clarification for guidance wonders indicating that there was a different way to estimate with a growing seasons occurred in land and for one reason or the but presumably sense at least ninety two so it continued to use the nine hundred eighty seven manual until of final wetlands manual is adopted and so against future application of appropriations wants to have any authority for that no your honor but in terms of the the plain definition of will hit the plain definition from the g a o has read book which quotes from the house appropriations committee and has said that congress often uses until to indicate that the provision  section it says that congress appropriated a certain amount of funds to be used until expended and that means that it's available until expended even if it's not used within the fiscal year  understand if i'm understanding your argument crackly you argue that the course interpretation of the one thousand nine hundred three budget act or rose in the course of this litigation and that it previously used the one nine hundred eighty seven manual what are we to make of the fact that the corps has been issuing regional supplements for years and fact that alaska supplement was issued more than a decade ago in two thousand and seven well your honor  satisfied so these regional supplements so long as they are actual supplements to the one nine hundred eighty seven manual the core can be a candle used in it's when there's a situation  here when there is a specific use that is contradictory to the nine hundred eighty seven manual where a problem arises and even and even to the extent that the alaska manual is a true supplement to the one nine hundred eighty seven manual or know your honor because under our death deference an agency is accorded no deference when it's plainly erroneous or inconsistent with the with the regulation expands rather than conflicts well your honor this is so the nine hundred eighty seven many one also this is kind of hour upon hour because first what every what all this is interpreted i describe growing season it's specifically described growing season as those portions of the year in which the soil temperature one thousand point seven inches below the surface is above biological zero and that  one thirty of the excerpts of record and it's in the definition section so that is the definition now the corps can change that definition by adopting a new final wetlands delineation manual but it has not but instead is adopted the alaska supplement which completely abandoned soil temperature as a standard for determining what lands hydrology and that is conflicted because  growing season is so specifically defined it does not leave a lot of room for expansion and so it has abandoned that specific definition and it has not done so in the procedures prescribe supplement comply with the congressional review act as you're arguing in your briefing so that that question actually goes to because the court makes two arguments one is that the alaska supplement is merely just a use of the  seven manual and the alternative it argues that the supplement is a new final manual within the meaning of the one thousand nine hundred three act and so in that question if if this if this court views the alaska supplement as a new manual then it has to be a final manual and final the plain language of of finals following the procedure i indicated that this is a guidance manual that seems an appropriate definition and the standards for adopting guidance manual s are to follow the congressional review act this record can i take you back for a second question i tried to phrase and perhaps not to precisely but one nine hundred eighty seven guidance we've got that right right right then we have the nine hundred ninety core issue to relevant guidance documents the provide alternative means for establishing a growing season and hydrology beyond the strict ground temperature requirements of the one nine hundred eighty seven manual hear it as a you are one and two and one eighty six specifically on october nineteenth anyone guns document provides that quote in certain parts of the country were plan communities in general have become more adapted to regional conditions local means of determining growing season may be more appropriate and can be used to keep that min excerpts of record sixteen twenty twenty four twelve to eighteen inches below the surface and it was made on july eleventh july eleventh your position is that in areas where there was permafrost and there's never five degree group under nineteen point seven there can't be a growing season and therefore were there can't be any woman's that's correct a growing season under the definition that is currently that is in the one thousand a seven manual we the court can yes and it needs to be a i when i meant no that's not that's not the only requirements that's necessary but not sufficient the other requirement is it needs to be a national manual because if you look at the million dollars doing field testing in the e p a for the alaska supplement the corps admitted that this type of manual would be feasible it said it would take five to six years to adopt a new national manual the reason why would take five to six years is that they need to take a systematic approach to resolving all the technical problems that's exactly what congress indicated and the legislative history of the one thousand nine hundred three act they want the court to do so ye seven guns correct and the core can if it adopts a new manual change that definition of growing season but it has not and has not there is there are still soil temperature is still a factor and many of the other regional manuals so you yes you're on it but the permafrost really doesn't mean in the real world it doesn't make much sense to use temperature because you have good things grow on the permafrost if you're talking about the desert or something else that might be a a policy definition and so congress has made a determination and the determination is that the corps needs to adopt a national manual and so long as it does that and so long as the new manual is consistent with the regulatory definition and the clean water act it can adopt a new manual but it has not and and so that is why the the course decision in this case must be vacated i'd like to reserve reserve ok thank you but that evidence is ten cops their own consultant issued to us a delineation as part of their permit application