case is about whether despite the requirements of the clean water act and a federal agency can legally cut and paste from letters or statements by an applicant and call it good stores not yet open year on earth early june it's supposed to be open in june the project is not moot because as we indicated in our supplemental authorities submission there is still relief that can be granted here and quite frankly given example there would be two different substantive examples and one procedural example the procedural example is the core can go back and do a proper analysis the substantive examples are the core or the court could order the fill removed that happens in after the fact permit cases all the time substantively the core could also say you know what we messed up the analysis here after we look at these studies it doesn't look like the compensatory mitigation is correct and so we're going to order more compensatory mitigation on this particular site in addition the corps could do a cumulative impact analysis that affects other permits in the same area that says you know this wetland over here did have some cumin of effect and so we're going to reduce the amount that we're going to allow you to do in the next door development the thirty two point nine two acres that are already slated for destruction right next door so in other a very significant different result and lead the court to require either more mitigation here or more mitigation and other permits in the area the kind of a calm after the fact mitigation measures are they authorized by the way the cases you think in your letter that they are they are referenced by those cases there's a whole list of them and they are also authorized by the statute the clean water act and by the regulations specifically the one they are authorized by thirty three c f r three thirty two sub or point three subject and sub f both allow for the corps to do compensatory mitigation analysis and require more from an applicant and if the corps does what it should do and go back and does an independent evaluation here instead of just cutting and pasting then they might come to a different conclusion let me let's go to that i mean whenever you say cut and paste of course that raises the specter of just sort of a dismissive the now mrs but i think the core of your argument is that there is some independent analysis requirement separate and apart from the hard look requirement so i'm trying to understand exactly where that comes from in the ranks that it comes from two places that is from the clean water act regulations that we've cited in our brief it comes also from the nepa regulations that we've cited in our brief both of those specifically say the corps has a duty to independently evaluate and verify the accuracy of the material that it relies on and that's both a substantive anak procedural requirement that they do that independent evaluation and it's undisputed that here they did not have anything other than a letter from a wal mart representative that said we have a geotechnical study that study shows that it's going to cost all this extra amount that's why other site for which the same store had already gotten a permit and which had already been filled with eighty one thousand cubic yards of fill that's why that other site is no longer the best site even though we  said in our previous application that it was the only site and this site which we now want to permit for was not accepted so then we have the further complication that we need to get over and that is that the regs actually apply  a s the precursor to an e i yes is in any way and that's why this court in barnes and other cases has said these independent evaluation criteria apply to  just like they would to any i ask because that's what you're doing when you're doing any gays are evaluating should we do and yes the other thing i think that sort of gotten lost in the briefing here is that if the court had gotten the study and geotechnical study and the marketing study and the problem the access issues if they had gotten those they could and should have put them out to the public to comment on and the public could have had him put the public might have been able to identify issues with those studies that wal mart hadn't disclosed or that the court didn't even see that's the whole point of the public process part of nepa is to give that kind of an opportunity that didn't with another application and then they're required to not blindly accept what's in it but to ask questions and they did start that process here they ask some questions and they got a letter that said we have a technical study and then they stop doing what they should have done which is ask more questions such as well who did it what does it say well what is it based on how credible is it is there are there other studies that are different and how is this the most important one in my mind is wait how is this consistent with what you do the same applicant represented to us in the nygaard site where you said it was accessible and you could fill it with eighty one thousand and it was going to be perfectly usable and you rejected this current site that fact alone should have caused the court to go back and say we need the studies we need to take a hard look here and i submit to you that from a practical matter this is a classic arbitrary  capricious situation because the court didn't have the facts in front of it it just had statements by the applicant and they have to have more than statements i would use as an analogy if i had said in our comments to the core i said a lot but i defy if i  had said we have a study that shows that the study that the applicant is claiming to have is completely bogus and doesn't say what it says could the core deny the permit based just on my statement that we have a contrary study of course not they would have to say well we need to look at your study what does it really show that's what they should have done to the applicant is well ok you say you have a study what does that really show and this in this particular case it was particularly bad because they had the same site for the same store already in front of them so how would it made a difference that they had done that if they had looked at the study they might have found that the study was not well founded they might have found that the study was well founded we don't know because they never did the independent about you ation they might have concluded you know what that other site that you've already filled is a practicable alternative and i submit they would probably need to because there's a legal presumption and we laid that out in our brief because this was still a functional stream well and complex