As many in the development and economic development industries already know, the NC DWR has proposed rules to the Environmental Management Commission (EMC) that assert state jurisdiction over those wetlands that are located between those regulated through the State’s Isolated Wetland Rules and those regulated under section 404 of the Clean Water Act. The EMC tabled the issue in November, seeking further clarity. Some issues include the fact that the definition of wetlands in the Administrative Code doesn’t include the use of hydric soils in the determination of the boundaries of those areas, and there is currently no procedure to obtain approval of a permittee’s field delineation of any of these areas, and there is no predictable process to “permit” impacts to these areas. In the interim, NC DWR has issued a prohibition on impacts to “non-404” wetlands. Whether the Division has the authority to assert a prohibition over areas it cannot define in the field is not certain.
In January, Spangler Environmental’s President, Jim Spangler, was asked by the NC HBA to participate on the HBA’s behalf in negotiations with the NC DEQ’s DWR on a predictable process and set of guidelines, policies, and possibly rules that will allow developers to predictably ascertain the restrictions on their sites related to these “non-404” wetlands. In meetings with DEQ Ast. Sec. Sheila Holman and DWR Director Danny Smith held in January and February, progress has been made to establish that if DWR proceeds with rulemaking, there must be a process that allows minimal impact projects to proceed with pre-approval (much like the federal Nationwide Permit process), and that there must be a time limit on reviews of applications for permits. There is much left to be done to protect economic development interests.
Negotiations are ongoing. If you have particular questions or concerns about how these new rules might affect your project, contact Jim Spangler at JSpangler@SpanglerEnvironmental.com.