Tonja Brown JacksonsKetanji Brown jackson first on the court. How is that . If as a statutory matter, if that connects with some form of interstate transportation suc that there would be aonnuous channel of interstate commerce, at could be regulated. Wt does that mean . The Great Salt Lake is an exple. It does not ho up to any other waters to flow interstate. There are a t of forms of nonaqti transportation that can t u there. Ats an example of a water body that hy interstate and would qualify as a water of the United States. Why is the not why is that not applied here . Thess is that if there is a ar body of water that could considered, that possibly the wetland could be associated or connected with that in some way. Dont u have a ditch, a body of water and you he a nexus with land . Justi thomas,er adjacency itself cannot qlify for a number of reasons. The text says that it is not a water, it cannot be regulated. At the plane meeting of water which was spoken aboutit is not wetlands. Doeth not ignore t important which says thathen we are talking about waters, we are talking about their includ wetlands . If we are going to be fair to the text, is there not a powerful indication th wetlands are included, adjacent wetlands are included anthen we can talk about what the word adjacent means but they are inud . Absolutely. There is no doubt thatome are included but the question is what kind. Adjacency in the context means physically touching in that context. If i were to say i own two adjacent parcels ola. What you say is true but when you look to our normal indicators of statutoryeeng meaning, of course we look at dictionaries what they show is that adjacency is not the same as touching. Adjacency has some to do with proximity of course. The definitions are actuay remarkably explicit of the fact atwo things could be adjacent to each other witho touching. Yes. If could respectfully disagree. In the abstract it can have more than one meeting but in the particular context of comparing relationships betwn features, i think the only possible understanding that is specifically touching. Im t sure that is right. You would readily say that eight trn station is adjacent to the tracks, even though it is not touching the tracks . That is correct. The example i was going to give is that if i were to say i own two adjacent parcels of ndno one would think i mean to parcels of land in the neighborhood. Thatmplies they are physically touching. Let me give you another example. I grew up in an Apartment Building in new york cit if i were to sate their two adjacent apartment buildin, do they have to be touching each other or could one be across a side street . I would say, those two Apartment Buildings are adjacent to each other because therere no other Apartment Buildings in between them, even if they are not touching each other. I would say that when we ar speaking about physical topographical features, physically touching require the physical touching requirement issstial. Isnt the issue what congress woul have intended with respec to adjacency that would include neighboring . They didotdjusted to try to make clear the touching requirement that you say w intended by the term . Every time that argument has been advanced has enejected by this court. They have rejted that it represts the broad form of adjacency. Let me try and bri se enlightenment to it by asking in this way, he say wchetlands are covered . I agree with that. My qstn is, why would congre dw the coverage le between these wetlands when the objective is to ensure the chemical, physic and biological integrity of the nations water . Are you saying is that neigorg wetlandcaot impact the wats . Nhtll. It is bause it is bound to concerns here. On one hand there is a water subut on the other there is a federal issue. So important that they claed that one of the purposes i did not read that as a purpe. It is two main sur that we maintain the integrity of the wate i did not see that as their primary objective or Main Objective to adopt a narrow construction. They are very clear of the statute in 34. 1g that they could not give the verification. Youre not disputing that, correct . Corre. I is 62 miles lg, it carries people, that is the traditionadenition. The question here is, what did congress mean by adjacent you are saying that it requires continuousat. Even the trump ainistration would come close to adopting the meeting. Exempted beaver dams and those two items and state would have continuous servicwar. Where your definition come from . If i could start in my response. Even there, most of the court s lling to say that simply meanshathe wetlands are not necessarily excluded from the definitio in part, it is because none of this has anything to do with the te. It is about where does the text come from. Core did not change the waters of the United States and we wldubmit something that is other than a wetland. In other way to regulate it epa had said that the term wetland wod clude wetlands parated by dooms or manmade levies from the water. In a ter of adjactland. It is adjacent wetlands and in wetlands separated by dunes, dikes, or de levies from the water. Why would we read it that way as justice jaso asked and why would we change it from how everyone has read it before the session . I think it goes back to the te. Ifnexcepts that proposition tlands, that shows thely include difficulty. Adjacent means those wetland even if separated . I dont want to dwl this. This will be important for wean across the country and we have to get it right. Why would not a wetland separated a dune, levor dike be covered contrary to wt the past 45 years have suggested . In response to the second part of your question Justice Kavanaugh about how it has been interpreted, i think it was appropriately responded when it was said that it is 40 years of adverse authit the fact is interpreted that way shows that if one accepts those waters is ordinarily dtributed i would agree with that but for the initial history of one congress put that in, i think that would have some force. Can i add a clarifying questionjuice kavanau . When argument the government makes is athe regulation defined regulation, what is the timing . I understand that regulation was adopted in 1977 and 34g was passed then . The army corps had a series of regulations a t final was issued in 1977, shortly before. So itas not old soil, it was around the enactmt of 34g . Pretty clos o or two months. Was it not pttclose, that wetlands were a dcuion during that time . Think you are right. It is not that wetlands are not regulated. I ulgo back to the analysis that one cannot read that history to include every hill in their regulations to be affirmed. I would go back to riverside before regulations become regulatis, there is a controversy about it. E first Court Regulation was more along the lines of what you are proposing. The court wainrpreting it too narrowly and they chan their mind. Everyone owes waawe that this happened. Theyir came out with a narrow interpretation and they were convinced to reverse themselves on the theory that it was not reflective on what congress had wanted. I would say that one answer is that, if you are rerng to felt legislative oppab i am not referring to that, i am referring to a story about the history, that the first interpretation is quite narrow. There was blowback and the court change their mind. Every was is aware ofhessue. It is not that it came out in the stutwas amended within the month and one had time to think about this question. People had been thinking about this question almost the eir time in the interim between the initial statute and the amendment. The relevant core regulation between this time was a regulaon to interpret the waters of the United States. It would seem strange for ngress to say, we will resolve this dispute by entirely ignoring the text of what it is related to. We will have a significant expansion by including a parenthetical that includes a reference to adjact tlands. That is an unlikely way for ngress to affect what would be a significant unbalancing. The 1977 amendment shows congre uqual goal background quints congress unequivocal acquiescence my pblem with your pnt is that they recognized whether it is segment scientifically accurate or not, what they can be is anything thais adjacent to what we think of as traditnawaters. You cannot put those near the shoreline because they would say there is not enough water there. I do not understand how the wetland has bmappable. It ds not have to be adjacent beuse it is part of that river. It writes itself on where t beginning of the water is. Whether that itr or not is irrelevant. Congress definesheerm as water and adjacent wetland. If te that as their definition, why do we not say that something that is