SELC Comments on Proposed Temporary Wetland Rules with attachment_20210412

SOUTHERN ENVIRONMENTAL LAW CENTER
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601 WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356
April 12, 2021
Sue Homewood
North Carolina Department of Environmental Quality
Division of Water Resources
450 W. Hanes Mill Road
Winston-Salem, NC 27107
[e-mail]
Re: Temporary Wetland Rules 15A NCAC 02H.1301 (Revision) and 15A NCAC
02H.1400 (.1401 through .1405)
Dear Ms. Homewood:
Together, our organizations write in support of the North Carolina Department of
Environmental Quality, Division of Water Resources' temporary rulemaking to authorize and
impose requirements on impacts to North Carolina's wetlands.
As a result of changes in federal law, many wetlands in North Carolina are no longer
being protected by the federal Clean Water Act. These wetlands remain protected under state
law, but because federal permits are no longer required for activities in these wetlands, there is
no permitting mechanism available for the North Carolina Department of Environmental Quality
to authorize (and impose requirements on the) impacts to the wetlands.
We and our members recognize that the Department's temporary rulemaking fills this
permitting gap. We therefore support the temporary rules, yet urge the Department to propose a
permanent rule that will more adequately protect North Carolina's wetlands.
The Southern Environmental Law Center submits these comments on its own behalf and
on behalf of American Rivers, Carolina Wetlands Association, Environment North Carolina,
North Carolina Coastal Federation, North Carolina Conservation Network, North Carolina
Wildlife Federation, Sound Rivers, and Yadkin Riverkeeper.
I. THE TEMPORARY WETLANDS RULES ARE NEEDED TO FILL A PERMITTING
GAP LEFT BY RECENT FEDERAL ROLLBACKS TO THE CLEAN WATER ACT
The proposed temporary rules set up a state permitting program for projects that affect
wetlands that require protection under North Carolina law but are no longer being protected by
federal agencies under the federal Clean Water Act. The proposal is a response to recent federal
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rules finalized in 2020 that eliminated Clean Water Act protection and permitting for at least
900,000 acres of wetlands in North Carolina's Cape Fear and Neuse River basins alone.1
Because these wetlands are waters of the State, they are required to be protected under the North
Carolina Constitution and statutory law. But because no federal or state permitting program
currently exists for authorizing impacts to these wetlands, the temporary wetlands rules are
needed.
A. Wetlands Are Waters of the State That Must Be Protected Under North Carolina
Law.
The North Carolina General Assembly declared it to be the public policy of the State to provide
for the conservation of the State's water resources, and has acknowledged the State's responsibility for
the preservation and development of those resources in the best interests of all its citizens.2 Waters of
the State include:
any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek,
reservoir, waterway, or other body or accumulation of water, whether
surface or underground, public or private, or natural or artificial, that is
contained in, flows through, or borders upon any portion of this State,
including any portion of the Atlantic Ocean over which the State has
jurisdiction.3
The General Assembly directs that waters of the State be regulated in a manner:
to protect human health, to prevent injury to plant and animal life, to
prevent damage to public and private property, to insure the continued
enjoyment of the natural attractions of the State, to encourage the
expansion of employment opportunities, to provide a permanent foundation
for healthy industrial development and to secure for the people of North
Carolina, now and in the future, the beneficial uses of these great natural
resources.4
These policies reaffirm and implement the North Carolina constitutional mandate that the
State protect its wetlands. Article XIV, section 5 of the North Carolina Constitution, establishes
the policy of the State to conserve and protect its land and waters and explicitly states that it is
the policy of the State "in every other appropriate way to preserve as a part of the common
heritage of this State its forests, wetlands, estuaries, beaches, historical sites, openlands, and
places of beauty."5
' Decl. of Jovian Sackett at 8-9, South Carolina Coastal Conservation League v. Wheeler, No. 2:20-cv-01687-BHH
(D.S.C. July 10, 2020), ECF No. 58-50 (Attachment A).
2 N.C. Gen. Stat. § 143-211 (1999).
3 N.C. Gen. Stat. § 143-212(6) (emphasis added).
4 N.C. Gen. Stat. § 143-211(c).
5 N.C. Const. art. XIV, § 5 (emphasis added).
2

For many years, North Carolina relied on broad federal regulation to protect the State's
wetlands. Then, in response to uncertainty surrounding the sorts of wetlands and activities that
were subject to protection under the federal Clean Water Act,6 the Environmental Management
Commission adopted comprehensive wetland regulations.' The regulations did several discrete
things: defined wetlands, protected existing uses of wetlands such as flood retention and water
purification, and established a permitting system to authorize activities in the State's wetlands,
including wetlands that are not protected by federal law.
