A Look at the Trump Administration’s proposed WOTUS definition
in North Carolina
Prepared by John Dorney, Moffatt & Nichol - Raleigh
January 23, 2020
The Barrel Room at Lynnwood Brewing Concern
1053 E. Whitaker Mill Rd.
*NOTE: This location is off Atlantic Avenue, not Glenwood Ave.*
- Social Hour starting at 5:30 PM
- Dinner at 6:30 PM
- Speaker at ~7:00 PM
Moffatt & Nichol was hired in early 2019 by the Southern Environmental Law Center to conduct an objective analysis of the proposed WOTUS definition on the extent of waters (wetlands and streams) in NC and the Southeast based on existing, public data sets. Until the final definition is proposed, this analysis should be considered tentative.
Streams – The proposed definition would remove ephemeral streams and most ditches from jurisdiction for 404 Permitting which would likely have a minor effect on the extent of stream jurisdiction in NC. We used the NC Division of Water Quality stream mapping data set to estimate the extent of intermittent and perennial channels in the state. If only perennial streams are regulated (which is a possible outcome of the rule), then an average of at least 27% of the stream length statewide would no longer be regulated. The extent varies with Level IV ecoregion with at least 96% of the stream length no longer regulated in the Atlantic Southern Loamy Plains, 53% of the stream length in the Mid-Atlantic Flatwoods, 46% of the stream length in the Sandhills and 35% of the stream length in the Triassic basin. These numbers are somewhat uncertain since the extent of jurisdictional, ephemeral stream length is unknown in NC.
Wetlands - The proposed wetland definition would remove from jurisdiction wetlands that do not directly abut or have a direct hydrological connection with a jurisdictional channel (intermittent or perennial streams) to downstream waters. Therefore, wetlands connected by an ephemeral channel or ditch to downstream waters would not be regulated. We are unable to estimate the size of the reduction on wetland jurisdiction since accurate wetland maps are not available in NC. We conclude that there would be a major reduction in the extent of regulated wetlands in NC based on the proposed rule but the amount would vary greatly by physiographic region and wetland type. Overall, losses could be greatest in the Piedmont and Inner Coastal Plain. Wetland types with the greatest losses would likely include floodplain pools, seeps, non-riverine swamp forest, pine savanna, pine flat, headwater forest, bog, and bottomland hardwood forest communities. For instance, from one comprehensive dataset the loss of headwater forests in the piedmont and coastal plain could be around 29% if intermittent or perennial stream connections are sufficient for jurisdiction, and 76% if intermittent stream connections are not sufficient.
Other issues - An analysis was also made of the impact of the proposed WOTUS definition on threatened and endangered species and this will be discussed at the meeting. Finally, we determined a number of procedural issues (such as trespass off site to determine the type of downstream connection) and these will be discussed as well at the meeting.