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Scientific panel with U prof hopes review of Trump water rules gains traction with Biden administration

The report says Trump-era rules erased Clean Water Act protection for more than half of the wetlands in the United States and for 18 percent of the country’s streams.

Wetlands in Robbins Island Regional Park near Willmar.
Wetlands in Robbins Island Regional Park near Willmar.

Bonnie Keeler’s work studying water regulation at the University of Minnesota made her a perfect fit for a panel of scientists that recently reviewed Trump administration rollbacks of water protection rules.

It didn’t hurt that she also lives in the Land of 10,000 lakes, where water is often the sticking point in disputes over development, such as the contentious Enbridge Line 3 oil pipeline in northern Minnesota.

“As Minnesotans who care about water quality, we are forced into these kinds of conversations,” Keeler said.

Bonnie Keeler
Bonnie Keeler
Keeler spent nine months – virtually, of course – working on the rules review under the auspices of the External Environmental Economics Advisory Committee, a nonpartisan board that advises the Environmental Protection Agency and that hopes its work will catch the attention of the incoming Biden administration.

A summary outlining the findings of the report says that the EPA and the Army Corps of Engineers, when the agencies changed Obama-era water rules a few years ago, “used dubious methodology to justify weakening the Clean Water Act.” Among the agencies’ alleged faults, according to the E-EEAC: considering water quality to be only a “local public good” and assuming that states would protect bodies of water that have lost federal protection.

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“The Trump administration makes claims that (de-regulation) is a good investment because it reduces costs and doesn’t really have many negative impacts,” Keeler told MinnPost after the report was released. “Our report says that that is not consistent with the science or with best practices from an economics standpoint.”

The committee released its report in mid-December, about a month before President-elect Joseph Biden, who has vowed to review the rule changes, was slated to take office. The report can be found here.

The power to regulate

In 2019, the EPA and Army Corps of Engineers repealed the so-called Waters of the United States rule, a measure enacted during the Obama administration that clarified which wetlands, streams and other bodies of water would be protected from chemicals under the Clean Water Act.

Under the new policy, dubbed the Navigable Waters Protection Rule, farmers and others no longer need permits to discharge certain substances into some waterways. Farmers, real estate developers and others welcomed the change, arguing that the regulations crafted during the Obama administration were too broad, led to costly permitting and blocked legitimate development.

The E-EEAC was formed in response to the dissolution, in 2018, of a similar panel that had operated for more than 25 years within the EPA.

Its review says that the Trump-era rules erased Clean Water Act protection for more than half of the wetlands in the United States and for 18 percent of the country’s streams. It also rejects Trump administration claims that states will pick of the slack in the wake of federal deregulation, citing, for example, a dearth of state enforcement in the wake of a U.S. Supreme Court ruling that overturned the Migratory Bird Rule in 2001.

David Keiser of the University of Massachusetts Amherst, a co-chair of the E-EEAC, said that the way water flows across borders is too complex to leave regulation to individual states. The Mississippi River, after all, flows between or across many states on its way to the Gulf of Mexico.

In slackening the rules, the Trump administration worked against 50 years of federal environmental regulation, he said. “They are trying to make the argument that states are the better regulators of local goods, such as water quality,” Keiser said. “We argue that that is inconsistent with what we know about hydrology and the connection of waterways.”

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Keiser stressed that the report is an independent review and not a work of advocacy. “(The report) is not trying to provide any kind of a framework for necessarily repealing and replacing the (Trump) rule,” he said, “but it does highlight a number of really questionable things that were done in the analyses.”

James Hewitt, an EPA spokesman, said in a prepared statement that the term “waters of the United States” has led to many definitions and regulatory interpretations over the last five decades.  The Obama administration, he said, added to the confusion by “expanding the reach” of the definition — in part by extending it from waters that can be traversed by commercial vessels to channels that flow only when it rains and isolated wetlands. The new rule, Hewitt said, “along with state, local, and tribal regulations and programs provide a network of protective coverage for the nation’s water resources.”

The value of water

Keeler, an assistant professor in the Hubert H. Humphrey School of Public Affairs, was one of eight scholars who worked on the report. Her work has included the study of “the value of water” in Minnesota, such as how decisions are made about, say, how the state spends its Minnesota Lottery revenue. As she put it: “How do we use that money to get the best benefit?”

Keiser called Keeler one of the world’s foremost experts on the economics of water, adding that “she was certainly a person we wanted on our team.”

For her slice of the project, Keeler looked at the methods the EPA used in valuing clean-water benefits, comparing the agency’s approach with practices used in environmental economics. She got some help from Josh Clement, a graduate student in the Humphrey School who read through federal documents and academic reports. “It was very exciting work, very rewarding work,” he said. “I guess I got to see behind the curtain how the sausage gets made in federal decisions and how it can be wrapped up in easily questionable assumptions.”

He added: “This kind of work is really difficult, and it requires a lot of attention and expertise. And it really highlights the importance of that (expertise) in these federal decisions.”

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The E-EEAC is not the only group to express concerns about the Trump rules, of course; even some EPA scientists objected to the changes. But Keeler said the committee was hopeful its fresh report would gain some traction now that power is shifting in Washington to a new administration. An email to the Biden transition team asking for comment on the report was not returned.

“We hope that the timing of this report is strategic,” Keeler told MinnPost. “We think this is a time to really shed light on the changes – the very significant changes – that have happened under the Trump administration and to pose a path forward.”