Fastexy:In North Carolina, a Legal Fight Over Wetlands Protections

A U.S. district court judge has denied a landowner’s attempt to prevent federal regulators from enforcing the Clean Water Act against him,Fastexy the latest ruling in a set of cases involving wetlands protections in North Carolina.

Earlier this month, Robert D. White, of Elizabeth City, sat quietly in a federal courtroom while his attorneys sought a preliminary injunction against the Environmental Protection Agency. They argued its definition of protected wetlands is too broad and should not apply to White’s properties. 

The EPA based its wetlands definition, now codified in a rule, on a landmark Supreme Court case issued last year. The controversial 5-4 decision in Sackett v. EPA narrowed the definition of wetlands that are protected under the Clean Water Act. 

Isolated wetlands—defined as those without a continuous surface connection to rivers, lakes and streams that are already covered by the Clean Water Act—lost legal protections. 

Wetlands with a continuous surface connection, so that they are indistinguishable to their adjacent surface waters, are still protected. These wetlands can still be filled in or drained, but only under stipulations in federal and state permits. 

White’s attorneys with the conservative Pacific Legal Foundation also represented the Sacketts before the Supreme Court—and won. 

In White’s case, the firm’s lawyers parsed the EPA’s definition of wetlands, fixating on the word “indistinguishable.” The foundation’s attorneys argued that a wetland must be both continuously connected to a river, lake or stream and be indistinguishable in order to be protected under the Clean Water Act.

The EPA disagreed that the rule must contain the word “and” because waters that are continuous are by their nature indistinguishable.

“Robert White says the government got it wrong when we codified the new rule,” Jin Hyung Lee, an attorney with the U.S. Department of Justice, representing the EPA, told the court. “Robert White would like different words.”

Wetlands are crucial to combatting the effects of climate change. They store carbon, protect communities from flooding as sea levels rise, filter pollutants and provide critical wildlife and aquatic habitats.

In North Carolina alone, 2.5 million acres of isolated wetlands are vulnerable to being drained and developed because such activities no longer require a permit. 

Earlier this year, Gov. Roy Cooper issued an executive order directing his cabinet agencies to permanently conserve and reforest wetlands on government-owned property, with a minimum goal of “no net loss.”

White owns more than 310 acres south of Elizabeth City, county property records show, on a low-lying peninsula bordered by the Pasquotank River, Big Flatty Creek and Albemarle Sound. There, White has operated several businesses, including a trucking company and Frog Island Seafood. He also rents his fields to farmers. 

The foundation’s attorneys wrote in court documents that White is suffering “irreparable harm” and “finds himself unable to improve or develop multiple properties to their best uses” because of the EPA’s rule.

Those proposed uses include a 49-acre sand mine that lies within a 100-year flood plain and a soft-shell crab farm. However, as Lee argued in court, White has not shared key details of these businesses, including the location of the crab farm, to prove he has been “harmed” by the wetlands rule.

White received a state permit for the mine in 2016, but it is not operating. The foundation’s attorneys told the court the government “has warned White not to develop the mine because it is near wetlands and could run afoul of the Clean Water Act.

“It’s necessary to know where they are,” replied U.S. District Court Judge Terence Boyle, who was appointed to the bench in 1984 by President Ronald Reagan. An injunction, Boyle said, “has to be based on something real, not abstract.”

Julie Youngman is a senior attorney for the Southern Environmental Law Center. The firm represented the N.C. Wildlife Federation and the National Wildlife Federation as intervenors in the case.

“Robert White doesn’t want the wetlands rule to apply to him,” Youngman told the court. “We’re concerned Robert White will feel emboldened to build large-scale developments and other property owners, who think they don’t have to follow the rules either, will do it too.” 

Elizabeth City and Pasquotank County are flood prone. High waters from Hurricane Matthew in 2016 damaged at least 475 homes in Pasquotank County, according to state records.

State climate scientists project the frequency and intensity of high tide flooding and sea level rise will be especially acute in the northeastern part of North Carolina. By mid-century, in Duck, which is on a barrier island less than 50 miles east of Elizabeth City, relative sea level rise is expected to increase by nearly 2 feet, state documents show.

“People built houses 100 yards from the shore and everybody had a good time,” Judge Boyle told the attorneys in open court. “Now those houses are 25 yards into the ocean.”

In his ruling, issued last week, Boyle called the foundation’s arguments “unpersuasive.”

The Pacific Legal Foundation declined to comment on whether it would appeal the decision to the Fourth Circuit Court of Appeals in Virginia.

Paige Gilliard, an attorney with the Pacific Legal Foundation, told Inside Climate News in an email, “We are disappointed with the court’s ruling. The Supreme Court was clear in Sackett that federal jurisdiction over wetlands requires both a continuous surface connection and indistinguishability from jurisdictional waters.”

Meanwhile, White is fighting a separate civil enforcement case in which the EPA alleges he damaged 12 acres of wetlands on his property near Elizabeth City without a permit. 

In 2018 a federal investigation found White had built nearly a half mile of bulkheads, without authorization, in open water and forested and marsh wetlands near the Pasquotank River and Big Flatty Creek. White then allegedly filled in protected wetlands behind the structures with sand. 

The river and the creek feed the Albemarle Sound. 

White allegedly refused to remove any fill material from the wetlands or to restore the areas damaged by the bulkheads, according to court documents.

White has denied any wrongdoing, claiming he had received federal and state permission for the activity in 2015.

That case has yet to go to trial.