The Environmental Management Commission's authority to adopt wetlands regulations
and protect wetlands as waters of the State was challenged in court. In 2002, the North Carolina
Court of Appeals ruled wetlands are waters of the State and fully upheld the Commission's duty
to regulate activities impairing or destroying wetlands.8
North Carolina has worked in partnership with the federal government to protect the
State's wetlands. North Carolina's Depailiuent of Environmental Quality works cooperatively
with the United States Army Corps of Engineers to protect the State's wetlands and authorize
impacts to them. The State relies on the Army Corps to identify wetlands considered "waters of
the United States," for which impacts cannot occur without obtaining a Clean Water Act § 404
permit from the Army Corps and a Clean Water Act § 401 certification from the North Carolina
Department of Environmental Quality. As part of these processes, applicants must employ
methods of avoiding and mitigating impacts to federally protected wetlands. Applicants must
also provide compensatory mitigation, where necessary, to replace impacted wetlands by
restoring or enhancing wetlands or ensuring the preservation of other existing wetlands that serve
similar ecological functions. Where State wetlands fall outside the federal definition of "waters
of the United States," State authorization (permitting) is required under the State's wetlands
regulations.
In 2014, the North Carolina General Assembly established a set of impact thresholds for
isolated wetlands that were inconsistent with federal thresholds.9 In 2015, in an apparent effort to
avoid conflicts between federal and state thresholds for wetlands under the jurisdiction of both
6 See, e.g., Solid Waste Agency ofN. Cook Cty. v. U.S. Army Corps ofEng'rs, 531 U.S. 159, 167 (2001)
("SWANCC") (holding the federal govemment could not regulate an isolated, abandoned gravel pit); Nat'l Mining
Ass 'n v. U.S. Army Corps ofEng'rs, 145 F.3d 1399 (D.C. Cir. 1998) (holding that incidental fallback is not a
"discharge" subject to section 404 regulation); United States v. Wilson, 133 F.3d 251, 258 (4th Cir. 1997) (holding
the federal govemment cannot regulate wetlands that "are [not] connected closely to [either] interstate [or] navigable
waters" and "which do not otherwise substantially affect interstate commerce").
Proposed 15A N.C. Admin. Code 2H .1301(a) states that the provisions of the rule apply to "isolated wetlands and
isolated classified surface waters." Isolated is defined as having "no visible surface water connection to downstream
waters of the state." Proposed 15A N.C. Admin. Code 2H .1301(b).
8 In re Request for Declaratory Ruling by the Environmental Management Commission, 155 N.C. App. 408, 409
(N.C. Ct. App. 2002).
9 N.C. Sess. Law 2014-120, § 54 (setting impact thresholds for review and mitigation under the state program).
3

programs, the North Carolina General Assembly limited the application of the Environmental
Management Commission's existing wetlands regulations to "Basin Wetlands" and `Bogs."°
Importantly, the legislation only directed the Environmental Management Commission to
revise the existing wetlands regulations —it did not repeal the Commission's authority to
authorize or permit activities in wetlands, nor did it alter state law or regulations defining
wetlands as waters of the State and requiring protection of the State's wetlands. The 2015 change
had its intended effect. And federal protections allowed North Carolina to both meet its duty to
protect the State's wetlands and authorize activities through its authority under the Clean Water
Act to certify that federal permits protected the State's water quality —that is, until the
Environmental Protection Agency rolled back the Clean Water Act in a series of federal
rulemakings last year.
B. Federal Clean Water Act Rollbacks Created a Permitting Gap for the Majority of
North Carolina's Wetlands.
Under the Clean Water Act, the discharge of pollutants into "navigable waters," defined
as "waters of the United States,"11 is prohibited in the absence of a federal permit.12 Section 401
of the Clean Water Act provides states and tribes with an important tool (certification authority)
to impose conditions to limit pollution and protect waters and wetlands within their boundaries
from destructive projects that require a federal license or permit.13 Under this system of
cooperative federalism, states like North Carolina —unless hamstrung by their own legislatures,
agencies, or resource constraints —are able to provide additional safeguards to the waters within
their boundaries while the Clean Water Act serves as a federal backstop.
Between the late-1970s and early 2000s, federal courts and agencies applied the Clean
Water Act broadly to protect many kinds of water bodies, including wetlands. Beginning in
1985, the United States Supreme Court recognized that the Clean Water Act appropriately
extended jurisdiction over waters and wetlands that "have significant effects on water quality and
the aquatic ecosystem."14 However, the late 1990s brought a series of cases that created
uncertainty about the jurisdictional reach of the statute.15 Despite this uncertainty, federal
agencies for decades have protected streams and wetlands with a "significant nexus" to
traditional navigable waters as "waters of the United States." 16 A water has a "significant nexus,"
1° N.C. Sess. Law 2015-286, § 4.18(a).
