it please the court counsel bruce campbell on behalf of the opponent co seafoods with the court's permission i'd like to reserve four minutes for rebuttal just keep track it counts down thank you this case involves the question whether coast's oyster growing facility in washington is deemed to be a point source and is therefore required to obtain an p d s permit there are really three dimensions to this question the first is can the can the facility be deemed to be a point source as that term is defined under argument that coast is required to obtain an p d s permit beginning with the text of the statute because this is a statute that is involved in agencies interpretation of a statute that it  ministers the supreme court's case in chevron provides the framework by which this court is to construe the statute and that is the court to the extent the statute has any ambiguity the court has to give deference to the agency's interpretation provided that the agency's interpretation is reasonable and here is the question the specific question is really is the inclusion of the calf or concern concentrated animal feeding operation in the point fourteen to find the quote sources any discernible confined in discreet conveyance including but not limited to any pipe ditch channel cond tunnel conduit well discreet fisher container rolling stock floating craft from which pollutants may or are just maybe or are discharged now i think the easiest way to interpret the statute is to break it into its component pieces and you can dissect it really into two pieces the first is really the actual definition and that is a discernible confined in discrete conveyance from which pollution pollutants are or maybe just charged the second then is the list of illustrative examples pipe the channel tunnel conduit well cetera including cafe and when you look at it when you look at it the inclusion of a cafe is somewhat of an anomaly in the statute because unlike everything else in the statute intend can we tell from the statute from the text of the stats itself what congress intended i would submit the answer is no and and the reason is because a careful doesn't really if you in order to give effect to and that may be the key to your argument the usage the sole means well what if it is both a concentrated animal feeding operation and it has pipes ditches and song production facility that does not meet the threshold for a cap then then it is not is not required to obtain it's not a point source not required to obtain and p d s permit and  that and the court makes it very clear no offical goes to great lengths in its brief to say well fed is really distinguishable because it talks about a muscle raft and a muscle raft is not the same as a ditch a channel or or regulatory definition right there i'm sorry i'm sorry i'm on ten eighteen what column or un i'm slow here so harvesting facility just not meet the e p a s definition of a calf they still make the general definition discernible confine and discreet conveyance or under the more specific definition vessel or other floating craft by this reasoning a ferry argue argument might have in the absence of a regulatory definition of what when an aquatic animal feeding operation is a point source the argument has little persuasive effect when faced with an aquatic animal farming that does not involve the feeling and is not within the expressed in described limits that invoke the act under this regulation so offending is is on all fours with this case it is it is indistinguishable it involves muscles not oysters but i involves no pipes no i mean it's just a raft from which the muscles are suspended you are but in effect he the court says we except for the for the sake of argument that this is that there is a  this must a raft other work could otherwise be deemed to be a point source but in the context of aquatic animal farming it doesn't matter well but as i read a fairly the only possible basis for construing this as a point source is that it's a concentrated animal feeding operation and then we have a regulation that defines what caught what qualifies as a point source as a concentrated animal feeding operation and the regulation doesn't include the muscle muscle raft end of story it does not involve the question where i mean at the same time be a concentrated feeding operation and have pipes and dances and song so to speak to the question that we have here whether i would i would directly disagree with assertion i think a fair he makes very clear that the court looked at whether or not this is a this is this is a aquatic animal production facility step one does it meet with the production and feeding thresholds to qualify a concentrated aquatic animal production facility or does it is it a significant contributor of pollutants the waters of the united states the court found no it does not so therefore it is not it cannot be regulated as a point source look at whatever get whatever argument or whatever merit that might have it doesn't apply it doesn't apply here where you have a regulatory scheme for aquatic animal production facilities so the court that argument was specifically harvesting the e p a regulations expressly exclude from the definition of point source facilities like tillers the do not need to do certain feeding thresholds to hold that these facilities are nonetheless point sources under the statutory definition of course i'm sure you know as well as i do method of shellfish farming many oysters are farm in the same way what's in the water there suspended there are no pipes there's no discharge from pipes that part of points or simply is not at issue and was not a dish you want if any you are it was the pipes it is but it was the point source definition was squarely at issue a discernable the definition that issue was the concentrated animal feeding operation and then we had a regulation or otherwise a point source well as i read that language what they're saying is that the regulation narrows the permissible operational scope of the statute which the e p a from time to time does it so when they say in the absence of the