The issue is one of several which have been raised about various parts of the Environmental Protection Agency’s (EPA) Waters of the U.S. (WOTUS) rule. The jurisdictional challenge was elevated to the Supreme Court by the Corps request, following contradictory findings at the circuit court level.
The case before the court was originally brought by a Minnesota peat farmer. The farmer was issued a jurisdictional determination by the Corps, which found that the property contained wetlands which were waters of the U.S. and as such, are protected by the CWA.
Jurisdictional determinations by the Corps do not constitute final agency action because they don’t directly change a landowner’s legal rights or obligations, the government argued.
Justices challenged the government’s position. “The person who is subject to it has to take certain steps because of the law,” and “those [steps] sound like important legal consequences that flow from an order that, in respect to the agency, is final, for it has nothing left to do about that interpretation,” Justice Steven Breyer noted.
Arguing that the Corps’ determinations were in fact binding and final, Justice Ruth Bader Ginsburg said “it’s a deliberate attempt [by the Corps] to make this determination formal and binding on the agency.” She continued that “this is the agency’s position. It’s a final adjudication of [the Corps’] position on the jurisdictional question.”
How the government would respond to an adverse ruling by the Court was raised by Justice Sonia Sotomayor, who asked, “Assuming we disagree with you that that should be appealable, what’s the narrowest way to write this that the government would like?” To which Stewart responded that “If the court ruled against us on the ground that it understood the EPA and the Corps to have entered into a binding agreement… [and] the agencies wanted to fix it, they easily could, simply by issuing a new Memorandum of Agreement clarifying their view of the jurisdictional determination’s effect.”
Responding to the government’s answer regarding an adverse ruling, Justice Ginsburg asserted that if the EPA and Corps changed their policy to sidestep the issue, the plaintiff would be exposed to the same jurisdictional issues by way of the underlying statute. The plaintiffs’ lawyer, M. Reed Hopper, responded by noting that his client was only able to challenge the agency practice as it stands today.