expect the prior record exists and so that will be part of what we'll be working off of this week devore to decide the case and you might hear some questions about that  remarks this morning on what i think are the issues inherent in the questions that this court asked last time we were together and i want to talk in particular about ambiguity as it relates to the definition of project in the compact were dealing with an ambiguity i mean that that was the purpose for which it was pressing you before mr overstreet that if we're dealing with contract principles and we have any ambiguity that means we can look  four corners of the document and do some question about whether there are other resources that would in light and that's a fact finding enterprises and it would be if we were to conclude that there is document in this case a contract is in big us and the court instructed that we're going to look at an addition to the to the words of the document we're going to look at its structure we're going to look at the burning history and we're going to look at the conduct of the parties all within the first import of his questions to be if that's if this bid the new position why are you taking this all or nothing position here why isn't it the case that the storage facility on storage kind of work tension facility ok so if that's necessarily part of parcel of what you're doing then i'm getting some cognitive dissonance here because i read your brief and you seem to say well look it came to power place and things like that you know there were some things that were facilities and regular the regular bill by the commission and other parts that work and yet you come across and say no it's all or nothing so which is it and how do you square whichever happen how can it be the case that in looking at this question we could ignore what it sells like is conceded must be a piece of any well pad project to be some way to deal with the waste water because a question is not before the court how the will be ok how can it not be before us if it's impossible for you to actually or anybody to actually have a functioning role pat are you saying that we should that any kind of administrative remedy that people are supposed to know there they have to exhaust people have sought jurisdictional determinations from the commission for years not in this tissue was right because the deer b c had an effect taking a bike position is that correct the district court concluded that the d or b c had taken a position but i believe that the district court here because that well certainly there were nearly your comment when we were here a couple weeks ago you noted that it will take millions of gallons to run one of these wells but it'll take millions of gallons to support the it seems to me i'm sure we could go and find you know public record information that would tell us how much twenty thousand off personal office building for example would is it appears the concern that the commission as is not with consumption it's with pollution is sad is that a fair reading of your answer no sir the commission as it were quite see and water quality interests so with respect to water quality interests is in the consumptive use the loss in the well situation of four point three billion gallons each time that well every time these the well each well every time they fracture the well four point three billion gallons of water they can put ten to twelve wells on a well pad and they can fracture them or that was we're talking in total against new york city magical watch housing development you know it's suburban new jersey or pennsylvania taken up with water water you i don't see the commission going in and saying hey you can't make that housing development it's going to take a lot of water a skyscraper example or in the housing development example most of the large gets returned to the system through wastewater treatment with respect to these wells most of much of the water stays in the ground and the water that comes back up as waste water is too contaminated to send to a publicly known treatment facility and put back into the street all right so i think i remember reading someplace thirty to sixty percent recovery but maybe i got that wrong about the water that they say they're going to be able to reuse so they seem to think there's some substantial part of the rules but it's moved past the consumption part and  ask whether or not we're not dealing here with a situation like that to grant where the court the supreme court was very specific in saying is nobody thought they were given up the billy of the state to to make regular ation over oil and gas and natural resources so what did she speak if you will to that concern  specifically to the supreme court's treatment of interrail the supreme court tourette was dealing with a case in which the parties to the compact were taking different positions and so when you have a dispute among members of trade court said that it's much like a contract because you can't favor one party over another without looking to what the intent of the document is here we have the contracting parties to the co regulating someone who is not a party to the contract ok but we're still dealing with a contract right we're also dealing with a federal statute and a state set you were to write we were told to view it as a contract it using contract principles right i've never directly age from georgia oh in the context of tourette that's correct but if you look at what this court did post or read in the new york shipping association case which brief it was a matter of interpretation of a contract this court said that the interpretation of a compact is just like any other statute and would be interpreted under normal a grossly misguided when it had the authority to establish a comprehensive plan for only gas usage in the state of pennsylvania where they misguided in thinking that was their around popper again they have the full right to operate in that realm each state is welcome to regulate that true gas as long as it does it consistently with whatever regulations or adjudications come out of the commission because the commission's power trumps the sovereignty of the state when it comes to oil and gas natural resource use that's the position of the commission that all we are not a natural gas regulatory entity where your grade because you said it nobody can do anything until you're ready to say something about it that t at the end of november that is what the resolution was that was adopt by the commission and the draft regulations will be any use of water at least for natural gas hydraulic  because that's what we've been instructed to do by the commissioners but these are drafted relations that will be open for notices hobbit and i can't tell you where all this ends up i can only tell you that's what will be propose i think your honor that it's important withdrawal of water to the storage of water to the use of water for hydraulic fracturing to capture of waste water to eventual treatment and discharge of the waste water so this is a case where the commission has stepped in and said some hell we're looking only at hydraulic fracturing in the narrow sense of injecting water down the well and we're nori all of the other activities that go with hydraulic fracturing it were all part of the city of director was ok if this is true then this is mr overshoe right that we don't even have to think about a read about the storage facility part of it we can look specifically and solely at the commission's assertion that you cannot build  pad you cannot do what you just can't do that because the commission says that's off limits absolutely absolutely not there either because what we're dealing with is a set of activities as alleged in the complaint i'm hearing the podium today please take it as a given that all we would position is and all request for relief is solely a declaration that the commission can nod for good will regulate the construction of well pads well bats that's it no did no other ancillary thing just imagine a well pat they can't stop that and they're asserting that they to stop that if if they go ahead we're being put up in of itself so we're just putting up a well at the commission we have very little interest in the commission is trying to stop people from constructing a structure on a piece of land because people