C+S May 2020 Vol. 6 Issue 5

This year's changes to the Clean Water Act have made the already-challenging work of scientists and engineers in water planning and management exponentially more difficult. Face Challenges with Regulatory Changes to the Clean Water Act Technology to play a key role in solutions By Lee Lance and Jeremy Schewe Engineers and Wetland Scientists

Wetland construction

Questions abound, from jurisdictional issues to definitions and classi- fications, as a result of the "Navigable Waters Protection Rule," which, among other things, removes federal protections from ephemeral wa- terways (temporary bodies of water created by rain or snow). Further complicating the picture is the fact that wetlands assessment work has traditionally been done manually and can be painstakingly tedious. In the past, scientists have had few new technologies at their disposal, and thus work was typically completed using low-tech meth- ods (think clipboards and pens). This led to obvious challenges; work was time-consuming and adjusting for, for example, new regulations, was very difficult. Over the years, more tools and resources have emerged to help scien- tists tackle these challenges, and there is no doubt that technology will play a critical role in the future of wetland assessment work. The "Navigable Waters Protection Rule" Explained In January of this year, the "Navigable Waters Protection Rule" was finalized to redefine "Waters of the United States" (WOTUS). The rule establishes four categories of waters that are to be federally regulated and specifies twelve categories of water that are excluded from fed- eral protections, including ephemeral features, groundwater, and waste treatment systems. The rule further defines "adjacent wetlands" as "wetlands that are meaningfully connected to other jurisdictional waters, for example, by directly abutting or having regular surface water communication with jurisdictional waters" (Source: U.S. Environmental Protection Agency). In short, certain wetlands and streams that were previously protected by the Clean Water Act are no longer jurisdictional. While these changes, some argue, may confer certain benefits to some stakeholders, they are likely to make the overall regulatory picture more

complex in most places. In response to federal changes, for example, some states have promulgated their own regulations and protections or are planning to do so. California, for instance, has enacted its own rules. This, some in our industry have pointed out, may lead to confu- sion; certain bodies of water are now regulated under the jurisdiction of the state and not the federal government, and some may fall under both. Such disparities increase not only the potential for confusion but also the likelihood of costly mistakes. Further, other states may not be fully prepared to adequately replace the regulatory frameworks estab- lished previously by the federal government. Broadly speaking, what is changing as a result of the current regulatory climate is the question of who has jurisdiction over certain waters – the federal government, states, or landowners. The fundamental need for accurate and timely wetlands assessment remains the same to ensure sound and optimal planning and engineering outcomes, and the need for technology to help navigate these changes is even greater as a result. As well as the regulatory changes mentioned above, there is potential for further change as governing bodies react to various developments and market changes. For example, very recently, the EPA announced a sweeping relaxation of environmental protection rules in response to the coronavirus pandemic. The move, a result of an influx of requests from businesses for a re- laxation of regulations as they face layoffs, personnel restrictions, and other problems relating to the outbreak, will undoubtedly impact the jobs of scientists and engineers in the field. How profoundly remains to be seen. However, the job of wetlands assessment must continue; as any structural engineer knows, building on an unstable ground on or near wetlands without proper assessment, planning, and mitigation, can spell disaster. Other Emerging Challenges Sudden Regulatory Changes



may 2020

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