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FEDERAL AND STATE AGENCIES COORDINATE ENFORCEMENT ACTION IN NORTH CAROLINA AGAINST UNAUTHORIZED WETLANDS ACTIVITIES

Release Date: 07/23/1999
Contact Information: Carl Terry, EPA Press and Media Relations, 404-562-8325

The U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Corps), and the North Carolina Department of Environment and Natural Resources (DENR) are coordinating compliance and enforcement actions to address unauthorized discharges associated with ditching and draining activities in wetlands. These activities have resulted in adverse impacts to waters of the United States, which include wetlands. Between June 1998 and March 1, 1999, DENR estimates that thousands of acres of North Carolina’s critically important wetlands were adversely impacted as a result of these activities.

As a part of this effort, EPA, in cooperation with the Corps and DENR, has issued administrative orders to Nelson McRae of Wilmington, and Bill Cameron and Terry Turner of Mallory Creek Development in Pender County, NC. The orders require restoration of wetlands and compliance with requirements preventing off-site discharges of stormwater or other pollutants to waters of the United States.

“This coordinated enforcement effort will send a clear message that strict compliance with Federal and State regulations that protect wetlands is the rule.” said John H. Hankinson, Jr., EPA Regional Administrator in Atlanta. “It underscores the importance of cooperation and shared interests among all levels of government to protect the environment, enable responsible development to continue, and to maintain the quality of life for residents of coastal North Carolina.”

“Over the past few months, we have jointly investigated illegal ditching and draining of wetlands in North Carolina and have been coordinating enforcement efforts,” Said Bill Holman, Assistant Secretary for Environmental Protection for DENR. “ This cooperative effort helps us to better target violators and seek restoration of these wetlands.”

Currently, EPA is investigating a number of sites where ditching and draining activities may have violated federal law. EPA also is considering appropriate strategies to assist DENR and the Corps in enforcement and wetland restoration efforts. Joint interagency field inspections have been conducted in North Carolina’s southern counties and will continue throughout the coming months to enforce applicable state and federal regulations. DENR, EPA and the Corps will review any unauthorized activities in wetlands to determine the appropriate lead agency for each case. The agencies have committed to share resources and coordinate enforcement actions to increase regulatory effectiveness. Landowners and contractors who conduct unauthorized activities in waters of the United States may be subject to civil and/or criminal penalties.

In June 1998, the District of Columbia Circuit Court of Appeals (D.C. Circuit) in National Mining Association v. Army Corps of Engineers, (NMA) affirmed a lower court’s decision invalidating and setting aside the so-called “Tulloch” rule. Under the “Tulloch “ rule, EPA and the Corps changed the definition of “discharge of dredged material” to include any redeposit of dredged material, unless a permitee could demonstrate that the activity would have minimal adverse effects on waters of the United States. The D.C. Circuit found that EPA and the Corps, by asserting jurisdiction over “any” redeposit, (the fallback of dredged materials into virtually the same spot from which it came), had exceeded their authority under the Clean Water Act (CWA).

The decision did not, however, hold that EPA and the Corps were precluded from regulating all redeposits of dredged material. The D.C. Circuit recognized that sidecasting, mechanized land-clearing and other activities resulting in discharges to wetlands are regulated under the CWA. Aside from section 404 dredge and fill requirements, persons who engage in construction activities (including clearing, grading, and excavation) which disturb five or more acres are required to obtain a federal National Pollutant Discharge Elimination System stormwater permit. In addition, a sedimentation and erosion control permit must be

obtained from local governments or the North Carolina Division of Land Resources for land disturbances of one or more acres.

Since the NMA decision, ditching in wetlands has increased dramatically, most notably in the coastal plain of North Carolina. A number of consultants, developers, and others in the regulated community have incorrectly interpreted the D.C. Circuit’s decision in NMA to allow the ditching and draining of wetlands, even where such activities result in discharges to wetlands or other waters of the United States which require CWA permit authorization. The majority of the sites adversely affected are located near shell-fishing waters and primary nursery areas. Principle concerns in these areas include increased sedimentation, higher turbidity levels, loss of habitat, loss of flood storage, damage to critical estuarine nursery areas and their associated plant and animal life, and an overall reduction in near-shore water quality.

DENR’s new Wetlands Drainage policy, which the state began enforcing on March 1, 1999, and is not affected by the NMA decision, regulates all forms of ditching and groundwater pumping, including construction of ponds in wetlands, ditching in isolated wetlands, rim-ditching, maintenance of existing ditches and ditch expansion. Ditching/draining activities occurring prior to the effective date of the policy may be subject to enforcement action if unauthorized discharges have occurred. Additionally, DENR is authorized to issue NPDES permits and seek enforcement actions under the CWA for illegal discharges that occurred before March 1, 1999.

Wetlands are among the most environmentally beneficial areas in the nation. They include marshes, swamps, bogs, and similar areas that have developed between open water and dry land. They harbor unique soils and plants that provide food and habitat for fish and wildlife. Also, wetlands provide water purification, erosion control, flood control during major storms, water recharge during droughts and dry weather and recreation.

Individuals with questions regarding their activities in this area may contact Scott Gordon, EPA, at 404-562-9741, Dr. Wayne Wright, Corps of Engineers, at 910-251-4511 or Don Reuter, DENR, at 919-715- 4112.