liable for nearly five hundred violations of their stormwater permit injunctive relief for those permit violations is not moot because the county and district failed to show that it is highly unlikely that their permit violations will recur as an initial matter this court has jurisdiction to hear this appeal because the district court expressly refused an injunction under section twelve ninety two a one of the orders expressly refusing an injunction are directly appealable as of right with respect to move this the defendants failed to meet their formidable burden of demonstrating that future violations are highly unlikely this is the let's assume for a moment counsel that you're right about to either disapprove of it or they don't do anything i gather is deemed approved is that correct oh that's partially correct you are first on the date they wrote us yesterday and said they believe they have until november eighteenth a day later than we advice this court but but also the this is a notice period on the e p a and the justice department can't disapprove or approve the consent decree or the proposed consent decree at the conclusion of the forty five day period they will submit a letter to the district court and the parties stating their position on it and after that at the end of that period will submit the proposed consent judgment to the district court asking the court to enter the judgment and then dismiss the case with present ok so that nothing turns into a pumpkin on november eighteenth or seventeenth right that's correct ok so let's assume it's all argue and do what the folks over here worry so marg you when that we have ju what specifically does n r d c ask that this court do before that happens or later well your honor  it's hard to see that it's worth the court's resources at this time to decide this appeal given that we've signed an agreement with the defendants it is pending in front of the federal agencies right now for this notice period and then it will go to the district court but it is highly likely that at least in our view that the district court will enter the judgment and so when about six weeks we'll be moving to dismiss the the settlement agreement and judge you got all enters the dismissal with prejudice but let's further assume that your backsliding suit is successful then what happens that would not undo this settlement those are entirely independent who's going to watch over the over this consent judgment yeah we will be asking the district judge to retain continuing jurisdiction to was a lot of money i think that's high it will cause i don't think that's high for the defendants to come into full compliance with their stormwater permit obligations they've projected that will take them a long time and will cost them a lot of in some of their watershed programs b as far as who's going to monitor this proposed consent judgment we will we have a very strong interest in making sure that the defendants do everything that they're committing to do in this consent decree there is a dispute resolution provision so that if they fail to comply we can get in touch with them right away with any provision and if the informal dispute resolution doesn't well go back to district court and this is just one piece of their overall stormwater obligations they will still be bound by their stormwater permit going forward and so if there are future violations they could be subject to you answer that question if you go oh well we will be following very closely their future compliance we've litigated this case for nearly ten years and were very well we're close we hope to a final consensual why did it take ten years there was a lot of back and forth up and down in the various courts we had a heavily contested question about liability that took a while and then we've been engaged in extensive settlement negotiations for now almost a year so did the i guess i'm struggling with what my colleague is here it seems like the safe harbor provisions i'll call him in effect allows the county without obligation to say magic words we're moving forward but i'm doing anything and just indefinitely postponing this is that incorrect in our view that is correct your honor we are challenging the safe harbor provisions of the purse because we think they allow the county in the district and the other discharge years in the future to avoid meeting pollution limits based on their written plans which they may or may not implement they money to implement this and if they don't do it what are you enforcing well let me separate our proposed consent judgment with any future ok all right what we're looking for now through the consent judgment we've entered with the defendants is we believe is inappropriate we believe is an appropriate remedy for their five hundred adjudicated violations those go back to two thousand and three and we've worked out a settlement that we think will resolve that so in other words y liability on the part of the county you're saying that in your negotiations with the county and i gather when i say the county i guess there are eighty four jurisdictions all together if i understand so i'm using shorthand you are you negotiated with the county a way to if you will implement the liability portion of what's already been adjudicated under the old permit is that correct that's correct although the relevant provision was carried forward in the government and when we went back to district court we asked district court to enumerate their violations and she determined based on their monitoring reports that they had five hundred violations over the past decade so we have a settlement that would resolve those but we would not you say resolve what you mean you have a settlement that says ok we county agree we've committed x violations and this is what we're going to do in an enforceable way to take care of the violations that adjudicated violations that does not mean that we will turn a blind eye to any future violations and if the state and federal agencies don't