process wells are drilled into the ground gas and water pipes to the surface there are compressor stations pipelines electrical transmission lines roads and associated facilities the end product is commercial methane gas the waste product is water and all of the water in this case is wasted it is dumped into the tongue river and into swirl creek it matters not whether  yes it would be industrial waste i think the court's reading in that in the hamersley case says that you have to inject the notes notion of common sense and read the statute in the context of the overall purpose of the clean water act which is to prevent is i mean the common sense definition of waste in this case they use the gas the water is of no use to anyone so at that point it becomes a waste since we have to read the act of preserve its integrity use that pepper phrase from a permit for that i would agree with that i would say that you know again we're not saying you can't just charge the stuff you just have to bring it up at the permanent process in the permit in that situation would be very liberal because and i guess maybe it will be  are considered pollutants by e p a that i don't think you have to go there could you could you share a little light in terms of what the record shows if it does show this about the nature of this process and  and they make the water to the surface and through the process the methane gas separates from the water the methane gas is then piped in there's there's lots of wells in a field in this field there's up to two hundred fifty producing wells they collect the messing with methane gas in compressor stations powered by diesel generators they shift the gas to market the water is then collected in pipes or in the reservoirs and it is just charged into s because you know in one sense i sort of thought when i first read it that maybe the water in the gas are mixed together somewhere under the ground there in the center of the gas out of it or it separates and then i then i d in the sense that the gases of the water absolutely as of as a result of bringing it up through their process the methane goes in one place and the water goes somewhere else if you went down to where the well as if the record shows us where they were that you know well the drill the hole goes now into some pocket where there's groundwater in that area is there like separate water in gas or is there some separate and some merge together do we now your honor i don't know that the gas is actually trapped in the coal seam in the water is also in the coal seams but i guess the point i want to respond to that the transformative human process here is bringing it all to the surface right this is why i would never get into the toms river moving into the service just like if you pump the water from the pacific ocean into the columbia river it's been transformed by by moving it that's right and as my argument would be if you started pumping the great salt lake into a trout stream even though the great salt lake is natural water you would be transforming the the trout stream the chemical composition of that water and that's the focus of the clean water act really it's on the receiving water that's the water i'd have to go back and look at what we sent in a ferry but i thought we were talking about something being transformed by human process that it related to biological matter which was listed as one of the items that could be a pollutant and we were saying that every every single thing in there had to be transformed that's right in fact it's on your decision on page ten sixteen in ten seventeen where you make that point that and i think this is a quote the court doesn't mean to suggest that material that in focusing on not what is in the water but on the fact that people didn't put chemicals into this hole that nothing in the water and the real test should be you know like constituents are going into the receiving water that caused the pollution  right in the pollution definition focuses on the receiving water's being altered by the substance right and that's what the fifth circuit held in cedar point the eleventh circuit held in mc a second the second circuit held in the catskills case is that well when when you it and that's what's so ironic about this case they sought a permit for both the tongue river and squirrel creek they were issued a permit eventually for tongue river and we claim that they didn't have enough that they the permit only provided for seven out calls but they were just starting from twelve pipes in the river they were not granted a permit for squirrel creek they applied for one because the hartman said that even though we have the state law exemption we are not going to give you a permit because you're going alter the water quality of this little stream called squirrel creek and so they denied a permit for me and that's another distinguishing point from from the very case they are the state agency said hey you guys don't need a permit because this is not pollution american mind in time for space montana can do whatever it wants for state law and that's not the issue here but when it comes to exempting pollutants from the federal clean water act which is what the district judge interpreted montana's fine but that state law cannot serve as an exemption to the federal clean water act in the district court erred when he basically held that that was an exemption if the legal handle that supports those american mining congress  not given authority under the plain terms of the statute to example classes of pollutants there's two exemptions in the definition of pollutants one of them being for produce water from well and gas development that is injected into state approved well that isn't an exemption and if so the court looked at the act and said look there's a couple of its actions here those are fine but the e p a just does not have the regulatory authority to create new exemptions and drawing on some of the facts in this case that i think are very important is that this water really does have pollutants in it that has three hundred times three hundred percent greater salinity or total dissolved solids it has eight times as much fluoride as the receiving water it has ammonia arsenic very improper iron and lead in e p a in its regulations has stated that these substances are all pollutants and the district court just said well you have given authority to designate toxic pollutants and they did that and on that this is out of turn of argument to saying it's an industrial waste right as i would like an alternative theory of why we should view the water as the that's correct because it includes this is industrial waste that's correct as it would come out of the plain language of the definition and if the court doesn't have any additional questions of me at this time then i will sit on the reserve the rest of my time methane is brought to the surface what we have is not in the interim next to the gas but what happens is the pressure of the water holds the gas into the into the coal seam when the water is withdrawn level of operation both of your that's not involved in so how can you say this is not industrial reeves personally let me answer the back half of that question first because it's important to know this is not produced water  congress gave us a definition and did not define industrial waste at all and the e p a when he adopted a definition of pollutant the sensually adopted wholesale except for a few minor additions the words that the congress had passed so the definition of pollution in the current clean water act and in the regulations are the same where do we go with respect to other instances of statutes passed by this at the same time by the same congress and that takes you to the marine patrol and research in sanctuaries at thirty three i say fourteen or one and that act defines industrial waste and that definition is any solid center of solid or liquid waste generated by manufacturing or processing plant and to some degree i believe that the any case likewise speaks of that same issue as to what exactly a poll lieutenant means under the clean water act and this court said in a ferry that that must mean some either of the theories that northern plains has advanced here if what you had was the congress wanting to say that any discharges into the