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Wetlands Protection

Position: NCCBI recognizes the value of wetlands and wetlands protection. However, the 401 certification rules adopted by the North Carolina Environmental Management Commission (EMC) needlessly complicate the existing 404 permit program regulating this resource. The rules create a new permit program that will significantly increase the cost of construction projects in North Carolina. In addition, as recognized by the Rules Review Commission, the rules are beyond the lawful authority of the EMC.  Moreover, classification of wetlands as a separate water body has created some unintended regulatory consequences. The classification of wetlands as a separate water body has created a situation where activity in wetlands perforce violates water quality standards effected by otherwise lawful activities. The regulated public now faces a dilemma of being considered as violating water quality standards for wetlands if a lawful activity is undertaken which affects the “uses” of a classified wetland, even though there was no activity in the wetland, and no permit required. NCCBI favors implementation of the State’s Section 401 water quality certification program by focusing exclusively on water quality standards, as required by federal law, rather than implementing a new and separate wetlands permitting scheme, as the State has done.

Explanation: The United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (COE) jointly administer Section 404 (permits for the deposition of dredged or fill material into waters of the United States) of the Clean Water Act. Partly due to the administration of the program by two different federal agencies, the increasing complexity of the program, and the fact that the program's scope has expanded dramatically in recent years, the current regulatory program is confusing to the regulated public. The wetlands rules adopted by the EMC over the objection of the Rules Review Commission further complicate the area by, in effect, creating a new State permit program. Additionally, the EMC's permit program establishes rigid and burdensome mandatory mitigation ratios that will result in significantly increased costs for projects involving wetlands. The rules will make it more difficult, time consuming and costly to site new industries, expand existing facilities, construct needed highways, and conduct community development activities throughout North Carolina. Also , the rules will add significant administrative costs to an already overburdened state government. The General Assembly has not delegated authority to the EMC to establish a permit program for wetlands activities, nor is such a delegation necessary, given the exercise of authority in this area by the COE and EPA.

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