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is ketanji brown jackson's first oral argument. this runs an hour and 45 minutes.

of what linda's none of those things. it can be regulated -- a wetland is none of those things. second, the water has to be of the united states. this test is vastly superior to the other test for a number of reasons. the two-step framework closely adheres to the limits that congress itself imposed on the agency. by adhering to those limits, it vindicates all of congress's purposes. not just water quality, but also its desire to preserve the states traditional preeminence over land and water resources. thirdly, it is easy to administer. ordinary citizens can use their own eyes to determine whether or not their land is regulated.

under the framework, it is clear the property contains no waters, much less waters of the united states, so they should be entitled to a declaration their property is not subject to epa authority. >> can purely intrastate navigable bodies of water be waters of the united states? >> yes. >> how is that? >> as a statutory matter. if the water connects with some form of interstate transportation, such that there could be a continuous channel of interstate commerce, then that water could be regulated. >> what does that mean? >> i will give an example, the great salt lake. it is navigable, but not traditionally navigable. it does not hook up to any other waters to flow interstate.

there are a lot of forms of non-aquatic transportation that could get you there and sustain an interstate channel of commerce. that is an example of a water body that would qualify as a statutory matter. >> why isn't that here? >> there is no allegation whatsoever that discharges any pollutants -- >> i think the issue would be if there is nearby a body of water that could be considered navigable, that possibly the wetland could be associated or connected with that in some way. >> your honor -- >> you have a body of water, you have sort of a nexus. >> justice thomas, near adjacency itself cannot justify

the agency's statutory jurisdiction, for a number of reasons. the text of the statute says -- the text says if it is not even water, it cannot be regulated. the plain meaning of water from dictionary definitions is streams, creeks, rivers. >> but doesn't that ignore the import of 1344 g1 that specifically says when we are talking about waters, we are talking about including wetlands? so if we are going to be fair to the text of the statute, isn't there a powerful indication that wetlands are included, adjacent wetlands? then we can talk about what the word adjacent means. but adjacent wetlands are included. >> absolutely. there is no doubt some wetlands are regulated, the question is

what kind. adjacency clearly means physically touching. for example, if i were to say i own to adjacent -- >> you say is clearly true. but when you look to normal indicators of statutory meaning, first we would to dictionaries, if you look to dictionaries legal and nonlegal, what they show is adjacency is not the same as touching. adjacency has something to do with proximity, of course. the definitions are remarkably explicit about the fact that two things can be adjacent to each other without touching each other. >> if i could respectfully disagree, adjacency in the abstract can have more than one meaning. in the particular context of comparing relationships between topographic features, as it is

employed, i think the only plausible understanding is physically touching. >> i am not sure that is right. i do not know whether they are topographical features or not. but you would readily say a train station is adjacent to the tracks, even though it is not touching the tracks. >> that is right, that is correct. the example i was going to give is, if i were to say i own to adjacent parcels of land, i do not think anyone would simply think i meant i own two parcels of land in the neighborhood. that implies they are physically touching. it is that -- >> let me give you another example. i grew up in an apartment in new york city. if i say there are two adjacent apartment buildings, do they have to be touching? or one is across a side street, you know? i would say those two apartment buildings are adjacent to each other, because there is no other

apartment building in between. even if they are not touching each other. >> again, i would say when we are speaking specifically about physical features, natural features like wetlands and other water bodies, physically touching requirement is essential and the meaning of adjacency is used. that is -- >> isn't the issue what congress would have intended with respect to adjacency and the regulation that defined adjacency to include neighboring? as far as i know, congress use the term adjacency and did not adjusted to try to make clear the touching requirement you say was intended by the term. >> yes, justice jackson. every time that argument has been advanced by the government, it has been rejected by this court. the idea that 404g represents

the broad understanding of adjacency. justice kennedy's opinion does not give it consideration. it said it is on enlightening as to the meaning of waters -- >> let me try to bring some enlightenment to it by asking it this way. he say the question is which wetlands are covered, which i agree with. i guess my question is, why would congress draw the coverage line between a budding wetland and neighboring wetland when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation's water? are you saying that neighboring wetlands cannot impact the quality of navigable waters? >> justice jackson, not at all. it is important to acknowledge that congress is balancing concerns. there is a water quality issue,

but on the other hand, there is an important federalism issue, so important that one of the purposes of the act is to preserve traditional state authority over land and water resources. >> congress that our objective is to address or make sure that we maintain the integrity of the waters. it was one of the policies in achieving that objective that we care about states rights. or federalism concerns. but i did not see that is congress's primary objective, or even made objective for the clean water act. >> that is true, that this court very much relied upon this principle of federalism to adopt a narrow -- >> how can you say they want to the nero construction when they were very clear in the statute -- narrow construction when they were very clear in the statute that the courts cannot give states jurisdiction over adjacent wetlands of navigable waters?

you are not disputing it is navigable water, correct? >> correct. >> it is 62 miles long, it carries people, it is an instrument in transport. that is the tradition -- definition of traditional navigable waters. so what did congress mean by adjacent? you are saying it requires a continuous water service. even the trump administration, who came close to adopting your meaning, exempted beaver dams, and they would stop continuous surface flow. so, where does your definition come from? >> if i could go back, to the first point about 404 g.

impartial -- in partial response to justice jackson's question. the agencies assertion of jurisdiction, the most the court was willing to say is that 404 g simply means wetlands are not necessarily excluded from the definition of waters. it was not prepared to adopt a general affirmation of adjacency. in part, that is because none of the 1977 amendments had anything to do with the definitional text. this is in response to your second question, where did the text come from? it comes from the unchanged definitional text. congress did not change the term the waters of the united states. water is -- we would submit something other than a wetland. the only way one can possibly regulate it is if one has of what was at issue in riverside -- >> sorry. the epa had, by that time as

justice jackson said, indicated that the term adjacent wetland include wetlands separated by dunes or man-made levies from the navigable water. the epa, as of 77, made that clear in the term adjacent wetland. explicitly made it clear. congress uses the term adjacent wetland. i understanding is every administration since 1977, correct me if i am wrong, has stuck with adjacent wetland includes the wetlands separated by dunes, levies from navigable water. so, why should we read adjacent wetland in the statute to mean what epa said, as justice jackson asked, and what significant -- significance should have that every administration since then has