navigable waters of the united states was required a permit the congress could have said that but he chose specifically not to say that you use different language used pollutant and then provided a list of and keep the pure water can they do that without a permit if the if the water in which they're discharging does not otherwise contain pollutants i believe they can now issue that i'm sort of interested in london let me go back to that because it was one of the other points i did want to respond because there was an issue that was raised in the colloquy with counsel will what we had here was my clients went to the state told my clients that they did not need a permit i fly from clute it nevertheless in what i would otherwise call abundance of caution maybe it's lawyer caution to apply for the permit any of it and that the town river from five outputs for a period from june twenty second two thousand to july sixth two thousand because it was during that period of time only that the water from one place and that's for i didn't want to go back however and because i think that we have this fall back argument i want to address that fallback argument for just a moment because i think if van straits the vice of where we see northern plains come in they tell you that yes that these substances are regulated they are listed by the e p a as being pollutants and therefore that is sufficient to justify the requirement of a permit in the sense in this instance i learned just simply to walk you through what the chemistry is because you have to understand if you will and what the record shows the chemistry of this the various items that are listed as pollutants are also is also the chemistry of the tongue of all of those items calcium magnesium etc etc all of those are also in the town wherever there's a reason for that actually there's two one upstream from where i discharge is our other coal that in other activities make this charges into the town river and over to whole seems intersect the town an altered groundwater not acted in any way and if you look at all of the cases and we believe we have an end this is i must admit i think this is as close to a case of first impression as you can find because there are not a lot of cases that look at the question of pollution and try and make a decision as to whether or not it's an altered substance in the importance there is an altered and on all altered substance to some degree your honor that would have to be in the end but that the converse is that if there is any industrial activity if you will what we've done under northern pines argument is we've removed the concept of a pole lucian or a park as requiring a permanent and what we've moved to a st any industrial discharge requires a current and i will concede that congress could write the law in that fashion but i will tell you and mr charles he cited to you what what the courts have said about that that is the function of congress it is not the function of the pollutant that was intended to be regulated by the clean water act and that is why you know this is a factually driven record i will admit that there are court's ruling was correct i do i just address just very briefly what the mike hanna statute did and what the montana court did because it's important to understand that the montana statute in determining when i not apply this exemption to those discharges there has been this continued bait as to the effect of the montana statute and the application that that has and whether or not the v a has accepted that we allow you to apply that definition and we believe that under those circumstances what the e p a is then saying is that we likewise like you do not find this alone an altered ground water as being a discharge which is a pollutant we are very narrowly or and there are issues which we believe we could talk about and i would get to just simply brush on them there is this question as we pointed out litigation was filed the permits it issued by the time the litigation had been filed we had at least indicated that we were in the process and had terminated our discharges those permits would have to be applied that's correct they would not have to be applied for a year ira it is important however to go back to the the latter corollary of the of the course question and that is there are in fact other state and federal not and gave it and setting forth the reason and i submit that the industrial waste argument will essentially broaden the definition so that it is all industrial activity that with the broader language and with the broader sweep and which was with what northern plains is suggesting you should rule they could have done so and we believe if the congress had intended to do it it should  and that neither the e p a nor with all due respect should this court then redefine that language to at that sweep  own expert said you cannot apply this water on a field without asking damage the ramifications of this case are enormous in the record it shows that there is an environmental impact statement that the record decisions go march twenty eighth of this year the law to rise up to twenty thousand new wells in the state of montana if this court holds that this is not a pollutant those discharges will not be subject to regulation under the federal clean water act the state laws that mr waterman refers to are state lost they're all premised on this stuff being considered a pollutant if it's not a lubed it is not going to be subject to regulation i would refer the court to the cedar point case because the cedar point case from the fist circuit made an apt analogy to sister why this is industrial waste and it said it's industrial waste and then if you add chemicals if from the drilling process then it becomes chemical waste and it quotes the definition of produce water and despite when mr waterman said the definition of produced water contained in the regulations at forty c f r for thirty five point forty one state that produced water which is water that results oil and gas development which is what this is is brine is salt water which is what we have here that can include chemicals but it doesn't have to and so the e p a has extensive regulations that appl this very water which the cedar cedar point the circuit court of clyde only as a corollary to first finding that we have industrial waste here and i don't think the court needs to go any farther than this argument about materia argument that because there's this other definition in the marine mammal protection act of industrial waste that should apply to the clean water act they have it backwards as the supreme court said in the early invite case in the society  my brief you only want to if you have one statute it's very narrow and then another statute that's broad and the marine mammal protection act is narrow and the clean water act is fraud then you don't take the definition from the narrow act and apply it to the broader act so to apply this definition of industrial waste from the mere marine mammal protection act would it is opposite of how the supreme court said you should try to harmonize these  the definition of the pollutant is very broad and that's how courts have interpreted the federal clean water act because they wanted to fit with the overall purpose you know we're talking about a law the congress said we're going to end pollution by nine hundred eighty five and to interpret this law is to not regulating this discharge would not fill the purposes of the act judge but you are right there are gam cases that you know if you just stop the water and put it back in the same water body those are not a pollutant even the fishermen that's right there's a line of cases there and i don't think they're relevant here i guess the final point i'd like to make your and i know it's been a long morning is that it's not often that irrigators and an environmental group and an indian tribe will come before this court and speak in one voice and they're here to speak in one voice because they don't want this water in their rivers on alter it has the potential to cause profound damage to crops to fish to aquatic ecosystems and we want to bring it under the regulation of the federal clean water act doesn't mean that we're going to shut down the industry it just means that they have to go through the permit process