*UPDATE* URGENT! Waters of the United States Resolution - FOR ALL STATES

NOTE:  The alert we sent out previously on June 3, 2017 had some bad links, so we’ve corrected them and updated some information in this version (in red font). We’ve also included the resolution for Newton County (see the link a the end of this alert), and we will send the Stone County resolution as soon as it is available. So far, 2 Arkansas counties (Newton and Stone) have passed the resolution.

Dear Arkansas readers and those in all other states,

Government is entirely too intrusive, with many, many burdensome rules and regulations that have been hoisted upon the people of this country, so we are forced to take local action.  This time, it involves our WATER, and we must act immediately! Time is ticking!  It’s imperative that you contact your local officials if you’re concerned about our water rights.  Please see that this resolution gets in the hands of your elected officials of your quorum court, justices of the peace, and county judges before June 19, 2017. (For other states, this would be your county commissioners.)

During his long time in office, Obama signed an Executive Order (EO) turning over all water, including rain, in the United States, to belong to the out-of-control federal government. So, for now, the Environmental Protection Agency (EPA) has TOTAL control over ALL water in the United States. Yes, Obama’s EO was too extreme and went too far!  The National Association Of Counties (NACo) is the lead NON-Governmental Organization for policymaking for state and local government, and according to them, many state and local governments strongly opposedthe broad nature of this rule, in particular, the expansive definition of ditches and the ambiguous definition of tributaries. Remember, we want our elected officials to act courageously based on conviction and perform due diligence in service to the Arkansas residents.

Here is an older article Secure Arkansas wrote back in 2014 warning about this Waters Of The United States (WOTUS) matter: https://securetherepublic.com/arkansas/2014/11/09/high-alert-epa-waters-u-s/

Fortunately, President Trump issued an Executive Order (E.O.) 13778 to reinstate the old rights and to have the rule changed back to the people, but we will need to keep an eye on the new and upcoming definition because the National Association Of Counties (NACo) is a NON-Governmental Organization (NGO) that promotes Sustainable Development policies (Agenda 21/Agenda 2030).  The EPA and the US Army Corps of Engineers (CORPS), through their proposed rule to RE-define the “Waters of the United States”, were implementing the rules and regulations covered in the United Nations’ document “Earth Summit Agenda 21: The United Nations Programme of Action from Rio” (that was the full 300-page plan; here’s a more brief look about that programme) that is covered in Section 2 “Conservation and Management of Resources for Development” and Paragraph 18, 18.1 to 18.90, “Protection of the quality and supply of freshwater resources: Application of integrated approaches to the development, management and use of water resources”. Obama’s proposed EPA rule expanded federal jurisdiction well beyond what was authorized by Congress.

Obama’s Executive Order 13693 (Planning for Federal Sustainability in the Next Decade) forces mankind down a hazardous path which started with regional land and water control under Agenda 21 and is heading us toward worldwide United Nations’ control under Agenda 2030 with 17 gripping global goals. Click here for “Transforming Our World: The 2030 Agenda For Sustainable Development”.

(Also, click here to see a map of how the U.S. has been regionalized.)

A limited definition of “navigable waters” was given by Justice Antonin Scalia in a 2006 opinion. Rapanos v. United States, 547 U.S. 715 (2006), was a United States Supreme Court case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act.

To better understand this, you can CLICK HERE for further information. 

Arkansas is one of the states with a more suitable definition of “navigable waters”. President Donald J. Trump’s Executive Order needs to be rolled back to the definition reflected in Water Law in Arkansas.  The following is from “Water Law in Arkansas” Arkansas Natural Resources Commission 2011, page 37.

In 1822, the Arkansas Supreme Court adopted the criterion that navigability depended on the usefulness of the stream in its natural state as a public highway for carrying products of the fields or forests or transporting articles of commerce to the public (Little Rock, Mississippi River & Texas Railway Co. v. Brooks, 39 Ark. 403 (1882). The test of navigability of a lake is the same as for a stream or river (McGahhey v. McCollum, 207 Ark. 180, 179 S.W.2d 661 (1944).

The federal definition of Navigable waters of the United States is located at 33 CFR 329.4

• 329.4 General definition.

Navigable waters of the United States are those waters that are subject to the ebb (the outgoing phase; when the tide drains away from the shore) and flow (the incoming phase; when water rises again) of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of  navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.

