corps regulatory jurisdiction over a series of seasonally what wetlands did not require a showing that there was a hydrological or ecological connection between the wet ones in the the united states the second question is whether the district court erred when it found that the corps had jurisdiction based upon and by virtue of the fact that a manmade barrier separated the wetlands from the water and but for that barrier there would have been a connection and i believe the answer to both of those questions is yes the district court erred my understanding of the district court's ruling in the rationale is that because the court regulations when defining adjacent state that an adjacent white line is one of the separated a mad made barrier and because this wetland is separated by a manmade barrier from a flood control district channel that that was simply enough and as long is what fell within the regulat of the clean water act and also started in addition to that the congress was intent was specific to regulate wetlands inseparably bound up with water and in the very next sentence sa simpson ecological connections do not apply to the situation in swank which had an ecological connection with sort of migratory bird act didn't fall within the category of ecological connections that would fall into what they consider ecological well it seems to me that the purpose of the clean water act was for to protect the navigable waters the united states against pollution and it seems the connection that has to be between the hard clay and they can't go into the grub what happens every summer is it evaporates so there is no you don't lose the wetlands because the money if you can the water going into the ground so there is no groundwater contamination because the nature of the of the soil the collection of water forms the the wetlands there is no evidence that we've seen that there's been any flooding that has caused the breach from the wetlands down to the flood control district there is no evidence we've seen any flooding flood control challenge to rise to the level that it could possibly breach but what one of the reasons is that the flood control channel is about eight feet below where the wetlands are so it would take an extraordinary i think that was a generalized statement they took from the briefs that's an area assessment of what lands in general it wasn't a site specific analysis of this went so it came from the corps of engineers basic site assessment correctly it's my understanding what the court was saying based on what the the core army corps had put before the district court at the time what do you do with the court statement that sprint courts statements and  regulations i think when you get to this way i think that gets explained exactly with this case was standing for it also and i don't think the court was intending by this footnote in i think not striking the facial nine hundred eighty five regulation adjacency they say this put notice now describing the outer reaches other clean water act a mature stiction of whiteness i don't think that was intended and i don't think that's what that says and i think that even not significant but some connection let's assume that then who has the burden through established there is not only is that you or is that the army corps i think the army corps goes forward to say there is one and if substantial evidence in the record that there was a connection i think the court in which the court within the first of the of the army corps i don't know if that's right but i think that's how it works going to be permissible under the statute and under the regulations for congress and  the administrative agency and setting up the relation in the regulations stating that a j since he is asked to tarmon that you know in the great majority of cases there's going to be such a connection and we're going to make this process so impact on the maintenance of navigable waters it's questionable or the commerce clause would have gone too far into the circumstances and certainly i think you know if you if you modify the system clean water act to include that nice and that's what you were saying you go beyond the statute that you have the day or the regulations is there any other pre prohibition i think there is a prohibition and if that then not that was a response request was ok what happened in this case facts and the law and we can discuss both of those first the facts substantial evidence in the administrative record support of the court's finding that there were in fact i the logical and ecological connections i don't understand exactly how gave up and say that there was no evidence of water to water communication we can talk about all the evidence and the actual findings the core main second on the law there is no such requirement he reads blank to refer to impose such a requirement it doesn't do document this is that page two hundred fifty of the excerpts of record the course needed a fresh water wetlands in the mitigation area wetlands we're talking about proposed for conversion to brackish wetlands currently receive some water from the flood control channels at very high tides that's a quote i don't understand how they said there's no water to water communication if there were no water to water communication i don't know why their own submissions wouldn't have recognized that communication repeatedly with the la the decision making in fact finding duties of the army corps of engineers this is review on the administrative record as opposing counsel properly noted substantial evidence review applies if there was a factual dispute it is for the poor to determine it the district  finding this is were you under the a p a the court actually made those factual findings in the decisions we're talking about the question for the district court was there's a potential evidence supporting those findings and again this all goes to the factual question before the court regarding whether there was a swank addressed an entirely different provision within the regulations and the three not a provision that's at issue here we know for instance that they claim that the swank language regarding inseparably bound up and significant nexus changes riverside gave you not sure again for instance the actual source of the inseparably bound up language whether this language in riverside beneath you we cannot say that the course conclusion that adjacent to wetlands are inseparably bound up with water as the united states based as it is on the course an course detail we think will expertise and its technical analysis and its factual conclusions all of which should get this court's deference under the a p a the court talked about the fact that the man made barriers didn't defeat the jurisdiction of the court talked about how this particular distance flood plain they talked about the fact that the soils at issue where the same type of soil is found elsewhere underneath the channels an issue all of these go to support the corps finding that these were recently proximate adjacent shown to have significant functional effects on nearby waters it is appropriate for the corps nonetheless to search restitution and i'm quoting here the core may always allow development of the wetland for other uses simply by issuing a permit that  is issues that they're talking about the issues in those other types of wetlands that hypothetically might not actually have an effect or grayson waters supreme court and forty nine s tells us yes it's still fine for the court to have jurisdiction because as a class jason wetlands can be decisions since nine hundred eighty five which they claim required a hydrologic connection i know of no such decision many circuit court decisions have focused on his logic and actions that we can agree to but there is a significant difference between whether it's required or sufficient open for debate but not in this case and that i think would be open for debate as the application of the course regulations in that instance if the corps were attempting to claim that something was bordering neighboring or in take us when it was one hundred miles away there'd be a significant question as to whether that was  approval of the course of the decency regulations frank court was talking about a completely different set of facts talking about a form a gravel pit that have been filled up and there was no claim that it was nearby any other jurisdictional waters claim there was merely that they were within the quarter section because of the m now in terms of the question as to whether there's a factual dispute it seems to me that they're claiming there's a there is a hydrological connection and we're saying there's not and we do say there's not based upon their own of own final agency determination in that final agency determination they said there would be a connection but for the firm and they say there is proximity if there would be a connection but for the berm it means there is not a connection they have never found a connection never claimed jurisdiction as it is we say there's not because of our final agency determination they don't say that there is a connection then if you go back to district court to make that determination looking at the record before the court thank you ok thank you very