Law, Policy, and the Clean Water Act: The Courts, the Bush Administration, and the Statute\u27s Uncertain Reach

The development of the jurisdictional reach of the Clean Water Act ( CWA ) reflects a hybrid of the judicial determination of the clear legal requirements of the CWA and the exercise of discretionary agency policymaking in the form of legal requirements that are binding on both agency and regulated party. This distinction in the content of administrative law was not altogether clear prior to the Supreme Court\u27s 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. Today, the distinction is fundamental to administrative law and important to assessing the evolution of the scope of CWA jurisdictional waters because the source of law is importantly different for these two types of administrative law. In theory, the source of the clear legal requirements is Congress, although the judiciary must determine any such requirements to be clear. The agency is the source of discretionary policy in contexts in which the judiciary has decided that Congress has delegated regulatory authority to the agency. Distinguishing the role of law, in contrast to the role of policy, in the development of the jurisdictional scope of the CWA provides important insights into the roles that an administrative agency and the judiciary play in the implementation of environmental law. In particular, the implementation of the jurisdictional scope of the CWA illustrates two problematic aspects of administrative law. The Chevron judicial review regime has provided and continues to offer opportunities for judicial overreaching by spuriously finding clarity in a statue\u27s legal requirements. The course of the development of the law regarding the CWA\u27s jurisdictional scope also has provided and continues to offer opportunities for administrative buck-passing by claiming that that which is discretionary policy is dictated by law. Properly identifying the situations in which Congress has delegated administrative policymaking power to an agency and those situations in which Congress has itself defined the clear content of the law has been and is likely to again be important in understanding and assessing the implementation of the CWA\u27s jurisdictional scope. The risks of both spurious judicial interpretation and administrative buck-passing increase when one party has achieved the constitutional trifecta of controlling the three branches of government. By accomplishing this rare feat, the Republicans are in a position where no branch is likely to check overreaching by the other branches when the overreaching furthers the policy objectives of the Republican Party. One such objective of the Republican Party is reduced regulatory controls for corporate actors. That purpose would be served by a CWA with a narrowed regulatory scope as a consequence of tightened CWA jurisdiction. The history of the treatment of the jurisdictional reach of the CWA falls roughly into three stages, the third of which has only just begun. The shift from one stage to the next has involved the development of agency policy as a consequence of judicial legal interpretations. The first part of this Article will summarize and assess the first two stages of the development of the scope of CWA jurisdictional waters. The second part of the Article considers the Supreme Court decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, and the more recent judicial decisions that have applied SWANCC and sought to determine the extent to which the CWA must now be understood to have clearly defined the scope of jurisdictional waters. The third part of the Article will consider the recent development on the administrative side following the decision in SWANCC and assess the extent to which there has been an obscuring of the scope of policymaking discretion delegated by Congress in the CWA