As if Arizona’s rivers, lakes, ponds, streams, springs, and arroyos weren’t already struggling enough — with climate change, dwindling allotments from the Colorado River, and ongoing development — now the Supreme Court of the United States holds the power to strip precious desert waterways of federal environmental protections.
On Monday, Oct. 3, the Supreme Court heard arguments in Sackett v. Environmental Protection Agency, a case that could have enormous impact in much of the American West. At stake is how “waters of the United States,” or WOTUS — “that cryptic phrase, strange phrase,” Justice Samuel Alito pronounced during the hearing — are to be defined.
If the Supreme Court sufficiently narrows the definition of waters of the U.S. to exclude washes, arroyos or ephemeral streams, developers and mining companies may take advantage to fill in stream beds, dump pollution and dramatically change the landscape. A restrictive-enough ruling could defang the Clean Water Act, one of the key tools for protecting rivers, lakes and streams.
In Arizona, a ruling that limits environmental protections could mean a blitz of digging and development. Stakeholders in Arizona and much of the American West — including Indigenous nations, environment and water defenders, and others worried about long-term sustainability of the Western deserts — are watching the case closely.
Passed in 1972, the Clean Water Act is the EPA’s primary tool for regulating which and how many pollutants are allowed to be dumped into U.S. waters. It doesn’t prohibit all pollutants — modern civilization is a messy project, and toxins will inevitably leach out of it — but requires a permit and sets guidelines so people and companies can’t just dump whatever they please into waterways.
During the hearing, in a back and forth between Justice Sonia Sotomayor and the Sacketts’ attorney Damien Michael Schiff, the question boiled down to ensuring the “sanctity of our waters” versus “the sanctity of freedom and private property rights.”
Without water, though, freedom and private property rights aren’t much more than interesting abstractions, environmental advocates argue. In a declaration from this April, Tohono O’odham chairman of the San Xavier District, Austin Nunes, commented on the initial grading and clearing in the Santa Rita Mountains, as the mining company prepared to start digging, and its effects for the Earth:
“There is no way to undo these severe harms to the land and water; there is no way to undo these severe harms to who the Tohono O’odham are as a people.”
The government’s lawyer, Brian H. Fletcher, argued in his opening before the justices that extensive research demonstrates the integral part wetlands play in keeping the public’s waterways safe.
“The narrow but important question presented in this case is whether wetlands lose protection if they’re separated from other waters by a barrier like a berm or a road,” Fletcher said. “Overwhelming scientific evidence, and essentially undisputed scientific evidence, shows that those sorts of barriers do not diminish wetlands’ essential role in protecting the integrity of other waters.”
A swamp in Idaho
The original case before the court stems from a 2007 dispute that arose after an Idaho couple, Michael and Chantell Sackett, began dumping gravel and sand into wetlands on their property.
They were hoping to build a home on that converted land, but the EPA stepped in and said they needed a permit. The tiff rose up through the courts and was distilled into the question of what is considered a protected waterway.
The case rose to the Supreme Court once in 2011, with the justices unanimously ruling in favor of the Sacketts in 2012, saying that the law was “notoriously unclear.” The case was then re-litigated, with the U.S. Court of Appeals for the 9th Circuit siding with the EPA in 2021, claiming that water from wetlands the couple was building on was connected to a nearby lake via a tributary and creek and citing EPA documents stating that the wetlands protect the lake’s water quality and wildlife.
That ruling was challenged, and this past January, the Supreme Court agreed to take up the Sacketts’ case yet again and decide whether the 9th Circuit used the proper test to decide whether, in regards to the Clean Water Act, wetlands constitute “waters of the United States.”
The seemingly niche dilemma has broad implications.
“What’s at stake is not only Indigenous communities, but all of us,” Stu Gillespie of Earth Justice said. Gillespie has been representing the Tohono O’odham, the Pascua Yaqui, and the Hopi tribes in their fight to block a major mining operation from destroying their sacred land south of Tucson.
Steering clear of making a prediction on how the court would rule, Gillespie hoped that, “if SCOTUS is truly conservative, it would issue a narrow ruling.” In other words, it wouldn’t redefine government-protected waterways, but simply make a decision about the Sacketts’ house (though they first started building 15 years ago now).