near qualifies. The question becomes, what is near enough, is it not . It i precisely what the Court Regulation was trying to do in the s. Th avoided touching tt for the last 50 years. Toour point, they do not have to be navigable. Youre always going to have a point in which navigability is going to disappear. That is nochge the fact that one can defined a rer a understand that one may not be able to navigate at all during that point. May not be physically possible to navigate but one has n parted from the water. Why is that your conception of this does not relate in any way to congress primary jeive. Do you disputehathe primary objective is that congress cared about the biological integrity of the waters was protected . We do not dispute that. No statute pursues its objective at all costs. The limitation are part of that. So why would i not say immediately adjacent if they were trying to achieve Something Different from what was said about being adjacent if they were balancinghe concerns about protecting navigabitof the waters with interest in the states right to control it, why did not whdid they not say immediately adjacent . Why did they not use the word ey used elsewhere, abutting . I do not believe the term abutting appears in the statute. Assume itoe there are oerections that use the term abutting. With respect to the question of immediate adjacency period one question they didot bother is because i do not think they re thinking that it would have any impact on the scope oth act. If congress intended to want to physically change the scope of the act, when we think about the most natur move you suggest that the balancing is about ccerns and respect to administration. It is precisely where they are talking about federal state. In that state,t uses adjacent. They would have made clear that the scopeasbutting or immediately justice jackson, my disagreement is that presupposes th it reregulates the universe to almethods. I think congress recognize that setting aside the clean water act, there would be a significant swath that remas in the state. One example to prove that point is as we discussed in the briefs, nine nonpoint source solution. It is a serious Water Quality issue but it is never been disputed that the clean water act does not reach that. Which emphasizes that the purpose of congress was not at all costs letcln up Water Quality is much as we n. It was to regnize that Water Quality measures le apons regulation as thisas demonstrates cference epa into land use administrators. So the reason why, in your view, congress includes wetnd or thinks some wetlands should be in there is what . Is it because th cnot be distinguished or bau those wetlands affectater quality of navigable waters . The main answer is precisely the rationale that bayview gave. In delineating true waters,ne will have to pick a point at which land ends andat begins. In that intermediate zone there will be things like wetlands. If you read it carefully, it looks to me as though we were talking about the rationale, not corees. That we were saying the difficulty of being able to tell land from water is the reason that the core thought it should or could include abutting wetlands. But it does not suggest that that was congresss reasonin the Congress Said sometng about wetlands. Because it would be too diict to distinguish. Is there something in the text or the statute that points to that concern as beg one of congress . I would go back again to the definition text. Congress used the term water. Congress knew about wetlan. They knew about how wetlan affect Water Quality even in 1972. On pages four and five we cite a nuerf examples. In the years leading up to 1972 we con explicitly and other types of waters. Ands so, riverside bayview certainly opts in our view the idea that waters are ambiguous when applied to the facts on the ground that ambiguity necessarily means that some wi bregulated. And to justify thatps mild excursion from the text, riverside bayview noted the those judgments supported thehat category ruled out wherehe problem arises that is when congress can regulate these as waters. Let me llup. 1344 g is e ggest problem for you clearly. Isour answer to justice jackson, she is pointingut that in the parenthetical in 1344 g, where it gives the state it gives the state permitting authority but accepts nav waters essentially, including wetlanacent thereto. If we read waters in the United States as you ppo, does that mean wetlands fall in another rld, where neither states nor thfederal government can regulate them . Not at all. Certainly there would be many wetlands that would still be regulated, even if the court adts the test offered, precelbecause of this problem. That there will be wetlands that cannot be readily distinguished from adjoining waters. You are assuming oh, sorry. Go ahead. You are assing that we adopt i will save it for mine. Itfine. Ouil, thank you. We have been talking a lot about adjacency, but you also address the question of continuity. Are you saying in your brief that there is no wetland if, for example, in a few weeksn july, the ground dries up in there is not an immediate connection between wet area and the navigable water . We make allowance for this normal circumstances understanding that what shld guide the standard application wt would in a normal circumstances be the ce. Normal circumstances, if it is from fall to the spring, june, july, and augus you do not have that kind of connecti . On a normal yearly bis, there would not be continuous connti. I think it would be veryard to fit weaninto the rationale of the standard precel not simply in the aa at has dried up, but you would say the entire area that is normally connected but is notorhree months in the summer, that whole ars t a wetland. If i uerstand the hypothetical correctly, it is not that it did federale everything, but certainly it is difficult to understand textually how one can regulate and ar aa water ion a regular basis, there is no water there. Does the summer count as a regular basis . It dries up in the summer. Pretty common for wetlands and adjacent waters in many situatio. It is certainly a regular occurrence and admittedly, this is one of the cases athe margin, where i would say presenting any legal rule, there argoing to be difficult cases. That could be reduced throu further rulemaking, but what is important, we have t ally discussed, which the court has nonod much yet, is comparing shortcomings there may be in the lineup drying problems test to the shortcomings that are orders of magnitude greater from the only other game in town, the significant nexus st in terms of its lack of dety to the text, in terms of its subversion of the federal structure, in terms of its much greater diffictyn application. Thank you, counsel. Justice thomas . I would like to just give you a minute to at least comment on what we have said about 40 4g anditthe court has said about itn riverside because as i recall, we suggested that it did not control the definition of waters. Or certainly did not have an overwhelming impact on the definition of waters. Thank you. Inerms of case law, no decision of this court has reliedn 4g to what we advance. Riverside yvw said 40 4g said some wpo will be regulated for the court was not lling to go beyond that. D th respect to how adjacent actually appears in 40 4g, given the context of physical topographic feature the most plausible undetaing of that term is that congress mnthat those that are visibly touching. The very facts that were at issue in riverside bayview. The fact that veide bayviews property was a cattail marsh that blended into lake sinclair. That is the mt what it says. And again that is a proposition that the test is fully consistent wit they acknowledge that some weapons n be regulednder the problem standard. Noin in 40 4g can be interpreted to represent some neral congressional ratification of the cores adjacency regulation from 1977. This case may ha an important nationwide affect, b we do decide concrete cases in ntversy, so i would like you to address t theory that the governments uses to determine that the property constitutes wetlands that can be regulated. The property as i understand it is separated from wetlandby road, isnt that right . Yes, by a road and then the roadside ditch on the other side of the break. That ditch spills a half mile downstream into a creek which then it self spills 100 feet from that into the lake. How is the water fm the property getting to the ditch . He short answer is that the water does not get to t wetlands. It does not get to the lake. There is no serve connection from the property to any plausible war. What is the governments eory for how it gets to the wetlands . The government does not have theory. The governments eory is that the