The previous Administration’s executive order that became law earlier last year to “repeal and replace” the Clean Water Act (CWA) is unlikely to have the desired impact of reducing the regulatory burden if the anticipated volume of resulting litigation becomes a reality. Landowners, and the Architectural, Engineering, Construction (AEC), and Environmental Consulting industries must navigate changing regulation in the short term, while anticipating longer-term legal implications of damages created by the removal of environmental protections.
Many states have jurisdiction over waterways that are not protected under the CWA, while others have no state regulations for waters at all, leaving their protection up to the regulations enforced by the US Army Corps of Engineers (USACE). In response to the administration’s changes some states already have assumed, or are considering assuming, regulatory jurisdiction of Waters of the United States (WOTUS). These often-conflicting state and federal regulations can result in confusion and, more importantly, can lead to costly mistakes.
Key questions that the environmental regulatory industry must answer are:
- How do professionals who provide wetland assessments for the purpose of ensuring that construction projects do not impact WOTUS keep up with potentially conflicting federal, state, and local laws?
- As the anticipated number of lawsuits increases (as it undoubtedly will), how will court rulings impact the process of water planning / management, and the future of wetlands?
- What tools are available to help professionals with wetland assessments to both ease the regulatory burden and help ensure the future of wetlands?
This article takes a closer look at the intended and unintended consequences of the rollbacks of the Clean Water Act that went into effect on June 22, 2020, will examine some of the lawsuits that have resulted since the rollbacks were announced last September that may impact the regulations in the future, and will address the role technology will play in easing the burden on AEC and Environmental professionals.
The Intended and Unintended Consequences of the Navigable Waters Protection Rule
Since its inception in 1972, the CWA which protects “navigable waters” from unpermitted pollution, has been criticized by some for its vague definition of “navigable waters” as “waters of the United States” (WOTUS). One intent of the repeal of the Act in October of 2019 and the issuance of its replacement – the Navigable Waters Protection Rule – in April of 2020, was to further define WOTUS in order to reduce the regulatory burdens “that were stifling American innovation and economic development,” according to Andrew Wheeler, administrator of the U.S. Environmental Protection Agency (EPA). Many environmental groups, professional scientists, and landowners argue that this will have a devastating impact on wetlands and other WOTUS.
By excluding twelve categories of water from federal protections – among them, ephemeral features, groundwater, and waste treatment systems – certain wetlands and streams that were previously protected by the CWA are no longer federally protected. In order to stay informed of who has jurisdiction over certain waters, ensure accurate and timely wetland assessments, and present sound planning and engineering outcomes, access to technology to help navigate these changes is critical.
Other Sudden Regulatory Changes
Furthermore, other sudden regulatory changes have been introduced in an attempt to combat the devastating impact that the coronavirus outbreak has had on the U.S. economy, including the EPA’s sweeping relaxation of environmental protection rules in March of 2020. Although intended to ease the burden on businesses facing layoffs, personnel restrictions and workplace changes related to the pandemic, the move puts both wetlands and the jobs of scientists and engineers at heightened risk in the process.
The U.S. Congress continues its talks to address the country’s aging infrastructure as part of an anticipated coronavirus stimulus package in an effort to provide much-needed jobs while taking advantage of low interest rates. The potential for such a sudden boom in construction makes the need for careful planning more immediate, in order to ensure the continued preservation of our nation’s wetlands and their important role in protecting infrastructure and development against the effects of extreme weather events.
Wetlands, which help mitigate the impact of climate change and extreme weather, protect cities from floods, storm surge, and erosion. Without them, surrounding cities will become more vulnerable to extreme weather events. Accurate and timely assessment of compliance with what few regulations remain allow wetlands to continue to play a critical role in climate change resilience.
Environmental Groups (and Others) Pursue Legal Action
Even before the rule’s effective date, environmental groups and others started challenging the Navigable Waters Protection Rule in courts across the country. For example, in Massachusetts, Mass Audubon, the Conservation Law Foundation, and the National Resources Defense Council, along with five watershed groups from around the country, filed a legal action in the federal district court in Boston to stop the repeal.
