Memo Details How Trump Will Rein In EPA’s Control Over ‘Ephemeral Streams,’ ‘Ditches’

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Michael Bastasch DCNF Managing Editor
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The Trump administration will roll back an Obama-era regulation that extended federal control over U.S. waterways, including over “ephemeral streams” and “ditches.”

“The previous administration’s 2015 rule wasn’t about water quality. It was about power – power in the hands of the federal government over farmers, developers, and landowners,” reads a draft Environmental Protection Agency (EPA) memo obtained by The Daily Caller News Foundation.

The draft memo lists Trump administration talking points for why the Obama administration’s rule to expand the definition of “waters of the United States” needed to be rewritten. The document also contains key changes made to the WOTUS rule.

“Excludes ephemeral streams and related features,” reads the document, adding that only waters wetlands “physically and meaningfully connected to other jurisdictional waters” will fall under federal control.

“Ephemeral streams” are those that form only after lots of rainfall, which is a feature of many streams in the U.S. southwest. Former President Barack Obama’s EPA wanted to regulate those under the Clean Water Act.

U.S. EPA Acting Administrator Andrew Wheeler addresses staff at EPA Headquarters in Washington

U.S. Environmental Protection Agency Acting Administrator Andrew Wheeler addresses staff at EPA headquarters in Washington, U.S., July 11, 2018. REUTERS/Ting Shen

The WOTUS rewrite also “[s]uts most ditches from unnecessary federal regulation” and “[e]liminates the use of subjective tests to determine jurisdiction over individual waters,” according to the document.

President Donald Trump signed an executive order shortly after taking office in 2017 asking EPA to rewrite WOTUS in a “manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States” — an opinion that narrowly interprets federal Clean Water Act authority.”

EPA is slated to unveil its proposed WOTUS rollback Tuesday. EPA and the U.S. Army Corps of Engineers share jurisdiction over regulating “waters of the United States.”

The Obama administration issued the WOTUS rule in 2015 to cheers from environmentalists and boos from businesses, farmers, landowners and Republicans. A large contingent of U.S. states sued to keep WOTUS from going into effect, leading to a protracted legal battle.

The Obama EPA and environmentalists argue WOTUS was necessary to clear up regulatory uncertainty caused by two U.S. Supreme Court rulings, and to protect water quality.

EPA Administrator Gina McCarthy speaks during a news conference, accompanied by U.S. Attorney General Loretta Lynch, in Washington

EPA Administrator Gina McCarthy speaks during a news conference in Washington U.S., Jan. 11, 2017. REUTERS/Carlos Barria

Opponents said WOTUS would drastically expand federal control over U.S. waterways, which would only cost landowners thousands of dollars and hamstring development. (RELATED: Chuck Schumer Demands Climate Concessions From Trump On Infrastructure Spending)

Former Utah Republican Rep. Jason Chaffetz issued a report in 2016 that found high-level White House staffers “assured environmentalist groups the Administration would quickly finalize the WOTUS rule.”

That “caused the career staff involved in developing the rule to feel pressure to meet accelerated timelines, which caused deficiencies in the regulatory process,” according to Chaffetz’s report.

A federal judge ruled in August against Trump administration efforts to delay WOTUS, meaning the rule went into effect in 26 states. Rulings by federal judges in North Dakota and Georgia kept WOTUS from going into effect in the remaining 24 states.

EPA did not respond to TheDCNF’s request for comment.

Linked here is the full EPA draft memo.

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