step in to enforce we will and so the any concern and that enforce that why wouldn't you need injunctive power on that well our proposed consent judgment would give us the equivalent of injunctive power to enforce that ok what it would obligate them to do certain things we would be asking the district court to retain jurisdiction to enforce those and if they didn't we could move to enforce the consent decree so there is an injunctive provision in our consent judgment so that but that's a new court records said that finally you know you're not going to get one give a final release by argue window cracked and i'm just saying are is it an r t c is position that that injunction that you're sought is no longer necessary yes because the consent judgment would substitute for that it includes an injunctive provision so again the previous violations are moved forward you have the consent decree that allows you to enforce it it has such an arbitration agreement right mediation or whatever it is that satisfies you which would be in court but if you don't work it out then you can go to court as i write correct then we could go to court and to enforce what they've agreed to do in a consent judge and we would reserve our rights to sue over any future violations that includes challenging the permit itself challenging the programs submitted under the permit which are also deficient and challenging any violations of pollution limits that there would be a new suit that would be a new suit that's currently you said you want to reserve some time for you but you're at that time now all right thank you very much very well all right we'll hear from wants to cut to the chase on the practical i'm keeping my part i'd rather cut to the chase i don't know whether my colleagues agree or not but i want to know when you're going to get this thing over with and why does it take so long well i think stormwater management  think it's under the new permit we're talking about safe harbor provisions and commitment to them is that the county is in compliance with thousand is taken major steps and it's not just a declaration of we're going to do this bear in mind that these are a lot of the large public works projects and there's been a confluence of two things here one the the desire of course to control pollution from storm water runoff the other is with the drought ways to reclaim water and recharge aco for years and this confluence event has led to a general political desire to overall better water management and that is what i think the wimps as they call the water management programs in the e u wimps and hance water management programs they're designed to do and so the county and step committing budgeting mean the planning for this things you're already i think the county's budget fifty million dollars something for next year for the planning of these projects to start breaking g round on them so it is an ongoing let me ask you this council you of course are familiar with subsection oh about the safe harbor i mean if you're in the mindset back backsliding  yes my question is if you read oh it seems very clear that a lot we haven't seen the actual actual settlement agreement it seems like there is backslide on the question is what subsection  permanent right of the of the of the new the new permit and it says compliance with the water management program enhanced water from constitutes compliance with the let me g in lay terms says you can't ever agree to be less efficient more polluting in a future deal or a change deal and you do in the past or then there are some subsections from there that exempt out certain types of actions so my question to you is upon what some subsection is the county relying upon to get out from  you're moving towards complying with those standards i think it's an understanding that you cannot halt stormwater pollution by snapping your fingers you do it as a process and i think that's why the regional board went to  this water management program enhanced water management is you're going to get to those standards we understand you need time to get to those standards it's not in anyone's interest to have immediate violation and i understand your point but  section a permit may not be renewed reissued or modified on the basis of effluent guidelines promulgated under another section the titles subsequent to the original issuance of such permit to contain effluent limitations which are less stringent than the comparable effluent limitations in the previous permit so that's the act like the word just on its face the two thousand and one permit was more stringent than the two thousand and twelve permit subsection says exceptions and my question to you is which of the exceptions is the county relying upon to get out from under one but i think it's the notion that it's the  relying on a particular exemption you're just saying that the effluent is no greater under the two thousand and twelve permit than it would be under the two thousand and one does the receiving water limitation stay the same what the regional board recognized was you're never going to get there immediately you'd be an instant violation this is a process that permits designed to channel your behavior to compel certain behavior and it does and it does now by saying look if you want to avoid having an instant penalty you're going to have to show that you're actually making progress to do something about this and there are reporting periods within the water management programs within the enhanced water management programs that say ok now  have you put in this money are you doing these attacks and i get that yeah i get that but let's just say hypothetically that a court federal state whatever says you know we get that it's a difficult problem it's very expensive and you've got the drought issues you want to build up the aquifer and rebuild your ground water and so on but the reality is you get all these poisons going into the bay and i can't find anything in the exceptions the exemptions to let you