Bloomberg Law
July 8, 2020, 8:00 AM

INSIGHT: NEPA Suspension, Infrastructure Bill Put Wetlands at Risk

Jeremy Schewe, PWS
Jeremy Schewe, PWS

In 2016, I received a call from the Kentucky Division of Water to help a desperate bottomland Kentucky farmer. Improper, permit-less bulldozing of Waters of the United States (WOTUS)—to make fairways for a golf course—had resulted in erosion and instability. Rains then caused thousands of cubic yards of silt and mud to flood the farmer’s property, burying cattle and causing hundreds of thousands of dollars in damage.

This is an extraordinary example of devastation that results from disregard of regulation but paints a vivid picture of what damages we often cannot see, at least not until the next major storm. So, while recent regulatory moves—threatening both U.S. wetlands and the country’s $370 billion environmental engineering industry—are couched as “cutting red tape,” their ramifications are likely to be both financially and environmentally catastrophic.

Because ultimately, water doesn’t give a damn. It will flow where it will flow.

The U.S. is home to more than 110.1 million acres of wetlands. Their benefits are multifarious. An important buffer from climate change impacts, wetlands control floods much more effectively and efficiently than any floodwall, provide a habitat to nearly one-third of the earth’s endangered species, and have the ability to absorb and store excess carbon from the atmosphere.

However, according to report by the U.S. Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration (NOAA), wetlands are disappearing at a rate of about 80,000 acres each year, and regulatory moves this year threaten to hasten this decimation.

Rollbacks to the Clean Water Act (the definition of WOTUS) coupled with the Trump administration’s recent Executive Order suspending the National Environmental Policy Act (NEPA) are delivering a one-two punch to wetlands and the environmental industry as a whole.

Rollback Removes Protections for Nearly Half of Wetlands

The new definition of WOTUS, proposed in December 2018 and effective as of June 22, removes federal protections from certain wetlands and other navigable waters that were previously protected. The rollbacks remove protections for nearly half the country’s wetlands.

With the executive order suspending NEPA, infrastructure projects may no longer require federal environmental review; and fast-tracking such projects runs the risk of creating costly mistakes like the one faced by the Kentucky farmer described above, resulting in damage to life and property, in addition to increasing the likelihood of litigation.

The impacts of these changes will be far-reaching. Beyond the decimation of America’s wetlands, the devastation to endangered species, and the potential for this to make us all more vulnerable to the impacts of climate change, there are numerous economic and social impacts that remain largely unaccounted for in the government’s rush to “cut red tape.” These include:

  • Negative impacts to the $370 billion U.S. environmental industry, representing almost 3% of the U.S. GDP, and employing hundreds of thousands (environmental engineers, scientists, certain industrial professionals, equipment operators, manufacturers, etc.). These poorly conceived regulatory changes, implemented with haste, inconsistency, and chaos, are throwing the industry into confusion, threatening tens of thousands of jobs and the viability and safety of construction projects around the country.
  • Communities of color and low-income neighborhoods will be disproportionately impacted. Hurricane Harvey’s devastating effect on Houston, for example, disproportionately impacted homes that were built on a floodplain and sold cheaply to lower-income families. Harvey displaced these families and damaged approximately 51,000 of such homes.
  • Protecting wetlands is a burgeoning segment of the carbon offsets industry. Overall, the global carbon offsets market has more than tripled over the last three years. And there is increased interest among investors and corporations seeking carbon offsets in “natural” options that prevent emissions from reaching the atmosphere. As well as acting as a natural buffer from climate impacts, wetlands absorb and store excess carbon from the atmosphere; this affords dual benefits of both carbon capture as well as protection and increased resilience.

The recently announced infrastructure stimulus package unveiled by the House, would, if adopted, provide $500 billion in funding to repair roads, bridges and other critical infrastructure across the country. This push, in the face of an inadequate regulatory framework and protections for our nation’s wetlands, could spell disaster.

As climate change increases the intensity and frequency of extreme weather events and even extreme heat, these events will put added stress on the nation’s aging infrastructure. The resulting damage to infrastructure, homes and communities, insurance losses, litigation and more will reveal the false economy of these “cost savings and red tape reduction” measures. In the long run, these changes will lead to far greater expense to business, society and our planet.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Jeremy Schewe is a professional wetland scientist (PWS) who works in the interchange between people and sensitive habitats via U.S. Army Corps of Engineers (USACE) wetland delineations and 404/401 permits, threatened and endangered species surveys, and botanical inventories. He has also been heavily involved as an expert witness for sensitive and at-risk projects, as well as indigenous and environmental justice projects around the world. He is the chief scientific officer of Ecobot, a natural resources consulting software platform that reduces the time and cost of regulatory compliance while enabling better science.

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