bank's property fall outside of the jurisdictional authority of the army corps of engineers under the clean water act because those wetlands are only adjacent to other jurisdictional wetlands and therefore you  too far in this and i know that your overall framework but i want to ask you about because of factual issues that at least i understand you have conceded but i want to be sure this is correct has your  argument that that even if that is true that does not preclude i get the i know you don't go but i'm just saying you can see there is such a sub shell subsurface flow that your honor we have not contested the record supports jurisdictional process the supreme court in their parents decision set forth what it viewed as the outer limits of congressional authority delegated to the army corps and to e p a to regulate the clean water act right but right reasonable interpretation but when we're looking at an interpretation of the law but expert agencies why should we defer to your construction as opposed to that of the question of are these features otherwise subject to the outermost limits of congressional delegated the forward into the clean water act and secondly have the agencies exercised that authority through their regulations so on the first point that's where significant significant nexus is relevant but on the second point that's where the regulatory exception upon which universal welding basis its appeal comes into play and that is to do the same so you can't just because something is adjacent you can't do it when there's an underwater connection you've got your interpretation of it it's not their interpretation you're saying ours is a better interpretation no your honor their respective that's that's not quite what where we're  g what we're contending is that because any allegation of a connection that would otherwise supported jason see here between universal trollings property and drainage channel sea which is about a mile and a half away any allegation of connection whether it be subsurface connection or what have you is holy and one hundred percent a function of the presence of intervening what that separates universal weldon's brought that is but more sure doing also an adjacent wetland is not relevant because of the surface flow of water and i don't in terms of just basic administrative law aren't they entitled to interpret their own regulation and don't we are deference to that where their interpretation is supported by just a plain all view of the regulation your honor if the course interpretation were simply a plain interpretation or follow the plain meaning of its regulation then yes or a reasonable interpretation one reasonable interpretation of their own regulation thank know what they meant your honor i have i would certainly agree that if an interpretation is reasonable in this context under our in seminal rock it isn't titled to deference but here of course universe well he contends that it's not a reasonable interpretation it's actually in fact not even one that's been consistently adhered to even in this ministry to process in fact on the second administrative free man to the court district the court district applying the same regulatory text upon which this appeal follows concluded that in fact these weapons on universal well these property are not your sectional and yet e p a intervened and the agency ultimately changed its view but it certainly hasn't interpretation articulated by the core is reasonable because it would render the adjacent weapons exception a dead letter now you know with respect i mean i get your point you're a good lawyer i understand your client perspective but you do just look at this from a common sense perspective you know if you have property that is not connected in any way to never google water which was the concern of justice kennedy them unless there's clear evidence that they didn't follow the law or that there's nothing to back up their their reasoning and just as a common sense threat or sense or is it can actually actual physical connection with water why is that an unreasonable determination and interpretation of the law your honor it's on reasonable here because if there were no such connection if there were no ground water connection or any other connection between the property and channel see this debate over the scope of the exception would be entirely meaningless because there wouldn't even be a prime official case of jurors but that's the big yeah that's like saying if a certain area doesn't actually have an endangered species and after that it wouldn't be part of a more you know plan to deal with the endangered species there is in fact as you and your earliest helpful well your honor respectfully i would say that it is helpful because it plays it puts into relief how the jurisdictional process is really a two step process it's not just determining is a significant nexus but it's also determining even with a significant nexus has or has the poor exercise its regulatory authority to cover that significant nexus what sense would it be if we if we can see there's a significant nexus what sense would there be in a regulation that said but we're going to disregard that nexus if the connection happens to have this other wetland core suggested a host of jurisdictional of exceptions that would apply even if the agency otherwise had statutory authority to regulate those features and it's a matter of the agencies discretion as to how  any charge of illogicality but well you have you haven't offered a logical reason for the exception you're trying to get us to buy onto unfortunately your honor there really isn't very much you can call regulatory history behind this particular exception and i believe even the court will acknowledge that there certainly has been much case law addressing the issue either but for whatever reason that exception has been on the regulatory books so to speak for over three decades and it is the normal interpretive duty for a court to give all regulatory tax some independent meeting no i see an independent meaning here you've called it a dead letter and i don't understand that because this makes much simpler i would think the identification of what what's covered and what is not covered and what this says is you can't automatically assume this is covered because it happens to be adjacent to a wetland that is itself a wetland you wind up falling back to the sometimes more difficult question of is there actually a significant nexus so i don't see this exception as a dead letter as you  the reason why we believe that it is a dead letter are rendered superfluous by the course interpretation is precisely because there is no circumstance where you would otherwise do any work where it might otherwise claw back something that would otherwise be subject to the  jurisdiction unless and circumstances that are present here in the universal world these example because that the example of the isolated weapons that the court offers as a instance where it would do some work there is no work to be done isolated whelan's or already beyond the statutory authority of the agencies so there really is no point in including an express statement to that fact in the regulation the regulation otherwise would have no work to do and it's precisely because of that superfluously both think