Author: Ana Gelevska

On November 18, 2021, the U.S. Environmental Protection Agency and the Department of the Army announced the signing of a proposed rule. On December 7, 2021, the proposed rule was published in the Federal Register. Until February 7, 2022, the comment period is open. This proposal is a breakthrough after announcing the regulatory process in June 2021.      

After EPA signed a proposed rule to scrap the Trump-era rule Navigable Waters Protection Rule (NWPR), authorities appointed the restrictive pre-2015 regulations until they developed a newly revised WOTUS rule. The agencies intend to put back into place the pre-2015 definition of “waters of the United States,” which will be updated in order to reflect consideration of Supreme Court decisions. In comprehensive consultations with states, tribes, local governments, and a broad array of stakeholders, the agencies work in the current implementation and future plan of action regarding the regulation of the WOTUS definition and to establish the geographic scope of federal jurisdiction.

Background

In 2019, the Trump administration repealed the 2015 Waters of the United States (WOTUS) and, in June 2020, replaced it with the new NWPR. The NWPR substantially narrowed the definition of WOTUS that were subject to federal authority under the Clean Water Act. The Trump -rule was the subject of many legal discussions. Soon after the Biden administration took the lead, several federal court rulings vacated the Trump-era rule. On June 9, 2021, the Agencies announced their intention to propose a new WOTUS regulatory definition by following the critical two-step federal rulemaking process. 

The WOTUS definition has undergone many changes over the years. This recent action to scrap the NMPR is the next step towards solidifying the rules that will bring stable implementation of WOTUS. EPA Administrator Michael S. Regan stated: “In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America. Through our engagement with stakeholders across the country, we’ve heard overwhelming calls for a durable definition of WOTUS that protects the environment and that is grounded in the experience of those who steward our waters. Today’s action advances our process toward a stronger rule that achieves our shared priorities.”

“The Army recognizes the importance of our nation’s water resources and the role water plays in our communities across the nation. We remain committed to working with EPA to develop a rule that is informed by our experience and expertise, as well as that of our co-regulators, is mindful of implementation practices, and is shaped by the lived experience of local communities and stakeholders,” said Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham.

Earlier this year, at the House Appropriations Committee hearing, Regan said: “We don’t have any intention of going back to the original Obama Waters of the U.S. verbatim and we don’t necessarily agree with everything that was in the Trump administration’s version as well. We’ve learned lessons from both, we’ve seen complexities in both and we’ve determined that both rules did not necessarily listen to the will of the people.”

EPA officials gained experience and learned many lessons from both versions of the rule over the years. Both approaches have their complexities, and the final conclusion is that both rules did not automatically favor the regulated community and public interests. According to environmentalists, more stringent water regulations are necessary since the Trump administration’s rule allowed smaller bodies of water that flow into larger water sources and thus contaminate the entire water flow. On the other hand, farmers rated the Obama-era rule as too burdensome and overreaching.

Wherever politics is represented, there are two directions and two, in most cases, opposite views on the same topic. As with the EPA’s action decision, both parties expressed their opinion on the WOTUS rule. On the one side, Republicans warn that the rule would frustrate infrastructure. On the other side, Democrats state that the proposed rule paves a way to develop a definition that will provide reliability. Additionally, Democrats believe the new rule will protect nations’ waters and wetlands and, at the same time, will support the economy, public health, environment, agricultural activity and will offer the development of industries that depend on clean water. 

Will there be a completely new WOTUS rule soon?

It remains unclear when EPA will release the new definition for “water of the U.S.” and which wetlands and streams the rule will protect. The predictions are that the new WOTUS rule will be closely related to the 2015 Obama WOTUS rule, unlike the 2020 Trump WOTUS rule. The comprehensive pre-proposal engagement performed by the EPA and the Army is helpful regarding the content of the proposed rule. For that purpose, Federalism and Tribal consultation contributed to the consultation.     

A successful business is almost entirely based on employees equipped with the knowledge and skills necessary to effectively and efficiently perform their daily duties. Technology and rapid technological development have a complete scoring over the workplace methods and strategies. Therefore, both employers and employees need to align their knowledge, skills, values, and abilities. Keeping up with the competition and having an advantage in terms of skilled employees that are motivated and dedicated means providing an opportunity for additional training and development.             