1133 U.S.C. § 1362(7).
12Id. §§ 1311(a), 1342, 1344, 1362(12).
13 33 U.S.C. § 1341(d).
14 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134-35 & n.9 (1985).
15 See, e.g., SWANCC, 531 U.S. at 167; Wilson, 133 F.3d at 258.
16 See Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. 41,206, 41,217, 41,250-51 (Nov.
13, 1986); 33 C.F.R. § 328.3(a) (1987); 40 C.F.R. § 232.2 (1988); Clean Water Rule: Definition of "Waters of the
U.S.," 80 Fed. Reg. 37,054 (June 29, 2015); Defmition of "Waters of the U.S."—Addition of an Applicability Date
to 2015 Clean Water Rule, 83 Fed. Reg. 5,200 (Feb. 6, 2018); Final Rule, Definition of "Waters of the U.S."-
4

if it, or its functions, "significantly affect the chemical, physical, and biological integrity" of
traditional navigable waters.17
In 2020, the Environmental Protection Agency took a series of shortsighted (and
unlawful) actions: (1) defining waters protected under the Clean Water Act to exclude many, if
not most, wetlands;'$ and (2) restricting state certification authority so that it does not extend to
most wetlands.'9
First, the so-called Navigable Waters Protection Rule abandoned the longstanding
"significant nexus" test, unlawfully excluding countless essential wetlands and streams from
federal Clean Water Act protections. Second, the 401 Certification Rule limited state
certification authority to imposing conditions on a discharge (from a "point source" into "waters
of the United States," as that term is now restricted by the Navigable Waters Protection Rule)
rather than on the "applicant" (or the activity as a whole), as the Clean Water Act requires.20
These federal rules created the current situation where federal permits are now not
required to destroy many wetlands, including countless acres of North Carolina's headwater
forests, Carolina Bays, pocosins, bottomland hardwoods, floodplain pools, pine flats, pine
savannahs, hardwoods flats, and non-riverine swamp forests. Because there are no federal
permits required, the State is currently unable to use its water quality certification to meet its
obligation to protect these wetlands as waters of the State. Even where there are still federal
permits required, North Carolina can no longer impose conditions on the project "activity as a
whole" to protect the majority of wetlands within the State.21 And North Carolina's current
wetlands regulations do not separately authorize activities in these wetlands.22
But North Carolina law is clear: these wetlands that the Environmental Protection
Agency has now determined are no longer protected by the Clean Water Act remain protected
under state law. And without the temporary wetlands rules, the Department of Environmental
Quality cannot issue permits for impacts in most of the State's wetlands.
Recodification of Pre -Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019); Clean Water Act Jurisdiction following
the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States, U.S. Env't Prot.
Agency & U.S. Army Corps of Eng'rs at 1, 8, 12 (Dec. 2, 2008).
17 See Rapanos v. United States, 547 U.S. 715, 759, 779-80, 787 (Kennedy, J., concurring) (quoting 33 U.S.C.
§ 1251(a)).
18 See The Navigable Waters Protection Rule: Definition of "Waters of the United States," 85 Fed. Reg. 22,250
(April 21, 2020).
19 Clean Water Act Section 401 Certification Rule, 85 Fed. Reg. 42,210 (July 13, 2020) ("401 Certification Rule").
20 33 U.S.C. § 1341(d).
21 Compare 401 Certification Rule with PUD No. 1 of Jefferson Cty. v. Wash. Dep't of Ecology, 511 U.S. 700, 712
(1994); Wetlands and 401 Certification —Opportunities and Guidelines for States and Eligible Indian Tribes, U.S.
Env't Prot. Agency (1989); Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection
Tool for States and Tribes, U.S. Env't Prot. Agency (2010).
22 15A N.C. Admin. Code 2H .1301(b) (applying State's wetlands permitting regulations to "Basins Wetlands" and
"Bogs" only).
5

C. North Carolina Needs the Temporary Wetlands Rules to Fill the Regulatory Gap
Left by Federal Rollbacks to the Clean Water Act.
The Department of Environmental Quality has appropriately concluded that, if no federal
permits are required to destroy North Carolina's wetlands and the Department of Environmental
Quality cannot issue certifications, authorizations, or permits, the Depail.uient has no choice
under state law except to prohibit all activities in these wetlands. The temporary rules would not
be necessary if the Environmental Protection Agency had not redefined waters protected under
the Clean Water Act to exclude protections for many of North Carolina's wetlands or limited the
State's 401 certification authority.
This expedited rulemaking does not create additional requirements under state or federal
law. In requesting that the Environmental Management Commission enact temporary rules, the
Department of Environmental Quality only seeks to restore the Department's state permitting
program for activities in wetlands that now do not require federal permits or certifications. The
temporary rules will provide a permitting mechanism for the regulated community so that the
Department can authorize unavoidable impacts to these wetlands. And without the temporary
rules, all proposed projects that need to impact these wetlands will be unable to do so because
there is no applicable permitting mechanism in place.
