which flows through my client's lands ranch lands in south central new mexico the read only doso has been designated by the new mexico environment department as a high quality cold water fishery which is the highest use that as a nation available under mexico water quality standards and we should reflect the important recreational purpose that this river serves and arid new mexico  and ninety eight the new mexico environment department determined that the rio really does so is in non attainment status for plant nutrients and accordingly the real root doso was added by most importantly as it affects my clients that impaired water quality resulting from the excess plant nutrients both impairs the recreational use of water and it also makes it impossible for my client when the total plant new trance are at high levels to use their irrigation gates for irrigation because algae blooms that block the irrigation gays notwithstanding the long unresolved problem with excess plant nutrients and the real root doso in two thousand and seventeen the e p a issued that provision apply when the permit is rested upon and relies upon a state authorized t m t l yes absolutely your hon the provision continues to reply however as the parties have noted and i think that would who didn't from application of the backsliding provision know there is a statutory exception which applies and very limited circumstances when certain circumstances of a state approve t m d l are in place as is the case here so there is a  very different purposes and they are developed and implemented through separate processes even the e p a admits this in its brief at pages six and seven yet again limitation is based on a t m d l it can be excepted from the backsliding statutory prohibition but only under two limited circumstances  relaxed effluent limitation well nonetheless ensure attainment of water quality standards so your honor again this is a very important point and i'm happy to spend time with you want to but  hill is a long term watershed scale plan or at tame and water quality standards over a long period of time what it does is it con affluent imitation limitation excuse me it's the starting point it's an information all true will and in fact the e p a has found that prior to implementation watershed based plan which will affect the nine point source reductions that are planned for sometime in the future and that estimate environment department is that it will take and  twenty years but we know now we're standing there mr sugar been isn't it true to follow up on judge riscos questions that the two thousand and sixteen team do you know specifically contemplated assurance of the two thousand and one water quality standards you will hit real hondo a challenge that in the new mexico state court in new mexico a common courts have rejected that challenge water quality standards isn't that isn't that already determined through the approval of the two thousand and sixteen t m t sensually what you are asking your honor i think is whether have raised in your brief that i think you're raising now is the two thousand and seventeen permit simply does not assure satisfy the water quality standards that were set forth in two thousand and one that's exactly the same issue that was litigated with regard to contest for the approval of the two thousand and sixteen pm deal in a mexico appellate court has concluded that two thousand and sixteen d p m deal is a reasonable way to achieve the two thousand and one water quality standard so how can we approve your challenge to the two thousand and seventeen permit that is predicated on a challenge that's already been rejected in the context of the two thousand and sixteen t m t two things your honor st of all my challenge in new mexico court of appeals was very limited in scope it was based upon new mexico environments department decision to use two this permit have yet to be achieved their speculative their conjectural their hypothetical there's absolutely nothing in this record that indicates that those improvements have been made or how clause would only help me and what the safety clause says is that if any of the exceptions apply the exception can still not be used by the e p a if attainment of water quality standards will not be assured going back to the question that judge backtracked issued i think what's really critical for this court to remain aware of is that the watershed based plan which is contemplated in the two thousand and sixteen  exist the new mexico environment department simply says at some point in the future we will develop a watershed based plan for the real root also and we will achieve non point source reductions through that watershed based plan but that watershed based plan again it's conjectural it's hypothetical it's speculative the means by which the non points source reductions will be achieved have not been selected and as importantly there is absolutely no indication in the record where the funding will come or for the achievement of these watershed based plans know had to be fully implemented at the time that the two thousand and seventeen permit was issued what i'm arguing is that the two thousand and seventeen permit was premised on the notion that non point source reductions would be achieved that what offset the increase and total nitrogen introductions into the stream allowed by the permit yet there is simply no plan whatsoever or any funding to achieve those non point source reductions if we were if very worried watershed based plan in place and if the watershed based plan were in the process of being implemented then we would be in a very different case but that's not the case that we're in right now the case that we're in right now is that new mexico and the e p a in turn are simply hypothesiz and speculating as to what might happen in the future and there is absolutely no plan or funding mechanism to achieve those non point source reductions which  would increase in total nitrogen just charges that are allowed by the n p t s permit which is really focused on the real time conditions in the river where there's simply no explanation whatsoever by the e p a permit writer as to how he reached his conclusions what we see in the actual are two sentences which purport to be an explanation but which are at the joint effort appendix on page four hundred and nine you'll see the explanation that was given by the e p a permit writer for the backsliding that's two sentences and then if you look at the jo permit writer simply abdicated his duty to conduct any inquiry or analysis as to the impact the backsliding which he authorized in the two thousand and seventeen permit thank you thank you counsel we're a contemporaneous t m d l and permit the permit rider had no independent obligation to investigate whether or not the t m d o were sure water quality standards when d l i don't think water quality will be achieved and therefore reject the permit application didn't the two thousand and sixteen team deal specifically contemplate a need to rid non the