Grace Kinley

The Clean Water State Revolving Funds (CWSRF)  and Drinking Water State Revolving Funds (DWSRF) are the largest sources of federal funding for water infrastructure.[1] The CWSRF provides low-cost financing for water quality infrastructure projects and the DWSRF provides financial assistance to help water systems achieve the objectives of the Safe Drinking Water Act.[2] Both of these State Revolving Funds (SRFs) are intended to increase communities’ ability to take on large water infrastructure projects to provide safe and clean water to their community members.[3] In reality, the communities that are most in need of this funding are often unable to access it. In most states, SRFs are allocated based on a competitive loan application process.[4] Across the country, most water systems have never applied for any SRF assistance, and decision-makers for small systems that serve fewer than 10,000 people are the least likely to apply.[5] Many decision-makers choose not to apply for SRFs because they feel they have insufficient training and time to meet the technical requirements of the applications.[6]

One solution that has been proffered for this dilemma is providing technical assistance to communities to help them complete the application process.[7] In theory, this technical assistance would allow for a more equitable distribution of SRFs; however, at least two obstacles prevent technical assistance from being particularly successful.[8] First, technical assistance will only be helpful if it happens to be given to a community whose application is ultimately accepted for funding. Otherwise, the technical assistance funding is wasted because the application the assistance helped create is never put into use. Therefore, for technical assistance to be beneficial, states must actively seek out water systems that serve overburdened communities and encourage them to participate in the application process.[9] This places an additional burden on SRF state administrators who already have a heavy workload of scoring applications and dispersing funds accordingly.[10] Second, federal statute only allows states to use up to four percent of their SRF capitalization grants for administration and technical assistance.[11] In most states, this is likely not enough funding to provide meaningful technical assistance to all of the low-capacity communities that need it.

Another strategy, and potentially more beneficial solution to this dilemma, is that states could provide funds to low-capacity communities without relying on a competitive loan application process. Instead, states could create sub-funds within their SRFs and use that funding to seek out overburdened water systems to plan and implement water infrastructure projects collaboratively. States administer DWSRF resources with significant discretion.[12] Under the Safe Drinking Water Act, states may set aside up to thirty-one percent of their DWSRF capitalization grant to fund state programs or third parties to provide assistance to and develop the capacity of drinking water systems.[13] This set-aside funding can be used to fund activities that are unique to a state’s individual needs.[14]  For example, Massachusetts used a portion of its set-aside to initiate stakeholder involvement that encourages partnerships between nonprofit organizations and low-capacity communities.[15] These non-profit organizations then offered training, site visits, and mentoring to the low-capacity water systems.[16]

Instead of relying exclusively on the four percent of their SRF capitalization grants for administration and technical assistance, a state could potentially use a portion of its thirty-one percent set aside to seek out low-capacity communities to develop and implement water projects jointly with those communities. This not only would allow a greater percentage of funding to go to these low-capacity communities, but it would also eliminate the risk that technical assistance would be provided to a community whose application is not ultimately accepted. This strategy would potentially be less burdensome on SRF state administrators because they will not have to actively seek out water systems that serve overburdened communities and encourage them to participate in the application process on top of scoring applications and dispersing funds. If this is still overburdensome, then a portion of the thirty-one percent could be used to subcontract this work out in a way similar to how many states subcontract out technical assistance.[17]

It is important that in creating this sub-fund, the state requires the funding to be used toward water projects in disadvantaged communities that cannot undergo the application process on their own. In doing this, the state must create a well-considered definition of disadvantaged communities that fits the characteristics of need in that individual state. The Environmental Protection Agency’s Climate and Economic Justice Screening Tool provides a good starting point for developing this definition.[18] This tool uses factors such as poverty, median household income, proximity to wastewater discharge, language isolation, housing cost burden, and educational attainment; however, these are just a starting point and a state must create a list of factors specific to its need.[19] Importantly, race may be an important factor to consider in this definition to help historically underinvested communities receive the necessary funding. Additionally, using a portion of the thirty-one percent set aside to seek out low-capacity communities and develop and implement water projects collaboratively aligns with the Biden administration’s Justice40 Initiative.[20] Under this initiative, the Federal Government has made it a goal that forty percent of environmental-related Federal investments go to disadvantaged communities.[21]