Technological advancement is challenging to keep pace with, and companies are giving their best to use the progress for powerful business opportunities while avoiding potential skill gaps. As a result of the great resignation, the demand for skilled workers is exceptionally high. This is especially risky since quitting is contagious, and losing employees can be fatal for companies of any size and structure. One of the best ways to enhance employees’ knowledge and skills is staff training. Relevant and consistent training improves performance and significantly increases results in the workplace. Despite the high cost of upskilling, staff training is an effective method to invest in the business. Although there is always a chance for the employees to resign, the best way to retain the current employees is to give them the skills they need to succeed elsewhere. The return on investment is immense if it is consistent, and the risk of investing in upskilling and still facing quitting contagion is worth it.      

Upskilling programs are specially created to allow employers to indirectly invest in their business by investing in employees that have the full potential to develop and become the key figure in the business. The upskilling programs encourage the critical thinking and digital acumen essential for future personal and business success in a structured way. Competitive advantage is achieved by expanding the skillsets of employees. Training and development will help employers combat the skills gap and retain their current workforce in the long term. 

The increasingly technology-driven world and the coronavirus pandemic put the businesses in real trouble: everyone competes for top talent. It’s not just a matter of hiring the right employees, but retaining them, as well. The tight labor market became even tighter in 2021, among a post-pandemic rise in demand for better working opportunities. According to the U.S. Bureau of Labor Statistics, between June and August 2021, there were over a million people who moved jobs, while 400,000 were choosing to resign. In September 2021, a record 4.4 million Americans resigned, which is the highest record for nearly 20 years. With the Great Resignation ongoing and employees looking for more rewarding job opportunities, companies must take a step forward and focus on skill development programs.

Employee training and development programs are pivotal for enhancing employee performance. According to a 2019 report published in The International Journal of Business and Management Research, up to 90 % of respondents agreed or strongly agreed that training and development programs improved their job performance. Companies can offer various in-person or online training and development opportunities for upskilling of their employees. When it comes to career and opportunities for continued growth, employers should establish paid apprenticeships that have to learn built-in. Another important thing for workers who want to advance their skills to progress in their careers is the upskilling opportunities not to feel like extra work. By making investments in learning continually, employers are investing in their workers, but it shouldn’t necessarily be considered as means to a predefined goal. 

Let’s talk about careers and opportunities for continued growth in wetland science!

The Swamp School offers a broad range of courses in wetland science and related ecological topics online, in a classroom, in the field, or a combination of all three. Our certifications are recognized as the gold standard in the natural science industry, taught by seasoned professionals with decades of experience in environmental consulting and teaching.

By registering for a select training course, you will gain a practical understanding of wetland rules’ technical and regulatory aspects, stay up to date on changing regulations, and gain the hands-on field experience employers look for.

Earn Certificates Online: Swamp School offers the opportunity to complete training courses from home in as little as a few weeks. You will get professional lectures from various learning modules combined with hands-on field experiences from the wide selection of online classes. Thus, you will grow your skills, industry expertise, and working knowledge of the latest regulatory changes.

What makes Swamp School unique?

The training courses in Swamp School are carefully designed to satisfy the needs of both amateurs and professionals. Regardless of whether you want to upskill or learn about wetlands and related ecological topics, Swamp School took care of the comprehensiveness of classes. We are supportive of the diverse needs of a varied and dynamic business community, and we are offering many opportunities for growth and success.

With our world-class programs, dedicated instructors, and individualized approach, we will help you succeed at the workplace and beyond. Instructors in the Swamp School show enthusiasm, commitment, and high-level teaching skills.

Our clients can take advantage of a broad range of activities, such as hands-on training in the field, direct interaction with the instructor and classmates, uploading data for instructor review and feedback, etc. Additionally, upon successfully completing the class and achieving a grade of 80% or better on the final exam, our clients will receive a certificate recognized by the Society of Wetland Scientists. The Professional Development Hours (PDHs) available for our classes can be used as continuing education credit for many disciplines, including engineers, surveyors, architects, attorneys, geologists, hydrologists, inspectors, and many more.

On November 18, 2021, the U.S. Environmental Protection Agency and the Department of the Army (“the agencies”) made an announcement referring to the signing of a proposed rule to revise the definition of “waters of the United States.” On December 7, 2021, the proposed rule was published in the Federal Register, The Daily Journal of the United States Government. The period for public comments is now open and will close on February 7, 2022. 

As announced on June 9, 2021, “the agencies” expressed their intention to revise the definition of WOTUS. This proposal is described as a critical milestone in the regulatory process by many. The process that includes two rulemakings is expected to protect the nation’s vital water resources and thus support public health, environmental protection, agricultural activity, and economic growth. An EPA declaration described that the 2020 Navigable Waters Protection Rule has destructive impacts on critical water bodies, which was why requesting remand of the 2020 rule. This was supported by a large variety of stakeholders, including states, tribes, local governments, scientists, and non-governmental organizations. 

