PHOENIX (Mar. 16, 2015) Last week, the Arizona House passed a bill that would help block unilateral EPA rules over “nonnavigable intrastate waters or waterways.” The vote was 34-24.
Introduced by State Rep. Bob Thorpe (R-6) on Feb. 9, House Bill 2055 (HB2055) reads, in part:
The Governor of this state must approve and the President of the Senate and the Speaker of the House of Representatives must be notified of state use of personnel or financial resources to enforce, administer or cooperate with the changes proposed by the United States Army Corps of Engineers and the United States Environmental Protection Agency.
In effect, passage would create a blanket ban on the use of state personnel and resources to effectuate newly proposed rules that attempt to control all waters in the state, even those that have nothing to do with interstate transportation or commerce.
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.
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.
“They just don’t have the manpower to carry out all their so-called laws,” said Mike Maharrey of the Tenth Amendment Center. “By withdrawing state-level resources and enforcement, it makes it almost impossible for the feds to carry out what they want to do.”
In a discussion on similar bills last year, Judge Andrew Napolitano agreed, suggesting that even a single state withdrawing all enforcement and resources would make federal laws “nearly impossible to enforce.”
HB2055 now moves to the state Senate, where it must first pass through a yet-to-be-assigned committee before the full Senate can consider it.