wetlands on the others of the road, which are not connected to the property, those can be combined with the property on the theory that they are similarly situated and only becae eovnment combined 36 acres of wetlands thatt would conclude there was a gnicant relationship to the lake. So it is only by combining the water from the property with this large wetlands that it comes to the conclusion that there is significant ecological effect on the lake . Yes. Priest lake is navigable . Yes. Does it cross a state line . No, it does not cross a state ne if somee ts a boat in the lake is it psie to get to another state from the lake . One would haveo negotiate some rapids through priest river. But i think it is fair to say it would qualify as a water of the United States according to the interpreti of the law firm. Jusce sotomayor . Couil, i think there has en miss reading. And i obviously could be doing it, but i have read Justice Kennedys significt xus text. And as i read his disn, he was of the view thatdjency defined wetlands that were adjacent to navigable waters. And that he was appinthe significant nexus texto al with nonnavigable waters that might be waters of the unite states. And so, i think that there are two isesn this case. Justiceli referenced only one of them, which is whether or not the tributary that runs from the they to the second site, whether that is a marshnd that constitutes a water of the United States. That is what the ninth circuit saw. But there is also the second te running directly to priest lake. And that second site does run across below road andel some houses. I believehe governments position can speak for itself is that that connection is ve direct. There is a subsurface flow, not a groundwater flow, t subsurface flow of water. Am i correct about the factual nature of this case . You are correct the record contains evidence to the fact there is a subsuacflow from the wetlands north of the site south under the sackett property. Im t going that far. Im going from the sackett site to priest lake. The evidence of subsurface flow. Thats correct. As unrstand it, there is a difference between groundwater and surface flows. Iorrect about that . I dont believe the epa has ever me ch a distinction and in the position of someone like e sacketts, theyre practically is no distinction. Ts not that hard. You can see surface water when you put yourooin the sand and feel it underneath. You could feel it inowatery your soil is. Its not impossible to know that there is a subsurface. You could put a stake or plot tot and feel it immediately and have it spring up immediately. So theres a difference between ouwater and subsurface water, isnt there . I dt believe legally theres any distinction if the relevant point is can one stguish anything on the property from priest lake whether its subsurface you dont thk eres a difference . One thing that is problematic with relying on any subsurface connection is it renders the testimless. Why . s hard to imagine any property in this country tha doesnt have some subsurface flow at any depth. The optimally thawar is going to flow to subsurface water. Ithard to imagine congress could have intended, especially a statute that imposes such significant penalties for someone who gets this wrong as to whether the propertis regulated. That goes back tousce jacksons point that congress was concerned about ensuring the sanctity of our waters and those things that directly discharge into it would be safe to keep our water safe. I also think congress was concerned about the sanctity of freedom and private propty ensuring people have at least fair notice as to whether the propertys ing to be regulated. Whatever testev yours as in your answers to the chief juic says we would have to define what a normal season is and define how many days are ntinuous, so its not question any test is being proposedou have some lack of security for homeowners. The one thing abouthepa process is you can always ask the epa for an opinion as to whether or not you fall within the definition. That is correct. I think that is a case why it is problematic. Its hard to imagine any other statutory st that requires a regulated party to initiate an expeand timeconsuming process just to find out whether regulated. That is precisely why the process has been ded with a significant nexus because it is a test and its difficult to know whethers regulated. But it is only connections not di with waters. Thats a different issue. Buthais not how you briefed this case for what we are looking for. We are looking for a definition th has to do with a connection that exists with traditional navigable waters. W the insight of justice kennedy, a different test li the significant nexus test for those connections like here, where there might be a should be terry for somewherel. If the test is connection to subsurface water, i guarantee this case or setng like it will be back in another 15 years and back in the same place weve been witprerty owners not knowing whether they are regulated, the states not knowing what tests to apply. That is assuming subsurface water is not differentiated. I dont think there is a legal distinction epa has articulated between thtw and moreover, as a practical matter, as subsurface, the sacketts property certainly was not a mah. Oy cause they put gravel in it. The original state of t top was taken out. It was zoned as a buildable lot. It h an address. Neighbors around the propert have else there is no sense this property is something one might think there is water underneath it that connects it to priest lake. It is not that kind of top auger fee. I understand you dont like the significant nexus test, but m going back to Justice Kavanaughs point about ke Something Like you just create a dam and the dam breaks up any idea that there is aonnuous surface connection. If i think in that kind of situatio y cant be right, but i also understand some of your pntabout the significant nexus test, is there anything in the middle . I think a middle position is the idea of the nature of the barrier. Whether its a natural barrier or permanent leg brier like the roads that bound the sacketts property. But, its not a satisfactory middle posion because it doesnt really afford appropriate fidelity to the test. Congress could tomorrow im asking you to assume 1344 means thenouhink it means and suggests there is something that says we are supposed to fireut what it is for an adcent wetland, what it means for a wetland to be adjace. If im thinking of Justice Kavanaughs example and thk that looks adjacent to me, but on the other hand, im thinking of somofhe objections you have as to the kennedy test, what do i do from there . Call it a backup position . Call it whatever y wt, is there a third option . In essence, tnk there is. Its exemplified by the sackett case. Theres no surface connection, to any plausible water. Im asking for a test that i different from your test. I would hesitate to say iis the same thing, one could say whether there might bearnal challenges autefining boundaries, certainly where thes no surface connection, there cannot be any plausible argunthe wetland is bound up with an abutting water. So your answer is no. I would like to return to where Justice Sotomayor left off. That is adjacency. If you are going to have something morehaa Water Surface test like we did in riverside bayview, expand beyond that, why not just look at the geographic proxity the lake is the waters of the United States the epa wishes to protect, understandably. They have serities a circuitous route from an unnamed trea ta named tributary to the lake. Th is the adjacency theory, kind of a daisy wheel that i un out from the lake. But that is rather complicat when one looks at the map. You are blocked fr t lake. Why isnt that adjacent enough . Theres a subdivision between you and a late, but pretty close. A closer rtehan this convoluted pass around. I think the reason thatnot satisfactory and i recognize i have genhis answer in more than one form several times, but i would go back again to the text. What Congress Knows about wetlands, it included reference to wetlands. It chose not to include that in the definitionalecon. That has to mean something. What that means is the relevant jurisdictional entity is water. If something cannot be reasonably classified as a water, then the answer is congress hasnt authorized it. Maybe it is a good idea in terms of Water Quality, but that is for congress to decide on. That has to be wide near geographic closeness cannot justify the conclusion that a resintial lot with a sewer hook up and address and mabos somehow considered a water of the United States. That is what is being asked a person who purchases a property with a sewer ho ua block from lake with a subdivision