included the wetlands as covered by the statute? >> in answer to your first question, i think again it goes back to the text. if one accept the proposition that waters, the ordinary meaning, does not normally include wetlands. that raises difficulty -- >> in riverside, you said the contrary. wetlands are included. the statute refers to adjacent wetlands. epa has said since 77 that adjacent means those wetlands, even if separated. >> i do not want to die on this hill, because the facts in this figure such that -- >> put aside the facts, this could be important for wetlands throughout the country and we have to get it right. why would not a wetland separated be covered, contrary to what the last 45 years have

suggested? >> in response to the second part of your question about the fact that the agency has consistently interpreted this over a long period of time, i think he probably responded where he said it is a 40 year adverse possession of statutory authority. i would say the mere fact it has been interpreted that way cannot convert the fact if one accepts that waters as ordinarily understood -- not just in the dictionary, but -- >> i would agree with that, but for the initial history of one congress but the term adjacent wetland -- i would think that has some force, at least. >> can ask a clarifying question to justice kavanaugh? as justice kavanaugh says, one argument the government makes that would have force is the regulation defined adjacent in the way justice kavanaugh is pointing out. what is the timing? the regulation was adopted in 1977 and 1344 g was passed and

77? >> yes, it is regulation from the army corps, not the epa. they had a series of regulations, the final version was issued in 1977, i think shortly before. >> so it was not old soil, it was pretty approximate in time to the enactment of 1344 g? >> i believe it was one or two months of the 1977 amendment. >> the act was december, i think this was in the summer. wasn't this discussed? wetland was a big part of the discussion and 77, or in my wrong? -- am i wrong? >> you are right. it does not dispute wetlands are regulated. i would go back to the analysis in the opinion, one cannot read the legislative history of 77 to include every one of the course regulations were affirmed.

>> before the regulations become the regulations, the whole controversy about it. the first core regulation was much more along the lines of what you were proposing. then, the court was interpreting it too narrowly, and the court essentially changed its mind. everybody was aware this had happened, that the court first came out of the blocks with a narrow interpretation and was essentially convinced to reverse itself on the theory it was not reflective of what congress and wanted. >> i would say, one answer is -- if your honor is referring to a failed legislative proposal, i do not think one can -- >> i am not referring to that, i am referring to a story i do not think anybody disputes about the history here, which is the first regulation, the first

interpretation is quite narrow. there was blowback, the court changes its mind. everybody is aware on a continuing basis of this issue. it is not as though the regulation came out, then the statute was amended within a month and nobody had time to think about this question. people had been thinking about this question almost the entire time in the interim between the initial statute and the amendment. >> that is true. but i think there is a lot of commensurability in that the correlation, during this period you note, was a regulation reporting to interpret the waters of the united states. it would seem passing strange, and my view, for congress to say we are going to solve this dispute by entirely ignoring the statutory text that the regulation caused the dispute is related to.

instead, we are going to affect what amounts to an expansion of federal authority over land-use by including a parenthetical and provision that deals with permit transfer, a reference to adjacent wetlands. that seems to me to be an unlikely way for congress to affect what would be a significant balancing -- >> in 1977 amendment shows congress unequivocal acquiesces to an approval of the courts regulation interpreting the act to cover wetlands adjacent to navigable waters. there, we face the question and said at least to that definition, congress was clear. my problem with your point is, even the justice recognized whether it is scientifically accurate or not, that what navigable waters can be is

anything adjacent to what we think of as traditional navigable waters. no one is suggesting you can put a boat on a wetland. it would sink, you cannot put a boat of certain sizes or many near the shoreline, because they would sink.

>> i think this would be a totally different case if congress defined it as navigable wetlands. congress hasn't done that and that is studiously avoided touching the central definition for the last 50 years. with respect to your point about why do wetlands have to be navigable -- they do not have to be navigable, certainly in the normal delineation of any water, you are going to have a point at which navigability toward the banks of the river is going to disappear. but that does not change the fact that one can plausibly define a river as to its high watermark and understand one may not have navigability at points. the same is true and it comes to defining the outer scope of

water with respect to a budding wetlands. as it approaches the store -- the shore, it may not be possible to navigate but one can reasonably say one has not yet completely departed the water. >> why is it your conception of this does not relate in any way to congress's primary objective? do you dispute the primary objective stated in the statute, i guess 1251, is that congress cared about making sure the chemical, physical, and biological integrity of the nation's waters was protected? >> we do not dispute that. however no statute pursues its purpose or objective at all costs. that the limitations in the statute are as much a part of its purpose >> as >> its

affirmative authorization. why didn't congress say immediately adjacent? if they were trying to achieve something different than what the regulation said it about -- if they were balancing their concern about protecting the integrity of the navigable waters with the property interest in the state and rights to control it, why didn't they say immediately adjacent in terms of the wetlands coverage? >> why didn't they use the word they used elsewhere? abutting? >> i don't think the term abutting appears in the statute. >> >> >> assume it does. there are other sections that use the word abutting. i would say with respect to the question of immediate adjacency, one reason congress didn't bother is i don't believe congress was at all thinking it would have any impact on the scope of the act. if congress intended to want to definitively change the scope of the act, when we think the most

natural mood -- natural move -- >> i'm sorry, you suggest the limitation is about the concerns with respect to the administration in 1344 g is a -- is precisely what they are talking about, what is left to the state versus the federal government. in that statute, it just uses adjacent. with respect, that seems to be exactly where they would have made clear the federal government's scope of authority was abutting or immediately adjacent under your own theory of what they were trying to do. >> my disagreement there is that presupposes section 404 regulates the universe of all wetlands and it is essentially a federal privilege whether or not any of that would be given back to the states. i don't believe that is what

congress intended. setting aside the clean water act, there would be a significant swath of land use and water regulation that remains in the states and one example to prove that point is, as we discussed in the brief, nonpoint source solution. everyone recognizes that's a serious part of quality issue, -- the purpose of congress in the clean water act was not at all costs, let's clean up water quality as much as we can, it was to recognize some water quality measures like wetlands regulation, as this case demonstrates, inevitably converts the epa into land administrators. >> so the reason why in your view congress includes wetlands or thinks some wetlands should be in there is what? because they cannot be distinguished or because those