and according to the record we simply have adopted it in full the court confirmed that information with site visits and now to cup is arguing that we have to ignore all of that because of a one year appropriation statute passed twenty five years ago that they claim locked in a definition of growing season but the court itself says has since been disproved by strong evidence well if even well discussion of until and specifically funds available until expanded uses that phrase as a term of art the applies to appropriations and identifies a particular kind of appropriation a no year appropriation if you look at the section of the red book that discusses the in the provision that we're trying to interpret now the redbook also mentions it will see how you can get around the idea of a future of the furthermore the corps of engineers will continue to use the corps of engineers but i think that even if you consider the word will to be a word a few charity there's another problem it is not a mandatory word and here we're relying on the distinction between the words will and shall there used in substance and consecutive provisions of the act in the word shall clearly imposes a mandatory duty on the corps not to use the one thousand nine hundred nine manual during the one thousand nine hundred three fiscal year and then in the next provision congress uses the word will which has to be interpreted differently if these provisions are to be given different meanings view the way to interpret the word will is simply a description of what the course point to do and that description is supported by the legislative history in which members of congress asked the court witnesses what will the court do if we tell it that it can't use the one thousand nine hundred ninety will and the correspondent we will use the appropriation now that determines how funds are allocated and how is it a statute as you aren't the that the court ministers thereby timeline a court to interpret an interpretation of afrin all this provision is not necessarily an appropriations provision first paragraph is but the second paragraph is not the second paragraph is specifically about what the court has to do in its expertise ministration of the clean water act and that's something that the corps has done for years does thousands of times a year and so can interpret provisions that were if it makes sense you that is not necessarily being ambiguous under chevron i don't see anything  congress first addressed it you know it's the manual ninety nine manual but it didn't change ninety seven respectfully i disagree you yourself mentioned the questions and answers on the one thousand and seven corps of engineers manual appropriations act which seems strange but the one thousand nine hundred two fiscal year began on october first one thousand nine hundred one and so this document which you read from in which the course said our field officers are not going to be bound by the specific definition of growing and in our view if i can move on to the other issues i'm of course happy to answer questions about futurity if the court still has them but in our view the court has done exactly what congress required it to do if there is any on logic zero five degrees celsius why doesn't the two thousand supplement which provides an alternate method in determining the growing season conflict with the definition provided in the one nine hundred eighty seven man hundred seven manual allowing for use of local conditions in determining what the growing season is and here the core went to the area saw it deciduous vegetation saw it growing the corazon consultant this is at  supplemental excerpts twelve told the corps in two cups permit application wetland hydrology within the growing season was present and so the corps was using these other observations and information in the record to identify when the growing season was without any evidence of soil temperature and one of the problems with the record here at least for tin cup is that there is no evidence in the record of soil temperature at one thousand point seven inches below the surface all the parties understood at the time of the permit application that we were using to understand whether the growing season existed and how long it might be so it's true that the alaska supplement has replaced that definition but it's not necessarily true that that definition of previously been the only thing that the court was allowed to look at when it was examining where the growing season might be so if i think if we were to decide and this is hypothetically that the one nine hundred ninety three budget act applies and if we were also to find that the act does not allow for something to the one nine hundred eighty seven manual that freak you to prevail mass we find that the two thousand and seven supplement is a final wetlands delineation manual that's one of the two arguments on which we could prevail but yes let me address that one and until this litigation i think the court has never interpreted the manual to be a final manual and if not why isn't your argument that it is a final manual simply a post hoc rationalization well actually i strongly disagree that the court has never interpreted the one thousand and seven manual as supplement it to be a final manual the one thousand nine hundred seven manual was finally agency action it was adopted with notice and comment based on the most recent science at that time the two thousand and seven alaska supplement is also an agency guidance manual with exactly the same status that the nine hundred eighty seven manual had it was adopted with notice and comment the court responded to those comments on the record t cups consultants were among the commenters the core used up to date science and now the core that is the consummation of the agency's decision making process and is certainly final in that sense i think that mr mccloy referred to our position in bailey suggested that the alaska supplement could not be used and i don't think that we suggested that if you go back and reread the brief that we followed in that case we were asking the court of appeals for our deference to our interpretation of our own manuals and that's exactly what we're asking the court for here we're asking the court to understand that in our application of the one nine hundred eighty seven manual we allow for field officers to make judgments based on local conditions that's exactly what the legislative