between you and the lake and a road t other cited supposed to know that is a water of the United States, that piece of property, or else what . What are the penalties assoat with this . Wh does one face in these the sackes were threatened with penalties and having to restore the property to the way it was before they began the rk. But there is lingering oveal this discussion the threat of criminal penalties. This is particulate and imrtant because the waters of the United States, it is relevant to the criminal portions of the clean water act as the civil portions. It is the same test and that should give the court particular ncn in indulging any sort of malleable or somewhat uncleaor flexible test exemplified by the significant nexus test. You keep emphasizing the text, but you agree some wetlands are covered as waters of the united stescorrect . That is correct. The question then becomes the statute of theto cover only bordering or contiguous wetlands, or does it also called what vewhat we might call neighboring wetlands . Is tt way to phrase the precise dispute . It is. 4 g is critical to the case. Is your argument that four a 4g does not contr oillustrate what qualifies as waters of the United States or is your argument tt jacent does not mean neighboring or nearby but requires actual touching . Or both . I would say it is both. Following precisely what riverside did, which is the genius of this court indulgence in the epa interpretation of the act. Riverside was willing to say for a 4g mnshile we cannot interpret water to categorically cle wetlands, thats all it was going to say. Once you get there arent you a little bit separated from the text, as you see the text. In other words, i dont know that you really agree with riverside bayview. Youre not asking for it to be overruled. To frank, it was thin. T today you are asking us to put a textual limit on something divorced from the text to begin with. Sounds to me like rather than going with neighboring, which is the ordinary dictionary definiti o adjact,nd also , i will leave it er with respect to the ordinary understanding of adjacency, i agree in the abstract adjacent has more than onmeing. But i believe in the context of this, trying to describe relationships between topographic features, the most reonable understanding and only plausible understandings that it means physically touching. We combine this with the fact that the central definition blighted seven administrations not agree with u. The trump proposal was closer. Ls be clear. They said it would be covered if it was separated. Under your text, that would not be covered. I do not presume t know more than seven prior administrations but what i do know is what is the text tt congress has used and nothing casursede that. Ustice barrett . Can you explain why you ulnot lose. You are sayi tt you would not lose if we had brought a broader definition, akin to the one juice kagans talking about. I may have misspoken. Something is not aact if there is a mandate barrier as opposed to a National Barrier natural barriers. This is suoued by manmade barriers. So what i meant to say is if the court thout natural terriers might not be jurisdiction. With manmade barriers, there is no jurisdiction. I think i did not articulate question clearly enough. Part of whatou said is 1344 g, congress is inSomething Different and it did not modify theefition ofaters in the unitedtas that were existing. It seems to me that that might be true. 1344 g was doing Something Different. What it was carving out was what e states couldndould not regulate. If adjacent means something broader and thisat i was starting to ask you about time expired, if it means something broader it means to me there is a category of wetlands so it seems to me that even on 1340 4g, doing Something Different evugh congress did not modify the definitio adjacent matters in this case. And if we go the dion that Justice Kagan is proposing, would lose. Am i right . If i understand what the justice is proposing, that the sufficient necessarily, then the property and a lot of other properties in this country is going to blate it. Ithat respect, it does cast light on the definit in the waf the United States. It does. The weight is classified is indicating that to some extent wetlands will be regulated. The extent to which they are regulated, i think it is essentially a tail wagging the dog problem. That depends on narrowly accepting the definition of adjacent. Unrstand if adjacent means abutting. Right. I mean i dont thinits appropriate to look at how adjacency is used in 404g and use that to reinve stion 502. It is because section 502 was not and that the criterion remains waters and that must inform what adjacent means in ction 404. Ithe idea that because 1344g was enacted in 1967 . Any case it was proceeding later legislation does not cast light on the original meaning of waters of the United States . It certainly not finitive. I do not want to go to so far as saying it does not mean anythi. It does mean something. It would be a strange inversn of statutory interpretation to say that parenthetical reference in a provisioneang with permanent transport authority suddenly chang the central definional portion of the act, a portion as much in criminal prosecution as in civil matters. Justice jackson . Sorry. You said several times that riverside bayview, you said at most, somewhat wetlands could be regulated. T der your test, it appears you are requiring visual indistinguishable. I am trying to distinguish whether riverside bayview gets you there. In that case, was it clear the mah ea was visibly indistinguishable from the abutting creek . That is precisely h the government argued it in the briefing and oral arments. We quote that portion in the reply brief wherthe emphasis is on, from riverside bayview it would not be an exaggeration to say that after wading through a cattail marsh, one could swim into lake sinclair. That it was a continuous body of water that at some point ended and the urt in looking at thosfacts said it is appropriate to defer to the epa in saying the water ends at this point because we cannot otherwise say whether it is reasonable to have it and earlier. Will that be the case in every situation . That it is indistinguishable as toheer marsh or wetlands and d the creek begins . I am trying to imagine his people were reallyonsed in riverside bayside as two people were really confused about what was wetlands and what was water. Do we have to have visual indistinguishable . Justice jackson, there was a dispute among the parties as to proper charactizion. But i think what matters are two things. One, how t gernment presented the facts to the court. And,owhe court ultimately crafted a decision based upon those facts. Ang, the court concluded, as it said, between dryland and open water, the transition is not necessarily or en typically abrupt. You have featureinetween those two points. The court said it is not our place to secondguess the Agency Interpretation that in drawing the boundaries of waters, the ceral jurisdictional term, it is reasonable that there may be some semiaquatic features brought into those bounds. Will we be debating in every case the extent to which there is visual indistinguishable . Bsutely not. I think if there were disputes those would pale in comparison to the amount of disputes pale in comparison to the amount of disputes through the courts. This tesisimpler to apply. Thank you. Thank you, counsel. Mr. Eter . Thank you, mr. Chief justice. May it please the court. Everyone agrees water is otted by the clean water act and it includes some adjact wetlands. The narrow but important question presented in this case is if the wetlands wl se protection if they are separated from water by a barrier like a road. Overwhelming scientific evidence, essentially undisputed scientific evidence, shows those barriers do not diminish the wetlands central role in precting the integrity of other waters. For 45 years the epa and army corps recognized that such a barrier does not categorically strip a wetland of the act protecon this Court Upholds the protti for three reasons. In97 congress was presented with proposals to limit the coverage that sounded like the proposal youea and rejected them. It adopted section 1344gha includes rogtion waters protected by the act includes adjacentetnds. Second, this Court Unanimously he the regulations in riverside bayview. In that case one could wade from one end sw ithe other, but e urt did not rely on difficulty identifying the boundary betwe t creek and the lake. There was not one. The court relied on the agencys ecological judgment that wetlands significantly affect neighboring te and the presence of a barrier does not sever that connection. The presents itself can be eviden