wetlands effect the water quality >> of navigable waters? i think the main answer is precisely the rationale the riverside gave you. and illuminating any true waters, one would have to pick a point at which land ends and water begins and there will be zones like wetlands. >> but if you read riverside, it looks to me like we were talking about the cores rationale, not congresses. the difficulty of being able to tell land from water is the reason the core thought it should or could include the abutting wetlands, but it doesn't suggest that was congress's reasoning, that congress said something about wetlands because it would be too difficult to distinguish. is there something in the history of the statute or the text that points to that concern as being one of congress? >> yes. i would go back to the

definitional texts that congress used the term waters. congress knew about wetlands and how wetlands affect water quality, even in 1972. in our yellow brief, we cite a number of examples where congress and a variety of acts exclusively distinguished wetlands and other types of waters. so riverside bayview certainly adopts the idea that waters are ambiguous when applied to the facts on the ground and that ambiguity means some wetlands will be regulated. and to justify that perhaps mild excursion from the text, riverside bayview noted the cores ecological judgment, that those judgments supported the overrule where the lawn -- where the drawing process. >> 1340 4g is the biggest problem. as your -- she's pointing out in

a parenthetical where it gives the state permitting authority but accepts navigable waters. if we read waters of the united states as you propose, does that mean wetlands falls in another world where neither the states nor the federal government can regulate them? >> not at all. there will be many wetlands that are fully regulated even if the test is offered precisely because of the long drying -- line drawing problem. there will be wetlands that cannot be distinguished from adjoining waters. >> you are assuming adjacent. i will save it for my round. >> we have been talking a lot about adjacency, but your test addresses the test of continuity. are you saying you are brief

that there's no wetland if, for example, a few weeks in july the ground dries up and there isn't an immediate connection between wet area and the navigable water? >> no, mr. chief justice. we make allowance for this normal circumstance, once you apply the line drawing standard application, and what would normal circumstances be the case. >> so if it is from the fall to the spring, june, july, august, you don't have that kind of connection? >> if, on a normal yearly basis, there would not be a continuous basis, it would be very hard to fit the wetlands into the rationale of the line drawing problem standard. >> not simply an area that is dried up. an area that is normally connected but isn't for three

months in the summer, that whole area is not a wetland? >> if i understand the hypothetical correctly, it's not that it suddenly d federalized is everything but certainly, it is difficult to understand textually how one can regulate an area as a water if on a regular basis there is no water there. >> does summer count as a regular basis? it just dries up in the summer. pretty common for wetlands, or at least adjacent waters in many situations. >> certainly a regular occurrence and admittedly, this is one of the cases at the margin where i would say with respect to any legal rule, there's going to be difficult cases. perhaps that could be reduced through further agency rulemaking. the court hasn't noted much yet is preparing whatever shortcomings there may be in the line drawing problems test to

the shortcomings that are orders of magnitude greater from the only other game in town, both in terms of its lack of fidelity to the text in terms of its subversion of the federal structure, in terms of its much greater if cult he in application. >> i might give you a minute to at least comment on what we have set about 1340 4g and what the court has said about it in riverside. as i recall, we suggested it did not control the definition of waters or certainly did not have an overwhelming impact in the definition of waters. >> yes. in terms of the case law, no decision of this court has ever relied upon for over 4g to

affirm the version of adjacency the epm and core advance. it says simply some wetlands would be regulated but the court was not willing to go much beyond that. with respect to how adjacent appears in 40 4g, given the context of physical topographic features, i think the most powerful understanding of that term is congressman those wetlands that are physically touching. the very fact issued in riverside bayview. the fact riverside bayview's property was potentially a marsh and that is the most 40 4g said. the proposition the test is consistent with. they have acknowledged under the line drawing standard, it is just that it could reasonably be

interpreted to ratification of the court adjacency regulation from 1977. >> this case may have an important nationwide effect, but we do decide concrete cases and controversies, so i would like you to address the theory that government uses to determine that the property constitutes wetlands that can be regulated. the property, as i understand it, is separated from wetlands by a road. is that right? >> yes. by a road and a roadside ditch on the others of the road. that ditch spills about half mile downstream into a creek which goes another thousand feet from that point into a lake. >> how does the water from the

property get to the ditch? >> the short answer is the water doesn't get to the ditch. it doesn't get to the wetlands. there is no surface connection from the property to any water. >> what is the theory of how the water gets to the wetlands? >> the government doesn't have a theory which underscores how broad it is. the wetlands on the others of the road, which are not connected to the property can be combined on some theory that they are similarly situated. only because the government then combines wetlands that it can include that their gosh can conclude there is significance because of the lake. >> so combining the water from the property, it comes to the conclusion there is a significant economic -- ecological effect on the lake?

>> the lake is navigable? >> yes. >> does across the state line? >> no. >> if someone puts a boat in the late, can you get to another state? >> you would have to negotiate through priest river. but it qualifies as a water of the united states according to the interpretation. >> i think there has been a misreading. i could be doing it but i have read justice kennedy's nexus test. i read his decision that he was of the view that adjacency defines wetlands that were at jason to navigable waters and he

was applying the significant nexus test new deal with nonnavigable waters that might be waters of the united states. so i think there are two issues in this case. justice alito referenced only one of them, which is whether or not the tributary that runs from the day to the sackett site, whether that is a marsh land and that constitutes a water of the united states. that's what the ninth circuit saw. but, there is also the sackett site directly leading to priest lake and that site does run below a road and below some houses. i believe the governments

position and it can speak for itself is that that connection is very direct. there is a subsurface flow, not a groundwater flow, but a 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 subsurface flow from the wetlands north of the site south under the sackett property. >> i'm not going that far. i'm going from the sackett site to priest lake. there is evidence of subsurface flow. >> that's correct. >> as i understand it, there is a difference between groundwater and surface flows. am i correct about that? >> i don't believe the epa has ever made such a distinction and in the position of someone like the sackett's, they're practically is no distinction. >> it's not that hard.

you can see surface water when you put your foot in the sand and feel it underneath. you could feel it in how watery your soil is. it's not impossible to know that there is a subsurface. you could put a stake or plot into it and feel it immediately and have it spring up immediately. so there's a difference between groundwater and subsurface water, isn't there? >> i don't believe legally there's any distinction if the relevant point is can one distinguish anything on the property from priest lake whether it's subsurface -- >> you don't think there's a difference? >> one thing that is problematic with relying on any subsurface connection is it renders the test limitless. >> why?