In conclusion, communities that need SRF resources the most often cannot receive funding due to their lack of capacity to undergo the competitive grant application process. Providing technical assistance to aid these communities in the application process, while beneficial in theory, does not do enough to mediate the currently existing disparities in water accessibility. Eliminating the application process and devoting a portion of DWSRF set-asides to sub-funds used to seek out overburdened water systems to plan and implement water infrastructure projects collaboratively could be a more advantageous approach. Ultimately access to safe and clean water is indispensable to health and human dignity.[22] The solution may not be clear but using creativity to reshape state discretion in the distribution of SRFs is an important step toward achieving water equity.

[1] State Revolving Fund Advocacy Toolkit, River Network, (last visited Mar. 8, 2023).

[2] Id.

[3] Id.

[4] See Katy Hansen et al., Uncommitted State Revolving Funds, Nicholas Inst. for Env’t Pol’y solutions 1 (2022).

[5] Id. at 11.

[6] Id. at 12.

[7] Id. at 15.

[8] Id.

[9] Id.

[10] Id. at 12.

[11] Id. at 15 (“States may also use an additional 2 percent of their DWSRF capitalization grant for technical assistance to systems serving fewer than 10,000 people”).

[12] Katy Hansen et al., supra note 3, at 2.

[13] Analysis of the Use of Drinking Water State Revolving Fund Set-Asides: Building the Capacity of Drinking Water Systems, United States Environmental Protection Agency 1 (2015).

[14] Id. at 40.

[15] Id.

[16] Id.

[17] See id. at 5.

[18] See EJScreen: Environmental Justice Screening and Mapping Tool, United States Environmental Protection Agency (2023)

[19] Misbah Husain & Melissa K. Scanlan, Disadvantaged Communities, Water Justice & the Promise of the Infrastructure Investment and Jobs Act, 52 Seton Hall L. Rev. 1513, 1522 (2022).

[20] See Justice40 a Whole-of-Government Initiative, The White House, (2022)

[21] Id.

[22] OHCHR and the Rights to Water and Sanitation, United Nations Human Rights Office of the High Commissioner,


By Madelyn Happ

On the Navajo Nation reservation, the largest reservation in the United States with a size near that of West Virginia, an estimated 30% of the population does not have access to clean, reliable drinking water.[1]  Many drive long distances to gather their drinking water from unregulated sources like springs and livestock wells.[2]  It is estimated that there are over a thousand unregulated water sources from which members of the Navajo Nation draw drinking water; their unregulated status making the safety and cleanliness of the water unknown.[3]  The official policy of the Navajo Nation Environmental Protection Agency prohibits human consumption of water from these unregulated sources, but the use is still widespread due to the lack of water access from other sources.[4]

This limited access to safe drinking water on the reservation and the changing dynamic of water resources across the Western United States generally have made water an even more precious resource and water rights a contentious legal battleground for the Navajo.  Most of the water used on the Navajo reservation comes from the San Juan River, a tributary of the Colorado River.[5]  Seven states and multiple Native American tribes also draw water from the Colorado.[6] 

On Monday, March 20, 2023, the Supreme Court will hear oral arguments on the case Arizona v. Navajo Nation.  In this case, the Navajo Nation argued that when the Federal Government claimed water rights from the Colorado River on behalf of other Native American tribes, but not the Navajo, it breached its trust obligations.[7]  The 9th Circuit ruled in favor of the Navajo Nation, stating that the tribe was entitled to bring forward a breach of trust claim and that the Federal Government had a “irreversible and dramatically important trust duty requiring them to ensure adequate water for the health and safety of the Navajo Nation’s inhabitants in their permanent home reservation”.[8]  This trust duty stems, under the doctrine set forth in Winters v. United States, from the 1868 treaty in which the U.S. Government agreed that the Navajo reservation would be a “permanent home.”[9]  From this promise of a permanent home, the 9th Circuit found “necessarily implied rights” to enough water to make the land a home, i.e. adequate drinking water and other water to farm.