oa close connection between the river and neighboring wetlands third, agencies are doing what members of the court repeatedly ged, promulgating regulations that recognize and approialy limit the coverage of e t, incorporating the gnicant nexus test, limiting construction a euring the act reaches only the wetlands that must beoved to reach traditional will traditional navigable waters. The position of the federal government, is there an ecological and biological connection between wetlands and navigable waters enough to bring wetlands into coverage . In other wdryland between. But underneath, we had the case in hthat indicated how far underneath it could go. There is biological connection. Tracing materials in the wetlands, they find their way to the lake. Is that enough, under your view . We are not g about the possibility olecules of water eventually make their way from tlands to the lakes. We take from Justice Kennedys opiowhich traces back to swing at riverside bayview and mas a significant effect. Wt does that mean . How much biological connection does that have to be . The agencies have more than one decade of experience applying this in pcte and they have reiterated and refined it in december 21. The faorthey consider in assessing significant nexus includes things like distance to the tributary, distance to the downstream, traditional navigable water, the volume of the flow, other area so, if the sockets sacketts are Walking Around the area they could walk through and sethdistance factor . So, they know it is not a bright neule. They have to figure out if a certain amount of whatever tracing thing used is deposited in the wetlands and makes it all the way to the lake, no matter how far away it is. Your friend pointed out, i forg t phrasing, but, you know, water goes everywhere evtually. So, there will probably be biological or ecological nnection of some sort. This case is focused provisions addressing adjacent wetlands. There is regulation dealing with isolated waters that are not an issue here. For this case, there has to be a showing of adjacency. Right nothcore and epa have not tried to reduce that to a brhtine rule. Have they tried to reduce i to a vague rule . I think they have said reasonable proximity and reasonable proximity depends on the hydrology of the area. If you have fl floodplains where floods from the river reh waters or wetlands at some distance so somebody looking around a lot would have toooat the wetland and like and say, is and lake and sa is that reasonable proximity and th is a standard used in criminal prosecutions as well . It is. I dont think its unusual in regulatory or criminal statutes. I would point to the last clean water acca where the court adopted a standard for indirectness charges into navigable waters. It was a multifactor test not capable of being reduced yes, but the sewage plant was prtyroximate to the ocean. How far away was it . I dont remember. The sackett wetland is 33 feet to the triburynd 23 feet to the lake itself. Butn e hawaii case we were talking about a big sewage plant. This gets to another issue in e se. At we are talking about now is what wetlands are in t coverage at all . The fact they are covered by the act does not mean development is prohibited, justha development has to be permitted. If the sackett wetlands would not delay, this is taken into acunin the permitting process. Is is just about which wetlands will have some examination to make sure that degradation does not occur. Can i ask youo clarify some action answers you just gave to the chief justice. The statuty language is of adjacency. At certain points in your answer, you suggested the significant effects te i really just a test that you used to evaluate whether there is sufficient adjacency. At another point you talked to the chief justice and you said that the test was reasonable oximity. It is reasonable proxityhe same as significant nes . Is what you are doing trying to figure out how, other than by demanding strict continuity, one deneadjacency . Then, dealing with the hea issue of, it just. Seem and the hard issue o ijust seems it should be 50 and not 50 one. I think thchf justice is asking you, what do you look to . Name the three things that matter when you are saying, is something adjacent enough . Significant nexus and adjacency are different concepts. Agencies have long said adjacent wetlands and for traditional navigable waters, adjacency onis sufficient to justify inclusion. For wetlands adjacent to tributaries further upstream, justice keedthought some additional if you are going to separate them, where does the significant nexus test come from . It is a limiting construction th limits the broad language of the statute, water to the United States. The court has recognized that could conceiblcover every body of water in the country. We know itoenot mean that. So, we need an additional test to figure out what additional waters are covered. The significant nexus test says is appropriate to sweep in additional waters if they affect the traditional navigable waters that where the core focus of the act. Youavnot told me where that comes from. It sounds like a good ideao have such a test. Where does it come from . Two things. The term defined is navibl waters. The definition is broad and it does not require ruirement of navigability. We read rirse, bayview and swank to say you can include wars that are not themselves navigable budget but e justification for them has to be on the effect on navigable water. Light, migratoryir. And they need not be adjacent. I want to ma car that the significant nexus test, it can be not just sent not adjacent, but if there is a significant nexus it is still covered in 1344g in that reect. Also, the agencys view about other circumstance this case isbo regulations with adjact wetlands. The Agency Thinks they are covered and adjacent to traditional if they are adjacent to traditional navigable waters or they satisfied the nexus test. The agencies have also said, and this is reflected, they would cover other wate even if they were not adjacent to navigable waters if theyou satisfy the significant nexus test. Everyone agrees if you accept our view that adjacent means neighboring, then the sackett tland is covered. What is your understanding of the term waters . Are evidence is reflected in e Agency Regulations that for 45 years spelled out diffe sorts of waters covered. I would say, geograpc atures characterized byresence of waters. I would at is not just lakes, streams, and rivers. It is marshes and swamps. Any geographic feature that has water in it at some in the year falls under the term waters . This is something the agencies havflhed out over many decades. They have excluded particularly types of waters and also bec things like irrigation ditches, waste treatment systems, small erosion features. They can be manmade, right . They can be manmade, right . Yes. Hy not irrigation ditches . Ditches . Because both agencies made the determinatn does not make sense to include them, and typically irrigation ditches bring water from navigable waters, canals, rivers, and distribute it into river they are not bringing water back into navigable waters. If we forgeevything the agency andhicourt has said about the question of what constitutes waters, what would you say is the definition of wars a definition was provided by the urality opinion. Do you disagree with that . Does it include any place in the u. S. That has water in it . No. I dont think it does. I except the idea it is a rid geographic feature characterized by water i would go further than that to see wetlands could easily fit the decision a igree there are hard distinctions about how to dtiuish between a wash and a seasonal stream or riv but this is about adjant wetlands and the clearest place to look for that is section 1344g. But we need to know what waters of the u. S. Means. We are noteay interpreting 1344g. Is that may shed some light on what is meant by waters of the it states. But we are determining that cryptic, strange phrase. I agreexaly with what the description of what the court ought to do. My point is just it is a difficult problem of how to interpret it and apply it to all the different water featesn the country and i was trying to emphasize what to aut wetlands adjact to other waters and to that point 1344gs te a history provides guidance about how to interpre and apply that general statutory lauage. But the text does not say in referring to adjacent 14g whether that means bordering or contiguous or also incde neighboring, as the regulation does. I understand that the ca ces down to, ok, what about a wetland separated . On that question, i suppose since congress has not specified , th it goes the extra step, why not let Congress Figure out where the line