>> it's hard to imagine any property in this country that doesn't have some subsurface flow at any depth. the -- optimally that water is going to flow to subsurface water. it's hard to imagine congress could have intended, especially a statute that imposes such significant penalties for someone who gets this wrong as to whether the property is regulated. >> that goes back to justice jackson's 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 property, ensuring people have at least fair notice as to whether the property is going to be regulated. >> whatever test, even yours as

in your answers to the chief justice, says we would have to and define how many days are continuous, so it's not question any test is being proposed would have some lack of security for homeowners. the one thing about the epa 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. it's hard to imagine any other statutory system that requires a regulated party to initiate an expensive and time-consuming process just to find out whether one is regulated. that is precisely why the process has been developed with

a significant nexus because it is a test and it's difficult to know whether one is regulated. >> but it is only connections not directly with waters. that's a different issue. but that is not how you briefed this case for what we are looking for. we are looking for a definition that has to do with a connection that exists with traditional navigable waters. as was the insight of justice kennedy, a different test like the significant nexus test for those connections like here, where there might be a should be terry for somewhere else. >> if the test is connection to subsurface water, i guarantee this case or something like it will be back in another 15 years and back in the same place we've

been with property owners not knowing whether they are regulated, the states not knowing what tests to apply. >> that is assuming subsurface water is not differentiated. >> i don't think there is a legal distinction epa has articulated between the two. and moreover, as a practical matter, as subsurface, the sackett's property certainly was not a marsh. >> only because they put gravel in it. >> the original state of the property was before the top doordash before the top was taken out. it was zoned as a buildable lot. it has an address. neighbors around the property 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. -- kind of top auger fee. >> i understand you don't like the significant nexus test, but i'm going back to justice kavanaugh's point about take something like you just create a dam and the dam breaks up any idea that there is a continuous surface connection. if i think in that kind of situation, you can't be right, but i also understand some of your points about 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 it's a natural barrier or permanent legal barrier like the roads that bound the sackett's property. but, it's not a satisfactory middle position because it

doesn't really afford appropriate fidelity to the test. congress could tomorrow -- >> i'm asking you to assume 1344 means then you think it means and suggests there is something that says we are supposed to figure out what it is for an adjacent wetland, what it means for a wetland to be adjacent. if i'm thinking of justice kavanaugh's example and think that looks adjacent to me, but on the other hand, i'm thinking of some of the objections you have as to the kennedy test, what do i do from there? call it a backup position? call it whatever you want, is there a third option? >> in essence, i think there is. it's exemplified by the sackett case. there's no surface connection,

to any plausible water. >> i'm asking for a test that is different from your test. >> i would hesitate to say it is the same thing, one could say whether there might be marginal challenges about defining boundaries, certainly where there's no surface connection, there cannot be any plausible argument the 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 more than a water surface test like we did in riverside bayview, expand beyond that, why not just look at the

geographic proximity? the lake is the waters of the united states the epa wishes to protect, understandably. they have a securities -- a circuitous route from an unnamed treaty to a named tributary to the lake. that is the adjacency theory, kind of a daisy wheel that is spun out from the lake. but that is rather complicated when one looks at the map. you are blocked from the lake. why isn't that adjacent enough? there's a subdivision between you and a late, but pretty close. a closer route than this convoluted pass around. >> i think the reason that's not satisfactory and i recognize i have given this answer in more than one form several times, but

i would go back again to the test. what congress knows about wetlands, it included a reference to wetlands. it chose not to include that in the definitional section. 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 hasn't 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 residential lot with a sewer hook up and address and mailboxes somehow considered a water of the united states. >> that is what is being asked -- a person who purchases a property with a sewer hook up a

block from lake with a subdivision between you and the lake and a road on the other cited supposed to know that is a water of the united states, that piece of property, or else what? what are the penalties associated with this? what does one face in these circumstances >>? the sackett's were threatened with penalties and having to restore the property to the way it was before they began the work. but there is lingering over all this discussion the threat of criminal penalties. this is particulate and important 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 concern in indulging any sort of malleable or somewhat unclear or 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 states, correct? >> that is correct. >> the question then becomes the statute of the text to cover only bordering or contiguous wetlands, or does it also called what -- cover what we might call neighboring wetlands? is that a way to phrase the precise dispute? >> it is. >> 404 g is critical to the case. is your argument that four a 4g does not control or illustrate what qualifies as waters of the united states or is your argument that adjacent does not mean neighboring or nearby but requires actual touching? or both? > i would say it is both.

following this court's indulgence of the act. at most, 404g means that we cannot categorically interpret waters to exclude wetlands. >> once you get there, aren't you a little separated from the text as you see the text? i don't really know if you agree when it comes down to it. you are not asking for it to be overruled. >> we were not all texture list then. but today -- >> then, you are working -- asking us to put a textual limit on something that is divorced from the text to begin with. it sounds to me that instead of going with neighboring, the ordinary dictionary definition of adjacent, well, i will leave it there. >> with respect to the ordinary

understanding of adjacency, i agree in the abstract, adjacent has more than one meaning. i believe in the context of this where it is trying to describe relationships between topographic features, the most reasonable understanding, the only plausible understanding is a means physically touching. when you combine this with the fact that the senior definitional. >> why did seven straight administrations not agree with you? >> under the trump administration their proposal was closure -- closer to -- >> they said it would be covered. >> correct. >> under your test, that would not be covered? >> correct, justice kavanaugh. i would not presume to know more than those seven prior administrations. but i do know the text that congress has used. nothing can supersede that. >> can you explain why you would

not lose? i take it you are saying you would not lose if we dropped a broader definition of adjacent kin to the one justice kagan is suggesting. >> justice barrett, if adjacent means something is not adjacent if there is a man-made barrier as opposed to a natural -- national barrier, here, the property is bounded by man-made barriers. i meant to say that whether or not a court thought natural barriers might not defeat george -- jurisdiction, the court could that here with man-made barriers, there is no jurisdiction.

