Unmanned aerial vehicles (UAVs), commonly referred to as “drones,” are rapidly emerging as one of the most versatile technologies of the future. In a world where Amazon promises to deliver packages to your doorstep in under 30 minutes1 and UAVs glide effortlessly across vineyards in the Sonoma Valley, inspecting the latest crop for pests,2 the excitement about UAV technology is warranted.
There are numerous ways in which UAVs can be integrated into construction projects. For instance, UAVs can conduct site surveys and produce 3D models which can be used to create interactive maps of job sites.3 These interactive maps provide owners with a concrete means of measuring job progress and anticipating delays.4 At the sight of the new Sacramento Kings stadium in California, UAVs are utilizing cutting-edge technology developed at the University of Illinois to monitor worker progress and highlight parts of the project that may be falling behind schedule.5 After a project is completed, UAVs can be used to capture aerial marketing footage for use in business development materials.6 As UAV technology advances and gains popularity, some engineers envision a world where UAVs will work alongside people on construction sites, carrying cargo or even assisting with the simple construction tasks such as laying bricks.7
Despite the potential for using UAVs on construction sites, the construction industry has been slow to adapt. According to Frank Galella of Next Generation Aviation, LLC, a New Jersey based commercial UAV company, the industry is still in its infancy phase in terms of its utilization of UAV technology.8 Instead, many jobsites continue to be monitored by stationary cameras.9 These cameras do not provide a site-wide perspective, making progress documentation much more difficult.10 In addition, Galella points out that many project owners are opting to continue dangerous jobsite practices such as suspending workers from structures by harness or utilizing cranes.11 It is much safer and more efficient to utilize UAVs for the inspection of vertical and hard-to-access structures.
I. A Barrier to Integration: The Uncertain State and Federal Legal Landscape
One of the barriers to integrating UAVs into construction projects is uncertainty about the laws regulating UAV use. As of November of 2015, twenty state legislatures have enacted laws which are targeted at a variety of UAV issues.12 Some of the laws, such as Arkansas HB 1349 and California AB 856, prohibit the collection of photographic images or recordings without permission.13 In Louisiana, SB 183 regulates the use of UAVs in commercial agricultural operations,14 and Michigan, New Hampshire, Oregon and West Virginia prohibit the use of UAVs for hunting and trapping.15 None of the state laws currently enacted regulate or prohibit commercial UAV use on public or private construction sites.
In terms of federal regulation, the Federal Aviation Administration (FAA) has a series of stringent requirements for all commercial UAV operators which begin with successfully obtaining a permit to operate under Section 333 of the FAA Modernization Reform Act of 2012.16 Commercial operators are also required to obtain a Certificate of Waiver or Authorization which allows an operator to use a defined block of airspace and includes safety provisions which are unique to the proposed operation.17 The FAA also mandates that the UAV be registered and that it be commanded by a certified pilot.18
It is important to note that federal law governing UAV registration is presently in flux. Critics argue that the approval process takes too long and is too rigorous, thereby providing an unfair competitive advantage to companies that have already obtained approval. On October 22, 2015, the FAA created a task force to explore ways to streamline the registration process in order to ease the burden associated with the current requirements.19 Thus far, the task force’s recommendations have focused on recreational uses, but commercial operators are hopeful that the registration process for commercial UAVs will become less burdensome in the future.
II. Case Study: Passaic Valley Water Storage Tanks
The Passaic Valley Water Commission (PVWC) is a publically owned water purveyor which owns and maintains three water reservoirs in New Jersey; Great Notch Reservoir, New Street Reservoir, and Levine Reservoir.20 The PVWC supplies drinking water to approximately 800,000 people in five counties with a demand of nearly 80 million gallons per day.21 For local residents, the reservoirs provide more than just drinking water. They are a natural refuge for wild animals such as deer and ducks an otherwise bustling part of the state.22
Although this sounds like a serene setting, consider the fact that each of these open reservoirs is holding “finished water.” According to the United States Environmental Protection Agency (USEPA), finished water is “water that has been treated and is ready to be delivered to customers.”23 In other words, the reservoirs are holding water that has already been treated at its source and is now awaiting delivery to customers.