regulation we might read the statute more broadly but we're reading the regulation but it's regulation that applies specifically to the concentrated animal feeding operation correct and that's exactly it's precisely the case that we have here to speak in the least to and the court said let's accept that is true for the moment it still doesn't work because you have this you have this complex statutory or regulatory scheme and under the regulatory scheme it's not a convey or it's not a it's not like concentrated aquatic animal production facility and therefore you're trying to save some time or permit it thank you your honor let's hear from the other side and we'll make sure you get a chance to say what you need  third the fourth green and brown decisions establish that the statutory definition of point source controls if it clearly encompasses the conveyances issues and the brown case clearly held that pipe stitches and channels  point sources that require permits the if any decision is not to the contrary before we get into these legal arguments i want to note that this case is about a land based facility that uses pipes to choosing channels to discharge chlorine and ammonia and other pollutants to quell seen bay in puget sound for the quick reference i included a picture of the facility in my brief it's at page eight also excerpts of record page eighteen i don't want to quibble but i think you're of coast motion to dismiss because the statute clearly prohibits the discharge of pollutants from pipes ditches channels and k phones coast is wrong when it asserts the statute is ambiguous regret regarding whether the term serve basis or just one of many bases for a great requiring coast to have a permit section three or one of the act prohibits the discharge of any pollutant by any person and the act to find the term discharge of a two twelve only ambiguously prohibit polluting discharges from any one of the point sources listed in the statute in doing so those sections directly address and clearly answer the question presented whether  basis for permitting a facility that feeds animals it plainly is not just be it's a facility isn't a case though doesn't mean it's not a point source it just means it doesn't require a permit by virtue of being a cave in other things that are legal  but held anyway that because the facility didn't meet the aquatic animal production facility rule criteria that it was exempt even though it was discharging from a point source but that i think one reading you know i'm this is what we're guess we have to decide in this case as  how to read if any but i think one reading of a fairly is that they will assume for purposes of argument that that the muscle raft is a vessel or other fourteen craft which is enumerated point sources of the statute and so if we assume that but it's still and it's not a cafe then why would not require a permit because because that's not what the court did what the court did is that it looked at the arguments that effect he was making a federal claimed it may not meet the catch criteria but it's either a vessel or a floating craft or it fits into discernible confined in discreet conveyance in the court looked at that and said no this isn't a vessel or floating craft it doesn't fit there and we're not going to say that it fits into discernible confined in discreet conveyance because that term is ambiguous and there's a there's a specific regulation on point so this the court in effect he essentially said we don't think that these muscle raf's which are anchored to the sea floor not used for navigation surrounded by netting these don't fit into a chevron step one analysis because there's no precise term here that captures this pollution source so we're going to go to chevron step two we're going to look at the cap criteria which is the rule on point we're to see that this facility doesn't meet the feeding and production threshold and so we're going to defer to e p a s determination that this facility is not a point source that requires a permit so the difference in this case is that we have sti twelve the discharge of any pollutant from any point source requires a permit one has to look at the whole list and see do the conveyances in question fit into any category in the list and here they do they fit into pipes they fit into ditches and they fit into channels and because the statutory definition of point source says any pipe any ditch any channel that means that even pipes stitches in channels a that don't meet the cap criteria are points forces that require a permit the two other cases that came after a fairly legal wilderness defenders vs forest ground and northwest environmental defense center vs brown both confirm establishes that the statutory definition of points forces the touchstone for deciding whether something is a point source and if the statute clearly encompasses the conveyance issue and look statute it's a point source and we don't look to e p a regulations that might undermine those clear categories northwest environmental defense center versus brown then followed that and said pike stitches and shells are clearly captured by the statutory definition of point source so we have a ninth circuit case that's right on point that says pipes to choose and channels are point sources and affect the force gram brown chevron step one fairly is a chevron step two case where the statute didn't clearly encompass the point source is at issue and so they look to e p a regulations ok i want to i think i covered the statutory definition point source in my paper so i won't explain further on that point but i do want to emphasize and especially point the court's attention to the alley case the talks about the importance and the breadth of the word and where the statutory definition of points for says any pipe ditch or channel and where it includes an express limitation on points stores for agricultural storm water discharges but says nothing about hatcheries it's clear that the pipes to choose in channels here are are within the statutory definition of point source and so require a permit i want to turn to