>> justice barrett, if i understand what justice kagan is proposing it is that neighboring is or closeness is sufficient. then it necessarily a lot of property in the country will be

regulated. >> in that case it does cast a light on waters of the united states? >> it does. the way it is classified indicates 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. i understand if jason means abutting. >> right. i mean i don't think it is appropriate to look at how adjacency is used in 404g and use that to reinvent section 502. it is because section 502 was not changed that the criterion remains waters and that must inform what adjacent means in

section 404. >> is di yet that because 1344g was enacted in 1967? in any case it was proceeding later legislation does not cast light on the original meaning of waters of the united states? >> it certainly not definitive. i do not want to go to so far as saying it does not mean anything. it does mean something. it would be a strange inversion of statutory interpretation to say that parenthetical reference in a provision dealing with permanent transport authority suddenly changes the central definitional 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. but under 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 marsh area was visibly indistinguishable from the abutting creek? >> that is precisely how the government argued it in the briefing and oral arguments. we quote that portion in the reply brief where the 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 court in looking at those facts 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 to whether marsh or wetlands and and the creek begins? i am trying to imagine his people were really confused in riverside bayside as two people were really confused about what was wetlands and what was water. >> justice jackson, there was a dispute among the parties as to proper characterization. but i think what matters are two things. one, how the government presented the facts to the court. and, how the court ultimately crafted a decision based upon those facts. meaning, the court concluded, as it said, between dryland and open water, the transition is not necessarily or even typically abrupt. you have features in between those two points. the court said it is not our

place to second-guess the agency interpretation that in drawing the boundaries of waters, the central 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? >> absolutely not. i think if there were disputes, those what a pill in comparison to the amount of disputes -- pale in comparison to the amount of disputes through the courts. this test is simpler to apply. >> thank you. >> thank you, counsel. mr. fletcher? >> thank you, mr. chief justice. may it please the court. everyone agrees water is protected by the clean water act and it includes some adjacent

wetlands. the narrow but important question presented in this case is if the wetlands will lose 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 wetland's central role in protecting 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 protections. this court upholds the protection for three reasons. in 1977, congress was presented with proposals to limit the coverage that sounded like the proposal you heard and rejected them. it adopted section 1344g that includes recognition waters protected by the act includes adjacent wetlands.

second, this court unanimously upheld the regulations in riverside bayview. in that case one could wade from one end swim in the other, but the court did not rely on difficulty identifying the boundary between the creek and the lake. there was not one. the court relied on the agency's ecological judgment that wetlands significantly affect neighboring waters and the presence of a barrier does not sever that connection. the presents itself can be evidence of a close connection between the river and neighboring wetlands. third, agencies are doing what members of the court repeatedly urged, promulgating regulations that recognize and appropriately limit the coverage of the act, incorporating the significant nexus test, limiting construction and ensuring the

act reaches only the wetlands that must be covered 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 words, dryland between. but underneath, we had the case in hawaii that 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 talking about the possibility some molecules of water eventually make their way from the wetlands to the lakes. we take from justice kennedy's opinion which traces back to swing at riverside bayview and demands a significant effect. >> what does that mean?

how much biological connection does that have to be? >> the agencies have more than one decade of experience applying this in practice and they have reiterated and refined it in december 2021. the factors they 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 areas. >> so, if the sockets -- sacketts are walking around the area they could walk through and see the distance factor? so, they know it is not a bright line rule. 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 forget the phrasing, but, you

know, water goes everywhere eventually. so, there will probably be a biological or ecological connection of some sort. >> this case is focused on 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 now the core and epa have not tried to reduce that to a bright line rule. >> have they tried to reduce it to a vague rule? >> i think they have said reasonable proximity and reasonable proximity depends on the hydrology of the area. if you have a flat floodplains where floods from the river reach waters or wetlands at some distance -- >> so somebody looking around a lot would have to look at the wetland and like and say, is -- and lake and say, is that reasonable proximity and that is a standard used in criminal prosecutions as well?

>> it is. i don't think it's unusual in regulatory or criminal statutes. i would point to the last clean water act case 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 pretty proximate to the ocean. how far away was it? >> i don't remember. the sackett wetland is 33 feet to the tributary and 23 feet to the lake itself. >> but in the hawaii case we were talking about a big sewage plant. >> this gets to another issue in the case. what we are talking about now is what wetlands are in the coverage at all? the fact they are covered by the act does not mean development is prohibited, just that development has to be permitted. if the sackett wetlands would

not delay, this is taken into account in the permitting process. this is just about which wetlands will have some examination to make sure that degradation does not occur. >> can i ask you to clarify some action -- answers you just gave to the chief justice. the statutory language is of adjacency. at certain points in your answer, you suggested the significant effects test is 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 proximity. it is reasonable proximity the same as significant nexus? is what you are doing trying to figure out how, other than by demanding strict continuity, one defines adjacency? then, dealing with the heart issue of, it just. seem -- and the hard issue of, it just seems

it should be 50 and not 50 one. i think the chief 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 alone is sufficient to justify inclusion. for wetlands adjacent to tributaries further upstream, justice kennedy thought some additional -- >> if you are going to separate them, where does the significant nexus test come from? >> it is a limiting construction that limits the broad language of the statute, water to the united states. the court has recognized that

could conceivably cover every body of water in the country. we know it does not mean that. so, we need an additional test to figure out what additional waters are covered. the significant nexus test says it is appropriate to sweep in additional waters if they affect the traditional navigable waters that where the core focus of the act. >> you have not told me where that comes from. it sounds like a good idea to have such a test. where does it come from? >> two things. the term defined is navigable waters. the definition is broad and it does not require a requirement of navigability. we read riverside, bayview and swank to say you can include waters that are not themselves navigable budget -- but the justification for them has to be on the effect on navigable water. light, migratory birds. >> and they need not be adjacent. i want to make clear 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 respect. >> also, the agency's view about other circumstances. this case is about regulations with adjacent 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 waters even if they were not adjacent to navigable waters if they could satisfy d significant nexus test. everyone agrees if you accept our view that adjacent means neighboring, then the sackett wetland is covered. >> what is your understanding of the term waters? >> are evidence is reflected in

the agency regulations that for 45 years spelled out different sorts of waters covered. i would say, geographic features characterized by the presence of waters. i would say that is not just lakes, streams, and rivers. it is marshes and swamps. >> any geographic feature that has water in it at some point in the year falls under the term waters? >> this is something the agencies have fleshed out over many decades. they have excluded particularly types of waters and also because the agencies have excluded things like irrigation ditches, waste treatment systems, small erosion features. >> they can be man-made, right? >> yes. >> why not irrigation dishes? -- ditches? >> because both agencies made