is . I think th ithe toughest hurdle you face. We have gone, as justice ato said, from water, too adjacent coming out from contiguous to neighboring to congus or bordering to also neighboring and it shouldnt that be congress job . If you look at 1344g in context ngss has answered that question. I think you could get there on dictionary definitions alone. But i dont think you need those here because of the history. Here question about the chronology, the corps of engineers first defined the waters of the u. S. To include adjacentetnds in 1975. Those regulations said, adjacent or contiguous to. Th aeady made it clear we are not only limiting it to contiguous. July 1977 they said we are deleting contiguous becae is a subject of adjacency and we are making it clear a barrier is not enough to defeat adjacency. In december 1977, in 1344g, dividing up icwaters are going to be covered by the states and which will be reserved to the federal government. In doing that congress did a l drew a line reflected in gulations. The court said we will pha i this expansion of the jurisdiction and a with Traditional Boat traditional navigable waters and adjacent wetlas d moved other areas later. I think this context makes it especially clear that congress is picking up the concept of adjacency that was reflected in Court Regulation. It is kind aank shot way to do it, you acknowledge that . I guess. Oused the phrase shed light on. What does that mean . It confirmed the Agency Understanding was rrt. The term waters of the United States, the corethepa, the department of justice went through that to reach adjacent wetlands and congress was presented by the same objections yoare hearing now. People saying, this is in intrusion on the states messing s farming, ranching, and other activities. It did Something Different. It said we wl t accept the proposal to carve out wetlands from theovage entirely. We will do three things. We will carve out farming and rahing and transfer apartment in transfer permittin authority over some wetlands to the states and ratifth concept of general permits. So, it wasentive to these concerns but rejected the idea of carving off wetland coverage. Expand your concept o adjacency and how it differentiates from substantial ax. Your first point is if it is adjacent, we dont do these bsntial nexus test. How much adjacency is adjacent yoindicated you thought this property is adjacent indeeto water of the United States because it is close pest lake itself. That is my view but i want to be clearbo how the case is developed. I just want to understand that that is the view of government, despite the fact ere is a subdivision between the property and lake. That is the governmts view. It is adjacent why . What definition of adjacency is independent from substantial nexus . The Agency Understanding of adcency is neighboring. They have flushed that out by saying it is reasonae proximity to uncovered water. Is there a limit to that . Ith2015 rule they said anhing in 100 feet or a 100 year floodplain and ft. Those have be rected. So, does a reasonable landowner have any idea . In priest lake are you imagine most othwater flow and rainfall and snowfall in quite a lae ographic area drains into the lake eventually or wishes to. Would thatolwatershed be adjacent . I dont think so. I am spaetic to the idea of how a landowner knows if their land is covered. It is important to recognize, there are limits, wouldnt they have to be wetlands . Im just asking about adjacency. How does any reasonable person know, within may b10square miles in a watershed that drains into a body of water in the u. S. Know whether or nothr land is adjacent . We are talking about adjacency. Rules out things many miles away. Does it . Aryosure the epa would take that view . I have asked this question and the agency has told me that they dont think 300 feet is unreasonleor adjacency. H about 3000 feet. Ree miles . I dont think so could it be to miles . When we talk abt les, that is too far for me. One mile . I see where this is headed. If the federal government does not know, how is a person subject to criminal n federal prison supposed to know . The agencke available free of charge jurisdictional determinations for any property and thlicize their manuals. The manuals do not tell us the answer. I understand. You could make aar criticisms and injustices did make similar criticisms in the county of maui and of the court recognized sometimes the Congress Gives us laws when the text is not subset the two these rules. I have a colleague that has a i want to follow up on the fair points,ints, how do people know . Is there a process by which a homeowner can ask . Yes. Y meowner can ask the court for jurisdictional determination. Criminal liability without theng opportunity to getsment from the Government Regarding particular circumstances . Correct. What happens if the government determination based this multifactor test is that you cannot develop your property . What recourse does a homeowner have . The homeowner can challenge the teination. It would just not be a jusdictional determination. It would be a permitting decision. What if the homeowner does not agree with the jurisdictional disn . The heoer can seek judicial review at that point without incurring any penalties d n also seek a permanent. It is important to emphasize again that being covedy the clean water act does not mean no development. It means review. The court has taken a lot of steps at t best of congress to streamline the process through things like road cotruction for the development of dams, singlefamily home construction. Is it site specif . That is apt to buckle to the sockets appliblto the sacketts . You dont dispute in your brief that that can cost hundreds of thousands of dollars. Its just a general permitting that gets you into the thousand dollar range in a shorter range ofime. We think these are hundred dollars is exaggerated for the sitespecific permits. On page 37 of the brief, the 4000 for tiwide permits gives numbers of 35,000. Its important to recognize tha Site Specific permits often involve major developments of many acres. Its the agencys best estimate of cost. In our view, that statistic is not consistent with the information weavnow. The other side aredhat mr. Sackett could not tell that was a marshland. Is that true . Becaus you said the first thing is it has ba wetland. I dont know what mr. Sackett could tell. But i can speak to mmunications from the army corps to the prior owner saying th iwetlands and you would need a permit to build and here is information abo h to seek permits. In the appendix, we dont have ctes before it was filled with gravel, but the pictures after they were filled wh gravel show the parts not filled with water have a tein them. And the environmental consultant who looked at the property confirmed these are wetlands. Though they are now separated across the see by a road, before the road was built that was not tru it was part of oneetnds complex. One last question. You can probably tell that some of my colleaguesreubious this is a ece enough definition of adjacency to survive. , e there any other tests . Another test thacod be more precise and more openended than the adjacey st or the significant nexus test you use . Is there some sort of connection that could be arcuted . I wouldayirst if you are in that world you are past the line drawing problem or the notion that wetlands are onl covered if indistinguishable. We are making judgments about which wetlands a aropriate to cover. Judge kennedy articulated the signifannexus test. Thats when it is not adjacent . That is when it is not adjacent to tritnal navigable water. We seem to be searching for wetlands adjact, so lets stick to that. Iyowanted a clearer adjusted definition of jant, it is difficult to say there is one single bright line answer. Agencies are takincoents on this and considering things they can do to provide greater clarity t public on adjacency and significant nexus. The 2015 rule tried to establish bright line rules critiz as arbitrary. I think there is aan of reasonable understandings of what aaccy means. Can i say the rule you have ou are issuing may have more guidance than what we offial have about adjacency means . It is not released yet. The agencies have sought comment on how crystallized this test is and the adjacency framework it is a part of. When is rulemaking coming down . It is with omb now and in september it went for agency review. Agencies expected to issue it by the end of the year. Is it possible for you to be coect about the adjacent test as articulated so far, but the sacketts win . I dont think them take them to beisting adjacency. Their product that property is just away from the tributary across the street. That is where we need the