on behalf of the north dakota coalition of states you know their individual council are behind me the final rule expanding the definition of waters of the united states does does not trigger any of the seven grounds for this court exclusive jurisdiction under thirty three u s c section thirteen sixty nine b one now we filed these protective petitions out of concern a concern now realize that the federal agencies would take the view that it falls within sub subsection f it doesn't fall within the plain language of that provision because it does not issue or deny any permit secondly the state of the argument did we issue this state by mistake them without jurisdiction no no not at all your honor it's black letter law that the court has jurisdiction to determine its own jurisdiction and in the process of determining the time it takes for the court to determine its own jurisdiction it can issue all appropriate orders including staying proceedings while it  within subsection f because it was a century of permanent regulation but i think if you read national content context it was making clear that it was the equivalent to the issue inserted now of a permit of a general perm exemption that was at issue in that case allowed the discharge of the particular pesticides and the particular circumstances that were at issue in the rule that's far removed from the rule at issue here which has much more to do with the entire scope of the act then then simply with the particular permitting provisions in section thirteen forty two moreover i don't see any theory under which grant section here authorizes the court of appeals to review the regulations governing the issuance of permits under section four zero two as says that we have jurisdiction over regulations regulations governing the issuance of permits i mean that's to me it's broader the plain language of the statu fell within subsection f and that particular permanent regulation it seems to me was the functional equivalent of the issuance of a permit earlier in the decision in national cotton if you look at the background section it talks about how states have been doing the same thing through general permits these were permits that say for it for an entire water body certain discharges can occur in that water body for certain pollutants so the exemption that was at issue there was the functional equivalent of a general permit but even even if you disagree that you can't reconcile it with its plain language i still think that this case is one step removed from national cotton because national cotton was soley about a permanent regulation it was a narrow a change to the c f r governing exemptions from the m p t yes permitting process now compare that with this rule this rule applies to the thirteen forty two permanent process but it applies to every other per provision of the act so to interpret permit in regulation as broadly as the government does which suggest that everything falls within subsection africa's every definitional provision would affect subsection the  same words and in thirteen forty two that exists throughout the statute now google waters exists in a whole host of things that all parties agree would not be subject to this court's exclusive jurisdiction the water quality standards in thirteen thirteen all agree that it's they don't fall within this court's jurisdiction core permits under thirteen forty four same definition same change those per permits don't fall within  thirteen within subsection f waiting for you to take a breath but you don't ever seem to take a breath and start here and i want to take you back for just a second to promise of judge griffin's question that's one that just intrigues me i don't think it's dispositive here but he implicit in his question and i think he asked you wasn't national cotton binding upon the decision of of the six circuit i think you said you thought that it was but here's a i think the interesting nature of this question the way in which this case gets to us through the referral by the multi district litigation in this case multi circuit litigation referral we're actually looking at cases that involve different circuits laws and i can't find any authority and i wonder if you found any that then speaks to whether the circuit law in the circuit where the case happens they end up is in fact binding when that might not be the same one it certainly wouldn't be binding if if this case was being heard in one of the other circuits that was sent to us so i think this six circuits rule would be by the and i would point to the case that if i can cite a case that nobody cited in the briefs in recorder korean airlines it's a d c circuit case that you're bound by the circuit mall in the circuit of which you said i think by now it's of the same principles would apply but i think that also goes to show that we have district court cases that will work their way up and those district court cases the eleventh circuit will be bound by its own precedent which i think all of this ties into one of the key points that we make when we talk about various substantive canons that we argue for one of those is the jurisdictional rule should be clear precisely because of this reason that we have to file this in the last thirty five years or so circuit court of supreme court law they say they certainly seem to be favoring function over taxed here in connection with how they've interpreted the law both under  elf and if we just concentrated on that for just a second the question becomes what are the reasons that you're advancing why this shouldn't be heard at the circle level it should be heard at the district court because i  i'm finding i'm finding it more difficult to find persuasive reasons there so first off i disagree with the idea that those cases did away from the text but to your question first for why they're why there are reasons to have this play out in the district courts first in the reasons or the reasons that other circuits have already given with respect