After the U.S. Supreme Court took federal jurisdiction off isolated North Carolina wetlands, can the state's Environmental Management Commission step in with its own permit rules, and can it do so on an emergency temporary-rule basis?

Plain-English summary

The Water Quality Committee of the North Carolina Environmental Management Commission (EMC) asked the AG to settle two related questions after the U.S. Supreme Court's January 9, 2001 decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. SWANCC invalidated the Army Corps of Engineers' "migratory bird rule," under which the Corps had asserted federal Clean Water Act § 404 jurisdiction over isolated, intrastate waters (including wetlands) with no surface connection to traditionally navigable waters. The result of SWANCC was that federal permitting no longer applied to those isolated waters, opening a regulatory gap.

EMC's questions: (1) does the EMC have current statutory authority to adopt permit rules for impacts to isolated wetlands and surface waters, and (2) does SWANCC qualify as a "court order" supporting the immediate adoption of temporary rules under N.C. Gen. Stat. § 150B-21.1(a)(5)?

Senior Deputy AG James Gulick and Special Deputy AG Francis Crawley answered yes to both.

Question 1: Does EMC have statutory authority to regulate isolated wetlands?

Yes, based on a straightforward read of North Carolina's broader-than-federal statutory framework.

EMC is an administrative agency, so its authority is derived from and limited by statute (State ex rel. Commissioner of Ins. v. NC Rate Bureau, § 150B-19(1)). The legislature gave EMC permit authority over sources of water pollution, including direct and indirect discharges that violate water quality standards (§§ 143B-282(a)(1)(a), 143-215.1(a)(6)).

The breadth question turns on the statutory definition of "waters" in § 143-212(6): "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." That definition is intentionally broad. It does not use the word "navigable" and does not limit jurisdiction to waters with an interstate-commerce nexus.

SWANCC turned on the federal Clean Water Act's use of "navigable waters" and on the Supreme Court's concern about whether the Commerce Clause supported federal jurisdiction over isolated, intrastate waters. Neither concern applies to the EMC. North Carolina's statute is not limited to "navigable" waters. And the state's regulation of local activities is not constrained by the Interstate Commerce Clause; the state can regulate purely local matters under its general police power. United States v. Riverside Bayview Homes (1985) had already established that wetlands hydrologically connected to navigable waters are within the Clean Water Act; SWANCC narrowed that ruling for isolated wetlands at the federal level, but did not touch state authority.

The state constitutional layer reinforces the statutory authority. Article XIV, Section 5 of the NC Constitution declares: "It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry," including wetlands among the named resources. Faulkner v. New Bern-Craven County Bd. of Educ. (1984) requires statutes to be considered in light of the state constitution and its intent. Reading § 143-212(6) to permit regulation of isolated wetlands serves the constitutional public policy.

Section 143-213(18) defines "waste" to include refuse, sediment, and fill material. Discharging fill into state waters in violation of water quality standards (15A N.C.A.C. 2B .0211, .0220, .0231) is unlawful absent an EMC-issued permit. EMC can adopt rules implementing the § 143-215.1 permit program and charge permit fees (§ 143-215.3(a)). So the substantive authority and rulemaking authority are both present.

The AG also flagged that the EMC's broad wetland rules were already being challenged in N.C. Homebuilders v. EMC (Wake County 99 CVS 11706), pending decision before Judge Donald Stephens. This advisory opinion thus expressed the AG's view, not the courts' eventual ruling.

Question 2: Is SWANCC a "court order" under § 150B-21.1(a)(5)?

Yes. The APA permits temporary rulemaking when, among other grounds, "a court order" requires immediate rule adoption.

The AG broke down the question into three sub-questions: (a) does "court" include federal courts? (b) does it include appellate courts? (c) is a Supreme Court decision an "order" or only a "judgment"?

On federal courts: yes, with no real doubt. The General Assembly's listed temporary-rule bases (recent acts of the United States Congress, recent change in federal budgetary policy, federal regulation) show legislative concern about federal as well as state actions. Reading "court order" to include only state courts would be inconsistent.

