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RE:          EPA-HQ-OW-2011-0880

                Proposed Rule Issued April 21, 2014  US Navigable Waters

by Elaine Willman 7/17/14


INTRODUCTION: Nothing better illustrates the current administration’s intentional thumb-in-the-eye to our Judicial and Legislative branches of government than the above-noted “proposed rule.” The escalating administrative overreaching of EPA and the Army Corps of Engineers is apparently boundless.


As example, only last year, In Tarrant v. Herrmann, the U.S. Supreme Court held very specifically and unanimously that: “The sovereign States possess an “absolute right to all their navigable waters and the soils under them for their own common use.” U.S. Supreme Court No. 11-889, June 13, 2013.  Justice Sotomayor, appointed by President Obama, delivered this opinion for a unanimous Court.


                QUESTION:  How does  the term “absolute authority of the sovereign states” specifically included in the High Court’s ruling regarding navigable waters comport with EPA and the Department of the Army Corps of Engineers proposed rule to redefine “navigable waters of the United States?” Either the States have absolute authority over their navigable waters or they do not.  The High Court says they most certainly do. How many times must EPA be continuously slapped down by the Courts before federal administrative reasonableness breaks through?


                POLITICAL TIMING: It is no surprise that EPA would react to the Supreme Court’s June 2013 ruling by shortly thereafter crafting an 86-page fictional strategy to overturn a judicial ruling by administrative fiat. Before condemning the strong word, “fiat,” note this language within the proposed rule:  “Waters in these categories would be jurisdictional “waters of the United States” by rule——no additional analysis would be required.” (Certainly not the analysis of Congress of the Courts!)


The proposed “redefinition” is closely akin to intentional theft of the authority of the Sovereign States over their waters. Implementation of this rule will immediately neuter States and facilitate such entities as EPA and the Army Corps of Engineers to move immediately past state agencies and directly on to private properties containing so much as a momentary mud-puddle.  Property owners and American citizens expect and are due the U.S. Constitutional protections from such aggressive usurpation of State authority and citizen property rights.


                SECTON C-111, “Interstate Waters:”Regarding this section of the proposed rule specific to Interstate Waters,” the Supreme Court further noted, “Tarrant argues that the Oklahoma laws are unconstitutional restrictions on interstate commerce. We hold that Tarrant’s claims lack merit.”  This federal water compact among the states of Arkansas, Oklahoma, Louisiana, and Texas—approved by Congress— does not supersede Oklahoma statutes that restrict out-of-state diversions of water. How does the proposed EPA Rule propose that a federal “definition” of navigable waters of the United States is not outright “theft” of the “absolute authority” of the sovereign states to their navigable waters and the soils under them?


SYNERGISTIC SINS OF EPA: Combine this rule, should it be unfortunately adopted with the December 2013 EPA Decision, absent any jurisdictional authority from Congress, of creating new Indian jurisdiction in Fremont County, Wyoming. The deadly combination of two really unconstitutional tactics of EPA would neatly confiscate the waters of Fremont County, along with the land. What a nefarious “pilot project” to implement across the country. The combination of federal agencies gone rogue, utilizing the willing pawns of tribal governments will soon wreak havoc across the Western States. Is that the plan?


I am comforted that States are waking up, and thousands upon thousands of citizens being frighteningly impacted by Executive Branch overreaching, are also waking up and speaking up.  I am merely one of them.


Elaine Willman,

Hobart, WI



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