the determination it does not make sense to include them, and typically irrigation ditches bring water from navigable waters, canals, rivers, and distribute it into rivers. they are not bringing water back into navigable waters. >> if we forget everything the agency and this court has said about the question of what constitutes waters, what would you say is the definition of waters? a definition was provided by the plurality opinion. do you disagree with that? does it include any place in the u.s. that has water in it? >> no. i don't think it does. i except the idea it is a derived -- geographic feature characterized by water. i would go further than that to see wetlands could easily fit the decision and i agree there are hard distinctions about how to distinguish between a wash

and a seasonal stream or river but this is about adjacent 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 not really interpreting 1344g. is that may shed some light on what is meant by waters of the united states. but we are determining that cryptic, strange phrase. >> i agree exactly 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 features in the country and i was trying to emphasize what to do about wetlands adjacent to other waters and to that point 1344g's text and history provides guidance about how to interpret and apply that general statutory language. >> but the text does not say in referring to adjacent in 1344g whether that means bordering or

contiguous or also includes neighboring, as the regulation does. i understand that the case comes down to, ok, what about a wetland separated? on that question, i suppose since congress has not specified , that it goes the extra step, why not let congress figure out where the line is? i think that is the toughest hurdle you face. we have gone, as justice alito said, from water, too adjacent coming out from contiguous to neighboring to contiguous or bordering to also neighboring and it shouldn't that be congress' job? >> if you look at 1344g in context congress has answered that question. i think you could get there on dictionary definitions alone. but i don't 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 adjacent wetlands in 1975. those regulations said, adjacent or contiguous to. that already made it clear we are not only limiting it to contiguous. in july 1977 they said we are deleting contiguous because it 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 which waters are going to be covered by the states and which will be reserved to the federal government. in doing that congress did a law -- drew a line reflected in regulations. the court said we will phase in this expansion of the jurisdiction and a with traditional boat -- traditional

navigable waters and adjacent wetlands and 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 of a bank shot way to do it, you acknowledge that? >> i guess. >> you used the phrase shed light on. what does that mean? >> it confirmed the agency understanding was correct. the term waters of the united states, the core, the epa, the department of justice went through that to reach adjacent wetlands and congress was presented by the same objections you are hearing now. people saying, this is in intrusion on the states messing was farming, ranching, and other activities. it did something different. it said we will not accept the proposal to carve out wetlands from the coverage entirely. we will do three things. we will carve out farming and

ranching and transfer apartment in -- transfer permitting authority over some wetlands to the states and ratify the concept of general permits. so, it was sensitive to these concerns but rejected the idea of carving off wetland coverage. >> expand your concept of adjacency and how it differentiates from substantial at this. your first point is if it is adjacent, we don't do these substantial nexus test. how much adjacency is adjacent? you indicated you thought this property is adjacent indeed to a water of the united states because it is close to priest lake itself. >> that is my view but i want to be clear about how the case is developed. >> i just want to understand that that is the view of government, despite the fact

there is a subdivision between the property and lake. >> that is the government's view. >> it is adjacent why? what definition of adjacency is independent from substantial nexus? >> the agency understanding of adjacency is neighboring. they have flushed that out by saying it is reasonable proximity to uncovered water. >> is there a limit to that? >> in the 2015 rule they said anything in 100 feet or a 100 year floodplain and 15 feet. >> those have been rejected. so, does a reasonable landowner have any idea? in priest lake are you imagine most of the water flow and rainfall and snowfall in quite a large geographic area drains into the lake eventually or wishes to. would that hold watershed be adjacent?

>> i don't think so. i am sympathetic to the idea of how a landowner knows if their land is covered. it is important to recognize, there are limits, wouldn't they have to be wetlands? >> i'm just asking about adjacency. how does any reasonable person know, within may be 100 square miles in a watershed that drains into a body of water in the u.s. know whether or not their land is adjacent? >> we are talking about adjacency. it rules out things many miles away. >> does it? are you sure the epa would take that view? >> i have asked this question and the agency has told me that they don't think 300 feet is unreasonable for adjacency. >> how about 3000 feet. three miles? >> i don't think so.

>> could it be to miles? >> when we talk about miles, 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 time in federal prison supposed to know? >> the agencies make available free of charge jurisdictional determinations for any property and they publicize their manuals. >> the manuals do not tell us the answer. >> i understand. you could make a similar 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 question.

>> i want to follow up on the fair points, my points, how do people know? is there a process by which a homeowner can ask? >> yes. any homeowner can ask the court for jurisdictional determination. >> so, you are not really facing criminal liability without the opportunity to get assessment from the government regarding particular circumstances? >> correct. >> what happens if the government determination based on this multifactor test is that you cannot develop your property? what recourse does a homeowner have? >> the homeowner can challenge the determination. it would just not be a jurisdictional determination. it would be a permitting decision. >> what if the homeowner does not agree with the jurisdictional decision? >> the homeowner can seek

judicial review at that point without incurring any penalties and can also seek a permanent. it is important to emphasize again that being covered by the clean water act does not mean no development. it means review. the court has taken a lot of steps at the behest of congress to streamline the process through things like road construction for the development of dams, single-family home construction. >> is it site specific? that is apt to buckle to the sockets -- applicable to the sacketts? >> we think these are hundred dollars is exaggerated for the site-specific permits. on page 37 of the brief, the $4000 for nationwide permits gives numbers of $35,000. it's important to recognize that

site specific permits often involve major developments of many acres. it's the agency's best estimate of cost. in our view, that statistic is not consistent with the information we have now. >> the other side argued that mr. sackett could not tell that was a marshland. is that true? >> i don't know what mr. sackett could tell. but i can speak to communications from the army corps to the prior owner saying this is wetlands and you would need a permit to build and here is information about how to seek permits. also in the independents -- in

the appendix, we don't have pictures before it was filled with gravel, but the pictures after they were filled with gravel show the parts not filled with water have a water in them. and the environmental consultant who looked at the property confirmed these are wetlands. all they'll -- although they are now separated across the street by a road, before the road was built that was not true. it was part of one wetlands complex. >> one last question. you can probably tell that some of my colleagues are dubious this is a precise enough definition of adjacency to survive. so, are there any other tests? another test that could be more

precise and more open-ended than the adjacency test or the significant nexus test you use? is there some sort of connection that could be articulated? >> i would say first if you are in that world you are past the line drawing problem or the notion that wetlands are only covered if indistinguishable. we are making judgments about which wetlands are appropriate to cover. judge kennedy articulated the significant nexus test. >> that's when it is not adjacent? >> that is when it is not adjacent to traditional navigable water. >> we seem to be searching for wetlands adjacent, so let's stick to that. >> if you wanted a clearer adjusted -- definition of

