Rules Requiring Permits for Impacts to Isolated Wetlands and Surface Waters

RE: Advisory Opinion: Authority of the Environmental Management Commission to Adopt Temporary and Permanent Rules Requiring Permits for Impacts to Isolated Wetlands and Surface Waters. Dear Dr. Peterson and Ms. Sullins: )

 

You have requested, on behalf of the Water Quality Committee of the Environmental Management Commission, an opinion as to (1) whether the Commission is presently authorized to adopt rules requiring permits for impacts to isolated wetlands and surface waters; and (2) whether the recent decision of the Supreme Court of the United States in the case of Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 148

L. Ed. 2d 576. 121 S. Ct. 675 (2001) provides a basis to adopt rules regulating impacts to isolated wetlands and surface waters as temporary rules under N.C.G.S. §150b-21(a)(5). In our opinion, the short answer to both questions is “yes.”

(1) As an administrative agency created by the legislature, the Environmental Management Commission’s authority is both derived from and defined and limited by statute. State ex rel. Commissioner of Ins. v. North Carolina Rate Bureau, 300 N.C. 381, 269 S.E. 2d 547 (1980);

N.C.G.S. §150B-19(1). The legislature has given the Commission the authority and duty to grant, revoke or deny permits pursuant to N.C.G.S. §143-215.1 regarding the controlling of sources of water pollution, including the direct or indirect discharge of waste to the waters of the State in violation of water quality standards. N.C.G.S. §143B-282(a)(1)(a); §143-215.1(a)(6).

N.C. Gen. Stat. § 143-212(6) provides:

“‘Waters’ means any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek, reservoir, waterway, or other body or accumulation of water, whether surface or underground, public or private, or natural or artificial, that is contained in, flows through, or borders upon any portion of this State, including any portion of the Atlantic Ocean over which the State has jurisdiction.”

[Emphasis supplied] It is hard to imagine a broader, more all-encompassing definition of “waters” than this. That this definition includes “wetlands” is amply supported by the United States Supreme Court’s conclusion that the Army Corps of Engineers acted reasonably in interpreting “waters of the United States” to include “wetlands” adjacent to other “waters of the United States.”United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131-139, 88 L. Ed. 2d 419, 106 S. Ct. 455 (1985). The application of § 143-212(6) to “isolated” wetlands is in no way undermined by the Supreme Court’s recent, narrower ruling in Solid Waste Agency v. United States Army Corps of Eng’rs, 531 U.S. 159, 148 L. Ed. 2d 576, 121 S. Ct. 675 (2001), which rejected the Corp’s regulatory interpretation of the Clean Water Act to include isolated wetlands having no nexus to “navigable” waters. Unlike the federal law, North Carolina’s statutory definition is not constrained by inclusion of the word “navigable.” Nor does the State, unlike the federal government, have constitutional restrictions on the scope of its purely local regulations. Finally, interpretation of § 143-212(6) to permit regulation of isolated wetlands serves to effectuate the public policy of the State to conserve and protect wetlands:

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, openlands, and places of beauty.

North Carolina Constitution, Art. XIV, Sec. 5 [Emphasis supplied] “It is . . . well settled that every statute is to be considered in light of the State Constitution and with a view to its intent.” Faulkner v. New Bern-Craven County Bd. Of Educ., 311 N.C. 42, 58, 316 S.E. 2d 281 (1984).

Waste is defined in N.C.G.S. §143-213(18) to include refuse, sediment and other fill materials. The discharge of fill material into the State’s waters, when done to any significant degree, will violate State water quality standards for both surface waters and wetlands. See, e.g., 15A N.C.A.C. 2B .0211, .0220, .0231. Thus, the discharge of fill material into waters of the State in violation of water quality standards is lawful only when done pursuant to a permit issued by the Commission. In addition, the Commission is authorized to adopt rules implementing the N.C.G.S. §143-215.1 permit programs and to charge permit fees. N.C.G.S. §143-215.3(a). Thus, the Commission is enabled to adopt rules on this subject. N.C.G.S. §150B-19(1).

Therefore, we are of the opinion that the Commission has been granted specific authority by the Legislature to require permits for activities having impacts on isolated wetlands within the State’s definition of waters, which would include filling for purposes of development.¹

(2) The second question to be addressed is whether the recent decision of the Supreme Court of the United States in the case of Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers provides the Commission with a basis under N.C.G.S. §150B-21(a)(5) for the immediate adoption of temporary rules establishing a permit program for regulating impacts to isolated wetlands and surface waters. In Solid Waste Agency, the Supreme Court invalidated the Corps of Engineers’ “migratory bird rule,” which the Corps of Engineers had used as a basis for asserting jurisdiction over isolated, intrastate waters, including wetlands, under Section 404 of the federal Clean Water Act.

Permanent and temporary rules establishing a permit program to regulate impacts to isolated wetlands and surface waters must be adopted using the procedures set forth in Article 2A of the Administrative Procedure Act, N.C.G.S. §150B-21.1 to 21.7. The Administrative Procedure Act allows the adoption of a temporary rule when the agency finds that adherence to the notice and hearing requirements for permanent rules would be contrary to the public interest and that immediate adoption is required by one or more of the following:

(1

A serious and unforeseen threat to the public health, safety, or welfare.

