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Nature organizations are trying to intervene in the case of the Pasquotank man

A raccoon crosses a wetland in Dismal Swamp State Park in northeastern North Carolina.  Photo: NC Department of Water Resources
A raccoon crosses a wetland in Dismal Swamp State Park in northeastern North Carolina. Photo: NC Department of Water Resources

CHAPEL HILL – Environmental groups are seeking to intervene in a federal lawsuit filed by a North Carolina commercial seafood operator that they say aims to virtually eliminate remaining federal wetland protections that were dramatically scaled back last year.

The Southern Environmental Law Center said Wednesday it had filed a motion in the U.S. District Court for the Eastern District of North Carolina to intervene and file a memorandum in the case, which it said could strike down provisions that protect waterways that support fishing, hunting and outdoor recreation. undermine their related economies. The law center represents the National Wildlife Federation and the North Carolina Wildlife Federation.

The case was filed in March by Robert White of Pasquotank County. White is challenging what his attorneys say are illegal provisions in the Environmental Protection Agency and Army Corps of Engineers rulings “to restore his own right to use his own land,” his lawyers said, and to ensure that both agencies adhere to – and courts apply. – the 2023 U.S. Supreme Court ruling that dramatically reduced the Clean Water Act’s protections.

Pacific Legal Foundation, which specializes in property rights cases, is representing White, who plans to operate a sand mine on land he owns adjacent to the river. Pacific Legal said the Supreme Court’s decision requires wetlands to be indistinguishable from navigable waters in order to be regulated. “Land like Robert’s, which does not have this connection to the two waterways, cannot be subject to federal regulation under the Clean Water Act.”

The nonprofit law firm known for its property rights advocacy claims that the Supreme Court’s 5-4 majority opinion in Sackett v. EPA held that the Clean Water Act extends only to wetlands with a continuous surface connection to bodies that ” waters of the United States’. Pacific Legal attorneys had successfully represented Chantell and Mike Sackett in their dispute with the EPA.

“This past term in Sackett, the Supreme Court made clear that the Clean Water Act prohibits the type of regulation of wetlands at issue in Mr. White’s case,” attorney Charles Yates of the Pacific Legal Foundation said in a statement in response at the request of Coastal Review. “That the Clean Water Act only allows for the regulation of wetlands that are ‘indistinguishable’ from covered waters is undisputed. But instead of adhering to Sackett’s rule, the agencies have doubled down and are transparently trying to circumvent the ruling of the highest court in the land. All Mr. White is seeking is a declaration that, according to Sackett, the agencies should no longer regulate his property. The intervenors in this case are dissatisfied with the statute that Congress actually passed and with the Supreme Court’s ruling emphasizing that it means what it says; the proper audience for their complaints is the legislature.”

Pacific Legal said White owns “low-lying,” flood-prone land on Big Flatty Creek and the Pasquotank River. In an effort to make improvements to minimize flooding and for business endeavors including agriculture and sand mining, White became involved in allowing disputes with the EPA and the Corps over the “navigable waters” provision in the Clean Water Act.

According to Pacific Legal, he is facing “crushing civil enforcement actions.”

The Southern Environmental Law Center said the relief the plaintiff is asking for would essentially remove most wetlands from the Clean Water Act.

“A ruling that adopts this extreme view could have devastating consequences for waters in North Carolina and across the country,” said Mark Sabath, senior attorney at the Southern Environmental Law Center. “Wetlands are critical to help protect drinking water supplies, wildlife and fisheries, and our communities from flooding. If the wetlands along our coastal waters, such as Albemarle Sound, are developed and destroyed, communities will be devastated by job losses, wildlife loss and flooding.”

The National Wildlife Federation and the North Carolina Wildlife Federation say the ruling will have major economic consequences. They say healthy fish and wildlife depend on clean water, and that valuable waterways threatened by the lawsuit support fishing, hunting and outdoor recreation, as well as the jobs that sustain those activities. They argue that the clean water that hunters, fishermen and other outdoor enthusiasts expect is a pillar of a $788 billion outdoor recreation industry.

“We care about North Carolina’s water quality and wetlands for both people and wildlife,” said Tim Gestwicki, CEO of the North Carolina Wildlife Federation. “We cannot protect fisheries if the wetlands and streams that feed into the estuaries are polluted or destroyed. We cannot guarantee that critical wildlife habitat will be preserved for fishing, hunting, bird watching and outdoor recreation if wetland protections are weakened.”

The groups say that nearly all of the commercial catch and more than half of the recreational harvest in the Southeast is fish and shellfish that rely on wetlands, and that wetlands provide important flood protection for communities.

“What the plaintiff seeks in this case could make it more difficult to protect wetlands and other waters critical to fish, waterfowl, shellfish and other wildlife, and enable widespread destruction and degradation of those critical waters, together with pollution and flooding. downstream,” said Jim Murphy, senior director of legal advocacy for the National Wildlife Federation. “Strong Clean Water Act protections protect critical wetlands and other waters that support our nation’s wildlife and people.”

White is currently facing a separate federal enforcement action for constructing and filling a bulkhead in wetlands on his property on the Pasquotank River and Big Flatty Creek without a permit. His attorney did not respond to questions about the case.