[Red text added for clarity by Secure Arkansas.]
 

The federal definition 40 CFR 230 .3 pertains to the Clean Water Act and waters of the United States. The definition of the Waters of the United States (WOTUS) is very dangerous and overreaching. Under section (o), parts of the definition read as follows:
 

(o) The term waters of the United States means: …

(ii) All interstate waters, including interstate wetlands;

(iv) All impoundments of waters otherwise identified as waters of the United States under this section;

(vi) All waters adjacent to a water identified in paragraphs (o)(1)(i) through (v) of this section, including  wetlands, ponds, lakes, oxbows, impoundments, and similar waters;

(vii) All waters in paragraphs (o)(1)(vii)(A) through (E) of this section where they are determined, on a case-specific basis, to have a  significant nexus to a water identified in paragraphs (o)(1)(i) through (iii) of this section. The waters identified in each of paragraphs (o)(1)(vii)(A) through (E) of this section are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (o)(1)(i) through (iii) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (o)(1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an  adjacent water under paragraph (o)(1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.

(A)Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest.

(viii) All waters located within the 100-year floodplain of a water identified in paragraphs (o)(1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tideline or ordinary high water mark of a water identified in paragraphs (o)(1)(i) through (v) of this section where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (o)(1)(i) through (iii) of this section. For waters determined to have a  significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in paragraphs (o)(1)(i) through (iii) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (o)(1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (o)(1)(vi), they are an adjacent water and no case-specific  significant nexus analysis is required.

ATTENTION!  It is very important for you to get this this resolution to your quorum courts to issue statements on this Water Rights Issue. Please contact EVERY quorum court you can, and get this issue on their agenda to be heard so that statements can be made and sent to the appropriate address provided on the bottom of the page. Your state legislators need to be contacted, also. 

Notice that Trump signed the EO back at the end of February 2017, and the EPA is JUST NOW sending the information out. It looks like they have deliberately STALLED. These statements have to be in by June 19, 2017. Heads up!  Quorum Courts may need to call a special session concerning this threatening water issue.

We’ve linked the resolution here so you can print it off and also included it in the body of this email (directly below).  It’s only one page.

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Resolution 2017-__________________ 

A Resolution of the ___________ County Quorum Court, ____________ County, Arkansas, USA Entitled: Comments to the EPA regarding Presidential Executive Order #13778 pertaining to correcting the definition of “navigable waters” 

WHEREAS, President Donald John Trump has issued on February 28, 2017, an “Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule”; and 

WHEREAS, Section 2 of that Executive Order calls for the review of the 2015 “Clean Water Rule: Definition of Waters of the United States” (as ordered on June 29, 2015 by the Obama administration), and that 2015 rule, because of its far-reaching federal intrusion into historic state and local properties, has been met with much alarm and therefore remains in challenging litigation to the present time; and 

WHEREAS, President Trump’s stated intent is to interpret the term “navigable waters” as defined in 33 U.S.C. 1362(7) (https://www.law.cornell.edu/uscode/text/33/1362), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006); and 

WHEREAS, EPA and the Army Corps of Engineers are accepting substantive comments from state and local governments until June 19, 2017, stating the local county government position on the definition of “navigable waters” (EPA requests that comments be sent in written form to EPA staff at [email protected] ) 

THEREFORE, BE IT RESOLVED BY THE _____________ COUNTY QUORUM COURT THAT we support the Presidential Order pertaining to the making of the “Waters of the United States Rule” consistent with the interpretation of the term “navigable waters” in the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006) (https://supreme.justia.com/cases/federal/us/547/715/opinion.html) https://www.law.cornell.edu/uscode/text/33/1362; thereby rescinding any portion of the 2015 Obama administration rule that is in conflict with the Justice Scalia opinion. 

IT IS THEREFORE RESOLVED ON THIS ______________ Day of the Month of _________________, in the Year of Our Lord, Two Thousand and Seventeen. 

Signed, Sealed, and Filed by the _______________ County Clerk in the Space below: 

and Electronically Forwarded by the County Clerk to the EPA address given above.

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We’ve linked President Trump’s Executive Order 13778 from February 28, 2017 here and included it in the body of this alert directly below.