that the situation the soon there was no significant nexus here the wetland we're talking about here wouldn't be picked up by the regulation because it simply adjacent to a  do in your terms that is there this will separate out things over which there is jurisdiction and things over which there is not so it's still doing a lot of work i don't understand why it wouldn't be your honor the reason why it does not do any work is because the point of the jurisdictional exception in the regulation is to say the course saying we might otherwise regulate this but we're choosing by regulation not three if there is no significant nexus then the court couldn't regulated even if it wanted to regulated by regulation and that's how the work is done if i  h that standard but it also concedes that it is the controlling principle and makes reference to the fact that there could be a circuit titian down the road in this case but all of that is what does the  show under the play me plainly erroneous standard or we're interpreting regulations under our what would it have to show in this case to be successful well that's a pretty difficult standard to meet i think the court one way that regulation and interpretation of regulation could be plainly erroneous is if it is inconsistent with a regulatory text but here it's its plaintiff interpretation that is inconsistent with the text for one thing the plaintiff has to have the word immediate to section a seven regulation to get the result it wants in other words you have my say immediately adjacent  three wetlands are adjacent is is that your stiction wetland on the other side of paradise road but that would be the immediate immediately adjacent water feature but the word immediate is not in the statute under the runnels card lines to be interpreted in the context where it's view of it's own regulation changed or affected by a supreme court case as opposed to anything else that changed our analysis of the plaintiff does make a point about the swank decision now and how that deprived section a seven parenthetical if any of any interpretive force but that's just not correct because as you point out in the brief federal long before the swank decision so twenty years later the supreme court comes along and says cor you know at least with respect to certain isolated wetlands you're you're right you're regulation was correct that doesn't somehow mean that the regulation was meaningless or did no did no work before the supreme supreme court came along an issue decision decades later and as we also point out in the brief going forward from swank which was a two thousand and one were only adjacent to another wetland listed in paragraph say one through a six of the regulation then those subject wetlands would not be jurisdictional they would need to be adjacent to some other type of water listed in a one through a six other than what lands so i guess the some some subs in some of the regulation exception i had work a lot of work to do  suppose the intervening wetlands here had only been one foot wide rather than considerably wider or larger than that that wouldn't make any difference on plaintiff's reading because even though the wetlands were only one foot wide  the thing to which the last three wetlands were immediately jason jason would be the one foot wide wetlands on the other side of the road and that just doesn't make sense if the wetlands were six inches wide a foot wide three feet wide it wouldn't make any difference under plaintiffs reading because still the only thing to which the law three wetlands would be immediately adjacent would be those other wetlands matter how narrow the distance between those wetlands and channel sea these are you know these are all conclusions that are nowhere compelled or even really suggested by the language of the regulation and the corps has this sort of last good chase into this to any other united state to the state of washington no and i don't think i would say that it was bordering or or neighboring because there are several thousand miles in between alaska in the state of washington well that's that's part of what what's being argued by plaintiff here that it jason means next to you don't have to insert the word immediately i think you do your honor because i mean it's it's throughout plaintiff's opening and reply briefs when they explain their position it always turns on the notion of immediate jason l that's the question i just posed and you indicated well there's a gap between alaska and the state of washington so it's not adjacent and there is a meaning of the word factually found to be present here only one of which is necessary for an adjacency finding and the factual bases as i understand it are not really being contested so judge clifton i think you could have a situation  the three wetlands situated in alaska would not be reasonable for the agency to find that they were chastened to some water body in the state of washington but that is certainly not this case what we have here is more a i would say up before the district court and the first district court quite correctly pointed out that the plaintiff has never made a challenge to the jason c regulation in three twenty eight c and the court he the judge said was not about to make the plaintiffs argument for it its face says that in fact not one that the memo was originally issued hundred six two thousand and seven and that careful consideration was given to public comments received and that times were incorporated into the new family though in terms of the december two thousand and eight memo we have what looks to me like notice and comment rule making and i think that the further salient point is that none of the relevant adjacen friends for that reason too we should for our purposes a mother how we apply our in this case should construe this joint memo as having been issued pursuant to the administrative procedures act as opposed to just some thank your honour's with respect to the reponse host memo my recollection is that express lead disclaims any binding impact one of the footnotes but moreover i think it would be odd for a court to defer to that memo given that it's by and large an interpretation of a judicial decision and typically agencies i don't believe get deference to how a judicial decision should be interpreted with respect to the swank case it is true that it came several years after the rings were issue here was promulgated but it's not as if even in swank the court was saying that we as an agency can regulate isolated wetlands what the court was saying is that our migratory waterfowl rule makes otherwise isolated wetlands not isolated and so it to that extent it was not a new statement of the law and lastly i would like to point out with respect to the course hypothetical about a one foot wide wetland that might separate universe well the property from another regular regulatory feature in that circumstance it's possible that the court could invoke its wetlands network theory one which at least one district court is accepted but which the court in this case has express disclaimed and so to the extent that that that is a concern and hypothetical there are certainly ways of a court dealing with that without at the same time recognizing that the exception should have meaning and should result in challenging case