II. THE PERMANENT WETLANDS RULES SHOULD MORE FULLY PROTECT
NORTH CAROLINA'S WETLANDS
We support the expedited adoption of the temporary wetlands rules given the immediate
need created by the changes in federal law. But, in order to adequately protect North Carolina's
essential wetlands while allowing development across the State to continue, additional
protections are needed long term in a permanent rule.
A. North Carolina's Water Quality and Unique Landscape Depend on the Health of
the State's Wetlands.
North Carolina's wetlands form the backbone of the State's unique landscape and water
quality. They include ecological features like Carolina Bays and pocosins, and they provide
critical ecosystem services to the people of the State. They filter upstream pollution and prevent
the pollution from entering our sensitive estuaries and marine environments. They play a critical
role in removing sediment and excess nutrients —pollutants that have the potential to decimate
North Carolina's valuable commercial and recreational fisheries. Millions of North Carolinians
rely on surface waters kept clean by wetlands as their source of drinking water; wetlands also
recharge groundwater supplies (important for the millions more North Carolinians who get their
water from wells). And wetlands guard against flooding, which is critical due to the increasing
size and frequency of storms we have experienced in North Carolina over the last several years.
6

A single acre of wetlands can store up to 1 million gallons of water, but when that acre of
wetland is removed, those 1 million gallons flow unimpeded downstream, increasing the risk of
flooding.23 It is therefore more important than ever that wetlands stay protected given the
increased flooding risks across the State.
In the last five years alone, North Carolina has been hit with multiple devastating 500-
year storms —including Hurricane Matthew, Hurricane Florence, and Tropical Storm Michael. It
has been estimated that the damage from Hurricane Florence reached nearly $17 billion and from
Hurricane Matthew $4.8 billion, with most of the damage caused by floodwaters.24 Without the
storage capacity of North Carolina's remaining wetlands, the damage would have been even
more catastrophic.25 These types of "back-to-back hurricanes" are "projected to increase in
frequency, power, and duration," making the preservation of North Carolina's wetlands more
important than ever.26
Moreover, the rapid growth occurring in North Carolina makes development in and
around wetlands all the more likely. North Carolina is the ninth most populous state in the
United States, but only 29th largest by land area.27 The United States Census Bureau projected
that between 2010 and 2020 North Carolina would gain more than one million new residents,
reaching a population of nearly 10.6 million. This projection likely underestimates actual growth
going forward. And a significant portion of that growth is occurring in areas with a large
percentage of wetlands. For example, one study has projected growth of up to 18% between
2010 and 2020 in the coastal plain counties of Currituck, Dare, Pitt, Carteret, Duplin,
Cumberland, Onslow, Pender, New Hanover, and Brunswick.28 In the absence of federal
regulation, we need stringent state wetlands regulations to ensure that this growth occurs with the
necessary measures to protect these valuable resources.
B. Additional Measures Are Needed in a Permanent Rule to Protect North Carolina's
Wetlands.
We plan to participate in the public process related to any permanent rule, during which
we will provide more substantive comments on the permanent rule proposal. As the proposed
zs Wetlands: Protecting Life and Property from Flooding, U.S. Env't Prot. Agency, EPA843-F-06-001 (May 2006).
See also NC -CREWS: NC Coastal Region Evaluation of Wetland Significance, N.C. Dept. of Env't Qual., Div. of
Coastal Mgmt. 45-50 (May 1999) (describing multiple factors that determine how much a given wetland can
contribute to flood reduction).
24 Comments of the North Carolina Department of Environmental Quality and the Office of the North Carolina
Attorney General on Proposed Revised Waters of the United States ("WOTUS") Rule at 3-4 (April 15, 2019) ("N.C.
Comments"), https://www.regulations.gov/comment/EPA-HQ-OW-2018-0149-4362.
25 Id.
26 Id at 4.
27Id. at3.
2s Id.
7

permanent rule is developed, however, we urge the Department to incorporate the following
changes.
1. The "Deemed Permitted" Process Should Be Replaced with a General
Permitting Program with Lower Acreage Thresholds.
Under the proposed temporary wetlands rules, certain activities "shall be deemed to be
permitted."29 Not only are the proposed acreages too high for the activities deemed permitted,
but also the conditions associated with the deemed permitting process inadequately protect the
State's wetlands.