team d l differentiates between point source discharges and nonpoint source just charges points were still struggles with those that come from a direct discharge such as in this case the wastewater treatment plant and importantly i think permanent so i think to your point your honor i would say roughly speaking every five years you need a new nifty and a new per permit replaces the old one and certainly if there is evidence that new mexico has failed to meet the reductions and nonpoint source waste load allocations that were division in the th victim to india when this permit is renewed or reissued that certainly would be information that would be relevant to the permit regs but what mr sugarman effectively argues is the team deal was approved with the expectation that new mexico would be implementing a plan to reduce non point source discharges but it was impermissible for e p a to approve a permit based on that team d l even though there is no evidence that new mexico had not in fact met any of their obligations or  the and of as judge briscoe pointed out the anti backsliding exception under the clean water act specifically allows for a quality were good and evil day really has no responsibility beyond that right that's correct i would i would also i would note that there may be additional responsibilities where new information is presented to the agency but here where  yes there's a short answer is yes the longer answer is yes because of the particulars here questions that i had i just never understood is how the two thousand and sixteen t m t arrow or the two thousand and seventeen permit would assure the satisfaction of the two thousand and one water quality standard with regard to the specification of a one to ten ratio between the total phosphorus in the total nitrogen i think i understand the fact she exploitation for the two thousand and sixteen  regard to the food you know continue to use the forty three that's it for critical slow for phosphorous but that there is going to be annual medium load to measure critical flow for nitrogen but what i never saw was what does that do to the hell does the change in critical flow for the nitrogen at all assure this one to ten or ten to one ratio for nitrogen to phosphorous mr sugarman show that there were internal studies showing that the total nitrogen is going to exponentially increase and so where is the study that says well if you if you increase annual median flow for nitrogen that there is going to continue to be this ten what ratio so your honor i'd like to take a step back and be clear of any misunderstanding there might be in terms of whether or which were substantially higher than the permit when it's at issue here so you know we're sort of comparing apples and oranges when we say the permits increased the amount of nitrogen being discharged i would be ensured that was met you know i do not have some i had an explanation as for why the court why the team d l believed that even though you would  be increasing the relative amount of nitrogen to phosphorus that the concentration level would ultimately be met you know i would conjecture just a little bit of course the goal here is not that you would simply discharging nitrogen and phosphorus into the water at a certain ten to one ratio does not guarantee that the actual ratio in the water is is certain nutrients are used up at different different different right you know so for instance just because you have one nutrient destro arch at a certain level doesn't mean that its actual  will be left in the water after a certain amount of time will be the same so i assume that part of the distinction between this is that nitrogen phosphorus act differently in the water and they are not expected law function and the only time we have water quality standards i thought in tell me if i'm wrong was in two thousand and one i've been thinking that we have to determine whether there was a satisfaction of the water quality standard in two thousand and one by looking at the two thousand and sixteen team but i may be wrong ringback for me so the the team d l is essentially a plan for how impaired water body can come into a payment with the water quality standard and i think the reason you have the statutory language i believe where it says you know the exception to in reference to water quality standard is that not every impaired water body has a t m d l so there may be instances in which the permit writer wouldn't be relying on a team d l for a finding that the anti backsliding provision would not be there i still don't hear it ask her to judge bacharach's questions so the the issue before the court is whether or not l it is a prior existing document ok so we don't care about the two thousand and twelve permit and we don't care about the two thousand one attainment of the water quality standards and those are the water quality standards that's set forth in two thousand into it ok you're cut again in what it what year in two thousand when i believe ok  the the relevance of the two thousand and one water quality standards is that those are the standards that the t m the well that was issued and has been upheld in state sugarman if you want takes three minutes and respond i know it's i know it's hard when you weren't given notice that this would happen but say what you would like to say and you'll have to turn on your for that reminder i want to just clear up a couple of things st of all counsel statements as to the fact that total miss this the discharge of total nitrogen into the river is decreasing is not correct and there is absolutely no indication on the record that's true what counsel was talking about i believe is that the two thousand and twelve permit contained an interim limitation which was higher than the final limitation of the two thousand and twelve permit but we have to remember that the final effluent limitation in the two thousand and twelve permit was eighteen dollars pounds of total nitrogen a day and the e p a obligated the permits he achieved that standard by the end of the permit period then when the two thousand and seventeen permit was issued an amount of milligrams per liter so you can see that the proportion that ten to one ratio that the environment department had found necessary is it is it has been left far beyond we've gone deal or the two thousand and one water quality standard is that only the two thousand and only the two thousand and one water quality standard the two thousand and one the statute and the regulations the whole point of the clean water  standard the two thousand and the total nitrogen standard is a narrative standard in that environment department has translated the narrative standard into a  numeric standard as it's required to do using guidance that's been provided by the e p a and the application of that guidance has led to new mexico environment department concluded over and over again that the appropriate standard there any other questions from the panel ok we will submit this case for decision and we appreciate the arguments