PHOENIX, Feb. 16, 2015 – Today, an Arizona state Senate Committee approved a measure that would require the state to block any EPA agency regulations over “nonnavigable intrastate waters or waterways.” The vote was 5-1.

Introduced by Sen. Steve Pierce (R-Prescott), Senate Concurrent Resolution 1015 (SCR1015) directly challenges and would effectively nullify new rules over in-state waters issued unilaterally in 2014 by the EPA, and cites new authority in the state constitution approved by voters in 2014 to have the state refuse resources to federal programs outside the scope of the Constitution.

If approved by the legislature, SCR1015 would bypass the Governor’s desk and go to a vote of the People. It reads, in part:

Section 1. A. To preserve the checks and balances of the constitution of the united states, this state hereby exercises its sovereign authority:

1. To prohibit any federal agency or official from enforcing any federal regulation that purports to regulate nonnavigable, intrastate waters or waterways within the boundaries of this state unless that regulation is clearly and manifestly authorized by an act of congress.

2. To prohibit this state, its agencies and all of its political subdivisions from using any personnel or resources to enforce, administer or cooperate with any federal action or program that purports to regulate nonnavigable, intrastate waters or waterways unless a showing is first made in the courts of this state without deference to any administrative determination and based on clear and convincing evidence that such regulation is absolutely necessary to the exercise of powers expressly delegated to the federal government by the constitution of the united states.

The issue at hand is that the EPA and the United States Army Corps of Engineers lack the authority to enforce proposed rules published in the Federal Register titled “Definition of ‘Waters of the United States’ under the Clean Water Act (CWA).

According to the Federal Register, the proposal would involve the following:

The agencies propose to define ‘‘waters of the United States’’ in section (a) of the proposed rule for all sections of the CWA to mean: Traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters,1 or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional ‘‘waters of the United States’’ by rule—no additional analysis would be required.

While interstate waters appear to be a target of the proposed rule, another section was written so broadly that virtually all waters will be under its reach:

In addition, the agencies propose that “other waters” (those not fitting in any of the above categories) could be determined to be “waters of the United States” through a case-specific showing that, either alone or in combination with similarly situated “other waters” in the region, they have a “significant nexus” to a traditional navigable water, interstate water, or the territorial seas. The proposed rule also offers a definition of significant nexus and explains how similarly situated “other waters” in the region should be identified.

Should the legislature and People of Arizona pass SCR1015, any attempt by the EPA to establish authority over nonnavigable intrastate waters will be met with resistance and an effort to block such moves.

In addition, passage would ensure that the state doesn’t use any resources to assist the federal government in such activities. As approved by Arizona voters in Nov. 2014, Prop 122 is now part of the state constitution creating a mechanism to withdraw all state support for federal programs outside the scope of the constitution.

With some studies showing that over 80% of all environmental enforcement actions are handled by states on behalf of the federal government, such a withdrawal of state resources would have a major impact on the EPA’s ability to actually carry out such rules within Arizona. And, coupled with the fact that the Agency employs just over 200 enforcement-agents for the entire country, it’s unlikely that the rule would have any effect in practice should just a few more states follow Arizona’s lead.

SCR1015 now moves to the Senate Rules Committee, where it will need to pass before the full Senate can consider it.

Michael Boldin