even though it was very small at the business park site it had a legal presumption under the clean water act that other sites were viable and the corps has a duty to have clear and convincing evidence to overcome that presumption here they would have had to have these other studies to have clear and convincing evidence and they didn't have and they had a letter that's all they had the other thing i would point out in the court tried to focus a lot on this in their brief the size of the wetland and they seem to suggest that the size allowed them to do a lot ignoring little tiny wetlands we end up with a completely dysfunctional ecosystem because we've not taken into account the cumulative impact of destroying each little wetland and here where the wetland was entitle to a legal presumption that this wetland complex was not the right place they absolutely can't reasonably apply that other regulation that suggests well you can adjust your valuation based on size to exclude  impact or to exclude the independently about your weight and identify have remaining time i would like to i should point out there is some irony in the core looking at that one a just the size regulation because it is one of the regulations that also theoretically only applies to the process but that the reality is they both apply to e a s because those are the precursor to the whole process thank it please the court i mark a from the department of justice representing the corps of engineers and with me and a council table is misty a lot cooler from the corps district office and i guess i would start where we left off talking about this n aard site because the thing that has gets left out of the discussion is the mitigation that was required for that site so in two thousand and nine when that permit was granted a different property owner and developer who apparently had a contract with wal mart applied to the corps for permission to fill fourteen point nine acres on that site and in exchange for the permit to do that fill the corps required mitigation of  hundred thirty one acres of protection and restoration of other wetlands so almost ten times as many acres of wetlands were preserved as were filled the nygaard site wetlands were chain of that site had been significantly altered by the construction of adjacent groves and the environmental impact statement for that permit which is in the record  says that the mitigation that the result here is environmentally preferable to no action simply on straight up environmental balancing we're losing fourteen acres almost fifteen acres of degraded wetlands gaining one hundred thirty one acres of higher quality with us so then we come to this permit the fill is four point three seven acres of wetlands on a property that's within plan shopping center where there is already been phil the site has been disturbed historically again there's mitigation one point three three point seven acres geisha for the three point i'm sorry point three seven acres of mitigation for the point three seven acres filled so this notion that we have death by a thousand cuts in the corps isn't looking at swan what's important and gradually the wetlands are being whittled away that's not what the facts are in this case there's been adequate mitigation and when you're talking about point three acres of fill in a watershed in a sub watershed the skip upon river watershed that has three thousand seven hundred three thousand eight hundred acres of wetlands so you're pointing talking about point zero one percent fill mitigated it's entirely reasonable for the corps to say these impacts are not are not significant we can issue any and this project is in the we can make the public interest finding the clean water a reflects a great deal of analysis and it reflects back and forth from the agency with respect to whether the nygaard site was an alternative but to put this in perspective the question that the court has to answer is are these impacts going to be significant and is that is it consistent with the clean water act public interest determination the question of whether the night the night guard site was one of two off site alternatives and three also on site alternatives that the corps consider so nygaard is just one alternative and the the soil geotechnical analysis and the cost analysis associated with that is just one of the bases on which the court determined that the not right was not a practical alternative there are also problems with road access and there are problems with the fact that the elevation of the site is low and it would have to be raised further to put it out of the floodplain and cracked craws argument now that the corps should have been more done more to analyze the to analyze whether this was a viable alternative is particularly ironic if we're going to talk about irony here given the fact that corn is comments to the core craws comments to the core in the first place w is not a good alternative if we don't think that i wal mart should be be there but you need to do more to consider whether it's an alternative or not so that's that's kind of that's gaming the process that's not what they're trying to use the regulations i think to say something more was required than was done and this goes to the imposition of the so called independent now with us right and your response to that is what  my response is that the the in the past whatever in the level of independent analysis that the core has to do should be commensurate with the likely impacts of the project and when you have a small project that where the likely impacts are minimal or there there's no reason to expect that filling point three seven acres of wetlands within this area that's already  been designated for a shopping center and that has previously been partially filmed for a shopping center given the likely the scale of those likely impacts the environmental analysis can be commensurate don't the regulation that they cited in their opening brief which the court discusses in hands was the core of the corps of engineers nepa regulation and they cite a section of that regulation which has been repealed that's no longer in the regulations and that's the language of independently verify information submitted by an applicant in any way the specific provisions most of the specific provisions in the this c e q need to rags refer to environmental impact statements there's one place and i think it's fifteen zero zero fifteen  five point six and that refers to environmental documents and it's not clear whether that's just limited to environmental impact statements or environmental assessments but but the regulations also make this point both the made and you actually referenced it in passing was