State Constitutional “Water is Life Amendment”

Summary

This draft model policy would amend an individual state constitution to reaffirm that the US Constitution was intended to reserve exclusive jurisdiction over non-navigable intrastate waterways to the state in which the waterway is located.

Model Policy

Article 1. Title.

This article is known as the “Water is Life Amendment.”

Article 2. Policy and Purpose.

A. The Constitution of the United States is the supreme law of the land to which all government, state and federal, is subject.

B. The Constitution of the United States was meant to reserve to the States exclusive jurisdiction over their respective non-navigable, intrastate waters and waterways except as expressly delegated to the federal government by the Constitution or prohibited by it to the States.

C. The federal government’s power to regulate navigable waters cannot constitutionally reach non-navigable, intrastate waters and waterways that have no significant connection to navigable waters.

D. No enumerated power of the federal government may be applied constitutionally to threaten the continued existence of any State as an autonomous sovereign body.

E. For over one hundred fifty years, Congress generally adopted a principled deference to the States’ exclusive jurisdiction over their respective non-navigable, intrastate waters and waterways, especially in the field of water law.

F. The continued existence of the States, including the State of ______, as autonomous sovereign bodies requires such exclusive jurisdiction over their respective non-navigable, intrastate waters as is necessary and proper to ensure that adequate water supplies are available, developed, maintained and delivered to protect their tax bases, as well as public health and safety.

Article 3. Denial of State Personnel and Resources and Prohibition of Unconstitutional Acts.

A. To preserve the checks and balances of the Constitution of the United States, this State herewith exercises its sovereign authority: 1) to prohibit any federal agency or official from enforcing any federal regulation that purports to regulate non-navigable, intrastate waters or waterways within the boundaries of this State unless such regulation is clearly and manifestly authorized by federal law; and 2) to prohibit itself, 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 non-navigable, intrastate waters or waterways unless a showing is first made in the courts of this State, based on clear and convincing evidence and without deference to any administrative determination, that such regulation is absolutely necessary to the exercise of powers expressly delegated to the federal government by the Constitution of the United States.

B. This Article is enforceable in equity in the courts of this State by any taxpaying resident without fee, expense or cost-shifting to the State.

C. If any phrase, clause, sentence or provision of this Article, or the applicability of such, is held invalid for any reason by a court of competent jurisdiction, such phrase, clause, sentence or provision shall be severed and held for naught, and the validity and applicability of the remainder of this Article to any government, agency, person or circumstance shall not thereby be affected.

Approved by the ALEC Board of Directors on October 11, 2014.