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Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule

EXECUTIVE ORDER

- – - – - – -

RESTORING THE RULE OF LAW, FEDERALISM, AND ECONOMIC GROWTH

BY REVIEWING THE “WATERS OF THE UNITED STATES” RULE

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.

Sec. 2. Review of the Waters of the United States Rule. (a) The Administrator of the Environmental Protection Agency (Administrator) and the Assistant Secretary of the Army for Civil Works (Assistant Secretary) shall review the final rule entitled “Clean Water Rule: Definition of ‘Waters of the United States,’” 80 Fed. Reg. 37054 (June 29, 2015), for consistency with the policy set forth in section 1 of this order and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law.

(b) The Administrator, the Assistant Secretary, and the heads of all executive departments and agencies shall review all orders, rules, regulations, guidelines, or policies implementing or enforcing the final rule listed in subsection (a) of this section for consistency with the policy set forth in section 1 of this order and shall rescind or revise, or publish for notice and comment proposed rules rescinding or revising, those issuances, as appropriate and consistent with law and with any changes made as a result of a rulemaking proceeding undertaken pursuant to subsection (a) of this section.

(c) With respect to any litigation before the Federal courts related to the final rule listed in subsection (a) of this section, the Administrator and the Assistant Secretary shall promptly notify the Attorney General of the pending review under subsection (b) of this section so that the Attorney General may, as he deems appropriate, inform any court of such review and take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule.

Sec. 3. Definition of “Navigable Waters” in Future Rulemaking. In connection with the proposed rule described in section 2(a) of this order, the Administrator and the Assistant Secretary shall consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,

February 28, 2017.

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Click here to view the Federal Register from Friday, March 3, 2017. President Trump’s Executive Order 13778 starts on page 109 in the 118-page document.

ACTION:  Call, text, and/or email your county judge and JPs (Justices of the Peace) ASAP and get this resolution into their hands. You can simply call your county courthouse for contact information on your county judge or JP.  Click the link below, then scroll down and click your county.  Scroll down on that page, and you’ll see the address and phone number for your county courthouse.

http://www.arcounties.org/counties/

Also, BEFORE JUNE 19, 2017, state and local governments need to submit substantive comments stating the local county government position on the definition of “navigable waters”  to EPA staff at [email protected] . Our elected officials need to require the EPA and U.S. Army Corps of Engineers to withdraw their proposed rule regarding the definition of “Waters of the U.S.”

Thank you for all your help in contacting your quorum court members. Get involved locally!  This needs to be placed on a FAST TRACK IMMEDIATELY!

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NOTE:  Here is some additional information you’ll find valuable:
 

IMPORTANT:  Each county in Arkansas needs to pass this resolution to support President Trump’s Executive Order, if you don’t want the Feds having jurisdiction over every puddle and ditch on your private property.  
 

• On June 29, 2015, Arkansas joined with 12 other States in a complaint against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) challenging a new rule defining the “Waters of the United States (WOTUS).  The Arkansas Attorney General’s lawsuit (filed June 29, 2015) in the United States District Court for the District of North Dakota Southeastern Division (Case 3:15 -cv-00059-PRE-ARS Document 70) was ruled on 8/27/2015 granting plaintiffs’ motion for preliminary injunction against the U.S. Environmental Protection Agency’s (EPA) rule defining “Waters of the United States”. (The injunction puts a temporary hold on the Waters of the United States rule.)

• On September 2016, this happened:  a “Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit” was filed. Click here to read that petition. Please notice on it that there is NO case number assigned.  (If we find out something different, we will let you know.) This is where it stands now.  As of November 8, 2016, there were thirty-one states and several other groups involved in this petition.
   

The general public MUST contact their County Judge, and/or Justice of the Peace and/or County Commissioners IMMEDIATELY BEFORE JUNE 19, 2017 (before the comment period to the EPA closes) to make sure the elected officials are proactive regarding our Water Rights during this window of opportunity!  A special session for the Quorum Court may still need to be called by the JP’s. 

Resolutions have been passed in Newton County and Stone County already.  Please help get them passed in the other counties as well!

As always, you can find our email articles posted on our website: SecureArkansas.com.  The Search box is a handy tool.  For more information about a topic, just type it into the Search box on our website, and click Enter!

And remember:

Securing the blessings of liberty,
 

Secure Arkansas
securetherepublic.com/arkansas
[email protected]

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