to this jurisdictional provision and in particular thirteen sixty nine b two which is a  later challenges in criminal and civil enforcement proceedings i think that as the it said and as the seventh circuit stead this jurisdictional provision in particular comes with the peculiar steen of this judicial review the whole idea here is to have national uniformity you don't dispute that you know i'd absolutely dispute that that was the idea of the clean air act the clean air act you would have a did a different definition of waters well no no  i dispute the notion that the jurisdiction should be in this court out of concerns for national uniformity the queen air act clearly indicates that national rule should be subject to initial review in the circuit court precisely because national review rules but congress decided for a different regime in this case and this case there are seven specific types of actions and none of those seven specific types of actions say national rules should exist in the circuit courts and so getting back to my initial point about the reading of dupont i actually think dupont was a textural based reading of subsection e dupont talked about the perverse situation of having an issue by issue rules under subsection aff in response to the industry's argument that subsection should be a textually in turkey did only to reach various provisions from the effluent limitations in the process of rejecting that that dupont this court  originally went to the text and said no the text says a fluent limitation or other limitation it does not say just the variances and then it made this policy decision about how that the choice congress had made to allow a flu limitations an e and issue an order one and permits an f made sense but what they do is they re dupont they ignore the textual components of dupont and only rely on the policy policy concerns with new pont and i think that's a mistake and i think you have to rely on the text as well and i still i also disagree kind of with the pragmatic concern about how this should be in the circuit courts for national uniformity safe because imagine that as applied context this rule was issued by both the a and the corps and that's a pretty good textural crew that it doesn't belong in the circuit courts because the jurisdictional provision says only actions by the administrator and i think that makes sense because all parties agree also doesn't say actions by the administrator this is clearly clearly an action but that's true but i do think i do think i do think the fact that the core is here as well is a textural clue that it doesn't belong in this court and the reason i see your challenges here a facial nevertheless you say for facial challenge we should have district courts all over the nation decide this same facial challenge one by one and also assume we don't have jurisdiction we dissolve th so we go back to the situation it was before where there was a state in fourteen states by the north dakota district court but this rule will be in effect everywhere else well no i don't know a district court rules otherwise facial child welfare officials see that hurdle applied shell if you've got facts that are different in different district court and the rules going to have a different outcome i could understand but it doesn't seem to make much sense and the supreme court in these cases has actually said that unless there is a clear indication by congress that jurisdiction should go to the district courts the presumption actually is the other way call accuracy e i dupont and footnote twenty six said that it benefited from the diversity of views that it had received in that case from the different circuit courts that's the that's the way our system that's the presumption that the way our system works rules come up through the district courts the district courts reach decisions they reach the courts of appeals the courts of appeals themselves and then analyze the issue and reach a decision and then everything the supreme court in a conflict that's the presumption of the way our system always works the way our federalis system works congress sometimes departs from that it departed from that approach in the clean air act where it said that all national rules belong in a circuits immediately but i don't think it departed from that notion except with the seven specific factors listed in thirteen sixty nine b one and i don't think any of these factors are any of this rule falls within any of these factors which i guess there's the textural response first when we're looking at what the benefit would be using this footnote six and dupont as to it percolating up from various district courts one aspect of that traditionally would be fact finding but here this is an a p a appeals based on the administrative record so what what different analysis or application of these different district courts going to going to be utilizing here is simply a legal question based on the same administrative records so what benefit does the system then derive from having several district courts looking at this i think it's just the benefit of looking at the analysis that was in rap and it was and determining the legal consequences of this rule i also think just more i think there's more is it simply more eyes on a question produces a better result is that it yeah yeah exactly so that's the way that's i think that's what dupont was absolutely saying that the percolation through the courts of these issues so you're not saying this fact finding yourself winning the record or anything you just think having the benefit of multiple views would produce a better just result what i'm saying is congress could have reached that decision and that's why it adopted  it please the court mark the man with the department of justice on behalf of the environmental protection agency the department of the army and the army corps of engineers seated at counsel table is jessica also department of justice and seated behind us we stated in the