The EPA rejected the state’s reclassification of the Lower Cape Fear as a swamp. So why hasn’t it been repealed?

The Lower Cape Fear is called a river for a reason.

Rivers move. Depending on the weather, and for coastal rivers, the tides, they mosey, rush or swell. Swamps are as still and stagnant as cold soup. While the layperson’s distinction between a river and a swamp might seem obvious, how federal and state officials classify these waterways carries legal implications for their protection. 

Four years ago, the Environmental Management Commission had erroneously, in the EPA’s view, christened a 15-mile portion of the Lower Cape Fear River with a supplemental classification of “swamp.” Although federal regulators eventually overturned the EMC’s rule, it remains in the administrative code. Now the Southern Environmental Law Center has filed a petition with the NC Department of Environmental Quality asking the agency to ensure that the supplemental classification be formally struck; such an action would require DEQ to petition the state Environmental Management Commission.

The SELC is representing Cape Fear River Watch and Waterkeeper Alliance in the action.

SELC attorney Brooks Rainey Pearson said that the firm’s petition for rulemaking would require DEQ both “to stand before the EMC and say what they’re doing” and to “look upstream” at other potential pollution sources — specifically industrialized swine and poultry farms.

DEQ Communications Director Megan Thorpe told Policy Watch that the agency is at the “early stages of evaluating SELC’s petition” and  “is working to evaluate what the correct classification to best protect the Lower Cape Fear River basin should be.”

Policy Watch emailed several EMC members, but they could not be reached for comment. The EMC’s next meeting is in March.

The saga began in 2015 when the EMC, at the behest of upstream industries, added the supplemental classification of “swamp” to a portion of the Lower Cape Fear River in Brunswick and New Hanover counties. The area, primarily classified as a tidal saltwater, extended from the mouth of Toomers Creek to a line across the river between Lilliput Creek and Snows Cut.

At the time, members of the Lower Cape Fear River Program, composed of academics, industry representatives like the Farm Bureau, and local government officials, such as the City of Wilmington and the Cape Fear Public Utility Authority, argued that conditions in that river segment were swamp-like: The water naturally contained low levels of dissolved oxygen and was acidic, a “result of natural draining from wetlands and salt marshes,” according to documents filed with DEQ. 

The supplemental classification and its accompanying  management plan would allow new and expanded industrial sources to discharge certain amounts of contaminants into the river as long as it didn’t degrade the water quality found in a swamp. 

“From a regulatory standpoint, a straightforward way to deal with this issue is to reclassify the area,” a summary report by DEQ (then known as the Department of Environment and Natural Resources, DENR) reads.

It’s true that this segment of the river is ailing. It has been placed on the federal impaired waters list for nearly 20 years, a designation that requires the state to establish a total maximum daily load (TMDL) of pollutants that can enter the waterway. But as opponents — there were 303, including the NC Division of Coastal Management — countered, these inhospitable conditions were not in fact, natural but human made, a consequence of upstream discharges into the river. Industrial sources, whose discharges are federally permitted, weren’t even the main culprit, many opponents said. Pollution from industrialized swine and poultry farms, though, had not been properly considered.

DEQ permits most swine operations under the assumption that they are “non-discharge.” Poultry farms that generate dry litter are “deemed permitted,” and are largely free from oversight unless the agency receives a complaint.

In fact, a 2015 report by then-DENR said the proposed swamp classification would have essentially ignored the role of concentrated animal feeding operations (CAFOs) in polluting the Lower Cape Fear.  “The proposal would have had no effect on traditional agriculture, animal operations and land application,” among other uses, DENR wrote. Nor would the proposal include “language about correcting or reducing pollution, as it is not designed to be a water quality restoration plan.”

The EMC approved the revisions on Sept. 10, 2015, and May 12, 2016, which occurred under Gov. Pat McCrory’s administration. The state did not submit the reclassification to the EPA until nearly two years later, under different leadership. Even under the Trump administration, the EPA ruled the science that ostensibly backed the proposal was insufficient.

In a letter from July 2018, the EPA rejected the reclassification because the documentation “doesn’t meet the state’s existing definition of swamp waters and doesn’t address the technical concerns expressed in formal comments to the state in 2015.” Those comments included questions about conditions that define swamp waters — such as velocity — and how they apply to the segment of the Lower Cape Fear River.

Documents provided by the state, the EPA letter read, do not “provide adequate justification that this segment meets the state’s definition of ‘swamp waters.'” And low levels of dissolved oxygen and acidic water conditions would also be “problematic” for the endangered Atlantic sturgeon, whose habitat includes this part of the Lower Cape Fear River.

“The EPA made the right decision,” said Michael Mallin, science director of the Lower Cape Fear River Program and a research professor of marine biology at UNC Wilmington. He objected to the reclassification on scientific grounds. While it would be difficult for industrial sources — also known as point sources — to further reduce their discharges, Mallin said, the reclassification “didn’t go after non-point sources” — traditional agriculture and CAFOS whose discharges reduce dissolved oxygen levels in the Lower Cape Fear.

As part of a Title VI civil rights settlement, DEQ has stepped up monitoring of groundwater and surface water in areas like the Stocking Head Creek watershed, which is dense with CAFOs and feeds into the Northeast Cape Fear River. DEQ has also met with researchers, Thorpe said, “to discuss potential effects of things that are not naturally occurring, like dredging, as the agency continues evaluating the classification that will best protect the LWCF River basin.”

Without any barrier islands to mute the tides, the Lower Cape Fear is more open to the sea than any other river in North Carolina, Mallin said. The tidal flushing precludes the river from being a swamp. For example, the Lower Cape Fear River’s estuary flushes in about a week; the New River near Jacksonville doesn’t flush for two months.

Rep. Billy Richardson, a Democrat representing Cumberland County, was a primary co-sponsor with Rep. Pricey Harrison of a bill that would have disapproved the EMC rules for the Lower Cape Fear River. He and Harrison, with five co-sponsors, including Republican John Szoka, introduced the bill a year before the EPA did the same. The measure died in the House Environment Committee.

Even though the reclassification is unenforceable, Richardson said, it could be used “to avoid cleaning up the water. To have it remaining on the books creates a mistrust among the public. I believe we can have a great business climate and clean water.”