A federal court judge in Fresno, California temporarily blocked the Trump administration’s efforts to pump more water to the agricultural Central Valley, which critics said would threaten endangered species and salmon runs.
In County of Maui v. Hawaii Wildlife Fund, the U.S. Supreme Court ruled that the CWA must also consider pollutant inputs to those waters by groundwater and observed, “We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.” The Court expects subsequent case law and the EPA to release updated administrative guidance and information with regards to discharges for groundwater, but there is no formal timeline for these actions to occur.
In New Mexico, where the ephemeral, intermittent waterways and wetlands addressed in the new rule define up to 90 percent of the state’s surface water, the rule has been challenged by ranchers and conservation groups alike, but for different reasons. While conservation groups, including the New Mexico Wilderness Alliance, are fighting for stricter protections for streams and wetlands, the New Mexico Cattle Growers Association is arguing for additional rollbacks.
Advances and Solutions for Professionals
While the future of regulations governing wetlands perhaps remains in question, technology will no doubt play a critical role in the future of wetland assessments. As long as the regulations remain in flux and vary by locality, it will be difficult for wetland scientists to keep up. Digital solutions that provide up-to-date, dependable and accurate information at their fingertips is needed.
Traditional environmental field research, including wetland assessments and delineations, has been completed manually, using time-consuming, low-tech tracking methods involving lots of paperwork taken in the field using a pen and paper and later transcribed into PDFs. Equally arduous to the tedious work of data collection is the task of keeping track of and adjusting for changing regulations without automation. However, new tools and technologies to help automate processes and improve the efficiency and accuracy of wetland assessment work continue to emerge.
The US Army Corps of Engineers’ 1987 Wetlands Delineation Manual has long been the federal guide used to identify and delineate wetlands. In addition, the USACE’s Hydrologic Engineering Center (CEIWR-HEC) has since developed various software platforms including the Corps Water Management System (CWMS), a real-time forecasting and decision-support system.
Likewise, since 1969, Esri’s applied computer mapping and spatial analysis products have helped land-use planners and land resource managers make informed decisions. Esri is responsible for the development of many of the GIS mapping and spatial analysis methods that are currently used around the world.
Today, GIS enables scientists to map digital layers in order to help solve a wide variety of problems including, for example, real-time mapping of the coronavirus pandemic. Future GIS technologies will help scientists understand and address similar problems using the language of mapping.
The key lies in getting resources – which help professionals to navigate a changing regulatory landscape – in the hands of scientists in the field, and this is where technology comes in. The Ecobot platform, for example, provides access to a vast library of reference materials and auto-calculates required data used to determine if a parcel of land contains wetlands. Ecobot, an Esri Startup Partner, monitors all regulatory policies impacting wetlands, and keeps its platform up to date. Its latest update, which incorporates Esri’s ArcGIS mapping capabilities into the app, allows map features collected in the field to be dropped directly into ArcGIS Pro, and collected sample data to be georeferenced to locations and correlated to models or external references like the National Wetlands Inventory or soil maps.
Built in collaboration with customers to thoroughly optimize the entire workflow, the Ecobot wetland delineation app significantly reduces the time it takes for wetland delineations, while improving accuracy. The mobile app can be used without internet or cellular connection and is easily navigated with muddied hands taking soil samples. The cloud app, built on Amazon AWS, instantly generates USACE-ready project files. Ecobot is used by both the private and public sectors.
As the industry faces an ever-changing regulatory and judicial landscape, the need to equip professionals with tools to reduce workloads and enable real-time decision-making is greater than ever. The net result of technology in wetland delineation work is significant; saving time and money, producing more accurate, error-free results, negating the need for site revisits, giving users a competitive edge, ensuring proper maintenance and protection of wetlands, and enabling economic progress.
Contributed by Lee Lance and Jeremy Schewe PWS, Cofounders of Ecobot.