CHARLESON, W.V. (Feb. 19, 2015) – A bill up for consideration in the West Virginia House seeks to nullify new unilaterally-issued EPA rules over “nonnavigable intrastate waters or waterways.”

Introduced by Delegate Larry Faircloth, House Bill 2593 (HB2593) directly challenges and would effectively nullify new rules over in-state waters issued unilaterally in 2014 by the EPA.

The bill cites the Ninth and Tenth Amendments, noting that the regulation of intrastate commerce, including the natural environment as affected by intrastate business, is reserved to the state.

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.

HB2593 would render this provision null and void, arguing that “the regulation of intrastate commerce, including the natural environment as affected by intrastate business, is vested in the states…and is specifically retained by the property owners of the State of West Virginia according to Section 2, Article I of the West Virginia Constitution.”

Any state employee attempting to enforce this proposed rule of the CWA, in violation of HB2593, would be guilty of a felony sentenced to at least one year and one day in prison. It would also require the attorney general to represent any citizen charged with violating the proposed federal rule.

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 West Virginia. 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 West Virginia’s lead.

HB2593 has been assigned to the House Judiciary Committee, where it will need to pass by a majority vote before the full House can consider it.


1.West Virginia. Respectfully tell your Representative to support HB2593. Contact them here.

2. Other states. Contact your state representative or senator and politely demand they introduce similar legislation. You can find their contact information here.

Michael Boldin

The 10th Amendment

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