On September 11, 2025, the North Carolina Environmental Management Commission, which oversees the adoption of rules for protecting and preserving state natural resources, voted to update its definition of “wetlands.”[1] The updated state definition comes approximately two years after the United States Supreme Court held in Sackett v. Environmental Protection Agency that the Clean Water Act’s (CWA) definition of “wetlands” applies only to waters of the United States with a “continuous surface connection to permanent navigable waters,” thereby excluding vulnerable isolated wetlands like pocosins and cypress domes.[2] Notably, Sackett limited both the meaning of “waters” in the CWA to encompass “only those relatively permanent, standing, or continuously flowing bodies of water” and the Environmental Protection Agency’s (EPA) ability to promulgate additional protections.[3]
Federal agencies, including the EPA, are responsible for addressing and prohibiting wetland degradation.[4] The CWA is the primary authority for accomplishing this goal; it protects wetlands by requiring a person who plans to place, dredge, or fill material in a wetland to first obtain a permit from the Army Corps of Engineers (USACE).[5] Prior to Sackett, the CWA had been a “landmark” piece of legislation protecting wetlands from residential and commercial development.[6] To receive federal protection from development post-Sackett, a wetland must now be directly adjacent to a traditionally navigable body of water or a permanent body of water that connects to a traditionally navigable water.[7] In effect, this narrowed definition protects only wetlands with a continuous and indistinguishable surface connection to traditional navigable waters.[8] Furthermore, the Sackett definition prevents the EPA from extending federal protection to isolated wetlands, like Carolina bays, which lack clear surface-water connections.[9]
Role of State Definitions
Where federal law ends, states are responsible for enacting additional wetland protections, for example, to protect “isolated and non-federally jurisdictional wetlands.”[10] The North Carolina Farm Act of 2023 (Farm Act) limits state definitions of “wetlands” to essentially those enshrined in the CWA and thus subject to federal protection.[11] The Farm Act was not the first attack on protected wetlands in North Carolina—in 2015, for example, the state legislature modified North Carolina’s Isolated Wetland Rule to “substantially reduce the number of wetlands that require permits” for development.[12] Though supporters of the definition change point out that the North Carolina Department of Environmental Quality has followed the Sackett rule since June 2023, North Carolina’s decision to formally adopt the Sackett rule has faced criticism from opponents concerned about “the loss of wetland protection in North Carolina.”[13] Julie Youngman, a senior attorney at the Southern Environmental Law Center, commented that North Carolina’s decision contradicts other states’ decisions to strengthen wetland protections in Sackett’s wake.[14] Surprisingly, North Carolina is the sole southeastern state that applies the new “wetlands” definition as of April 2025.[15] To that end, Youngman said, “it’s concerning that the General Assembly in North Carolina chose . . . to [create a bigger gap in wetland protections] by declaring wetlands that were previously protected under North Carolina law.”[16]
Environmental Concerns and Impact
Other criticisms reflect environmental concerns. 2.5 million acres of North Carolina wetlands now lack state and federal protection.[17] Given a lack of protection at the federal and state levels, North Carolina’s wetlands are becoming increasingly vulnerable. An estimated 22,000 acres of North Carolina wetlands were lost between 2001 and 2016, mostly in the eastern North Carolina coastal plain.[18] Primary drivers for development include drainage for agriculture and forestry, road development, urbanization, and logging.[19] Future wetland development in North Carolina must be considered in the context of the state’s population growth: according to a report published by the University of North Carolina in June 2023, North Carolina’s population increased by 1.3% from 2022 to 2023, with much of the state’s population growth clustered in the Research Triangle and coastal regions.[20] For example, the populations of coastal Brunswick and Pender counties grew by 5.7% and 4.2%, respectively.[21]
