NCWRC final comments

North Carolina Wildlife Resources Commission
Came ron Ingram, Executive Director

Mailing Address: Habitat Conservation Division • 1721 Mail Service Center • Raleigh NC 27699 -1721
Phone: [phone] • Fax: [phone]
MEMORANDUM
TO: Sue Homewood , Environmental Specialist
Division of Water Resources
Department of Environmental Quality

FROM: David Cox
Habitat Conservation Division
DATE: 29 November 2021
SUBJECT: NCWRC comments on Proposed Permanent Rules 15A NCAC 02H .1401 -1405 -
Discharges to Federally Non -Jurisdictional Wetlands and Classified Surface
Waters and Permanent Rule Amendment 15A NCAC 02H .1301 - Discharges to
Isolated Wetlands and Isolated Classified Surface Waters
Biologists with the North Carolina Wildlife Resources Commission (NCWRC) have reviewed
the Division of Water Resources ’ (DWR) Proposed Permanent Rules for Discharges to Federally
Non -Jurisdictional Wetlands and Classified Surface Waters and Permanent Rule Amendment for
Discharges to Isolated Wetlands and Isolated Classified Surface Waters . Our comments are
provided in accordance with provisions of the Clean Water Act of 1977 (as amended), Fish and
Wildlife Coordination Act (48 Stat. 401, as amended; 16 U.S.C. 661-667e), and North Carolina
General Statutes (G.S. 113 -131 et seq.).
On June 22, 2020, the Navigable Waters Protection Rule (NWPR) became effective; this revised
the definition of Waters of the United States in the Clean Water Act (CWA). As a result,
wetlands connected to jurisdictional streams by non -jurisdictional channels that pass the
significant nexus text, were no long sub ject to CWA jurisdiction. While these non-jurisdictional
wetlands remained protected in our state, there was no permitting mechan ism for authorizing
impacts. To address this permitting gap, DWR developed temporary permitting rules which
were adopted by the Environmental Management Commission. DWR is no w pursuing
permanent rulemaking that will provide a regulatory mechanism for authorizing impacts to
federally non-jurisdictional wetlands. DWR’s proposed permitting mechanism includes
permitting and compensatory mitigation thresholds that mimic past rules when these non -
jurisdictional wetlands and waters were covered by the state’s 401 program.

NCWRC Comments Page 2 November 29, 2021
DWR non-jurisdictional wetlands and waters

NCWRC supports efforts of DWR to create permanent rules for authorizing impacts to federally
non-jurisdictional wetlands and update rule language for isolated wetlands . Non-jurisdictional
and isolated wetlands provide habitat for numerous rare, state and federa l listed species as well
as Species of Greatest Conservation Need (SGCN) across our state . DWR estimates that 30.6%
or more of the wetlands in our state may have lost federal jurisdiction due to recent federal rule
changes; this corresponds to approximately 1.3 million acres. We agree that DWR should
establish clear rules that provide consisten t protection and impact authorization for wetlands in
North Carolina that are within their jurisdiction as established with the NWPR and are not
affected by policy changes at the federal level. These permanent rules are vital to establish
protection and a mechanism for authorizing impacts to wetland habitats that are critical to
aquatic and terrestrial wildlife in North Carolina .
Thank you for the opportunity to comment on these proposed rules. If we can be of further
assistance, please contact me at [phone] or [e-mail] or Vann Stancil at
(919) 284 -5218 or [e-mail].