After the Supreme Court decided last spring that Army Corps of Engineers’ Jurisdictional Determinations are final agency action subject to judicial review, I advised the Corps to pick up its marbles and go home. The statute does not require the Corps to issue JDs. To me, if the Corps is going to subject itself to litigation every time it issues a JD, it might as well just stop.
This week, the Corps proved that it is made of tougher stuff. It issued a Regulatory Guidance Letter, explaining how the JD process will work following Hawkes. In the RGL, the Corps states that:
The Corps recognizes the value of JDs to the public and reaffirms the Corps commitment to continue its practice of providing JDs when requested to do so.
The logic apparently is that the vast majority of cases can be resolved with a JD, that very few JDs will in fact be appealed, and that, on balance, the JD process remains the most cost-effective way to determine jurisdiction. I hope that the Corps is correct in that assessment.