Arizona and the Department of the Interior argue the 9th Circuit erred in its ruling.[10]  Both articulate that the 9th Circuit’s finding of “implied rights” is contrary to other Supreme Court holdings that the trust responsibilities assumed by the United States are only those that are explicit in treaties and statutes.[11]  By allowing for these implied water rights, it then would threaten all other nontribal water demands across the west.  Further, Arizona asserts that the 9th Circuit did not have jurisdiction over the issue as the Supreme Court retained the ability to oversee the allocation of water from the Colorado River in Arizona v. California.[12]

Indicative of the conscientiousness of the issue of water rights in the Western United States is the amount of amicus briefs filed in support and opposition of both parties.  In a brief written by various law professors, the strained history of U.S. trust obligations and water rights is clearly demonstrated.[13]  This history shows that the United States has continually favored non-Indian water needs over that of the known needs of the Navajo Nation.[14]  The Federal Government itself has acknowledged this, stating in the final report of the National Water Commission that “in the history of the United States Government’s treatment of Indian tribes, its failure to protect Indian water rights for use on the Reservations it set aside for them is one of the sorrier chapters”.[15]

Further, in an amicus brief filed by 37 tribal Nations and other Indian organizations, the benefits of retaining the Winters doctrine are those that apply to all concerned parties in the Western United States.[16]  The Winters doctrine “enables states, the federal government, and Tribal Nations to determine the availability of waters for appropriation by all users, and to more accurately manage water resources.”[17]

Therefore, rather than Arizona’s argument that the upholding of the Winters doctrine would widely threaten water rights, the Winters doctrine is precisely what would allow the allocation of water in the West more certainty.[18]  For “certainty is a critical objective of Western water law,” and one of its largest contributors is the Winters doctrine.[19]  If the Supreme Court were to limit this doctrine and rule in favor of the Petitioners, the battle over water rights in the American West could develop into an even more treacherous landscape.

[1] About DWR-Executive Summary, Navajo Nation Dep’t of Water Res.,; Emily Litvack, On Navajo Nation, Taking Clean Water Off the Grid, Univ. Ariz. (Sept. 2019),

[2] Emily Litvack, On Navajo Nation, Taking Clean Water Off the Grid, Univ. Ariz. (Sept. 2019),

[3] Id.

[4] Id.

[5]David G. Savage, Supreme Court will reconsider Navajos’ claim for more water from the Colorado River, L.A. Times (Nov. 2022),

[6] John Elwood, Intellectual property and Navajo water rights, SCOTUSblog (Nov. 2022),   

[7] Id.

[8]David G. Savage, Supreme Court will reconsider Navajos’ claim for more water from the Colorado River, L.A. Times (Nov. 2022),

[9] Id.

[10] Id.

[11]Dan Schweitzer, Case Granted Review: Arizona v. Navajo Nation, 21-1484; Dep’t of Interior v. Navajo Nation, 22-5, Nat’l Ass’n of Attorney’s Gen. (Nov. 2022),

[12]David G. Savage, Supreme Court will reconsider Navajos’ claim for more water from the Colorado River, L.A. Times (Nov. 2022), 

[13] Brief for Prof. Daniel McCool et. al. as Amici Curiae Supporting Respondents, Navajo Nation et. al, Nos. 21-1484 and 22–51(2023).

[14] Id. at 22.

[15] Id. at 24.

[16] Brief of Tribal Nations & Indian Organizations as Amici Curiae Supporting Respondents, Navajo Nation et. al, Nos. 21–1484 and 22–51(2023).

[17] Id. at 31 (emphasis added).

[18] Id. at 32–33.

[19] Id. at 32.