adjacent, it is difficult to say there is one single bright line answer. agencies are taking comments on this and considering things they can do to provide greater clarity to the public on adjacency and significant nexus. the 2015 rule tried to establish bright line rules criticized as arbitrary. i think there is a range of reasonable understandings of what adjacency means. >> can i say the rule you have -- you are issuing may have more guidance than what we officially 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 correct about the adjacent test as articulated so far, but the sockets -- sacketts win? >> i don't think them -- take them to be disputing adjacency. their product that -- property is just away from the tributary across the street. >> that is where we need the substantial nexus test? >> no, that goes to downstream navigable water. >> i thought if you were adjacent to water of the u.s., you are good to go? you need a substantial nexus 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 substantial nexus between the sackett property across the road and into the ditch at least, right? >> you are right that you do need to satisfy the significant nexus test. >> if we are going that way, does the significant nexus have to be to the ditch across the road, or all the way down into the lake? >> all the way down into the lake. >> great. that is helpful. how many parts for million of what kind of stuff has to get from the sackett property across the road into a ditch into a creek and from the creek down into the lake? >> >> i will give you a similar

answer. in law, there is a qualitative standard that is not determinative. >> call your local friendly agent and he will tell you yes or no. >> if you ask what are the guidelines the agency has used, you are free to challenge that in court. >> so you don't know until he tells you? what is the standard? give me your best shot. >> do the wetlands with other similarly associated wetlands affect the chemical or biological integrity of downstream waters. >> what does that mean? >> retention of floodwaters, pollutants, provision of flow during dry times. they look at the amount of flow from the wetlands and other wetlands downstream to the navigable water and the climate. >> how is that different than adjacent?

>> adjacent is focused on reasonable proximity. distance is one factor. but the significant nexus test says if you will be lying on adjacency to upstream tributaries, that is not good enough to justify coverage. you have to show significant effect on the downstream navigable waters and that makes it harder to include wetlands adjacent to only tributaries. >> if -- is the epa stopped from going after you if you get a jurisdictional interpretation that says, that is not a wetland . are you protected? >> it is my understanding that 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 said that is subject to

different rulemaking and at the agency has a broader view than adjacency. the significant nexus test would be grounded in 1344g, and if we excepted it we would not even really need 1344g, because it would be broader than adjacency. >> potentially, that is right. that is why 1344g makes this case easier and it does not require you to pass on the validity -- >> but if waters of the u.s. already included everything with a significant nexus, why does adjacency matter? >> adjacency matters in 1344g because it is expressed textual understanding that the agencies are covered. they go beyond that in ways that might subsume the adjacent wetlands theory. for this case, 1344g would still

be very instructive. >> it seems as though when there is a body of water and a nearby wetland, there is a presumption it is covered by the clean water act. then, the who -- the homeowner has to opt out in some way. can you give me an example of a body of water, and nearby land that is automatically or presumptively excluded 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.

i am thinking of something natural like that, that is presumptuously not covered and it is not near, bordering on, i don't want to use the term adjacent. i am done with that word. bordering on a body of water. >> i think the best thing i can point you towards his page 69 432. the agency explaining that the significant nexus test routinely concludes waters are not covered and gives examples of isolated things that are definitely waters, but they are not covered because they don't have enough connection to the downstream. >> so in other words, if i was still living there, i would not know until you told me? >> i disagree.

i think if you have an isolated body of water, some things are categorically excluded. if you are not in one of those categories, you have to ask if this is adjacent to or there is a significant nexus with navigable bodies of water and for an isolated body of water, the answer would be no. >> if i was concerned about the authority of the epa to regulate purely intrastate bodies of water, or associated wetlands, where would i find of the authority for that? would you give me your best argument for the authority of the government to regulate that? >> share. i think it is common ground between us and petitioners. the commerce clause gives the federal government the authority to regulate navigable waters under their intrastate or interstate to transport commerce

within the commerce power. that is common ground between the parties. also the next step. that authority extends beyond the things that happened in the channels. also, things outside the channels that could damage them. that has been uncontroversial since the 1899 rivers and harbors act that extended to the tributaries and banks of tributaries of natural waters and it is essential for congress to be able to impact -- protect those channels. >> what is a channel. of commerce? purely intrastate. how does that become a channel of commerce? >> the great salt lake was an issue in litigation between utah and the u.s.. even though it is intrastate and there is no water connection to some out-of-state body, there could be commerce intrastate.

>> isn't there a lot of transportation over the great salt lake? >> apparently not. that is why it is under litigation. the court held that a little bit from 1888 was enough. >> justice alito, what is your understanding of any care statement rules that have been invoked on the other site, for example, the effect on federalism, the fact that you are reading our full lot into a parenthetical in 13 --1344g. your argument is that with this parenthetical, congress did something with major importance. also, the fact that there may be a vagueness problem. do you take any of that into account? >> yes. those considerations are all reflected in the courts prior decisions and we take the significant nexus test

as consistent with those decisions making sure all covered waters are necessary to achieve the goals i talked about with justice thomas and leave waters not essential to that goal to the states. >> it looks like your understanding of waters in the united states is anything in the united states that has water in it if it has an ecological effect on navigable waters. is that right? then these statement rules narrow that? that is your interpretation of the phrase waters? >> i would not say any affect is good enough. significant nexus. but yes. >> would you win if 1344g had not been enacted? >> i think we would. i think they got it right when they said adjacent wetlands were under the statute. 1344g tells you that congress looked at the problem, consider

proposals to cut back at the act and then approved the course interpretation -- the core interpretation. >> what is your understanding 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. we take it to be reiterating that point. >> that would extend very far, would it not? >> it is true that the act's coverage has been brought from the beginning and that was the intent of congress. the prior system that relied primarily on states proved insufficient. this is not a problem states can solve by themselves. pollution in one state or destruction in one state might be felt downstream. >> do you think congress would

regulate dryland on the theory that it has significance together with other similar pieces of dryland. that it has a significant effect on interstate congress -- commerce? >> i would defend such a law. the rivers and harbors act said you cannot place refuge on the banks of tribute ease -- refuse on the banks of tributaries and navigable waters. that is stretching further than congress did here. >> if that is the limitation on the united states, it's not much limitation. >> justice alito, i disagree and i think the proof is in the pudding. the agencies have told us, proposing to re-codify the significant 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 based on all sorts of factors. is that unfair? >> i do not think it is unfair. i think pragmatism, administer ability, policy has factored into the world -- the rulemaking. agencies have also been mindful of the guidance provided by the court decisions that have significantly narrowed from where it was in the 80's. >> mississauga mayor? -- ms. sotamayor?