Rather than incorporate a "deemed permitted" process with no review and no mitigation
to offset impacts, the permanent rule should require a general permit (or individual permit, where
appropriate) with conditions, including but not limited to, requiring applicants to employ
methods of avoiding and mitigating impacts to State wetlands; to provide compensatory
mitigation, where necessary; and to replace impacted wetlands by restoring or enhancing
wetlands or ensuring the preservation of other existing wetlands that serve similar ecological
functions.3°
The permanent rule should also reduce the acreages applicable to any general permitting
process. As proposed, for example, activities that affect "less than or equal to one acre of
federally non jurisdictional wetlands for the entire project in the coastal region, less than or equal
to one-half acre ... in the piedmont region, and less than or equal to one-third acre ... in the
mountain region are deemed to be permitted."31 Any permanent rule should incorporate a general
permitting process for projects found to have minimal individual and cumulative environmental
effects based on the DepaiIment's scientific understanding of North Carolina wetlands.
2. Mitigation Should Be Required for All Impacts.
As proposed, mitigation for impacts to wetlands is only required if the amount of impact
exceeds the proposed deemed permitted thresholds.32 For streams, mitigation is required only if
the amount of impact is 300 linear feet or more.33 Mitigation requirements, as well as the
requirement that applicants take measures to avoid State wetlands and streams, should apply to
any level of impact under the permanent rule.34
29 Proposed 15A N.C. Admin. Code 02H .1405.
3o E.g., 2017 Nationwide Permits, General Conditions, District Engineer's Decision, Further Information, and
Definitions, U.S. Army Corps of Eng'rs (2017) ("NWP Conditions"),
https://usace.contentdm.ocic.org/utils/getfile/collection/p 16021 coll7/id/8593.
'Proposed 15A N.C. Admin. Code 02H .1405(c).
32 Proposed 15A N.C. Admin. Code 02H .1405(b), (c)(2).
'Proposed 15A N.C. Admin. Code 02H .1405(c)(3).
34 NWP Conditions at 46.
8

3. A Permit Should be Required Prior to Impacts.
As part of the application for a general or individual permit, the temporary rule requires
that the applicant disclose "whether the discharge has occurred or is proposed."35 This implies
that the impacts to the State's waters and wetlands can occur prior to the receipt of a permit. The
permanent rule should clarify that a permit is required prior to any discharge or impact.
III. CONCLUSION
North Carolina's rapid pace of growth is expected to continue for the foreseeable future,
and new pressures from intensifying storms will increase the need for healthy wetlands across
the State. That is why, in the absence of federal regulation, we need stringent state wetlands
regulations to ensure that growth can occur with necessary measures to protect these valuable
resources. We support the temporary wetlands rules to fill the immediate permitting gap left by
recent changes to federal law. We also urge the Department to adopt a more protective
permanent rule to ensure that impacts are avoided if possible, managed where necessary, and
mitigated in all instances. We respectfully request that the Depaitiuent fully incorporate our
requested changes.
Thank you for considering these comments. Please contact us at 919-967-1450 if you
have any questions regarding this letter.
Sincerely,
Kelly F. Moser
Senior Attorney
1),44 to,
Geoffrey R. Gisler
Senior Attorney
35 Proposed 15A N.C. Admin. Code 02H .1402(a)(5) (emphasis added).
9

Attachment A

2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 1 of 11
Exhibit 47

2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 2 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
SOUTH CAROLINA COASTAL )
CONSERVATION LEAGUE, et al., )
)
Plaintiffs, )
)
v. )
)
ANDREW R. WHEELER, et al., )
)
Defendants. )
AMERICAN FARM BUREAU )
FEDERATION, et al., )
Intervenor -Defendants. )
No. 2:20-cv-01687-DCN
DECLARATION OF JOVIAN SACKETT
I, Jovian Sackett, make the following declaration.
1. I am over the age of eighteen (18) and suffer from no legal incapacity. This
declaration is based on my personal knowledge and belief.
2. I am a resident of Durham, North Carolina.
3. I am employed by the Southern Environmental Law Center as the Director of
Geospatial Science. I have a B.A. in Environmental Studies and a B.A. in Geography from the
University of North Carolina at Wilmington and a M.A. in Geography from the University of
South Carolina. I am also a Geographic Information Systems Professional (GISP), certification
number 66528, awarded on 4/25/2012.
1

2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 3 of 11
4. In my role as Director of Geospatial Science, I am responsible for the
management of SELC's Geospatial Team and data; the design and implementation of geospatial
projects (both analytical and cartographic); and the application of, interpretation of, and
communication about geographic data. In other words, I oversee both the production of
geospatial deliverables based on geographic data (usually maps, but summary statistics and data
visualizations too) and the reading and critique of third -party maps and geographic data with
respect to environmental law and policy. I have had similar responsibilities since joining the
Southern Environmental Law Center in 2007.
