projects the court took a hard look at the potential impacts of that permit before it approved it and the pipelines been designed from the start to avoid or minimize impacts to wetlands as much as possible for example it's going to run along the same path as existing roads and other utilities as much as possible to avoid impacts to new wetlands now the corps did find that this construction authorized by this permit is going to temporarily affect about four hundred  fifty acres of wetlands and to offset that the course required by bridge to use best management practices to reduce corrosion and runoff of sediment from the construction sites into the wetlands and the corps also found now to comply with the clean water act the permit requires by bridge to buy credits from approved mitigation banks those credits will ensure that all of these harms the wetlands the temporary impacts on wetlands will be offset by the preservation wetlands yet that's my understanding yes you're up your understanding all right now the big question to me is whether the core how the impact is sufficient to offset the destruction and the corps has only used an expert  very general explanation that you can hide that's my question that's that is what i think we're here but yes or so this is the outcome of additional question i'd like to address two points first the regulatory background to talk about what the regulations actually require here and then what they require to go respect i don't entirely agree with your summary of what the regulations require now and i think it's important to acknowledge first that the regulations do expressly authorize the use of out of convocation they give the district engineer that discretion and they don't require findings they don't say the corps has to find that the wetlands are of similar type or what have you they just require the court to document its decision in the record and i think is one other point it's worth making which is again you only go to out of kind of mitigation mitigation banks because as the preamble to the compensatory mediation regulations explains other methods having bridge go out and try to fix the wetlands that kind of on site mitigation has a long track record of failure so the regulations want you to use approve mitigation credits as much as possible because the scientific work is done up front there we have a mitigation bank we've already looked at it we know what it's doing we know that it's going to provide a product functioning to the watershed and the last point is your honor that the regulations don't require  credits from the mitigation bank that's not they don't actually use the phrase in kind they just say that the credits from the miscreation bank have to be of a similar type and appropriate so the language is a little different and let me tell you now wow well how what the court did satisf those requirements so there's really three elements to it the first is the l ram which we've talked a lot about in our brief the louisiana wetlands rapid assessment method which is this analytical tool that the corps has built to assess these kinds of projects in louisiana that scores these projects that scores the effects on wetlands based on the impacts to aquatic function like they are and those are separate they're separate well so when we come to outcome mitigation what the corps has to do is it has to show that the outcome of a geisha will meet the aquatic resource needs of the watershed and i think there are three elements in the record that show the court did that the first is that it used the l ramp to ensure that the aquatic functioning that's going to be lost and the watershed and you can find that discussion at seven hundred fifty eight to seven hundred sixty two so those three together are the elements that show that the core appropriately documented its decision to use out of kind mitigation bank credits here and well i mean that's you know i could we definitely could have done a better job i mean i will say that the parties in the court records briefing a wide range of issues many of which are not have not made their way up to this court on a very tight schedule if we had known that the court was especially interested in how to kind of course would have briefed it more thoroughly it wasn't the thrust of the case in the district court we did defend it in our briefs in lower corporate it didn't use the word heller and it didn't explain it very well on the other hand i think it's fair to say that this was the focus of the district court that the district court could have asked us for more briefing on this specific issue could have just said i don't understand what you've done here how do you think you can justify this out of kind of the regulations that we would course of briefs that we would welcome that any standard the court fundamentally got the administrators law and the record wrong and even if the court were correct the state panel was correct in concluding that the limited deficiencies that the district co noted would not warrant the caterer of the permit then they were for was not to pour any gunk on in this case and so even putting aside the question of the sliding scale our basic point here is that mr meeson it already started to explain the poor did comply with the regulations you wrote too extensive e e a's and that the explanations given in the years to the objections that have been raised by the up at lease are full and indeed it is absolutely correct that the two thousand and eight regulations of the federal register stated establish a hierarchy big corps explicitly is directed to choose a the range of everything that equal wrote in this in this case that is just not met and the court was in error in thinking that the v a s were not compliant with neat bow or the thin water  having said all of that it seems to me that the fundamental point still remains that if the court were correct on the deficiencies that it noted they are deficiencies of explanation there are things that the poor can easily fix and in fact most of them are obvious if there