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Article
Toward Normative Rules for Agency Interpretation: Defining Jurisdiction under the Clean Water Act
ALABAMA LAW REVIEW (2004)
  • Robert R.M. Verchick, Loyola University New Orleans
Abstract
Wetlands advocates, from environmentalists to duck hunters, dodged a bullet last year when the Bush Administration dropped plans to narrow its jurisdiction over streams and wetlands. The decision marked a key chapter in a story that began in 2001, when the Supreme Court invalidated part of the Migratory Bird Rule, a regulation that for many years had supported federal protection over some intrastate wetlands. The Court's broad rejection of this narrow rule sent federal jurisdiction under the Clean Water Act into a tailspin. The decision opened debates about tributaries and intermittent streams in the Southwest. It also appeared to narrow jurisdiction under several other environmental laws involving other media. Virtually all of the legal scholarship examining this jurisdictional issue approaches it as a judge would. This Article charts a different course. My purpose is to offer a normative model for federal agencies, themselves, in interpreting their authority under the CWA and under the Constitution. The normative role of agency interpretation (as opposed to a judicially permissible role) is surprisingly under-examined. To my knowledge, no law review article has significantly addressed norms of agency interpretation in an exclusively environmental context. Yet the topic is extremely important. Part I of this Article proposes a set of normative guidelines for agencies to follow when interpreting statutes. Parts II and III apply these interpretive guidelines to the Bush Administration's efforts to define federal jurisdiction under the CWA after SWANCC. These parts conclude that the EPA and the Army Corps have, so far, produced mixed results. From the proposed normative perspective, their handling of the rulemaking process resulted in a correct outcome, but for incorrect reasons. The agencies' handling of its internal guidelines, which remains in effect, produced an incorrect outcome, based on incorrect reasoning. Those guidelines, if not modified, will seriously threaten wetlands protection.
Keywords
  • administrative law,
  • agency,
  • wetlands,
  • clean water act,
  • jurisdiction,
  • statutory interpretation
Publication Date
2004
Citation Information
Robert R.M. Verchick. "Toward Normative Rules for Agency Interpretation: Defining Jurisdiction under the Clean Water Act" ALABAMA LAW REVIEW Vol. 55 (2004)
Available at: http://works.bepress.com/robert_verchick/22/