final regulation that the law in section five zero nine is not completely in accord but one thing is clear when this court in the supreme court has looked at the scope of section five  nine they've read the statute in a practical way and affirm that the circuit court the circuit courts have original exclusive jurisdiction to review the regulations that govern the national pollutant discharge of limitation system says that the movements rely on are examples of cases where e p a moved to dismiss a case filed in circuit court seeking review under a provision that's not covered in section five zero nine for  example and mr murphy mentioned some of them for example a water quality standard that e p a me approved under section three zero three a permit decision made by the corps of engineers under the dredge and fill perm program of section four zero four even ripon is the case that he cited was a challenge to an enforcement it was a defense to enforcement action brought by the united states those are all cases that would belong in district court and it is absolutely incorrect please understand the united states has not been inconsistent in this case and it has not suggested that everything that comes under the clean water act goes to circuit court in fact the vast majority of clean water act docket is in the district courts and we're not asking the court to read this case any more broadly than we have in all the other cases that have preceded it where you can tell we're worried about whether an interpretation that you're advancing under either or out for the swallow the normal thought that most of these cases starting district court and that's a very fair question judge mckee it is absolutely consistent as i already stated not to i don't want to belabor it but the p a has time and again gone to circuit courts and said you do not have jurisdiction here your honor to review the denial of a grant for instance or a total maximum daily load that might be generated by a state or by e p a those are all actions there are many many actions that are not covered under five and nine section five zero nine is part of the back up will excuse me the clean water acts prohibition on discharges into waters of the united states without a permit or other allowance under law that and the n p t s program is the backbone of the clean water act that is why when congress wrote section five zero nine the specifically enumerated sections there all pertain to that program in this case involves a regulation that speaks to which waters are waters of the united states for purposes of the national pollutant discharge elimination program and other programs under the act they mismanage we could separate the jurisdictional arguments for the separately under sections thirteen eleven thirteen twelve thirteen sixteen or thirteen forty five the problem i have with e is that the definitional section that we're talking about waters the united states is section thirteen sixty two and that is not listed in subsection he says other limitations under thirteen eleven twelve sixteen or forty five you want us to apply the definitional section of sixty two with that and i don't see it written in there it is in there judge griffin in the sense that section three zero one a which is the no discharge mandate under section thirteen eleven or we are caught three a one in the inside baseball world under section thirteen eleven it states it prohibits the discharge of any pollutant by any person and when the discharge of a pollutant is as you may have noticed further  in the act when the three zero one uses term discharge of a pollutant that automatically means a discharge of a pollutant into the water is the united states when as this court stated  in those limitations don't mean anything but the different sections and if they go they absolutely do and this is an and other limitation under section three zero one a it is a  rule that defines the scope of waters the united states section three zero one eight is the new discharge mandate you may not discharge into waters of the united states except in compliance with law so by defining what waters are the united states are and are not folks know whether they need a permit or whether they don't in the national wildlife federation versus consumers power company case that this court decided in one nine hundred eighty seven the court said there's five things you need to know whether you need an it does permit the first is whether there's a pollutant the second is whether there is in addition the third is whether it's to a water the united states the fourth is whether it's coming from the  point source is part and parcel of the d's permit in process and it's part and parcel of section three zero one discharge mandate saying that you may not discharge into a water the united states how is an expansion of the definition of waters of the united states a limitation well with all due respect offer say that e p a and the corps and the army would submit that in many respects it is not an but also want to in a way that i inc would discourage pollution in the united states by having more control against the well it depends upon whether you consider past practice versus comparing it to the past practice versus the absolutely the preceding statute but to get to what i think your real question is how is a definition of water in the united states a limitation on somebody it defines for discharge or whether you need a permit or not it defines for state permitting authorities and federal permitting authorities whether you need to require a permit and it allows somebody who wishes to enforce the act to know whether they can and seek bringing in force an action in a particular water so it is a limitation on those it's consistent with the virginia electric power company's decision regarding the cooling water intake structure regulations where the court looked at whether there was a restriction on the untrammeled discretion of the industry and on permit issuers and what