Author ORCID iD

0009-0004-8429-1673

Document Type

Article

Publication Date

Summer 6-2026

First Paragraph

Royal Gardner’s Waters of the United States: POTUS, SCOTUS, WOTUS, and the Politics of a National Resource (WOTUS) is an irreverent, often playful romp through what, to many, has become a turgid and overbearing subject. Across much of our nation’s history, jurisdictional waters have been a proxy for cultural, economic, and political upheavals, most of which have been considerably influenced by the Supreme Court. Gardner’s motivations for the book stem from the Court’s most recent venture into “navigable waters of the United States” in Sackett v. EPA. Sackett came atop mountains of precedent defining the phrase, shrinking the scope of the Clean Water Act by way of (the majority’s preferred) dictionary definitions. Sackett understandably provoked environmentalists and legal scholars alike. By limiting the Act’s scope to standing or flowing relatively permanent bodies of water, the Court seemed to ignore everything scientists had discovered about tributaries, wetlands, and watersheds.

Yet Gardner’s romp barely disturbs the surface of the indictment due our Supreme Court on the subject of jurisdictional waters. His centering of the Court, Congress, and the Commerce Clause obscures the staggering extent of the predicament today. And accounts like Gardner’s, which declare that the Environmental Protection Agency (EPA) and the Corps of Engineers have superior administrative capacity compared to that of the judiciary will, for many, only confirm how hopeless something as bold as the Clean Water Act is in our system of enumerated federal powers. Part I of this Review identifies Gardner’s key insights into this field, and Part II evaluates its principal claims about our waters’ jurisdictional entanglements. Part III sketches a broader indictment of the Court’s treatments of jurisdictional waters over time, linking them to a deeper decay evident in the Court today.

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