do that then where are we then ultimately if if a court says that the permit if it's challenged the court says no it's backsliding then the regional board has to go back and modify the permit but it's still if it's currently a lawful permit it was issued by the regional board and it was proved by the state boards being challenged collaterally in court now but it is now the applicable permit that the county in the flood control district or are operating under and  compliance with well i'm not sure what you're saying is that the permit is the permit yes my question was does the permit comply with federal water law we know that and my other question was if it doesn't were and i gather you're saying if it is the county been servicing the storm drain system cleaning up oh yeah yeah yes absolutely i mean they're addressing various aspects of it there are more trash collection things like there's less trash going into the sewers less pollution from the trash going in i mean they're not doing a very good job of that or they're trying to dry they didn't have billions hundreds of millions of dollars over decades to do this it is a very difficult problem what have they done how much money this man like i said i think just budgeted for next year something like fifty million dollars for the the water management program for new facilities and that's going to that management program so they're they're the ones on us how many inspectors are there that i don't know how much is this all going to cost the entire tired water management program going forward into the new under the new permit you know over it since it was going to be a twenty twentieth's area we're probably talking hundreds of millions of dollars almost a billion i think the projected cost over the lifetime these are large public works projects designed to address both storm water pollution and memory of water for aquifers mr coats i want to get to another aspect of this while i have i don't have the settlement agreement but  choice is between man and committing a permit violation which is why i think it's not precisely voluntary because it's like saying i can comply with a lot right and go to go to jail but i mean in the permanent self it is there ate an obligation to do something at a particular time that you have to do once you once you've elected to go by way of a water management project or hands what a magical then time lines start in but if you don't ever get there in other words if you elect not to do a w m p then if you have a receiving water limitation violation and it's monitored at your outfall which is now different they've changed the bryants mining not the middle of the river it's your individual out then you would be and then you could be in violation if you had exceeded says receiving water limitations ok so i hear you saying that he really isn't voluntary what's voluntary is the timing and living but even the timing has some limits because if you get down below a certain point then you have the effluent coming out and contract and on tradition right exactly which is why when the when the new permit came out the county promptly elected to go down the water management program and has water management program root and if i understand it correctly there are seven w m p's that have been authorized and submitted to the drank water quality yes ok yeah so at this point we're the county to back out of those would there be a penalty well the if you ceased in the progress report then you would no longer being compliance with the you have to comply with the permit you have to be in compliance with the n p t requirements and the enhanced the want to management program so you would be out of compliance of that point as you are no longer complying with those  once made that would show the extent of this project show you what's going to go in where and how it's all the no operator i don't i don't know that there there anything like that i don't know anything like that i don't know if they have one or don't have one i know that i said there are projects throughout the county area they're designed specifically to comply whether they're put together a dam or whether they're going to have a project where they're going to reclaim the water you know the thing a book that i do not personally know about your argument to either of my colleagues have any other questions for the county before we hear rebuttal just to clean up and i don't want to think we had a motion for judicial notice that was essentially in response to the other side's about when they were challenging the permit before the state board and we followed up with a motion saying ok now the state boards said that the permit is ok i think the court may have acted on their request for judicial is has not acted on ours and i think would make sense to grant them both what the federal agencies are saying i agree with mr coe angelo that i would want the court to expend resources with this as an imminent done deal so to speak subject to further enforcement in the district co according to a consent decree we get that i think however would you agree there are some employment principles involved here in terms of when an injunction an action by district court is final for purposes of an injunction and there's an control but just coming out of other budgets again this is this is there are a lot of pieces here not just flood control it's also you know providing more water so believe me it has a strong political base behind it so i have a lot last question there are important principles at issue in this appeal and there is no circuit split on either the jurisdiction question or the movies question all circuits are in agreement in the supreme court has said that as long as there is any reasonable chance that future violations could recur injunctive relief is not moot and it's no small thing to strip the courts and the plane of the opportunity even to argue for an injunction once violations have been so i gather the n r d c would at least take the position that