Given the conservative majority on the court, however, and their willingness to overturn long-standing precedent, a ruling could be sweeping in scope.
Splitting hairs, defining streams
A lot of the 90-plus-minute oral argument was spent parsing the meaning of the word “adjacent,” which was also the subject of Justice Ketanji Brown Jackson’s first question as a Supreme Court Justice. It was a historic moment for the U.S.: Jackson is the first Black woman to sit on the bench at the high court.
“But, Mr. Schiff,” Jackson began, “isn’t the issue what Congress would have intended with respect to adjacency and there was a regulation that defined adjacency to include neighboring?”
Does adjacency have to mean immediately adjacent? Is there a touching requirement?
The seemingly elementary questions, asked by multiple justices multiple times and described through multiple analogies and hypotheticals, appeared to reflect the justices’ efforts to get at the heart of whether or not minor waterways, adjacent to navigable waterways, should be protected.
“This case is going to be important for wetlands throughout the country, and we have to get it right,” Justice Brett Kavanaugh said.
The Sacketts’ attorney, while arguing to narrow the scope of protection, said that the “hydrological cycle is unified,” suggesting that limits must be drawn somewhere.
To Gillespie, the advocate with Earth Justice, Schiff is making the critical point that all waterways are ultimately connected, and therefore should be protected. Gillespie isn’t arguing for a ban on all construction.
“You just need to get a permit first,” he said. “The Clean Water Act sets a floor to protect us all, not to block development.”
Sarah Truebe, habitat conservation manager at Sky Island Alliance, says that, if anything, protections for waterways in the West should be strengthened, not limited.
“Especially here in the West, we don’t have many rivers or lakes, except for ones we’ve created,” Truebe said. “But we do have tens of thousands of springs in Arizona alone.” In some cases, those are the only sources of water for wildlife, and are “critically important.”
Truebe added: “You could dump mining waste in a spring and ruin it for 100 years.”
Arizona protecting its own
South of Tucson, Hudbay Minerals has been pushing for decades to try to open a vast mining operation that would decapitate a number of peaks in the Santa Rita mountain range, or Ce:wi duag in the Tohono O’odham language.
These mountains are considered sacred by three separate Indigenous tribes. The proposed mine, which Hudbay is in the preliminary stages of digging, would not only forever change the natural skyline, but would dump hundreds of millions of tons of tailings, the deposits left over from open-pit mines, onto the adjacent land and into washes and creeks.
Stripping protections of these washes wouldn’t necessarily result in a free-for-all for Hudbay, but it would still be a boon for the mining company, and environmental defenders and tribes would lose a key regulatory tool.
“A paradigm shift is required to reach a durable definition,” said Misael Cabrera, director of Arizona Department of Environmental Quality. He explained that the current definition of a protected waterway, which relies on a “significant nexus test” — if the waterway has a significant connection to an established waterway — can be “interpreted expansively.”
In other words, a waterway qualifying as a water of the U.S. depends on the eye of the beholder.
“We need a completely new approach,” Cabrera said. “We believe that ephemeral and intermittent tributaries that impact known WOTUS above their designated use should be protected,” Cabrera told Arizona Luminaria. And given that federal and Arizona laws are not mutually exclusive, state protections, under the State Surface Water Protection Program and a 9th Circuit Court ruling, has resulted in protecting about 37 more waterways in Arizona than would have otherwise been protected.
“If only year-round streams are considered WOTUS, you can dump all your pollution in, and that pollution will eventually make it to Tucson, Phoenix,” said Roger Flynn, director and managing attorney of Western Mining Action Project. Flynn has been litigating against Hudbay’s rush to dig for years, and warns about the repercussions of stripping protections for waterways.
As the Sacketts, environmental groups, mining companies, Indigenous tribes and millions of other residents in the American West await a ruling, we already know the answer to one question posed by Justice Alito during the hearing: “Is there a vagueness problem?”
The court answered that question when they certified the case back in January — their decision is due by the end of June.