that part of the public interest and now asus should have included whether these big box stores would impact the local businesses and that was be some negative impact as well as positive impacts but without particular analysis as to what that would be how many jobs no that's right but and there i think the important point is that  local land use decisions and zoning decisions are the responsible of the state and local governments and here county the state of all issued the necessary approvals of course not just a general land use planning agency and that you know to deal with that for every permit for a fraction of an acre or for fifty or sixty thousand permits a year is simply u and it's relevant in terms of remedy here whether or not the case is moot because there i mean my my particular office when the in the justice department frequently in the context of timber sales argues to this court that the trees have been cut right and need to analysis is done there's no point in looking at alternatives because it's done and this court tells us no it's not moot if it's unless it's impossible for the court to provide some relief and we felt that it was difficult to make the argument that it's impossible here it is possible that if it were remanded to the agency the agency could do additional analysis for mitigation but i would point out on that inadequate so you know talking about alternatives talking about mitigating for possible future impacts that's gotten that's pushing it i think  there was a mention of the impacts from the plan and development of the north coast business park which is adjacent to the north coast retail area where this permit is located and the fact that that the county's plans call for filling of thirty two point nine two acres and the corps describes those future impacts but doesn't doesn't and now analyze them in detail in the cumulative impact statement and the reason for that is that this is a general conceptual plan there have been no application applique at the time that this was written there were no specific permit applications from the county to the corps for the development of the short answer is that there could be remedies beyond tearing down the store is what you're saying well that that's true too i don't think that from an environmental perspective i would hope that everyone would agree that at this point that it would do more damage to the environment to tear down the store than until leave it be there but again you know in terms of thinking about the remedy there the whole crux of their argument is that first the coral out fourteen acres to be filled and now they're going to allow more to be filled and that argument doesn't take into account the hundred thirty one acres of remediation that we're connected with that first fourteen i see if there are no further questions i will sit down ok thank you let me start with that last point i think the core misconceived our argument here argument is not just about this one specific wetland then this was the mitigation that was or was not done on the nygaard site argument is the core as a federal agency cannot simply cut and paste from the applicant's materials they have a duty to independently evaluate and counsel references a site to a prior form of the clean water act regulations what we cited to in our opening brief was the hints court which was role lying this court's decision and hence which was relying on an older regulation but the newer regulations still incorporates the same requirement the new regulation which is thirty three c f r part three twenty five appendix b eight f who says quote in all cases the district engineers should document in the record the corps independent evaluation of the information and its accuracy that's the current regulation it's still there this stuff about it somehow being an old regulation it's not relevant they adopted a different new regulation with the same requirements and the need for regulation which also requires the same thing which is forty c f r fifty you know six point five subway is still in place let's go back to this business park next door this is the test underneath is reasonable for see ability is it reasonably foreseeable that the business park next door which has a master plan which has specific thirty two point nine two eight dollars slated for development is that reasonably foreseeable this court has repeatedly held you don't have to have a permit application in front of you before something is reasonably foreseeable if it's just a general concept out there in the ether that's not reasonably forseeable this is not it's a specific plan with specific mapped destruction that crosses the threshold the final point that i would make is council references the e a a reflecting back and forth between the corps and the agency or between the corps and the wal mart folks and that is correct as i noted they did ask some questions but they never got to the independent evaluation and verify accuracy stage they just ask questions and you the whole point of the regulation for that to mean something for that need to and the clean water regulation of independent by the way to actually mean something on a broader level for the corps and any other agency is that it has to be more than cut and paste and that's all they did the net there's no question they never got the study or any of the other studies and i also note with some humor that counsel says the corresponds to look at what lynn impacts not other things well that's interesting because they justified their public interest finding on the basis of other issues such as access and other issues over at the nygaard site that the applicant claimed now existed and we brief these in our reply those other issues were never verified they just were a email and a letter from an applicant representatives but the core relied on those and yet now they're saying they're only supposed to look at weapons i think the fundamental problem here is that this is a small stream weapon complex that managed to survive all the previous depredations but the core is not supposed to say it's a small one so we can wash our hands there has to be some meaning to independently evaluate otherwise there's no reason for that or the need for regulations to exist and here what the court did was simply take the word of an applicant and that's never acceptable would certainly be better for my clients if i could just simply say to the core oh we've got a study that shows you're going to destroy a living species and it's last habitat but not provide the study and have a core deny a permit but they can't do that that's not the law and it shouldn't be the law thank you thank you i'd like to thank both council for your argument