The summer of 2023 was quite the season for the Supreme Court. While most partisan and media attention was paid towards decisions dealing with issues such as affirmative action, student loans, first amendment religious rights, race and voting, and the independent state legislature theory, the Court also handed down two major water decisions as well.
Both decisions exacerbate what is already a common problem in water politics and water law. In my work and courses with students, I discuss the problems of a system of fragmented and outdated institutions for how governments in the U.S. are able to address issues of water, notably how to provide clean and equitable access to water.
First, in a 9-0 decision in Sackett v EPA, (though split 5-4 on rationale), the Court attempted to reconcile a long-standing, fundamental debate about the Clean Water Act of 1972, which states that the Clean Water Act gives the Federal government jurisdiction over “navigable waters of the United States.” Since its inception, courts, regulators, legislators, executives, and private citizens have spent endless resources attempting to figure out what is included in such a statement. For example: Is groundwater included? What about wetlands in and around a lake that crosses state lines?
In Sackett, the Court ignored basics of water science and ecology in ruling that adjacent wetlands to a lake crossing state boundaries may not qualify as navigable waters of the U.S., instead rationalizing that the Clean Water Act is not specific enough in addressing the qualifications of if and how adjacent waters qualify under the CWA.
Second, in Arizona v Navajo Nation, the Court ruled that an 1868 treaty between the Navajo nation (set within the Colorado River Basin) and the Federal government did not include ensuring fair and adequate access to water. The treaty explicitly stated that the U.S. government must set aside a reservation and provide for “use and occupation of the land.”
In a 5-4 decision, in which Justice Neil Gorsuch sided with the liberal wing of the Court, the majority wrote that since the treaty contains ” no language imposing a duty on the United States to take affirmative steps to secure water for the Tribe.”
If water does not fall under the phrase “use and occupation of the land,” what does?
Both rulings illustrate an unfortunate reality of the current era of this Court. Justices are now demanding that the specifics of every possible problem be outlined in any piece of legislation dealing with water. In cash-strapped state legislatures and a regularly stalemated Congress, the justices have successfully made it more difficult for governments to address the most basic provisionary aspect that governments have been historically entrusted with. Taken together, Sackett and Navajo represent a tightening of the straight jacket that currently exists around private citizens and public entities in solving issues of water. Old treaties falling under tighter water restrictions, and hamstringing the one limited piece of federal regulation that Americans have to ensure that the water in their homes is safe.
An overhaul of water policy for a new reality in the United States is ideal, but even if new laws are written it is impossible for legislators to think of every possible scenario that could ever exist when it comes to a resource as vast and necessary as water. Textualism may have its place at times in law, but issues of water become more dire by the year. Time is wasting, and courts simply move too slow to be the institutions that are entrusted with fleshing out water. For example, Sackett took almost 16 years to flesh out from the Sackett’s original CWA violation. Citizens must be able to look to their public officials for problem solving without every word of every statute falling under a snail’s pace of judicial minutiae.