(2)

The effective date of a recent act of the General Assembly or the United States Congress.

(3)

A recent change in federal or State budgetary policy.

(4)

A federal regulation.

(5)

A court order.

¹ The Commission is no doubt aware of the pending lawsuit, N.C. Homebuilders, et al. v. Environmental Management Commission, Wake County File 99 CVS 11706, challenging the EMC’s authority to make its wetlands rules. This case has been argued to Judge Donald Stephens and is pending decision in Superior Court.

(6) The need for the rule to become effective the same date as the State Medical Facilities Plan approved by the Governor, if the rule addresses a matter included in the State Medical Facilities Plan.

N.C.G.S. §150B-21.1(a).

The six listed actions or events that will support the adoption of a temporary rule share the common characteristic of being initiated or triggered by an entity other than the agency adopting the rule. The Supreme Court’s recent decision invalidating the Army Corps of Engineers’ jurisdiction over the discharge of fill into isolated waters is the action or event triggering the need for adoption of a State program for permitting impacts to isolated waters. Until this decision changed the law of the land, the Corps of Engineers’ §404 permit was required before the discharge of fill into isolated waters could occur. The State did not duplicate the federal permitting of discharges in such waters; it only provided certification pursuant to Section 401 of the Clean Water Act regarding the impact on State water quality standards by the proposed activity.

With the Corps of Engineers’ loss of jurisdiction, the federal program that allowed limited filling or alteration of isolated wetlands is no longer available to land owners wanting to develop their properties. The State alone retains jurisdiction over activities impacting isolated, intrastate waters. Until a permit program is codified in the Commission’s rules, no activities involving the discharge of waste into isolated waters in violation of water quality standards can occur in this State. Although the immediate necessity for proceeding with temporary rules is evident, it must be ascertained whether "a court order" under N.C.G.S. §150B-21.1(a)(5) includes a decision of the Supreme Court of the United States.

The "primary rule of statutory construction is that the intent of the Legislature controls the interpretation of the statute." Stevenson v. Durham, 281 N.C. 300, 303, 188 S.E. 2d 281, 283 (1972). That intent is ascertained by "consider[ing] the language of the statute, the spirit of the act, and what the act seeks to accomplish." Id. When the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning. Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 517 S.E. 2d 874 (1999).

We find little difficulty in determining that “court” includes federal as well as state courts, in view of the General Assembly’s concern about federal as well as state acts in this section. It would also make no sense that we can fathom to interpolate a limitation between trial and appellate courts. Why would the legislature make authority to adopt a rule depend on the issuance of an order of a trial court, but not the Supreme Court?

The final query is whether “order” has a narrow or broad meaning. We are aware of at least some circumstances where our appellate courts have distinguished “orders” from “judgments.” For example, in State v. Williamson, 61 N.C. App. 531, 532, 301 S.E.2d 423, (1983), in which there was an issue arising out of different wording between an “order” and the “judgment” entered in the same case, the North Carolina Court of Appeals stated:

“An order is distinguishable from a judgment. [A]n order has been defined . . . as being every direction of a court or judge made in writing and not included in a judgment.” 46 Am. Jur. 2d Judgments § 3 at p. 315 (1969). A judgment is “a final determination of the rights of the parties in an action.” Id. at § 1, p. 314. We hold, therefore, that when there is a conflict between the language or interpretation of an order and a judgment on the same subject matter, the judgment shall control.”

On the other hand, our legislature has used “order” to refer to “judgments” as well as “orders.” See, e.g. N.C. Gen. Stat. § 110-129(1), part of North Carolina’s child support enforcement law which provides this definition: “‘Court order’ means any judgment or order of the courts of this State or of another state.”

With this in mind, it is clear to us that the term “court order,” as used by our General Assembly, is flexible enough to include decisions of the Supreme Court of the United States. It is our opinion that the legislature intended that decisions issued by both State and federal courts at any level provide a basis for the adoption of temporary rules under N.C.G.S. §150B-21.1(a)(5) when the public interest would be served by the immediate adoption of the rule. We can think of no reason that the General Assembly would have intended that temporary rules be permissible as a result of orders as distinguished from judgments or final decisions. Also, since the enumerated bases for adopting a temporary rule include a recent act of the United States Congress, a recent change in federal budgetary policy, and a federal regulation, the legislature must have intended that decisions by federal courts, including the Supreme Court of the United States, would be encompassed within the court orders that support the adoption of temporary rules under N.C.G.S. §150B-21.1(a)(5).

In conclusion, we are of the opinion that the Environmental Management Commission is authorized by statute to implement through rules a program of permits to regulate activities impacting isolated wetlands and surface waters in the State. In addition, it is our opinion that the recent decision of the Supreme Court of the United States invalidating the Army Corps of Engineers exercise of jurisdiction over such isolated waters is a court order under N.C.G.S. §150B-21.1(a)(5) and supports the immediate adoption of temporary rules.

We trust that this advisory opinion will be of assistance to the Commission as it carries out its duties with respect to isolated waters, including wetlands.

Sincerely,

Dr. Charles H. Peterson
Ms. Coleen Sullins
September 5, 2001
Page 6
	James C. Gulick
	Senior Deputy Attorney General
	Francis W. Crawley
	Special Deputy Attorney General
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