are no obvious from the case themselves are obviously things that could be readily faked by the court there are things like you know the regulations do prefer but i think the government is right that the o'reilly case is a case that starts with the premise that the court had found that the impact were going to be significant and therefore the only legal way to avoid the e i a s the environmental impact statement was to provide going to be a net loss of wetlands because the wetlands were going to be filled rather than a transformation of one wetland type to another and where the mitigation issue actually went to compliant with nepa because it was what it was but i think you know the government is right that you know or riley is not relevant that the get go for that reason it is also no relevant for the additional reason that even if you thought that the that the  case and not speak soley to an unmitigated fancy it was a breach two thousand and eight case and they can be no doubt that in two thousand and eight e p a and the quarry jointly completely changed you know the environment of how you regs and therefore you know the level of explanation that is needed now has to be commensurate with what already is explicit and implicit in the regulatory structure that we have now in this connection i would like to refer the court to the six circuit case that we cited in our in our paper which is the kentucky fans for the commonwealth it was again one case where earth justice challenge a permit and there was something like el ram in that case it was x up it was what had been developed for kentucky and you know the six circuit look at it and said well is the type of expert judgment that we express agencies to make and we certainly are not going to get into whether this is a good enough measure of the aquatic function being lost and it concluded by saying in the end given the various and their related factors and possible of explanation really would have helped its understanding of what the court did that is not a case for vacate or and therefore it's not a case where begins there including charts of other projects etc and you know the nature of what the ports mass is that you know the players are making claims that relate to historical conditions having to do with permits that were issued before the clean water act and before modern regulatory conditions were imposed and so there are berms there are piles of dirt the court accepts that it says that in the context of the modern world permit conditions are sufficient first the district court's finding that violated the clean water act second district finding that it violated the national environmental policy act or need and then last i'll address this issue of of whether there should have been additional explanation in of trees is underway as we speak so time is of the essence in this appeal so neat let me turn to the first issue which is the the clean water act requirements and we try to put this in context a little bit the corps authorized the resource and in this case the mitigation was planting trees a considerable distance away in a former agricultural field that is that is correct your honor it's within the basin that's right it is army corps that's not actually true the purpose of the clean water act is to prove protect the beneficial uses of our waters in the beneficial uses include things like fishing and recreation and i guess i would direct the court's attention i think this this issue really turns on three thirty two point three the one i think is the key regulation that governs this case that is a regulation that explicitly but only under certain conditions the the court has to use a watershed approach which is a very specific and prescriptive process and that's laid out in thirty three two point three seat of the regulations there needs to be an affirmative  this kind of thing would serve the resource needs of the watershed and all of that needs to be documented in the record and the district court found that none of those conditions were satisfied and the district court was right because none of those conditions were satisfied there was no finding exactly sure about that their position are but whether they have the flexibility to use out of kind but they have to have a watershed plan that explains that this out of kind is going to meet the needs of the watershed in some way that's  where there wasn't a lot of discussion about iran in the district court so i think there's a legitimate question about about waiver here but leave that aside open up the ram it doesn't say what they what they are telling you that it says chosen to proceed with a focus on this very special important place i don't think we're conceding anything about about any other place but i want to come back to el ram and what it does and doesn't do it doesn't and it can't override the language of three twenty three three which requires the showings for a mitigation plan and in fact if you look at el ram it doesn't provide in any respect for out of kind trading of credits in fact  explicitly says that the it's use is for in kind and that's page nine of the el ram document so there's nothing in the l round that for example would allow for different weighting of credits in a way to allow exchange of in an out of time and l m is not second iran is not in any respect a watershed plan that is a legal term of art defined under three thirty two point t should plan as an integrated approach to managing watersheds to look at all the problems of the sources of pollution and to identify projects and priorities to restoring those so under these regulations the army corps can look at a mitigation watershed plan and say you know we think this out a kind mitigation over here would actually be more important for the watershed than an alternative income then they have that flexibility but again the regulation set a very high bar it's got to be documented in the record that's not what l rand is it's it's not specific to doesn't say a thing about the needs of the chaff alive basin there's no plan out there