5. Geographers, like myself, are generally integrative scientists, meaning our
expertise is in the study of the connections and relationships throughout the earth (ex. climate
and society, or land development and ecosystem function). I have experience with geographic
information systems (GIS) as a tool for measuring and studying human/environment interactions
and cartography as a tool for depicting the significant connections between earth objects. My
expertise allows me to understand the difference between the abstracted lines on maps and their
absolute and discrete reality on earth. I then coach environmental attorneys and decision makers
about how to best apply the geographic data (field notes, instruments readings, photography and
sensors) available.
Analysis Background
6. For the present case, I used available science about hydrology/geomorphology
and geospatial data about wetlands to approximate the wetland acreage by water regime in the
entire contiguous United States as well as in selected watersheds. Water regime is a
characteristic to describe the duration and completeness with which wetlands hold water in any
given year. The analyzed watersheds and primary corresponding states were: VA — Potomac
2

2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 4 of 11
River,' Rappahannock River, James River; NC — Cape Fear River, Lake Norman (Catawba
River), Neuse River; SC — Charleston Harbor, Congaree River, Saluda River; GA/AL —
Chattahoochee River.
7. For the purpose of this analysis, I focused on wetland water regimes as described
by the U.S. Fish and Wildlife Service (FWS) National Wetlands Inventory (NWI) using the well -
established Cowardin Classification System. Developed by Cowardin, et al., during the mid -to -
late 1970s the system was intended to "provide basic data on the characteristics and extent of the
Nation's wetlands and deepwater habitats and should facilitate the management of these areas on
a sound, multiple -use basis."2' 3 More importantly though, that mandate was driven by a need to
update a previous nationwide system of wetlands inventory from the 1950s in order to document
natural and anthropogenic changes and collect more refined information due to "federal
legislation...passed to protect wetlands."4 The National Wetlands Inventory exists as a direct
result of the need to better understand and plan for management of the nation's water resources,
as part of the Clean Water Act of 1972. It is fitting that the most recent version of the NWI
continues to inform decision making about the Clean Water Act today.
8. The National Wetlands Inventory was designed to provide a consistent
classification of wetlands as ecological mapping units for use by FWS.5 Furthermore, NWI
provides a detailed classification of the water regime of each wetland type it maps.
' The Potomac River watershed also includes portions of West Virginia, Maryland, Pennsylvania, and the District of
Columbia.
2 Documents in the administrative record contain the prefix EPA-HQ-OW-2018-0149 followed by the Docket
Document ID. See Administrative Record Index (Doc. No. 54-1, Ex. 1). In citing to documents in the administrative
record, Plaintiffs have omitted the prefix and cite only to the author, title of the document, its date, and the
Administrative Record Docket Document ID ("AR").
3 Cowardin, L. M., et al., Classification of Wetlands and Deepwater Habitats of the United States, U.S. Fish and
Wildlife Service (AR 11626) at 2 (1979), https://www.regulations.gov/document?D=EPA-HQ-OW-2018-0149-
11626 ("Cowardin").
4 Id.
5 Dahl, T.E., J. Dick, J. Swords, and B.O. Wilen, Data Collection Requirements and Procedures for
3

2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 5 of 11
9. I focused on wetlands where surface water is rarely or only temporarily present:
Temporarily Flooded (A), Seasonally Saturated (B), Continuously Saturated (D), and
Intermittently Flooded (J) water regime modifiers of the NWI.6 These modifiers refer to water
regimes that are non -tidal, primarily in palustrine (wetland) systems, but also some lacustrine
(lake) and riverine (river) systems.' This analysis only focused on palustrine systems, since that
is where the majority of these water regimes are represented.
10. Cowardin describes temporarily/intermittently flooded wetlands as including
seasonally flooded basins and flats, including wet meadows.8 For example, despite being
"largely controlled by precipitation and evapotranspiration," Carolina and Delmarva bays
experience "nearly continuous shallow ground -water recharge" and periodic shallow ground-
water discharge, resulting in periods with no surface water.9
11. Saturated wetlands include bogs, pocosins, fens, and similar wetland types.19 Fens
are a kind of slope wetland" that is groundwater driven, while bogs and pocosins typically
collect precipitation.12 These wetland types are not typically flooded by perennial or intermittent
streams, but rather "temporarily hold water and then slowly release it to downstream waters." 13
Mapping Wetland, Deepwater and Related Habitats of the United States. Division of Habitat and
Resource Conservation (version 2) at 6 (2015), https://www.fws.gov/wetlands/documents/Data-Collection-
Requirements-and-Procedure s-for-Mapping-Wetland-Deepwater-and-Related-Habitats-of-the-United-States.pdf.
("Dahl").
6 The capital letters used to represent water regime modifiers in NWI are reassigned from the letters used in
Cowardin, et. el. (1979).
Federal Geographic Data Committee, Wetlands Subcommittee, Classification of Wetlands and Deepwater Habitats
of the United States, Docket ID No. FGDC—STD-004-2013, Second Edition (AR 11629) at 38 (August 2013),
https://www.regulations.gov/document?D=EPA-HQ-OW-2018-0149-11629. ("NWI Metadata").