On appellate courts: yes. The AG saw "no sense" in distinguishing trial-court orders from appellate-court orders for this purpose. The General Assembly would not have meant to authorize temporary rules based on trial-court orders but not Supreme Court rulings.

On the "order vs. judgment" question: yes, "order" here is broad. The AG acknowledged that some North Carolina cases (e.g., State v. Williamson) distinguish between an "order" (any written direction) and a "judgment" (final determination of rights). But the General Assembly also uses "order" to include "judgments" in other statutes (e.g., § 110-129(1)'s child-support enforcement definition: "'Court order' means any judgment or order of the courts"). For temporary-rule purposes, the legislative intent was flexibility, not technical line-drawing. Stevenson v. Durham requires reading a statute to give effect to its purpose, and the purpose here is to let agencies respond to external events triggering the need for immediate rulemaking.

Smith Chapel Baptist Church v. City of Durham (1999) reinforces the plain-meaning approach. The plain reading of "court order" includes federal court decisions at any level when the public interest requires immediate adoption of a rule.

The SWANCC decision triggered the need: the federal permit program previously covering isolated waters was no longer available, leaving no federal backstop. Until a state permit program was codified, no fill discharges into isolated waters could lawfully occur in North Carolina (because they would violate water quality standards with no permit). That gap was an immediate problem the EMC needed to fix through temporary rulemaking.

The practical takeaway in 2001: EMC could proceed with both temporary and permanent rules establishing a permit program for impacts to isolated wetlands and surface waters. The temporary rules let EMC fill the gap immediately while the permanent-rule process worked through the regular APA notice-and-comment cycle.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The federal wetlands landscape changed substantially after 2001, including Rapanos v. United States (2006) and the Trump administration's 2020 Navigable Waters Protection Rule, and again with the Sackett v. EPA (2023) decision narrowing federal Clean Water Act jurisdiction. North Carolina's state wetlands regulatory framework has been amended several times. Anyone facing a current isolated-wetlands question should consult current state statutes, current federal Clean Water Act jurisprudence, and current EMC rules.

Background and statutory framework

The pre-SWANCC federal-state division. Before SWANCC, the Army Corps of Engineers asserted Clean Water Act § 404 jurisdiction over isolated wetlands through the "migratory bird rule," which treated migratory bird use as a sufficient interstate-commerce nexus. North Carolina's EMC did not duplicate the federal permitting; it issued § 401 water-quality certifications when § 404 permits applied. The federal program was the primary mechanism for isolated wetlands; the state acted in a backup, certification-only role.

What SWANCC changed. The Supreme Court invalidated the migratory bird rule and held that isolated waters lacking a navigable-water nexus are not within Clean Water Act § 404 jurisdiction. After SWANCC, federal § 404 permits no longer applied to those waters. Anyone wanting to fill an isolated wetland in North Carolina had no federal permit option and (until EMC acted) no state permit option either. The result was an enforcement gap and an effective ban on any fill that would violate state water quality standards.

Why North Carolina's water definition is broader. Section 143-212(6) is a creature of state legislative drafting from before the federal Clean Water Act became the dominant framework. The General Assembly used "any . . . body or accumulation of water" without the word "navigable." That choice is meaningful. North Carolina state water-quality jurisdiction is not co-extensive with federal jurisdiction; it can reach waters the federal government cannot.

The state constitutional framework. Article XIV, Section 5 of the NC Constitution was adopted as part of the 1971 constitution revision and made conservation of lands and waters an explicit state policy. The provision lists wetlands among the protected resources. Faulkner v. New Bern-Craven County tells courts to interpret statutes in light of the constitution. Reading § 143-212(6) to include isolated wetlands harmonizes the statute with the constitutional policy.

The EMC's rulemaking authority structure. The General Assembly created EMC and gave it specific statutory powers. Section 143-215.1 sets the permit-authority baseline; § 143B-282 sets EMC's substantive jurisdiction; § 143-215.3(a) authorizes implementing rules and permit fees; § 150B-19(1) requires that all rulemaking trace back to a specific statutory grant of authority. The AG worked through this chain to confirm that EMC had each piece needed to make rules requiring permits for isolated-wetland impacts.

