Textualism’s Limits on the Administrative State: Of Isolated Waters, Barking Dogs, and \u3cem\u3eChevron\u3c/em\u3e

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (the Act or the CWA) to regulate the filling of “other waters.” This decision demonstrates a major shift in the Court\u27s approach to statutory interpretation, particularly in the context of reviewing an agency’s understanding of a statute. The significance of the case is best gauged by contrasting it with United States v. Riverside Bayview Homes, Inc. There, the Court, acting just one year after it had famously established its deferential regime for the review of agency legal interpretations in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., held unanimously that the Corps had discretion to interpret the CWA contrary to the apparent meaning of the statutory text. In returning to the issue of the jurisdictional scope of the CWA 15 years later, the Court\u27s bare conservative majority has now interpreted the Act to have a clear textual meaning and to foreclose an agency interpretation accepted and enforced by several administrations. This Article will summarize briefly the factual background to the Court\u27s decisions in SWANCC and Riverside Bayview Homes, and then compare the Court\u27s interpretive approach to resolving the statutory issue in the two cases. This comparison will focus on the Court\u27s shift to a textualist interpretive method and the Court\u27s deviation from the principle of statutory stare decisis. The Article will then discuss how the Court\u27s textualist approach in SWANCC yields an interpretation that has no contextual legitimacy and undermines the federal regime of water pollution control. The final section of the Article examines the Court\u27s activist use of a clear statement rule in rejecting the Corps’ request for deference under Chevron. This rule has the effect of ignoring the strong evidence—the metaphorical, insistent barking of dogs—that Congress intended the broadest scope to the exercise of federal authority over the nation\u27s waters when it enacted and amended the CWA