In 2009, the New Jersey Department of Environmental Protection (NJDEP) ordered the PVWC to bring the reservoirs into compliance with the applicable NJDEP regulations and the USEPA regulations for finished water storage.24 Given the open nature of the reservoirs, the most immediate concern for the PVWC is the USEPA’s Long Term 2 Enhanced Surface Water Treatment Rule (LT2 Rule).25 The LT2 Rule seeks to reduce illness linked to parasites that are spread when animals such as ducks and geese defecate in water that is consumed by humans.26 To prevent the spread of disease-causing microorganisms, the LT2 Rule mandates that all uncovered finished water reservoirs be covered or treated to remove contaminants before delivery.27
In response to the NJDEP’s administrative order, PVWC conducted a feasibility study to determine alternatives for each reservoir site.28 Many factors had to be considered in determining the various pathways to regulatory compliance, including power capabilities, minimum storage requirements, construction costs, the presence of archeological resources in the reservoirs, and the location of the reservoirs in areas designated as environmentally and historically sensitive.29 Ultimately, the PVWC determined that the best option for bringing the water system into compliance with the applicable regulations was to drain all three reservoirs and construct six concrete water storage tanks.30
The PVWC’s plan was met with nothing short of public outrage.31 Residents and non-profit organizations complained about destruction of the natural landscape and wildlife safety.32 Critics also expressed concerns about the aesthetics of the water storage tanks and the resulting impact on adjacent property values.33 The controversy-raising project continued to face major opposition and, as a result, the NJEPA relaxed its order to give the PVWC time to gather additional public input and reassess the plan to drain the reservoirs.34
Enter Joseph Getz, a public outreach consultant from JGSC Group, who was hired to oversee a series of public forums and an educational campaign about the project.35 With so much speculation about the aesthetic impact of the water storage tanks and whether they would be visible from surrounding homes and historic parks, Getz recognized the value that UAV’s could bring to the project.36
First, Getz and his team elevated orange weather balloons to the height of the proposed water storage tank at the Levine Reservoir. 37 Next, a camera that was calibrated to provide an image that mimicked the unaided human eye was attached to a UAV.38 Then video footage was recorded at 11 different vantage points in the area surrounding the reservoir.39 Finally, the UAV video footage was posted on the PVWC’s educational website as part of an interactive map for residents.40
Surprisingly, after over a year of public uproar regarding the visual impact of the water tank project, the weather balloons were only visible from 1 of the 11 locations.41 In short, the majority of the objectors who were opposed to the project based on its aesthetics would not be able to see the water storage tanks from their property or from the majority of the surrounding area.
According to Getz, the public attitude toward the project has changed remarkably as a result of the UAV video footage.42 As of November 24, 2015, approximately 4,700 local residents have completed an online survey related to the UAV video footage results, expressing overwhelming support for the construction of the water storage tanks.43 Without the UAV video footage, speculation about the aesthetics of the PVWC project would continue to be a divisive issue.
III. Send in the Drones: Best Practices for Integrating UAVs into Construction Projects
UAVs are here to stay and they will only become more prevalent in the construction industry. Construction attorneys should keep the following best practices in mind when working with clients on projects integrating UAVs:
Confirm that the commercial UAV operator has obtained a Section 333 exemption from the FAA. This information is available to the public on the FAA website. Commercial operators without FAA authorization cannot lawfully operate drones for commercial purposes.
Encourage your client to vet both the UAV pilot and the UAV company to determine if they are a good fit. Your client should go in with a clear understanding of its goals and ensure that the company has the expertise and equipment to deliver the final product the client is seeking.
Review the commercial operator’s insurance policy to determine exposure if there is an accident on the jobsite. Some clients may find that carrying their own insurance protection makes sense as part of its larger risk management plan.
