Swamp Stomp
Volume 17, Issue 41
As the Trump administration moves forward with an executive order repealing the Obama-era Waters of the United Sates (WOTUS) rule, which clarified and expanded the kinds of bodies of water the federal government is responsible for protecting from pollution, a unique yet little known wetland habitat may be endangered of being eradicated.
Pocosins, meaning “swamp on a hill” in the indigenous Algonquin language, are found from northern Florida to Virginia, though they are particularly concentrated in North Carolina. Unusual compared to other wetlands in that they are not connected to larger bodies of water and are often less than a square acre in size, pocosins are essentially peat bogs elevated on hills above the water table of surrounding ecosystems in the coastal plains of the southeast. Ecologically, they serve as refuges for endangered flora and fauna, such as white-tailed deer, black bears, and alligators, and provide a number of ecosystem services including regulation of the salinity of coastal waters, aquifer recharging, flood and erosion control, and carbon sequestration.
They are also coveted by farmers for their incredibly fertile soil, and as such have been drained to make way for farming and development since the 19th century, resulting in the loss of 70% of North Carolina’s pocosins until state legislation was enacted to protect them in 2001. Since Republicans won a supermajority of the North Carolina legislature in 2012, however, wetlands protections have been largely rolled back in response to the oil and gas, agribusiness, and real estate sectors complaints that compliance with such restrictions unfairly burdens their businesses.
Under the Obama-era WOTUS rule, which has not yet been implemented due to a stay imposed by federal courts, the federal government would have the authority to prevent “navigable waters”, as stipulated by the 1972 Clean Water Act, from being polluted in addition to head waters, tributaries, and certain wetlands, potentially including pocosins.
The rule was intended to clarify the federal government’s authority over certain bodies of water after two Supreme Court decisions regarding water protection in 2001 and 2006 created legal confusion over the jurisdiction afforded by the Clean Water Act’s “navigable waters” clause. The 2006 decision by Justice Anthony Kennedy, favored by the Water of the United States rule, found that any wetlands sharing a “significant nexus” with navigable waters were covered by the Clean Water Act, while a 2001 ruling by late Justice Antonin Scalia determined that the act’s scope only covers “relatively permanent” wetlands.
Opponents of the WOTUS rule argue that it represents an overreach of federal power into the affairs of private landowners, who would be constrained by what they could and could not do on their own property if it happens to contain a wetland covered by Justice Kennedy’s reading of the Clean Water Act. Yet if Scalia’s interpretation is implemented by the Trump administration, not only will a variety of unique wetlands lose federal protection, such as pocosins and many ephemeral streams in western states, but so will a number of tributaries and headwaters that provide drinking water to as many as one in three Americans.
As it currently stands, Mr. Trump’s executive order will not have an immediate legal effect as the WOTUS rule makes its way through the court system, a process that could take longer than Mr. Trump’s first term in office. Yet with its federal protection in legal limbo and minimal protections from the state legislature, it is unclear whether North Carolina’s remaining pocosins will be around long enough to be impacted by the courts’ decisions.
Sources:
- Davenport, Coral. “E.P.A. Moves to Rescind Contested Water Pollution Regulation.” The New York Times. The New York Times, 27 June 2017. Web. 4 October 2017.
- Richardson, Curtis J. “Pocosins: Vanishing Wastelands or Valuable Wetlands?” BioScience. Nov. 1983. Web. 6 October 2017
- Wittenberg, Ariel. “Clean Water Rule: WOTUS rollback seen as death blow for ‘very unique habitat.’ Greenwire. E&E News, 2 October 2017. Web. 3 October 2017.