do that all the time we don't regulate structures that people put up on a piece of lead what's interesting to this activity is the use water resources applies and so we conservatives look at it but there's no reason to look at a well head in isolation were met were badgeman agency they're bringing four point three million gallons of water up to the wellhead they're storing it they're there they're injecting it into the ground through aquifers if they try to put a pipe through a reservoir i believe you rather would say they're using that water resource to put the pipe through a reservoir we need to protect the reservoir just you know in this case dealing with dealing with with with a well that does that mean you are not relying on article five here when you're talking about the quality of the of the water stated that it is not challenging in this litigation utility of the dirty seat issue regulations and the regulations do not use the word project we have a regulatory authority under article five to prevent current pollution and future pollution with no restriction that it be a project so we're going to be looking from a war management point of view not from an overall interview with there's water pollution that might occur here for example we're that you've got a forty under article five to regulate pollution i understand that and you knowledge that so sort of assumed we've got to deal with wouldn't have the authority to construct an operated on its own call the argument that they made their yes i recall that argument and it is absolutely correct the purpose of the sessions three point eight is to then have the various question if i can call it that under section three point eight does it impair or conflict with the comprehensive plan and the comprehensive plan is a set of use among those uses are treating water recreational uses using water industrial uses it cetera so the question then becomes under section three point eight what activities may impair the comprehensive play were this is a question that the question they're trying to put before us i take it and which i'm hoping you you're going to grapple with is that you historically done nothing like this right there suroosh it is and i take it that that's part of what this argument on page three is is it historically and they've you know the sections of their brief where they could their brief history of the commission etc and they say you know in their language in your approach they speak about fives that were designed to go across stream cross and the commission said we're going to stop that activity from occurring until there are proper precautions set in place to protect the streams that the pipelines some type of purpose of element here inter breeding for what we disagree is what the appellant has tried to do which is to add the word exclusive before the word for because the can be to extract better gas but there could also be a purpose to use a particular means to extract actual gas now in certain circumstances the use of the means maybe only available way to do it and i think as a practical matter that's what we have here because if one looks where natural gas fracturing has a crew in pennsylvania in each instance that the commission is aware of the choice was to use  are we think that that choice is necessary to do it and if you look at the complaint that's what health says they're going to do how does it not do precise who were to charge and said that and read the purpose of element out of it years you are you are making the involved argument you're saying it involves water history it has a course they have the purpose of using water doesn't seem to address the question which is in front of you which is the compact language they use a word for it means it's for it is not that the very object of it is the water in this case the object of it is not the water as has been described in your opponent's brief and the question to you so how is your response that not just saying yes we know but if it is called prior that's enough for us because i think that there needs to be some type of deliberate element to it but the uses as an example well nobody's going to say that the water's being used by accident right so so paper right but what you would see the furniture factory is a facility for the utilization of the same paper you might say that you set it for on purpose if they made the deliberate o prosecutor wants it to convict a defendant the choice of means was to use purposely it racial own preemptory challenge to have an all white jury it ultimate skyscrapers and housing development still intentionally use water they do when they do intentionally use water but they have no substantial effect on the water resources of the basin because they are not consumptive uses that don't approximately ninety percent of the water from skyscrapers or the water from housing developments go back into the water better system through a sort of destruction event and then that's that's a great thing but it doesn't ultimately have to the question  doesn't regulate the electric generating facility we regulate the activity that involves the use of water and the reason that we regulate it is because that water is used other industries that also use water don't constructively and we don't regulate those in other industries so we care about the overall effects on the border quantity which are huge here given that we can talk about over one hundred million gallons for this one well pad and think about how many additional well pads there might be in the basin this is a huge water quantity problem for us and we're charged with benefit to make sure that the use of water for this purpose doesn't detract from the availability of water for other purposes that are set forth in the country it's play but i so for a minute for a minute diminish the pollution aspect of it to the commission for many years has regulated the potential polluting uses of water and in this case given the bryce radioactive materials and bettles that it could be brought back up to this site we have a real water management problem they were basing compact doesn't give you the jurisdiction to to address that and i didn't do a very good job with that but i think i'm trying to highlight for you the argument i understand that you're making and i would like to hear your response to that how you respond to that your honor i think all you need to do is to take a look at the definition of word resources because that definition specifically references relate use of lead so there was a con they need that assessment settle that's what i'm trying to address it will let's in addition to looking it up the definition of water resources you can look to other articles of the cutback and some of those articles other structures if they're located in the floodplain need to satisfy certain criteria so you don't get into a situation such as we've seen recently used to where flooding destroys lots of property so that was a specific to be considered by the court was the district court in correct in saying and a footnote in its opinion that the r n took no position on whether the suit should be dismissed we didn't take a position on the groups th purposes of the contract so you really do take a separate position from the commission here because i thought i understood mr warren to say it in half that you could treat three point eight separately not work at five and you're overstreet on that one more time since we've given a while extra time to the commission i'm sure but but since you won't have a chance to get up and respond want to just assume for the sake of argument that they say something like this we never said that they wouldn't have authority to regulate under article five in fact we concede they have authority guard regulate under article five and we don't intend to talk about their authority under article five but you can talk about their authority under three point eight without talking about three point zero article five because they create it's all about whether or not they've got power in the absence of any kind of pollution to to assert that's kind of what i think their one is right why would that be wrong well we think that the power to regulate implicates the power to review and particularly when one looks at the definition of what one looks at three point eight and one looks at the definitions there