sutantial nexus test . No, that goes to downstream nagae water. I thought if you were adjacent to water of the u. S. , you are good to go . You need a substanalexus working through the tributary . That picture at the end is across the street, through a dig, then through a creek, then eventually the water. For that you need a substantl nexus between the sackett property across the road and into the ditch at least, right . You are right that you do do need to satisfy the significant nexus test. Does the siifant net this have to be to the ds ross the road are all the way down to the lake . All the way down tthe lake, thats the limiting work it does. How much is the same questio to protest and the chief alluded to this already, how many parts per million has to get to the opty across the road into a ditch . I dont know how many thousands of feet over to a creek and then accrete down to the ke i will give you a similar answer. Eris a quality of standard th it determinative. Call out your local friendly agent and he will tell you yes or no. We will tell you hear the guidin the agency has use, and if you donli with a thing, you are free to challenge that in court. Quick so we dont know until he comes out and tells you . What is the standard, give me your best shot . Do the wetlands affect the emical, biological and physical integrity . The agency looks at t functions filtering o pollutants, provisions of flow during dry times and look at the distance, ty ok at the amount of flow, and they look at the climate. How is that different than adjacent . Adjacent is focused on reasonable proximity. I thought that was part of test you just gave me. Distance is one factor. But the significant nexus test says if you will be lying on adjacency to upstream tributaries, that is not good to justify coverage. You have to show significant effect on e wnstream navigable waters and that makes it harder to includends adjacent to only tributaries. Government estopped from going afteyou if you get a jurisdtial determination and theyay not within our jurisdiction, not within wetland, then are you protected . It is my understandg at jurisdictional protections are good for five years. That is because they are binding on the core and epa for those five years. One other question. The significant nexus test the significant nexus test. You sa tt is subject to different rulemaking and at the agency has a broader view than adjacency. The significant nexus test would be grounded in waters of e United States and not 1344g, and if we accepted the significant net cyst test we would not even really need 1344g, because it would be broader than adjacency. Ottially, that is right. That is why 1344g makes this case about adjacent wetlands an eaerase andoesnt require you to pass on the validity of that. That if one of the United States already included everything with a significant nexus, why does adjacency even matr for 1344 g . Adjacency mte in 1344g because it is expressed textual undersndg that the agencies are covered. The Agency Thinks the act coverage goes beyond that in ways that might assume the wetlands, but 1340 4g would still be very itrtive. Justice thomas . Mr. Fletcher, it seems as though when theres a body of water and nearby wetlands, theres a presumption that its vered by the clean water act. Then the homeowner, whoever owns or attempted to develop it s to opt out in some way. Can you give me an examplef body of water, and nearby land that is automatically or presumptivy cluded from coverage . The agencies have defined some automatic exclusions, in addition to anything that does not satisfy the significant nexus test. They have ruled out some ditches excavated, things that are isolated i grew up in low country georgia. You had a standing water. That was normal. Am thinking of something natural like that, that is presumptuously not cer and it is not near, bordering on, i dont want to use the term adjacent. I de with that word. Borderg on a body of water. I dt know that the agency had taed ites of presumptively not covered. The best thing i c point you towards is this and this is page 69 432 in the agency expin the nexus test really has tth and explains they routinely conclude that waters are covered and they give ecic examples the types of isolated things that are definitely waters but still arent covered becse they dont have enough of a connection to the downstream. In other words, if was living there i wouldnt know until u ld me . Justice thomas, respectfully, i disagree with that. If you had isolated water, farm pond, some this e categorically excluded. If you are not in one of those categories, you have to ask if this is adjanto or there is a significant nexus with navigable bodies of water and for an isolatebo of water, the answer would be no. If i s ncerned about the auority of the epa to regulate purely intrastate bodies o water, or associated wetlands, where would i find of the authoritfothat . Would you give me youres argument for the authority of the government to regulate tha share. I think it is Common Ground between us and petitioners. The Commerce Clause gives e federal government the authority to regulatnagable waters under their intrastate or tetate to transport commerce within the commerce power. Th iCommon Ground between the parties. Also the next step. That authority extends beyond the things that happened ith channels. How ds at become a channel of commerce . I point to the same case that my friend d. The Great Salt Lake was an issue in litigation between ah in the United States. And what the court saids en , though it is intrastate an there is no water connection to some outofstate body, there could still be Movement Across it and it could be intrastate if its trt over land. Isnt there a lot of ansportation over the Great Salt Lake . Apparently not. That is why it is under litigation. The court held thattleit from the 1880s was enough. Justice alito, what is your understanding of waters of the United States take into accoun any player statement rules that have been invoked on the otr site, for example, the effect on federalism, the fact that you are reading aawl lot into a parenthetical in 1340 4g. Your argumenishat with this parenthetical, congress did something with major impornc also, the fact that there may be a vagueness problem. Do you take any of that into accot . Yes. The nsiderations are all reflected in the courts prior desions and we take the significant nexus test as consistent with those decisions and to be aing construction and their only constructithe covered waters to make sure the covered waters include all the waters to thomas. The goals of justice it looks like your understanding of waters in the United States is athg in the United States that has water in it if it has an ecolic effect on navigable waters. Is that righ then these statement rules narrow that . That is your interpretation of e phrase waters . I would not say any affect is good enough. Significant nexus. But yes. Would y w if 1344g had not been enacted i think we would. I think theyott right when they said adjacent wetlands were under the statute. 1344g tells you that Congress Oked at the problem, consider proposals to cut back athect and then approved the course interpretation e core interpretation. What is your undersndg of the United States . In the United States or Something Else . We take it to mean waters in which there is a federal interest. Waters that affect the navigable waters where federal interest is indisputable. Weake it to be reiterating that point. That would extend very far, wod it not . It is true that the acs coverage has been brought from the beginning d at was the intent of congress. The prior system that reed primarily on states proved insufficient. This is not a prlestates can solve by themselves. Pollution in one state or destruction in o ste might be felt downstream. Do you think congress would regulate dryndn the theory that it hasiificance togeerith other similar pieces of dryland. That it has a significant effe on interstate Congress Commerce . I would defend such a law. The rivers and harbors act said you cannot place refuge on the thanksf ibutaries in navigable waters because it could wash downstreamnt navigable waters. That is strehi further than congress did here. If that is the limitation on the United States, its not much limitation. Justice alito, i disagree and i think the prf in the pudding. The agencies have told us, proposing to recodify the gnicant nexus test, they have concluded it is not satisfied and Something Like 35 of jurisdictional determinations concluded there is no jurisdiction on the act. I think that is real, concrete evidence that this is broad. But, it is not unlimited. What the agency has done, i would imagine, is to take a broad position and made