8 Cowardin at 13.
9 EPA Office of Res. & Dev., Connectivity of Streams and Wetlands to Downstream Waters: A Review and
Synthesis of the Scientific Evidence (AR 11691) at B-5, https://www.regulations.gov/document?D=EPA-HQ-OW-
2018-0149-11691 ("Science Report").
10 Cowardin at 28.
11 Science Report at 4-20.
12 Science Report at 4-21.
13 See U.S. Environmental Protection Agency & U.S. Army Corps of Engineers, Technical Support Document for
the Clean Water Rule: Definition of Waters of the United States (see AR 11460, document 285) at 340 (May 27,
2015), https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20869.
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2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 6 of 11
12. Cowardin illustrates the position of these water regimes, with respect to others,
across a landscape matrix of palustrine and upland systems, as copied here in Figure 1:14
UPLAND PALUSTRINE UPLAND PALUSTRINE
>1 >< ><
Seepage Zone
UPLAND
>
a TEMPORARILY FLOODED
b SEASONALLY FLOODED
c SEMIPERMANENTLY FLOODED
d INTERMITTENTLY EXPOSED
e PERMANENTLY FLOODED
f SEASONALLY SATURATED
L
PALUSTRINE
>4 r<
AQUArC
UPLAND
><
2.6 m
HIGH WATER
AVERAGE WATER
LOW WATER
Figure 1
13. In their Economic Analysis for the Navigable Waters Protection Rule: Definition
of "Waters of the United States" (2020), the Environmental Protection Agency and Corps of
Engineers cited the NWI metadata pertaining to water regime modifiers. Specifically, the
agencies noted that Temporarily Flooded wetlands only have surface water for "a few days to a
few weeks" during the growing season and Intermittently Flooded wetlands may have years
14 Cowardin at 13.
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2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 7 of 11
between periods of inundation.15 In addition, Seasonally Saturated wetlands typically do not
have surface water for longer than "a few days after heavy rain and upland runoff."16 In
Continuously Saturated wetlands, "widespread surface inundation is rare."17
14. In sum, the presence of surface water in these wetland regimes is sporadic and
most often due to elevated vertical (groundwater) or temporal (precipitation).18 To the extent
these wetlands receive overflow from a perennial or intermittent river or stream, that flooding is
also sporadic and short-lived.19 Therefore, these water regimes are the most likely to be
excluded from the new "waters of the United States" definition. They are collectively referred to
below as the "target" water regimes.
Technical Analysis
15. To complete this analysis, I used Esri ArcGIS Pro v.2.4.2 for geospatial tasks, R
v3.5.1 for generating summary statistics, and Microsoft Excel 2019 for combining and
presenting results.
16. Data collection was the first phase of the study. Although there is no single
dataset that maps all the nation's streams, wetlands, and watersheds systematically, there are best
available nationwide data approximating streams, wetlands, and watersheds published by the
mapping divisions of U.S. government agencies. Those data are published for helping
understand the complexities and inter -relationships of human -environment interactions, as it
relates to natural resource management and policy. My intent was to create both a nationwide
15 U.S. Environmental Protection Agency & U.S. Army Corps of Engineers, Economic Analysis for the Navigable
Waters Protection Rule: Definition of "Waters of the United States (AR 11572) at 101 (Jan. 22, 2020) ("Economic
Analysis").
16 Id.
17 Id.
18 Science Report at 1-4-1-7.
19 Id.
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2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 8 of 11
dataset of wetlands, classified by water regime, and to have that dataset subdivided by both
ecological (watersheds) and political (county/state) geographic units.20 Geospatial data for 12-
digit hydrologic units (watersheds) came from the U.S. Geological Survey (USGS) Watershed
Boundaries Dataset (WBD), 4th edition, "to ensure the digital geographic data are usable with
other related" geospatial data.21 The geospatial dataset for wetlands, the FWS's NWI v.2,
affirms its applicability to this type of analysis, "[t]he information collected using these
requirements and procedures are intended to support the decision -making process."22' 23 From
their metadata, I knew neither of these datasets were designed to represent jurisdictional
determinations but are intended to map the nation's waters and wetlands using uniform national
mapping standards developed by U.S governmental agencies. The NWI applies the Cowardin
Classification System, designed to provide a consistent classification of wetlands as ecological
mapping units for use by FWS.24
17. In order to compile NWI data for the contiguous United States, SELC hired and I
supervised Esri, a geospatial software and services company, to download and process the source
data with computing power much greater than what SELC possesses. Esri downloaded all the
source data for each state from FWS, and produced enhanced geodatabases of the contiguous
United States, with wetlands aggregated by state and county geography in one database and 12-
20 Geospatial data for county and state boundaries, were from the U.S. Census Bureau, and although built into the
final data through analysis, were not included in any of my results, in order to focus solely on the ecological side of
the impacts.