The agencies explained that the revised definition of WOTUS will be based on the pre-2015 definition. They intended to reflect consideration of Supreme Court decisions. This standard approach would deliberate a stable implementation of “waters of the United States.” At the same time, the agencies will continue to consult with all parties involved in implementing WOTUS and future regulatory actions. The broad array of stakeholders provided extensive feedback and recommendations, which EPA and the Army reviewed. After evaluating all opinions obtained through consultations, pre-proposal meetings, and webinars, the EPA and the Army developed the proposed rule.  

On July 30, 2021, the agencies announced stakeholder engagement opportunities, together with the intent of the agencies to host ten regionally focused roundtables. On this date, the agencies also announced a schedule for initial public meetings. The purpose of these meetings is for stakeholders to present their perspectives on defining “waters of the United States” and implementing that definition. The public meetings were held as web conferences in the period between August and September 2021. On October 13, 2021, EPA and Army encouraged stakeholders to submit nomination letters for a slate of nominees to enter the selection process for one of these geographically focused roundtables.

PRE-PUBLICATION NOTICE: On November 18, 2021, the EPA Administrator, Michael S. Regan, and the Acting Assistant Secretary of the Army (Civil Works), Jaime A. Pinkham, signed the following proposed rule. After signing, EPA has submitted the document for publication in the Federal Register (FR), and it is available solely for the convenience of interested parties. It is important to highlight that this is not the official version of the rule and does not represent an Agency determination or policy for purposes of public notice and comment under the Administrative Procedure Act.  

Background: The Clean Water Act interdicts the discharge of pollutants to navigable waters, defined in the Act as “the waters of the United States (WOTUS), including the territorial seas.” WOTUS is the term used to establish the point source concerning the geographic scope of federal jurisdiction under the Clean Water Act. Since the 1970s, EPA and the Army have defined the term WOTUS, a definition used in the agencies’ programmatic activities.   

President Biden’s Executive Order 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (January 20, 2021) has identified the 2020 Navigable Waters Protection Rule. This administers the federal agencies to carefully review all existing regulations, orders, guidance documents, policies, and actions that were promulgated, issued, or adopted between January 20, 2017, and January 20, 2021.     

Biden administration focuses on making changes, and canceling two environmental rollbacks under former President Donald Trump is another plan of action. Since the Administration finalized the changes under Trump during the last weeks in office, there was little time to make a substantial impact.

One of the rules empowered the officials to deny protections for endangered species in areas that could have a significant economic benefit, particularly more energy development and other activities. The other rule was referred to as the definition of “habitat,” or more precisely, the land and water areas that can be declared as habitat for imperiled plants and animals.     

The most recent developments indicate that the Environmentalists welcome the actions taken by the Biden administration. Namely, there are years of battle: there is a tug-of-war between Democratic and Republican administrations about the implementation of the Endangered Species Act, passed by Congress in 1973.

The U.S. Fish and Wildlife Service and National Marine Fisheries Service made an extensive effort with the Biden administration and suggested to dismiss two Trump-era rules. Namely, the proposal was to undo the regulations that favored industry development to the detriment of the environment. Both, Industry groups and Republicans in Congress consider the Endangered Species Act as an obstruction to the development of the economy. On the one side, it is undeniable that lands and waters are crucial for the survival of the vulnerable species, even though the designation limits mining, oil drilling, and further development.  

The discussion lasted a long time, and the Environmentalists, supported by the Democrats, salute the landmark law and attribute credit for rescuing the American crocodile, gray wolf, and bald eagle. Republicans, on the other side, loudly criticize this law for entangling in lawsuits and land restrictions, as a result of which relatively few species are off the list.     

Trump administration weakened the law’s regulations, and industry groups were satisfied with the economic development. However, changes in the Administration mean changes in the rules. Biden administration referred to adopting the practices that federal wildlife agencies rejected several months ago. Nonetheless, after evaluating and canceling Trump’s rules, Biden administration officials concluded that previous changes limited the government’s advancement of conservation.    

Parks Shannon Estenoz, Assistant Secretary for Fish and Wildlife, stated that by cutting the Trump-era rules, the endangered species law would be “into alignment with its original intent and purpose — protecting and recovering America’s biological heritage for future generations.”

Republican legislators, however, did not remain indebted. The ranking GOP member of the House Natural Resources Committee, Arkansas Rep. Bruce Westerman, considers Tuesday’s move a “tone-deaf” reversal. Republicans have an intention to introduce introducing legislation to make the Trump rules permanent, which is highly unlikely to be realized while Democrats remain in control of the House and Senate.