Stay abreast of the evolving State and Federal laws regulating commercial UAV use. The FAA is expected to publish new guidelines for commercial UAV usage in June of 2016.44
1. Brett Molina, “Amazon Unveils New Prime Air Drone Prototypes,” November 30, 2015, available at http://www.usatoday.com/story/tech/2015/11/29 amazon-unveils-new-prime-air-drone-prototypes/76540004/
2. Chris Anderson, “Agricultural Drones,” http://www.technologyreview.com/featuredstory/526491/agricultural-drones/
3. Nick Lavars, “How Drones are Poised to Help Build the Cities of Tomrorow,” March 1, 2015, available at http://www.gizmag.com/drones-building-construction-industry/36306/
5. Will Knight, “New Boss on Construction Sites is a Drone,” August 26, 2015, available at http://www.technologyreview.com/news/540836/new-boss-on-construction-sites-is-a-drone/
6. Katie Kuehner-Hebert, “Flying High: Why the Industry Needs Drones to Get Off the Ground,” April 30, 2015, available at http://www.constructormagazine.com/flying-high-why-the-industry-needs-drones-to-get-off-the-ground/#.VlzLBHarTcs
7. Nick Lavars, “How Drones are Poised to Help Build the Cities of Tomrorow,” March 1, 2015, available at http://www.gizmag.com/drones-building-construction-industry/36306/
8. Telephone Interview with Frank Galella (November 12, 2015)
12. National Conference of State Legislatures, “Current Unmanned Aircraft State Law Landscape,” November 11, 2015, available at http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx
16. Pub. L. No. 112-95, §333
17. Federal Aviation Administration website, September 11, 2015, available at https://www.faa.gov/uas
19. Federal Register, “Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS,” October 22, 2015, available at https://www.federalregister.gov/articles/2015/10/22/2015-26874/clarification-of-the-applicability-of-aircraft-registration-requirements-for-unmanned-aircraft
20. Passaic Valley Water Commission Water Storage Improvements Feasibility Study, available at http://www.pvwc.com/wp-content/uploads/2014/11/Water-Storage-Improvement-Feasibility_Summary.pdf
22. “Woodland Park Residents Fuming Over Planned Water Tanks at Great Notch Reservoir,” April 23, 2014, available at http://newyork.cbslocal.com/2014/04/23/woodland-park-residents-fuming-over-planned-water-tanks-at-great-notch-reservoir/
23. EPA glossary, available at http://water.epa.gov/lawsregs/guidance/sdwa/upload/2009_08_28_sdwa_fs_30ann_glossary_web.pdf
24. Passaic Valley Water Commission Water Storage Improvements Feasibility Study, available at http://www.pvwc.com/wp-content/uploads/2014/11/Water-Storage-Improvement-Feasibility_Summary.pdf
25. Passaic Valley Water Commission website, available at http://pvwcquality.com/
26. EPA website, “Long Term 2 Enhanced Surface Water Treatment Rule Documents,” available at http://water.epa.gov/lawsregs/rulesregs/sdwa/lt2/basicinformation.cfm
28. Passaic Valley Water Commission Water Storage Improvements Feasibility Study, available at http://www.pvwc.com/wp-content/uploads/2014/11/Water-Storage-Improvement-Feasibility_Summary.pdf
31. “Woodland Park Residents Fuming Over Planned Water Tanks at Great Notch Reservoir,” April 23, 2014, available at http://newyork.cbslocal.com/2014/04/23/woodland-park-residents-fuming-over-planned-water-tanks-at-great-notch-reservoir/; Richard Cowan, “Opposition to Passaic Valley Water Commission’s Reservoir Project Gains Steam, September 15, 2015, available at http://www.northjersey.com/news opposition-to-passaic-valley-water-commission-s-
34. Richard Cowan, “Passaic Valley Water Commission Seeking Alternatives to Covering Reservoirs, Will Hold Public Forums,” February 19, 2015, available at http://www.northjersey.com/news/passaic-valley-water-commission-
36. Telephone Interview with Joseph Getz (November 13, 2015)
37. Id.; Passaic Valley Water Commission website, available at http://pvwcquality.com/protecting-views/what-can-been-seen/
38. Telephone Interview with Joseph Getz (November 13, 2015)
40. Passaic Valley Water Commission website, available at http://pvwcquality.com/protecting-views/what-can-been-seen/
42. Telephone Interview with Joseph Getz (November 13, 2015)
44. UAS Task Force/Registration Announcement, U.S. Department of Transportation, available at https://www.transportation.gov/briefing-room/uas-task-force-registration-announcement