putting aside for the moment that you have a new mechanism to enforce and deal with the permit the two thousand and twelve permit the finality of the judicial or the district court's injunction ruling and the moon this issue are important issues that sound in this area of the law from which there would be some benefit in getting clarity we do agree those are important issues and that there would be a benefit in getting clarity as mr cote said we do have a settlement agreement that may be entered by the court in the near future but we do agree when are we going to get a copy of that after the district court enters if she grants our request and approves the consent judgment she'll need to determine that it is in the public interest and then within five days we will submit a notice to dismiss this appeal parties didn't submit even if it's we're under seal a copy of this proposed agreement because we're just kind of whistling dixie through the forest we don't know exactly what it says we just have representation from the parties about i guess what just us got  the we've agreed with the defendant to keep the terms confidential until it's been entered by the district court as a settlement privilege because it has not yet been entered by the district judge it's not yet officially a final settlement agreement so we've agreed to times forty five that's going to be taken care of with forty five oh it certainly will at least they've represented to us that it will be that's on the justice department and a but in the notice i mean i'm sorry in the federal of the permit and then that does not fall into any of the exceptions in thirteen forty two zero for backsliding this is a relaxation of the critical permit term the prior permit said no discharges that violate pollution limits the new permit says that's fine as long you do a voluntary plan that might get you there in decades now as far as the remedy for that in state court it's not the case that all bets are off it would have to go back to the regional board to start asking for just a surgical change to the permit it would be a very narrow amendment to the permit itself it could be remedied easily they could continue with their watershed programs they would just lose the shield from  know from violating the permit that the watershed programs currently give them and that and that this agreement if you couldn't reach agreement you would go to arbitration right first own no i'm sorry on the consent judgment you're on yes and regional board wouldn't have to start over from scratch we're just asking the state court to strike the basically you're from your perspective if a court finds your district federal or state court finds that the clean water act has been violated because a backsliding there is no exemption you're saying that the permit doesn't just disappear rather there would be an amendment which would fit into one of the exemptions is that right correct you on of the solution is they would have to take out the violating provision of the permit but only that provision of all in the sense that the portion of the permit that would require would permit them to do more of an affluent than they did before yes ok that 's correct john and you are also asked a question about whether there would be an immediate fine if they fell out of compliance no there is no in the idiot fine it would require some enforcement by either the state or the federal government by us on just the very last point that whether the water should programs are voluntary and the permit says this is that we are forty that participation in the watershed programs is voluntary the county's brief on appeal says at page nine that their participation in these programs is voluntary so they could decide at any point to walk away now that's interesting because the understood opposing counsel correctly he said that because the county has committed to forget the numbers but m p s and some e w m p s that have been so committed they're in they can't get out do you disagree with that i do disagree with that your honor there is nothing binding them to follow through with those watershed programmes and that's one of the main reasons why injunctive relief has not moved this entire process is voluntary they have the right to walk away at any time they may prefer not to there may be during a little pressure or something one way or the other but the entire watershed program mechanism is voluntary and in the documents themselves attached to this county's judicial notice request they say we have not dedicated the funding yet to pay for these some but did those both go to the  who live in this part of the world who depend on their government to keep the water clean because it has a lot of impacts on people for diseases and all kinds of other problems so we thank you for working together we hope that  this will all move forward and in good faith where we are very anxious to see this settlement agreement will count on both or one of you sending us a copy of the approved agreement and as much as we like to see you we hope we don't great service to the united states in many capacities the judge preggers and has both as a district judge and as circuit court of appeals judge and i think you all know he served with great honor in world war two sustained some very very and you could actually say some of the human waste floating around he's never been the same sense  and it took a lot of blood sweat and tears the straighten out that problem and the fish are back the whales are back the hyla but of down in the bottom of the ocean process waste water that comes through they storm drains they clean it up before it goes into the ocean or san francisco does portland portland wasn't doing but they're doing it now and you know we got to protect the planet i don't have to tell you this and i know but your organization and i'm happy that you're working on this few want to make they make me happy and give me a perfect present which you don't have to and i'll even toast that reclaimed water