a point that mr campbell made and in particular he emphasized this in reply he says if we construe this statute this way if we construe three one five zero two twelve and five zero two fourteen to mean that all pipes all dishes channels and all k foods require permits were somehow rendering the term to perfectly obvious here's why that's why that's wrong first there is no support in the record whatsoever factual support or legal support for could claim that all k flows collect and channel pollution before discharging to surface waters his point is that his book all these cases collecting channel through pipes and dishes and so flu is if you can also regulate these facilities through pipes and ditches that's wrong well it least it's not demonstrated in the record there's no factual evidence and there's no legal case law for that for the premise of his argument in fact we cited cases at pages thirty three and thirty four of our brief quite the contrary is true animal feeding operations generally do not discharge from by pitches and channels instead they store animal waste in lag and then apply it to agricultural fields this is what congress was trying to get at when congress added the term k fo to the statutory definition of point source coast argument defies common sense coast would have this court hold that by adding the term k photo point source by broadening the reach of the statutory definition of point source and hence the n p t s permit program congress actually intended to quietly limit the reach of the phrase any pipe to church channel that's what coast wants this court to hold that congress intended quietly to exempt pipe stitches in channels that at k photos when they added the term k photo to the point source definition but that's not what the statute says that's not what five zero to twelve says and it's not what five zero to fourteen says the statutory definition of point source two other quick point argument their support for this argument also fails because none of the five cases that it support that it cites support its cause three of the cases greater yellowstone environmental defense center and his vs when are not about k photos at all and the other two cases that are about k photos the care case and the south if you farms case do not support co statutory argument at all and they do nothing to suggest example in our papers we cited the salmon net pen cases from maine these are facilities there that are out in the rotter in contrast to our facilities here they have great nets again anchored to the sea floor and they house thousands hundreds of thousands of salmon fish so far as i know are no discernable confined in discreet conveyance but given the size and the intensity of the facility e p a has said we're going to  sources under our aquatic facility rule and so it absolutely gathers in and regulate pollution sources that aren't otherwise captured by the traditional statutory the definition of i didn't think that seafoods presented an argument that required looking behind this to the to the legislative history we did cite the cases it pages thirty three and thirty four of our brief the south few farm the dairy case the bozeman dairy case and each of those in some level goes into you know what's the pollution source here and what did congress intend and  i think it's clear i think there was this statement from senator dole that the concern was that we were having an oversaturation of the soils to the point where these farm fields could no longer a com absorb all the pollutants the manure that was being added to these fields and so we were getting runoff into streams and creeks that was becoming a pretty serious pollution problem and so i believe congress said we're going to regulate the entire facility there may not be a pipe to your channel sometimes there are as in the south you case but we're going to regulate this to make sure that these concentrated feedlots or are deemed to be point sources and so brought into the n p t s permit program in the course that makes sense because under the clean water act even terrible trouble deciding what to do with some runoff and to simply and channeled runoff so if it's a  feedlot to produce runoff that's not channeled how are they going to get to it well and this is the way they did it i think that's absolutely right so i time's running out here i would just like to say one more maybe two more points the first is extensive arguments in our papers about the meaning of the regulations i'm going to rely on our paper as for those arguments except to say that those regulations mimic the statute and that the regulation mr campbell points to doesn't include any expressed language exempting anything it brings certain sources into the permit program or it does not exempt anything and with that i see my time is done i'll sit down ok thank you thank you  thank you let's go right to a ferry your honor cantor said he said that the muscle rafts were not a float were not a floating craft or so they're not point sources council also said that the court said that it must raft it's not clear whether it's a discernable discrete or combined conveyance i've heard a ferry one hundred times there's nothing in the opinion to that effect nothing whatsoever that's what counsel wishes it would say but it and i get that but it's fairly far from saying that the argument is a good argument as whatever effect whatever merit the argument might have so in other words assuming argue window so that's what a fed he says and i think the honor is that no the whole thing in effect is when you have a regulatory scheme like that that governs cafe and caps whether or not something can otherwise be otherwise defined as a point source is the as far as gay and i think if any is rightly decided is when you go back to the statutory definition of the council makes is don't don't necessarily discharge water but if you look at this court's decision in yellowstone call it said the essence of a of a point source is something that chip collects in channels water so they're arguing for an irrational result they're saying a cafe au even though