill 582, the North Carolina Farm Act of 2023, citing a provision that could leave half of the state’s wetlands unprotected.

The bill requires North Carolina’s definition of protected wetlands to be consistent with the federal government’s definition without going any further. And the federal government will soon only be able to protect those wetlands that are indistinguishable from a larger body of water due to the U.S. Supreme Court’s recent decision in Sackett v. Environmental Protection Agency.

“The General Assembly has allocated tens of millions of dollars to protect the state from flooding and my administration is working to stop pollution like PFAS and other contaminants. This bill reverses our progress and leaves the state vulnerable without vital flood mitigation and water purification tools,” Cooper wrote in his veto.

Cooper said the bill’s consequences could be particularly severe in low-lying Eastern North Carolina, warning of worsening floods and degraded water quality.

2.5 million acres of NC wetlands could lose protection

N.C. Department of Environmental Quality officials estimate that as many as 2.5 million acres could lose protection if the Farm Act becomes law, more than half of the state’s wetlands. DEQ’s approach classifies wetlands risk by type and is based on a 1999 survey that measured wetlands larger than one acre.

It found that wetlands like managed pineland and pocosins are particularly at risk, with about 1.08 million and 635,718 acres, respectively. Other wetlands DEQ considers “high risk” include hardwood flats, pine flats and maritime forest.

Robin Smith, an environmental lawyer who chairs North Carolina’s Environmental Management Commission, penned a blog post earlier this month arguing that the timing of the Farm Act and the Sackett decision were “an unfortunate series of events.”

“The result could be that unprotected wetlands will become conduits for water pollution to reach groundwater and surface water. Lack of any state or federal permit requirement may also result in the filling of wetlands that provide flood control and filter stormwater,” Smith wrote.

Smith also argued that the Sackett decision only applies to the federal government and actually emphasized the role states play in protecting wetlands. North Carolina, Smith wrote, should not “out-source” wetland protection to the federal government.

Wetlands provide a number of environmental benefits, from holding immense quantities of stormwater to sequestering carbon to serving as habitat for many of the state’s birds.

“They’re magic, if we just leave them alone,” Rep. Deb Butler, a Wilmington Democrat, said during debate on the House floor earlier this month.

Bill received bipartisan support in both houses

During that debate, Rep. Jimmy Dixon, a Duplin County Republican, admitted he did not know how many acres of North Carolina wetlands would lose protections if the bill became law. But, when asked if he believed the Farm Act maintained the delicate balance necessary to protect wetlands, Dixon said he did.

Three-fifths of both the N.C. House and the N.C. Senate would need to vote in favor of an override for the Farm Act to become law. Republicans hold veto-proof supermajorities in both chambers, but the bill also drew votes from Democrats in both houses. The Senate approved the bill 37-6, and the House 77-38.

Environmentalists quickly released statements Friday afternoon urging the General Assembly to uphold Cooper’s veto.

“Losing these wetlands would worsen future floods, threaten drinking water, and put lives and property in harm’s way. We urge members of the NC General Assembly to take the responsible course and let the veto stand,” Grady McCallie, the N.C. Conservation Network’s policy director, wrote in a statement.

Sen. Brent Jackson encouraged a bipartisan override of Cooper’s veto in his own statement. Jackson, a Sampson County Republican, is typically the primary sponsor of the Farm Act.

“I am disappointed to see that Gov. Cooper is allowing politics to get in the way of supporting farmers. His objection fails to consider our obligation to comply with federal laws and regulations,” Jackson wrote.

Jackson appears to be alluding to the Hardison Amendment, a long-standing North Carolina law that requires the state’s environmental regulations to be no more protective than federal rules, as long as a federal rule exists.

The EPA has not yet released guidance for how it plans to implement the new Waters of the United States rules, meaning North Carolina regulators would be unable to immediately implement the law.

U.S. Rep. David Rouzer, a Wilmington Republican, was one of four congressional Republicans who sent a letter to EPA Administrator Michael Regan and the U.S. Army Corps of Engineers this week requesting a detailed update on how the agencies intend to comply with the Sackett ruling.

The letter stated that unlike previous wetlands rulings, the court’s decision in Sackett was fairly simple, and the agencies should be able to quickly craft new rules.

“The Biden Administration must now follow the law by implementing the Supreme Court’s decision with the same fervor it showed in its prior efforts on (Waters of the United States),” the congressmen wrote. “Failure to do so is indicative that these recent delays are needless at best, or intentional efforts to halt economic development at worst.”

This story was produced with financial support from 1Earth Fund, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The N&O maintains full editorial control of the work.