Why the temporary-rule path mattered. APA permanent rulemaking takes months under §§ 150B-21.1 to 21.7. Temporary rulemaking under § 150B-21.1(a) is available when the agency finds that adherence to permanent-rule procedures would be contrary to the public interest and that one of six listed grounds requires immediate adoption. The six grounds include serious unforeseen public-health threats, recent legislative acts, recent budgetary changes, federal regulations, court orders, and State Medical Facilities Plan effective dates. The court-order basis (paragraph 5) was the natural fit for SWANCC.

Why "court order" should include federal Supreme Court decisions. A narrow reading would limit temporary rulemaking to state-court directives. That would be a strange limit, given that the other grounds explicitly include federal acts of Congress, federal budgetary changes, and federal regulations. The AG's broad reading is consistent with the General Assembly's overall design: temporary rules are for responding to external events, including federal events, that change the regulatory landscape.

The pending N.C. Homebuilders lawsuit. The AG noted in a footnote that the EMC's broader wetland rules were being challenged in N.C. Homebuilders v. EMC (Wake County 99 CVS 11706). The case was pending before Superior Court Judge Donald Stephens at the time of this opinion. The AG's advisory analysis would have to coexist with whatever the court eventually held.

Common questions

Q: Did EMC actually proceed with temporary rules after this opinion?

A: The opinion only addressed authority. What EMC did with the authority is a matter of EMC records and rule history, not the opinion itself. The General Assembly later codified an isolated-wetlands framework through statute, and the wetlands regulatory landscape has continued to evolve.

Q: What happens to a developer who wants to fill isolated wetlands today?

A: The 2001 opinion is historical context. Current federal jurisdiction (after Sackett v. EPA (2023)) and current North Carolina rules will determine what permits are required. A developer should consult current state and federal guidance.

Q: Did SWANCC affect federal jurisdiction over wetlands with surface connection to navigable waters?

A: No. SWANCC was specifically about isolated waters. Wetlands adjacent to or hydrologically connected to navigable waters remained within federal jurisdiction under Riverside Bayview. Subsequent cases like Rapanos and Sackett have further refined the federal jurisdictional test.

Q: Could the General Assembly have overruled this opinion by statute?

A: Yes. The General Assembly is the source of EMC's authority and could have narrowed § 143-212(6) or otherwise constrained EMC's jurisdiction over isolated wetlands. Whether the General Assembly took such action is outside the scope of this opinion.

Citations from the opinion

• N.C. Const. art. XIV, § 5
• N.C. Gen. Stat. § 110-129(1)
• N.C. Gen. Stat. § 143-212(6)
• N.C. Gen. Stat. § 143-213(18)
• N.C. Gen. Stat. § 143-215.1(a)(6)
• N.C. Gen. Stat. § 143-215.3(a)
• N.C. Gen. Stat. § 143B-282(a)(1)(a)
• N.C. Gen. Stat. § 150B-19(1)
• N.C. Gen. Stat. § 150B-21.1(a), (a)(5)
• 15A N.C.A.C. 2B .0211, .0220, .0231
• Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 S. Ct. 675, 148 L. Ed. 2d 576 (2001)
• United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S. Ct. 455, 88 L. Ed. 2d 419 (1985)
• State ex rel. Commissioner of Ins. v. North Carolina Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980)
• Faulkner v. New Bern-Craven County Bd. of Educ., 311 N.C. 42, 58, 316 S.E.2d 281 (1984)
• Stevenson v. Durham, 281 N.C. 300, 303, 188 S.E.2d 281, 283 (1972)
• Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 517 S.E.2d 874 (1999)
• State v. Williamson, 61 N.C. App. 531, 532, 301 S.E.2d 423 (1983)
• N.C. Homebuilders, et al. v. Environmental Management Commission, Wake County File 99 CVS 11706 (pending)

Source

• Landing page: https://ncdoj.gov/opinions/rules-requiring-permits-for-impacts-to-isolated-wetlands-and-surface-waters/

Original opinion text

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."

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 Corps'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.

(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.

(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,

James C. Gulick Senior Deputy Attorney General

Francis W. Crawley Special Deputy Attorney General