>> are you giving up the argument that the second property for the second wetland in the act is covered because it is adjacent to priest lake? >> i wanted to think that the agencies do think and argued previously the wetland is adjacent to the lake itself. the district court upheld that determination. we have relied on adjacency to the tributary and the additional showing of significant nexus to priest lake. that is how the case has been briefed and argued says it comes to this court. >> why did you give that up? >> i don't know. i think because 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. it is an easier way to justify it. >> justice kagan.

justice gorsuch. >> i want to follow-up on the earlier questions. i think just of gorsuch identified something that the court has been overwhelmingly concerned about for decades. that is not punishing innocent people who make a mistake. what assurance can you provide on that front, some of the hypotheticals about someone being penalized for making a mistake, but a reasonable judgment about the status of their land? >> i will say a couple things. first, the court made the point in maui that the civil penalties division directed the courts to consider -- culpability. on the criminal side, it is true that the 1319 of the act

provides potential criminal liability for negligent or knowing violations. as a matter of practice, it is unusual to bring criminal prosecution. >> to state the obvious, the negligence provision is a red flag. what do you have to say about that? >> first as a matter of practice, it is rare, very unusual, for simple negligence to give rise to criminal liability. criminal prosecutions are brought when there is serious, aggravating conduct. we think standards like this, as reflected in the county of maui, 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 is being criminally prosecuted and had a claim statute was vague applied to them and they did not have their notice, they could always bring an applied a vagueness

challenge in criminal prosecution. >> turning to justice sotomayor 's point, as you are arguing the case in this court, when we find you are right about the significant nexus, you are not relying on adjacency language, is that correct? >> we are relying on adjacency to the tributary and that requires us to make a showing of significant nexus. it is worth emphasizing that we are not challenging these significant neck this finding. their idea of adjacent includes things that are only directly touched, their property is adjacent because it is 30 feet across the road. >> to follow the point about water in the united states, putting aside 1344g, thinking

about significant nexus. you grew up in the low country of georgia. the whole thing is below sea level. aquifers run underneath it. we have no basements. you hit water and it all runs into lake pontchartrain and the mississippi river. would that a view of the clean water act and the definitions of waters of the united states apply to anyone who built a backyard pool? >> i don't think so. >> why not? >> these requirements apply if you are talking about wetlands. that has a particular scientific definition. >> but a statute would not be so limited, would it? >> the statute is limited to wetlands. >> why would that be? because of 1344g. nothing in the statutory

definition, -- >> we don't think you could call groundwater water of the united states. to justice sotomayor's point, we think subsurface flow is evidence of a connection between two bodies of water, but you do have to talk about water. we think wetlands like swamps and marshes are waters if they satisfied the test. somebody's backyard in new orleans, if it does not meet the definition of a wetland, is not a water. >> what about debris that is on dry land? >> that is a question about constitutional authority. i gave that as an example of the rivers and harbors act. to protect channels of interstate commerce, extending onto land. >> so, it has not used its full commerce clause authority, in your fuel -- your view, under

the clean? >> correct. >> whatever the deficiencies in the line drawing problem test, they pale in comparison to the significant neck this test. the question about the channels of commerce. the significant nexus test is far broader than a traditional understanding of the channels of commerce. there is nothing that indicates this affected any channels of commerce. it is the fact that they put gravel on their lot and now they are regulated by the clean water act. building a single-family home in a residential subdivision is the quintessence of local government authority and the significant nexus test requires that to be regulated. it is expensive. there is an entire industry of

environmental consultants you might have to hire to fill out an adequate application through the tort -- through the court. your consultant will charge you an arm and a leg to figure out if one is regulated. >> can you speak to the sackett property in particular and the factor that prior to their perching -- purchasing it, there was concern about the property being a wetland? did i misunderstand that? i thought they went into it knowing it might be a wetland. >> there was a jurisdictional discrimination in 1996 that the sockets were not aware of. >> shouldn't they have gathered information prior to purchasing this? >> in their record >> the testimony is there was no indication either from the county building department in their deed of title anywhere

that this was a wetland. moreover, even if they had been aware, that determination would have given them no comfort. >> did they see the property? in the pictures you could tell at least part of it was a wetland by looking at it. >> i believe mr. fletcher was referring to after the initial work was done. there was water on the property. that does not show how it was done before. >> you keep talking about notice, fair notice, property owners not being able to tell or know about the issue. i am just trying to clarify with respect to the sacketts, that there seems to have been a prior determination the land was wetland before they bought it. whether or not they knew, why is it unfair in this situation with respect to the government now

asserting that authority? >> that determination expired several years before they purchased the property. typically, jurisdictional determinations are only valid for five years. that determination was done before the court's decision. if the sacketts were aware of this, it would have given them no notice. >> an extra few minutes for rebuttal. >> i would like to make a remark with respect to mitigation. simply obtaining a permit is a very expensive process. it is true the court does not charge for permits. but, the court will never give a permanent unless one provides where the annual cost of -- provides compensatory mitigation. the annual cost of compensatory mitigation is in billions of dollars. this is not an easy process.

this is not a cheap process. it's not a fair process for >> thank you, counsel. the case is submitted. ♪ >> tonight on q&a, former college president and professor john shares his book the death of learning which talks about the state of liberal arts education in the united states. he talks about political correctness, multiculturalism and the importance of civilization courses. >> [indiscernible] so long as you have them also read thomas payne, jefferson, martin luther king, abraham lincoln. not everything in liberal arts

has to be a debate, but i do believe multiculturalism of viewpoints and ideas, that is crucial. >> john aggress to with his book the death of learning tonight at 8 p.m. eastern on c-span's q&a. you can listen to our podcast on our free c-span now mobile app. ♪ >> c-span's washington journal. every day, we are taking your calls live on the air on the news of the day. we will discuss policy issues that impact you. coming up monday morning, activist daryl davis talks about his efforts to combat racism in the united states and professor and author neil on the impact of conspiracy theories and their effect on politics. watch washington journal, live at seven eastern monday morning on c-span or on c-span now, or

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