history says that congress wanted congress thought that the  will had taken too much discretion away from local officials and so the nine hundred eighty seven manual gibson local officials that discretion we interpret the manual to allow that and so in bailey we are asking for our deference to that interpretation and we're doing the same thing  our difference required for a preliminary finding of ambiguity the with chevron doesn't stop one yes i think that our legacy ambiguity or well the ambiguity is in what circumstances the manual your position of the contrary yes again this is an alternative argument we think we could win on other grounds before this but our view is the two thousand and seven supplement certainly is a final also final in that it is the core is the consummation of the course process of examining up to date scientific information in the one thousand nine hundred seven make it was outdated in several respects the u s d a definition of growing season was based on crops it didn't work well across the country as this october one thousand nine hundred one memo identified and so the two thousand and seven alaska supplement was the consummation of the agency's reconsideration of how to use the most up to date available science i don't think i'll address at the moment counsel's argument that that means that it is not a nationwide standard first of all i don't think that the one thousand nine hundred react requires a nationwide standard certainly doesn't say so in the text and also doesn't indicate in the legislative history one of the technical criteria that the court uses to find one of those three things the only way that the regional supplements vary how the core applies those three factors is in respect to regional variations that already exists is only different to the extent that areas themselves are different and given those differences it tells corfield officials how to apply the same standard nationwide given those variations but the difference is that the alaska supplement doesn't have the officials can vary the criteria stated in the manual as long as they explain it in the record and here there is ample explanation in the record of why the corps believes that wetlands are present on tin cups property and i would say the number one element of that is ten cups own submission to the core as part of its permit application in which its consultants submitted exactly the wetlands delineation that the corps used here a second element of what in the record demonstrates why the corps could depart from its temperature based growing season here is its actual observations of vegetation on the site which as chief judge thomas pointed out is really what's at stake in the c f r definition of wetlands it's about the inundation of soil sufficient to support a key problem for tin cup is that there is no evidence of soil temperature one thousand point seven inches below the surface there's lots of evidence that there may be permafrost on various areas in various areas of the property but those are based on measurements taken for example thirty three inches below the surface thirty seven inches below the surface one of the cores scientists said that you might drill down fifty feet to find whether there is permafrost there and the growing season definition the one hundred eighty seven manual only cares about fifty centimeters below the surface it's one thousand point seven inches and there's simply no evidence of that that's because when the parties were trying to figure out whether there was permafrost and what it might mean they weren't focused on this specific growing season definition they were trying to answer a different question below the surface on any part of ten cups property everybody was using proxies here including the core and that's why it's reasonable for the court to issue a permit based on those prox court unless the court has other questions i'll simply close with the thought that the supreme court has said congress does not hide elephants in mouse holes and that's related to the idea that words of futurity have to exist in appropriation statute there's no reason to read the one thousand nine hundred three act as making a permanent change to the clean water act which gives the core authority to identify where wetlands exist and where they don't instead in the one thousand any three act congress said would expected the court to do based on the course own testimony to congress and in return the court has respected the concerns that congress expressed concerns about notice and comment proceedings and scientific validity all of that is consistent with the  three act and the court should uphold the course permit here thank you first to address that ten cups consultants submitted to delineation as consultants i mean it is their job to try to determine what the corps is doing and basically what they submitted was if the alaska supplement applies then these are delineated wetlands and we don't disagree if the last elastic supplement is applies then that is the proper determination the question the consultant later objected on whether or not the last supplement was the proper so that i think is it in a relevant fact they were merely stating what they thought the court was applying at that time and now discuss the the as as judge has said about the language aug seventeenth  presumably i'm at the same type of thing now it's curious to me that the course said that this provision is not specifically an appropriations provision but then still wants to apply the standard that applies to the appropriation provisions and it's true that appropriations provisions do have a presumption against few turkey now i would say that even if that presumption applies well until are those clear words if you turkey and to a debt to address the difference between will and shall will shall is also a term of art and an appropriations act and it is always used and reference to an appropriations of funds says these funds shall be appropriated or shall not be adopted later then august seventeenth right then i just wait on the top questions and answers on the one nine hundred eighty seven corps of engineers manual that you're right and your honor in terms of like i said one is is this a final manual that i see them out of time a one question is whether this counts as a final wetlands delineation manual in terms of what congress wanted the other is whether the increase regionalization i mean it does