preliminary technical technical term nation was appealed by mr boucher but the n r c s never acted on the appeal and in two thousand and thirteen realized that hole in their records and went out in review the property  these are separate requirements they're interrelated so as you just said the second ration or inundation or the presence of water you need to support the correct it would be possible to have two of the requirements and not a third of the property would not be a wetland in that case but the thing is if but let's take a hypothetical not your case let's just take a hypothetical where there's a  that point if you look at these three criteria it's not going to has either the hydrology or the hydro phytic vegetation because somebody pumped all the water out of the vegetation isn't going to be there nor is that water going to be there so in this agree with you and two points on that the vegetation in this case or trees in those trees or not would not die out there's no evidence of that but i don't i don't think that's right at all i mean that the things that were removed were the trees but  capability of the area defined to support hydrostatic vegetation is a broader criterion than any particular plant that happens to be growing there on any day correct i think that there is no that is defined as plants growing in water or in a substrate that is at least periodic lee deficient in oxygen as a result of excessive water content corrected it that's true but those claims can exist absent hydrology especially trees which brings us back to the well but i think i'm the reason i'm pushing is because our as i see your case you please correct me if i'm wrong but your big complaint seems to be the decision of the u see what un one and you went to were like in one thousand nine hundred four yes the big complaint here in going in and the second point with respect your hypothetical earlier is that if that water pumping occurred here is that the use of the comparison site was governed by the findings of the national resource conservation service scientists that were on site and those scientists determined that they could not determine hydr site because the field had been drained right ok and so and that's a kind of that's a typical type of term basis they would make isn't it what they were right or not on your fields different question but that's that's their job exactly that's right that's their all springs from is that decision to say that site has been drained and drainage means something very specific to the sciences because they use the army corps of engineers went into any nation manual and it says hydrological alterations are dams levees ditching filling of channel they'll use water and so if you remove trees they'll be more water not less but i think that's a not necessarily true and be a scientific assumption that it seems to me you would need expert evidence to two they find that it is something that changes things we think of the amazon i mean they're the fact the trees are there doesn't mean that there can't be a lot of water i agree with you know better i don't dispute that there would be cases in which  moving all you know if you had a forest and you removed fifty trees from a seventy five tree forest it could be possible that those trees were actually impeding the flow of water well and it could also be possible that they're helping that what the the experts said or found they found at the site had been drained in fact on appeal in in the record of the of the appeal hearing before the national guilt division when they were faced with the experts were confronted with the fact that these fields had been ditched and that there was no tile found they still said there must be tile out there so you're changing i mean i think the government has abandoned anything having to do with tile your opening brief is all about tile so i was expecting them to talk about tile but they said no you know look at these places in the director's findings and the director sets never mind we were wrong about the tile but there are other problems there are the treaties correct but again then we go back to if it wasn't tile that it was not what the experts said it was when they were there spouter essentially one these farms cannot be farm in their present state from buying a operator who can receive government benefits to two and a half acres that's get two point six acres harasser if you and she had a prior operator t farm these farms that the government did see on substances this drunk i think on process is sort of like missing a layup a couple of times and i'm not so sure about your first point sure well i'll start with that then your honor as the national appeals division director logic seems circular unless in unless it was quote by groups that exclude vegetation that was removed and by the way it was because the agency dropped the ball for nine or ten years the person who removed them is no longer was mails but there's also a national list some of the ones that they relied on of course from the parasite are listed in the document i'm not very interested in the comparison again i would also say that although i don't have a better answer as to specific evidence that this was what he hydrophilic vegetation i do not understand that as being something that was pointed up to the director needing a specific determination and well given the way rationales have been shifting though along the way i'm not sure there was a need to do that well that's fair but also even though the rationales dual justification for tool use comparison site and then references to this to the atypical situation portions of the army corps manual in the on the a typical situation datasheet point to all the point of view this case rises or falls on whether your use of the comparison site can be justified under the laws and regulations because i don't see anything else in this record that would independently was not necessary and the manual speak to this too if you go to page one nineteen regional supplement there is no need for a drought or  other or even for high growth you to be present what is needed to make a wetland determination at least under this manual and as i understand it there's no direct challenge to the manual as inconsistent with the statute at least other than in the  three is under step three d the field experts would use a reference for hydrology but so that is important to the process point regulation hasn't been challenged in this process even though it was spayed the principle basis for the national appeal to rights division directors decision and with that the comparison site issue all the way because there's no need for hydraulic comparison site and there i think the reason for that is that as i understand from the conservation service people and the u s d a people removal of trees is the mind run of conversion case of the collective but again it is it does use the word area in timing the determination in each sense and so if let's say you have a small plot one of something it is a small area but again also is the areas that it's been subject to this determination would be as you might know the score gets exposed to a lot of jargon and briefing the seem to be a particularly rich example in this case could you explain what is meant by the term if the c neutral test yes an f a c neutral test you know the best explanation of that comes actually in the s for almost ten years which left mrs boucher without a living husband who could answer the questions about what had been there and what if we were to may be insufficient evidence of the hydrophilic nature of these trees that strikes me as being an extremely narrow decision you know i don't want to over step because i'm not a technical expert but i have not seen anything that would indicate that that would be far reaching decision on the other hand if the decision is that the lack of hydrology drive the lack of water inundation drives the bus then that would require as i have just one question i want to understand how much reliance you have on the amount of trees that were removed the decision is based act that it is an alteration so is a position then that a single tree could justify that the the agency find here i've i believe that is the agency's interpretation i have not seen anything contrary and that is how i would read the implementing regulations i would also just add that with courts from mission that which you may have been referring to is that when you remove trees the undertake their measurements and she may have been referring to the removal of a tree justifying the comparison site in that sense but so in so far as the basic element of your question can a conversion think it's only the common sense limits of commercial farming this is related to commercial farming and obviously these fields get defined within the process it's not as though my understanding isn't that the u n one was for them based on the photographic evidence and i would again i just yes i think you're going to the first thing that i want to say no bottle is counsel pointed out the language of the final technical determination red cross read clearing and drainage as being down in the bottom they they combine the remarks and say we find that they've been cleared in crops and drained and therefore we had to use the comparisons like before to determine vegetation and hydrology but under drainage it does not say drained and crop t fight but he was he was telling his lawyer at that point in time i did not rule in treason if i thought it was i would have called because the boucher's always called so you can find that page four of the administrative record the other couple of points i wanted to make we talked about