pragmatic judgments about how far they want to go seon all sorts of factors. Is that unfair . I do not think it is unfair. I think pragti, administer ability, policy has factored into theor the rulemaking. Agencies have also been mindful t guidance provided by the Court Decisions that have significtlnarrowed from where it w ithe 80s. Ms. Sotamayor . I want to be clear, you are defending the significant nexus test with respect t use when its not adjacent to nag navigae waters, correct . Correct. Are you giving off the argumenthathe sackett property for the second wetland in the act is covered cae it is adjacent to priest lake . Iidnt get a chance to respond to justice gorsuch. What i wanted to saves the agencies do think and argued previous t wetland is adjacent to the lake itself. E District Court upheld that determination. We didnt renew that argumentn the ninth circuit. We relied on this circuit for the ibary and showing a significant nexus to priest lake. Thats how the case has been briefed and argued when it comes to the case court. Why did you give that up . I dont know why that decision is made. I would guess its becae e adjacency to the tributary is a simpler test. It is only 30 feet from the tributary and we felt confident we could show a significant nexus to priest lake. S the sort of simpler way to justify conclusion. Justice kagan. Justice gorsuch. I want to followup on the earlr questions. I think just of gorsuch identified something that the court has been overwhelmingly concerned about for decades. Thats t punishing innocent people who make a mistake. Atssurance can you provide on that front, some of the hypotheticals about someone being penalized r king a mistake, but a reasonable judgme aut the status of their land . I will say a couple things. First, t crt made the point in maui that the Civil Penalties division directed the courts to consider culpability. On the criminal side, it itr that the 1319 of the act provides potential criminal liability for negligent or knowing violatns as a matter pctice, it is unusual to bring criminal prosecution. Tste the obvious, the negligence provision is a red flag. What do you have to say about th . First as a matter of practice, it is rare, very unusual, for simple glence to give rise to criminal liability. Crimalrosecutions are brought when there is serious, aggravating conduc wehi standards like this, as reflected in the county of mi, that did not stop the court from adopting a standard. We think the same should be true here. We think if you have a case where somebody ibeg criminally prosecuted and had a claim statute was vague applied to them and they did not have their noti, they could always bring an applied a vagueness challenge in criminal prosecution. I want to return to Justice Sotomayors point, because i want to make su i understand exactly withhecope of your argunts. As you are arguing a case in this court, to wn we have defined you are right about gnificantexus, justice kennys position, because you are not really relying for purposes of this case on the 1344 g adjacency languag i that correct . We are relying aacency to the tributary. So we do have to have both as we brf the case. But i think also itsorth emphasizing that petitioners arent challenging the significant nexus finding, and theyve conceded essentially that if you get past the idea that adjacent includes only things that directly tchthen the property is adjacent because its only 3fe away across the road. To follow on Justice Alitos point, if we putsi 1340 4g for a moment, thinking about significant nexus. You grew up in the low country of georgia. Whole thing is below sea level. There are aquifers that run right undern we have no basements. You dig far enough in anybodys nd you hit water and all of that runs into lake pontchartrain and the mississippi river. Would that a view of the clean water act and the definitions of of the United States y to anyone who built a backyard pool . I dont think so. Why not . These requirements apply if you are talking about wetlands. That has a particular scientific fition. But yr ew of the statute and it be so lit, would it . The statute is limited to wetlands. Why would that be . Because of 1344g. Nothing in the statutory definition of waters in the United States. You are talking about something that has a significant nexus, particurlsubsurface water. We dont think you could call groundwater water of the United States. We dont argue that groundwater is covered. To Justice Sotomayors point, we think subsfa flow is evidence of a connection between two bodies owar, but you do have to talk about water. We think wetlands like swamps and marshes are waters if they tiied the test. Somebodys backyard in new orleans, if it does not meet the definition of a wetland,s t a water. Even potentially a water. What aboutebs on the bank of the river. The ame that you gave . Is not on the river itself, but its on dry land . I just have to answer the question about constitutional authority. I ve that as an example of the rivers and harbors act. In order to protect the channels of interstate commerce, extendinitauthority onto land, we dont argue that congress h de that here, here its about waters of the United States. So, it has not used its full Commerce Clause authority, in your view, under the clean . Correct. Justice jackson. Thank you, counsel. Whatever the deficiencies in thli drawing problem test, they pale in comparison to the gnificant neck this test. Nexus test. The rpoe to Justice Thomas questionbout the channels of commerce, the significant neck this test is far broader tn the traditional understanding of the channels of commerce shown by this very cas there is no evidence thathi affected any channel of commerce, its a fact that they put gravel on the lawn that now they are fully regulated b the clean water act. That rseJustice Alitos point about fedalism. Building a singlefamily home in a residential subdivision is the inssence of local Government Authority and the significant nexus test inevitably causes that to be regulated. Jds are expensive. There is an enre industry of Environmental Consultants whom one has to hire to p out an adequate application to the court. The court doesnt charge you, but your consultant will charge you an arm and a leg to have a chance to find out whether one is regulated. Council, can you just speak to the represeatn that was made about the property in particular and the fact that prior to their purasg it, there was some concern about the proptyeing a wetland . I misunderstood that, i thought they went into it owg that this might be a wetland. There was a jurisdictional discrimination done in 1996 prior owner. They were not aware of that. They had been as a part of their purchasing agreement, shount they have gathered information about the prior property prior to purchasing it . Justice jackson, there is no indication either from the county Building Department and their deed of titl anywhere that this was a wetland. Mo, even if they had been aware,t jurisdiction ination would have given them no comfort. Did they see the property . I understood in the pictures that you could tell part of it was a wetland by l at it. I believe m fletcher was referring to after the initial work have been done, and the picture that there is watere property. But that does not show how was ne before. You keep talking about notice owners not being able to tell or know about this suwhen im just trying to clarify with respect to the sacketts, that there seems to have been a prior determination th was wetland before they bought it. Whether or not they knew, they couldve known, i presume, so why is it unfair in this situation with spect to the government now asserting that authority . Justice jackson, that determination had expired several years before they even purchase the property. As mr. Fletcher explained, typically jurisdictional determinations are only valid for five years. Moreover, that determination was done even before the courts decision. Even if the sacketts were aware of this, it would have given them no notice. E ll give you an extra minute for yourebuttal. Hank you, mr. Chief justice. The last point i would like to make is with respect to compensatory mitigatn. Simply that obtaining a permit is a very expensive process. Its true that the court does not chargfopermits, but the court will never give a permit unless one provides compensatory mitigation and we cite studies from the emmys this brief in 20 of the yellow brief where the annual cost of compensatory mitigation is in thbiions of dollars. This is not an easy process. Its noa cheap pross. In terms of notice, its not a failed process for Property Owners who have to deal with significant nexus test, which is why the court should definitively jettison that test