Presentation_DiscussionItem1_ClarifyDefinitionOfWetlands_Homewood

Information Item:
Implementation of Session Law 2023-63
Clarify the Definition of Wetlands
Sue Homewood
January 10, 2024
SL 2023-63
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CLARIFY DEFINITION OF WETLANDS
SECTION 15.(a) Definitions. – For purposes of this section and its implementation, "Wetlands Definition" means 15A
NCAC 02B .0202 (Definitions).
SECTION 15.(b) Wetlands Definition Rule. – Until the effective date of the revised permanent rule that the
Environmental Management Commission (Commission) is required to adopt pursuant to subsection (d) of this
section, the Commission shall implement the Wetlands Definition Rule as provided in subsection (c) of this section.
SECTION 15.(c) Implementation. –Wetlands classified as waters of the State are restricted to waters of the United
States as defined by 33 C.F.R. §328.3 and 40 C.F.R. §230.3. Wetlands do not include prior converted cropland as
defined in the National Food Security Act Manual, Fifth Edition, which is hereby incorporated by reference, not
including subsequent
amendments and editions.
SECTION 15.(d) Additional Rulemaking Authority. – The Commission shall adopt a rule to amend the Wetlands
Definition Rule consistent with subsection (c) of this section. Notwithstanding G.S. 150B-19(4), the rule adopted by
the Commission pursuant to this section shall be substantively identical to the provisions of subsection (c) of this
section.
Rule Development Timeline
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March 13 WQC – request to proceed to EMC with rulemaking
March-April RIA development & OSBM Review
May 14 EMC – request to proceed to public notice with draft rule and RIA
May 15-May 24 File with OAH for public notice & hearing
August 1-16 Public Hearing
August 16 End of Public Comment Period
August-September Development of HO Report
November 14 EMC – Request Adoption of Rule
Per SL 2023-63 Rule not subject to RRC review – subject to
Legislative Review
February/March 2025 Rule becomes effective 31st legislative day of session unless a bill is
introduced which would delay this process.
Rule must be sent to EPA for approval (60 days to approve, 90 days
to disapprove, but can be longer based on ESA consultation)
Other EMC rules affected
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References to “wetland(s)”
15A NCAC 2T .0105(h)
15A NCAC 2T .0108(c)
15A NCAC 2T .0305(f)
15A NCAC 2T .0506(a)
15A NCAC 2T .0606(a)
15A NCAC 2T .0706(a)
15A NCAC 2T .1108(a)
15A NCAC 2T .1206
15A NCAC 2T .1506
15A NCAC 2B .0103(c)
15A NCAC 2B .0201(f)
15A NCAC 2B .0278
15A NCAC 2B buffer rules
15A NCAC 2B .0295
Example:
2T .0105(h): Setbacks and required separation distances shall be
provided as required by the rules in this Subchapter. Setbacks to
perennial and intermittent streams, perennial waterbodies, and
wetlands shall be determined using the methodology set forth in 15A
NCAC 02B .0233(4)(a).
Other EMC rules affected
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Wetland Permitting Regulations - 15A NCAC 2H .0500
Only applicable to Jurisdictional Wetlands:
“This Section outlines the application and review procedures for activities that require State water
quality certifications (certifications) pursuant to Section 401 of the Clean Water Act (33 U.S.C.
1341). “
Other EMC rules affected
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Wetland Permitting Regulations - 15A NCAC 2H .1300
Applicable to Isolated Wetlands and Streams:
•Necessary to retain this rule for use for Isolated Streams
•Modifications for removal of references to wetlands will be accomplished during Rule
Readoption Process (2025) to ensure the most efficient process for change to 2B .0202
definition
•DWR will ensure that there is clarity on website indicating that permits pursuant to 2H .1300
are not necessary for wetlands deemed as non-jurisdictional by USACE.
Other EMC rules affected
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Wetland Permitting Regulations - 15A NCAC 2H .1400
Expired