A proposed change in NC law would reduce wetlands and increase flooding | Opinion

As North Carolina braces for hurricanes and tropical storms that with climate change are delivering increasing rainfall, a change in state law may reduce a crucial protection against flooding – isolated wetlands that absorb massive amounts of water.

State Senate Bill 582, the North Carolina Farm Act of 2023, contains a provision that would end state protections for isolated wetlands and open the way for development in those environmentally sensitive, but hydrologically powerful areas.

This portion of the bill – labeled “clarify definition of wetlands” – would replace state restrictions by limiting protections to wetlands deemed part of the “waters of the United States” under the federal Clean Water Act. The change appears technical, but its impact would be sweeping since the federal protection would not cover isolated wetlands that are now protected by state law.

To make matters worse, the U.S. Supreme Court issued a ruling in May that significantly narrowed the definition of which wetlands qualify for protection under the Clean Water Act. The court said the law only applies to those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.”

The ruling leaves it to the states to decide how much to regulate wetlands outside of that definition. And there is a lot outside of it. The Southern Environmental Law Center (SELC) estimates that in the Neuse and Cape Fear river basins alone hundreds of thousands of acres will lose protection.

Statewide, the areas that would be exposed to development are in the millions of acres. The environmental advocacy group Earthjustice estimates that the court’s narrower wetlands definition will strip Clean Water Act protections from as many as half of the 118 million acres of wetlands in the U.S.

Nick Torrey, senior attorney at the Southern Environmental Law Center in Chapel Hill, which filed a friend of the court brief in the case, said Congress and the states will have to offset the new hazards created by the Supreme Court’s ruling in Sackett v. EPA.

“To try to make up for the bedrock protections taken away from people today, we will all need to make our voices heard to demand stronger clean water protections,” he said.

The provision in the North Carolina Farm Act will do the opposite.

Along with absorbing rainfall, wetlands filter stormwater runoff before it reaches rivers and streams. They also are crucial nurseries for fish and habitat for birds. Allowing more of these natural sponges to be filled and covered by impervious surfaces will reduce their absorbent effects. A one-acre wetland can typically store about one million gallons of water. In Houston, for instance, damage from Hurricane Harvey in 2017 was exacerbated by the heavy loss of wetlands to development.

Developers and homebuilders favor lighter wetlands protections because they think wetland designations are overly broad and create excessive permit requirements for land use. But if those protections are to be adjusted, it should be after a statewide assessment, not in an obscure add-on to an omnibus bill on agriculture concerns.

The General Assembly has made it a priority to build North Carolina’s resiliency to hurricanes and tropical storms. Eliminating or altering wetlands is contrary to that aim.

It’s also contrary to the North Carolina Constitution, which says in Article 14: “It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, . . . and in every other appropriate way to preserve as a part of the common heritage of this State its . . . wetlands, estuaries, beaches.”

The North Carolina Farm Act has passed the state Senate and is making progress in the House. It will pass in some form. But instead of reducing the scope of wetland protections, it should instead call for a study of which wetlands are vital and what regulations can be safely eased.

North Carolina should protect what protects North Carolina.

Associate opinion editor Ned Barnett can be reached at 919-404-7583, nbarnett@ newsobserver.com