Corps Jurisdictional Determinations Are Final Agency Action: Now What?

In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” Wetlandsare final agency action subject to judicial review under the APA.  As we previously noted, this continues the Court’s emphasis on the practical consequences of Corps decisions.  Indeed, Chief Justice Roberts noted that the Court’s decision:

Tracks the ‘pragmatic’ approach we have long taken to finality.

Because there is no denying the practical impact of JDs, today’s decision was predictable.  However, I still wonder about its consequences.  Chief Justice Roberts acknowledged the Corps’ argument that JDs are not statutorily required, so that the Corps could simply promulgate a new regulation eliminating the JD process, in which case property owners would be forced to risk enforcement action or apply for a permit.

Roberts did not seem to care.  His response?

True enough.  But such a ‘count your blessings’ argument is not an adequate rejoinder to the assertion of a right to judicial review under the APA.

Really?  Why not?  It certainly seems at least a little odd that the Court would focus so much on the practical effects of JDs, but ignore the practical result of its decision today.  If I ran the Corps, and given a time of declining agency budgets, I would at the very least strongly consider eliminating the JD process.  Where would we be then?

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