Additional concerns reflect possible impacts on flood resilience, wildlife habitats, and pollution, especially in the face of a warming climate. Wetlands serve vital functions for flood mitigation, carbon sequestration, and coastal protection.[22] Wetlands limit flooding damage by behaving like “sponges” during periods of heavy rainfall and absorbing water that would “otherwise rush downstream to flood communities.”[23] Even small losses of wetland coverage have outsized impacts: in North Carolina’s hurricane-vulnerable coastal regions, each square kilometer of preserved wetlands saves approximately $1.8 million in property damage as of 2022.[24] Furthermore, more than 70% of endangered and threatened species depend on wetlands for their survival, as do North Carolina industries like fishing and trapping and popular hobbies like birdwatching and photography.[25] In addition, fewer protections of wetlands could “impact the water filtration service that they naturally provide,” leading to possible increases in drinking water and habitat pollution.[26]
In the future, determinations of what wetlands are and are not protected by the CWA will require officials to define the meaning of a continuous surface connection; however, accomplishing this goal may become both complex and unworkable in practice.[27] Developers’ and state officials’ analysis must shift to focus on “observable unbroken surface connections.”[28] Studies conducted by scientists, including hydrologists from the North Carolina Department of Environmental Quality, reveal that even geographically isolated wetlands actually connect to other bodies of water, even though those connections “aren’t necessarily visible because they happen underground.”[29] For example, a wetland separated from a tidal creek by a man-made embankment may no longer qualify for federal and state protection, “even if it floods at high tide.”[30] Thus, the Sackett definition, and therefore the new state-level definition, may prove unworkable going forward, even beyond putting North Carolina’s vulnerable wetland ecosystems at risk. For now, the new rule is set for legislative review by the North Carolina Office of Administrative Hearings in 2026 and eventual EPA approval.[31]
[1] Christine Zhu, NC Environmental Management Commission votes to update ‘wetlands’ definition, NC Newsline (Sept. 12, 2025), https://ncnewsline.com/2025/09/12/nc-environmental-management-commission-votes-to-update-wetlands-definition/; Environmental Management Commission, N.C. Dep’t of Env’t Quality, https://www.deq.nc.gov/about/divisions/water-resources/water-resources-commissions/environmental-management-commission (last visited Oct. 31, 2025).
[2] Zhu, supra note 1.
[3] Sackett v. EPA, 598 U.S. 651, 671 (2023).
[4] Jack Kurki-Fox et al., The Status and Trends of Wetland Loss and Legal Protection in North Carolina, NC State Extension Publ’ns (Mar. 14, 2022), https://content.ces.ncsu.edu/the-status-and-trends-of-wetland-loss-and-legal-protection-in-north-carolina#.
[5] Id.
[6] Kurki-Fox et al., supra note 4.
[7] Amy P. Wang, Navigating Wetlands in Coastal North Carolina Real Estate Development, Ward And Smith (Apr. 25, 2025), https://www.wardandsmith.com/articles/navigating-wetlands-in-coastal-north-carolina-real-estate-development.
[8] Wang, supra note 6.
[9] Kurki-Fox et al., supra note 4; Wang, supra note 6.
[10] Kurki-Fox et al., supra note 4; Jennifer Allen, Commission set to further curb state wetlands protections, Coastal Rev. (Mar. 11, 2025), https://coastalreview.org/2025/03/commission-set-to-further-curb-state-wetlands-protections/.
[11] Wang, supra note 4.
[12] Kurki-Fox et al., supra note 4.
[13] Zhu, supra note 1.
[14] Id.
[15] Wang, supra note 6.
[16] Zhu, supra note 1.
[18] Kurki-Fox et al., supra note 4.
[19] Id.
[20] Lisa Carlson, Most growth in Triangle and along NC’s coast, Carolina Demography (June 1, 2023), https://carolinademography.cpc.unc.edu/2023/06/01/most-growth-in-triangle-and-along-ncs-coast/.
[21] Id.
[22] Kurki-Fox et al., supra note 4.
[23] Zhu, supra note 1.
[24] Id.
[25] Wetlands, N.C. Dep’t of Env’t Quality, https://www.deq.nc.gov/about/divisions/coastal-management/estuarine-shorelines/wetlands (last visited Oct. 29, 2025).
[26] Zhu, supra note 1.
[27] Wang, supra note 6.
[28] Id.
[29] Lisa Sorg, Wetlands are the “memory” of our landscape. When they are lost, so are our stories., NC Newsline (Aug. 25, 2023), https://ncnewsline.com/2023/08/25/wetlands-are-the-memory-of-the-landscape-when-they-are-lost-so-are-our-stories/.
[30] Wang, supra note 6.
[31] Zhu, supra note 1.