21 U.S. Geological Survey and U.S. Department of Agriculture, Natural Resources Conservation Service, Federal
Standards and Procedures for the National Watershed Boundary Dataset (WBD) at 1 (2013),
http://pubs.usgs.gov/tm/tmlla3/.
22 NWI v.2 represents the methodologies of Dahl et.al. Within the version numbers, actual data are updated more
frequently, and this analysis used data, associated with the October 2019 release, the most recently available at the
time.
23 Dahl, et. al. at 5.
24 Dahl, et. al. at 6.
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2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 9 of 11
digit HUC watersheds in another.25 I verified Esri's process and reformatted the summary tables
they provided.
18. At this stage, I brought an additional team member, Libbie Weimer, geospatial
analyst, in to help work with the data. The geodatabases created by Esri were incredibly large,
and therefore difficult to summarize with the GIS software, ArcGIS Pro. Ms. Wiemer used the
statistical programming language, R, to create more workable summary tables of data that
estimated the number of acres of wetlands assigned to each NWI wetland classification across
the contiguous United States.
19. This table (Table 1) shows the HUC codes corresponding to each watershed
selected for in-depth analysis:
Table 1
Watershed
All 12-digit RUCs comprising these
larger 6-,8-,10-digit RUCs
Potomac
020700
Rappahannock
02080103, 02080104
James
020802
Neuse
030202
Cape Fear
030300
Lake Norman (Catawba River)
0305010111, 0305010112
Saluda
03050109
Congaree
03050110
Charleston Harbor
03050201, 03050202, 03050209
Chattahoochee
03130001, 03130002, 03130003,
03130004
20. In their data processing, Esri isolated the water regime modifier from the full
Cowardin code in NWI, using the Wetlands Decoder Table, which "provides a crosswalkfrom
U.S. Fish and Wildlife Service, National Wetlands Inventory (NWI) wetlands data, as defined by
25 Esri (2020). NWI Data Processing Steps.
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2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 10 of 11
the Federal Wetland Mapping Standard, to the complete wetland definitions, as defined by the
Federal Wetlands Classification Standard."26
21. In order to estimate wetland types by target water regime, I utilized the summary
tables for water regime codes of the NWI dataset, those created in R, within the watersheds of
interest listed in Table 1.
22. After creating a new row of values for the select watersheds, based on their HUC
code, I then summarized the results in Excel. A single pivot table was created to show columns
for wetland acres in each target water regime and rows for each watershed. The values of the
pivot tables were the total acres of wetlands classified by each water regime for each Table 1
watershed. Some values were zero.
Results
23. As shown in Table 2, and based on my analysis, I estimate that 45,103,442 acres
of wetlands in the contiguous United States are classified as Temporarily Flooded, Seasonally
Saturated, Continuously Saturated, or Intermittently Flooded. Table 2 also contains the results
for the selected watersheds analysis:
26 U.S. Fish and Wildlife Service, Wetland Classification Codes (2019),
https://www.fws.gov/wetlands/Data/Wetland-Codes.html (downloaded Feb. 3, 2020).
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2:20-cv-01687-DCN Date Filed 07/10/20 Entry Number 58-50 Page 11 of 11
Table 2
Analysis Area
Temporarily
Hooded (A)
Seasonally
Saturated (13)
Continuously
Saturated (D)
Intermittently
Flooded (J)
Total
Potomac
66,079
7,142
7,142
253
80,616
1.0
Rappahannock
14,021
9,723
5
23,750
James
70,364
14,750
5,184
1
90,299
6
Neuse
167,544
197,042
364,586
VI
Cape Fear
141,801
385,195
526,996
Lake Norman
783
12
796
cet
Saluda
16,679
3,852
20,531
CCI
Ei
Congaree
29,144
13,762
42,906
Charleston Harbor
76,626
81,148
157,774
Chattahoochee
147,076
15,073
162,149
Contiguous U.S.
25,214,419
11,530,268
7,749,017
609,738
45,103,442
24. The results of my analysis estimate the acreage for a subset of wetlands that less
frequently have surface water and are therefore likely to be excluded by the new waters of the
United States definition. This vulnerable subset includes waters classified as Temporarily
Flooded, Seasonally Saturated, Continuously Saturated, and Intermittently Flooded. Estimating
the exact amount of any type of wetlands that lose jurisdiction under the Rule would require on -
the -ground, site -specific analysis. However, the analysis described above provides estimates
based on the most complete nationwide geospatial data, while honoring the limitations of scale
and the data's intended use.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and
correct to the best of my knowledge, information, and belief.
Executed on: July 10, 2020
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