the court or argument better that it's a limitation if it's if in fact it is an expansion it would be but i wanted to at least let you know that it's the agency's opinion that this rule does not necessarily expand it but you're correct you could say well if  it's an expansion then you have new restrictions on somebody but the relevant question isn't whether there is an expansion or a contraction it's whether there is a restriction on industry and permit issuers in the absence of any regulation whatsoever and that's what the court the fourth circuit said in that the virginia electric power company case and that's what judge healey the district judge in the northern district of west virginia stated when she dismissed the marie energy district court action is that you have a restriction on just chargers and on the permit issue as in fact i think that the fact that everybody's here challenging this rule and they brought their state in motion claiming that it has an immediate impact on them and that they needed preliminary relief demonstrates the impact and the restrictions upon them you think your point is stronger under era well certainly we think that national cotton council is controlling and that's the easiest way i think to look at it it's probably the least tortured way for anybody to look at it we do think it's controlling and i would like to respond to a couple of the things that mr murphy said the way that the movements have tried to deal with national concow nsel is to first say that it's wrong which as we describe in our brief is incorrect secondly we have a bit if we have to follow it if it's holding that this was a decision based on some type of defacto permit that is not with this court said in its decision this court in no way suggested in its decision that jurisdiction was based upon  finding of a defacto permit what it said was underlined permit in regulations for the section four zero two n p t s program are reviewable under section five hundred ninety one at a minimum which to me suggest that the court may have also had the needed to look to subsection the and perhaps founded jurisdictional under that section as well the third way that they deal with national cotton council is to try to distinguish it and and trying to distinguish it they say well the regulation it issue there which was a regulatory exclusion under section part one twenty two of the regulations only pertains to n p permitting well here we have a regulation under part one twenty two of the clean water acts regulations that defines what is a water in the united states for purposes of in p d s permitting and just because that definition has been made consistent in other parts of the act does not take it out of the five zero nine bucket it stays in that bucket and if there are challenges to the decision to make other provisions of the other definitions of the waters united states consistent those are ancillary there at the end here in the same controversy that puts this case before this court going to the policy argument i add a couple other arguments to but one was it was a drive by ruling which i don't i guess there is some but it was it was actually it was a hold of the case and whether they did alice's was reasoned or wrong the order dicto or whatever then let's figure out how we can put this in the best cast if you prevail in this case yeah you're right you're on your honor and if you don't think that it first of all i would acknowledge that yes there were some events who said that the national concow nsel was a drive by ruling it was anything but it was not an extensive ruling in terms of the length of the reasoning but it was well cited to dupont the ninth circuit case law in which that court following crown simpson any idea upon said that you need to read the statute practically and it would be a perverse situation if circuit courts have the ability and the authority to review permanent decisions but not the underlying regulations because the current supreme court would adopt that rule of statutory construction that you have to read statutes practically rather than by the plain text  we do meet the plain language of the statute that's the one area they urge you to look at the plain language of the statute we do as well you can look and judge mckeague was asking what are other argument you can look at sub section easy and say this is another limitation because it restricts discharger and permit issuers it's action by the administrator it's the agency cited to section three zero one it is a rule making under section three zero one and by defining what waters are waters the united states or not it is a limitation so it falls under its new how to give us jurisdiction clearly on ambiguous lawyers talk about the clean air and here i mean we really have to do kind of a convoluted construction here to say that we we've got it i mean why why the do you think congress wrote it was this fashion the reason as opposed to i think the court should try to give meaning to the statute but clearly this statute has some the judicial review provision has some problems in fact and subsection b refers to actions by the administrator under a provision of the clean water act that has never existed so that's a pure drafting error on the part of congress it's not perhaps the most clearly written but it's clearly written enough and the pla section five and i'm the one easy is something that supports the united states arguments in fact despite the fact that they say they want you to rely on a plain text argument when it comes to subsection e they revert immediately to all the statutory and construction types of analyses they don't acknowledge they say that it's not a limitation because it's definitional but we have seen time and again circuit courts having jurisdiction of cases of regulations that are definitional the definition of a new source has been found to be any limitation on a party that's reviewable under section five zero nine the virginia electorate case if virginia