The two rules which are subject to the discussion came in response to a 2018 U.S. Supreme Court ruling. Namely, the main focus was on the dusky gopher frog – a highly endangered Southern frog when a unanimous court reproached the government for its designation of “critical habitat” for this endangered species that survives in only several ponds in Mississippi.  

What led to this issue was the lawsuit from a timber company, Weyerhaeuser, regarding land in Louisiana that was appointed as critical if the endangered frogs returned there at some point in the future. Trump administration indicated that these changes untie the hands of local governments when they want to build things that will benefit many citizens, such as schools and hospitals. The abovementioned rules allowed potential exemptions to a great extent, including leases and permits to enable energy development, grazing, recreation, logging, and other commercial uses of public lands from private companies.

Noah Greenwald with the Center for Biological Diversity is one of the Environmentalists who encouraged the Biden Administration to reverse Trump’s rules. Noah stated: ”You really can’t save endangered species without protecting the places they live or need to live.”

Lesser prairie chicken, rare dunes sagebrush lizard, and rusty patched bumblebee are a few of the animals potentially affected by the changes ruled by the Trump Administration.

An attorney for the environmental advocacy group EarthJustice, Leinā‘ala L. Ley, stated that further action to revoke the 2019 rule is more than necessary. “Today, the Biden administration took a good first step towards restoring bedrock Endangered Species Act protections to our nation’s imperiled plants and wildlife,” Ley said. “But the Administration needs to work quickly to rescind all the Trump-era rules. The extinction crisis is happening now, not sometime in the distant future. What the Biden administration does now will make the difference between survival and extinction for countless species.”

Wetlands are ecosystems with a fantastic diversity of soil types, vegetation, and water qualities, primarily determined by geographic location and climatic conditions. Some of the most common types of wetlands are floodplains, mangroves, saltmarshes, peatlands, forests, and freshwater marshes. The wetlands are distributed widely across the landscape and are a fundamental constituent of US aquatic resources. Namely, wetlands are significant because these ecosystems filter pollutants from air and soil, store carbon, provide wildlife habitat, and prevent flooding. Additionally, wetlands are used locally as recreation areas for boating and fishing, picnic, relaxation, etc. Human activities significantly threaten the existence of wetlands and maintaining these services. Humans take various steps that make life easier and better, such as agriculture and urban development, but at the same time, these actions endanger the wetlands. Also, several natural processes are stressors for the wetlands, such as erosion and flooding, jeopardizing wetlands in the US and the entire planet.

Wetlands usually occur as small isolated patches in mountain meadows and can be found as strips along rivers and streams and as large groups along the southern and eastern coasts of the US. The primary function of wetlands is absorbing runoff and filtering surface water, and in this process, wetlands collect excess sediment, nutrients, and other pollutants. These natural sponges support the ecological processes in the wetlands, such as hydrology, soil, and vegetation development. In order to provide the best results, the area surrounding the wetland needs to be minimally disturbed. Consequently, the “buffering” area surrounding the wetland directly impacts the overall ecological condition of the wetland itself.   

Human activities substantially affect climate change and, at the same time, intensify the stressors. As a result of long-term shifts in temperatures and weather patterns, the occurrence of extreme precipitation and droughts increases, and the sea levels progressively rise. For example, an inland wetland, the Prairie Pothole Region in the north-central part of the US, is the fundamental breeding environment for more than 50 % of North American waterfowl species. In the past, this area has experienced temporary droughts, and if the trend of dry periods continues, scientists predict a dramatic drop in waterfowl breeding grounds. This area is particularly valued for hunting and wildlife viewing opportunities.

Increased sea levels immensely stress the coastal wetlands due to the saltwater invasion (increased salinity), reduced barriers to storm surges, and increased erosion. When the physical conditions in the wetlands change, plants and animals respond to those changes, and not in a positive way. Some local species could become extinct, and others expand their range, thus distressing the balance. By monitoring the plant changes, scientists can notice early warning signs of environmental changes and respond appropriately. Wetlands are an important foundation for many organisms, birds, fish, and people.

Along with natural processes, development and urbanization affect the wetlands. For example, the Louisiana coast has undergone major changes in the last few decades, which resulted in the loss of 1900 square miles of wetlands.

When joined with the predicted erosion rates due to sea-level rise, current levels of wetlands will exponentially decrease. They will no longer serve as natural barriers to flooding during natural disasters, such as strong storm events. 

Despite all efforts, statistical data shows that annually the United States loses about 60,000 acres of wetlands. If you find it difficult to imagine the size of that area – that’s almost equal to 35,000 football fields! What can you do to protect the wetlands? Well, you can start locally with these five simple and yet essential steps!