electric power case involved the definition or information that had to be considered in defining what was the best available technology for cooling water intake structures there are many and in fact even a national cotton council that regulation was defining what is a pollutant and what is the discharge of a pollutant with respect to the application of pesticides into water that was a definitional rule it does it can be definitional and still be restricting or limiting that's exactly what judge wood said when she does not dismissed the case brought in the southern district of georgia so they bring a lot of textual arguments where they don't like the plain text but they pretend that they are asking you to apply a plaintext analysis here so we believe that under section five or ninety one e it's a very easy call and in some respects that's even easier looking at the text of the statute so my the answer to my question earlier before we got distracted with national cotton is that you think the argument is more clear under he then i believe it is your honor i think it's much clearer  so if we go back a step for just a second i was asking mr murphy what's the practical reason if we get beyond the text to look to this definitional question legal question to the district courts and i thought he was probably going to say he was going to refer to the functions the district courts usually occupy of of looking at facts and taking supplemental evidence and all that but he didn't he basically said it's just a question of getting more judges to look at the same question and eventually more eyes produce a better does as opposed to what you're it what your answer to that we very much disagree and i would point the court to this circuit's decision instead of hearing to a state of tennessee versus hearing ten the court there said exclusive jurisdiction in the courts of appeals avoids to put at every view in the attendant delay and expense that's exactly what you were asking mr murphy about and review does not require factual findings that would make it more suited to a district court they can acknowledge that that's they can't say that it's true because it's not and finally exam that you're the one that alluded at one point in the briefs to the fact that there might be a need to supplement the record here or there no actually i believe it was some of the movements who suggested that it would there are folks in the states of north dakota and all i see my time's up and they have moved to supplement the record in that case but that's not anything that circuit courts haven't handled i'm sure all three of you have handled it in other other cases where you've reviewed an agency decision making if i may just conclude unless you have any other questions you can finish up thank you donna the clean water rule is a basic regulation that governs where point sources must obtain a permit in order to comply with the clean water act and thus implements the most fundamental limitation in the act we respectfully request that the court affirmed stiction under section  are free i just a few few responses your honor the first is while they say there are other things that would fall outside this circuit court jurisdictional provision in which they never reconcile the thirteen eleven within subsection easy in response to several environmental groups who argue just that because thirteen eleven expressly references water quality standards so under the under their position that because thirteen eleven also references nab navigable waters anything that is referenced in thirteen eleven could qualify as a limitation under thirteen eleven it would it's fundamentally irreconcilable with their view that water quality fill material are reviewed in the district courts that how that's how crap and who's repond it was made its way out but imagine the scenario if you're down the down the line you're a homeowner and you want to challenge the rule in the permanent process what are you supposed to do at the perhaps it'll depend on your challenge if you're challenging the rule as a violation of the statute it's a challenge to the rule so you might have to now go to the circuit court but if you're actually challenging the course position that your land falls within the rule then you're not challenging the rule you're just throwing the application on the case then that might have to go to the district court and that's funded fundamentally unfair to homeowners and fundamentally inconsistent with the  the supreme court nowadays that jurisdictional rule should be as clearest possible so parties don't spend time arguing over side things with respect to a fluent imitation or other limitation which we have course to not run away from that text i think the text is quite on a big us when you break it down into its component parts it's as promulgated a fluent imitation or other limitation under these four provisions each of the four provisions directs the e p a to establish a certain type of limitation on discharges the baseline is the thirteen tech blo technology based limits then there's thirteen twelve water quality standard limits then there's thirteen sixteen new source limits and then there's thirteen forty five sewage sludge of them attentions this is not any of those things in fact that the rule itself concedes that it doesn't impose regulatory requirement and it's just a definitional rule so i think that this would be a broad expansion of subsection me with respect to national cotton we have courts do not we recognize the court is bound by it but this itself is a pretty significant expansion of national cotton national cotton that adopted one exemption from the permanent requirements thirteen forty two this is a definitional provision that applies across the board to every section of the act national cut and said permitting  we appreciate the excellent briefs that have been filed by many and the excellent arguments the say after noon court will take the matter under advisement major in the court