that says we need less cypr wants more bottom land hardwoods there's no documentation in the record that says these out of kind credits were the best way to meet to meet the needs of the days and so we really wrap up this clean water act point which we're taking something fairly simple making it complicated you heard a lot about the hierarchy the hierarchy doesn't have much to do with this the issue is whether they've met the standard for out of kind of mitigation the district court got this right we're here under an abuse of discretion standard there was no documentation for that so let me turn to the issue of me and everybody i think understands that i like the clean water act which puts substantive limits on the issuance of permits need to impose procedural obligations and the underlying need to question here is whether the corps complied with me when it found that the impacts of this major piece of crude oil infrastructure in a very sensitive and special place were so insignificant that they didn't need to do a full environmental impact statement and it is it is black letter law that an agency has to support its findings of in significance and the record courts will look closely to make sure that meat his purposes are being fulfilled so that perfunctory conclusions that mitigation will address every environmental harm they don't they don't meet the  standard of the law that is true in this circuit and every other circuit the district court looked at the record found there was no support for the claim that mitigation would offset the considerable environmental impacts of this project so the position of the corps is arguing here is that there are two separate standards depending on whether it's called a mitigated fonzie or it's just a regular fonzie and it finds a finding of most significant impact that you have to find support in the record for a finding of of in significance in the district court looked at the record and found there wasn't an iota of support for that the o'reilly case was a mitigated find see we've given you half a dozen other cases that were not mitigated finds these the analysis is always the same the courts look at the record see if there's support and the record was replete with evidence that there was considerable environmental impacts this is a major project in an unusually sensitive aquatic area and there's no conceivable way that the destruction of hundreds of acres of wetlands in a place as route that wasn't what the record demonstrated your honor there was considerable record evidence that cutting a seventy five foot wide channel twenty three miles  that the channel that they're cutting destroying a century old trees a seventy five feet wide some of that will be allowed to regenerate there was considerable record evidence that it would not regenerate cypress record well in any event your honor the point that i was trying to get to is that whatever which you characterize it a channel cut through the basin has very considerable aquatic record during the comment process was that temporary impacts are not temporary and so the district court had all of that information and made a finding that finding of in significance wasn't supported by that's right let me let me turn to this last point in my few minutes that i have left which is this this remedy question that came up in the motions panel that lifted the injunction so the district court issued a preliminary injunction under conventional preliminary injunction standards again we're reviewing that under the use of discretion under the law this circuit one of the judges on the motions panel said the court should have considered the ultimate remedy at the end of the case and we're seeing that argument for the first time in this appeal and as a threshold matter i want to point out that no party ever made this argument to the district court nobody even argued it to the motions  is arising for the first time in this appeal i really agree with you on that point surely your honor but under the under the law of this circuit that issue has been way and in fact the issue of whether a court should look downstream at the end of the case and apply this this allied signal exception that you're hearing about has never been addressed in the context of a preliminary injunction by any court in any jurisdiction ever and so whatever you think of waiver it could not possibly have been an abuse of discretion for the district court to fail to reach an argument that no one ever made and that no court anywhere has ever brought in at the preliminary injunction stage now it is of course true that injunction should not exceed the scope of the ultimate remedies that are potentially available in any case in it if it were true that the only possible relief in this new clean water act case would be a with no possibility of vacating the underlying permit then in that case one junction may have been inappropriate but that is not even remotely the law that applies here that your of the underlying permit rare exception this was a garden variety preliminary injunction under environmental statutes it's a very common thing it is narrow it was well grounded in the facts after there's been a full record after the court has fully adjudicated the merits and after the parties have had the opportunity to actually brief and the court considers the remedies so let me let me conclude sixty page opinion narrowly in joining fourteen percent of this pipeline that's the opposite of an abuse of discretion and we ask that you hold it and coming back to where i started time  parties have submitted a agreed schedule for cross motions of summary judgment that schedule has been presented to judge dec she has not yet acted on it but the schedule moves quickly  played this agreed that they would move for summary judgment in mid june that the briefing will be completed by august and this case is this is an administrative law case it will be decided on cross on cross motions for summary judgment based on the administrative record so i'm i'm out of time the construction is proceeding the irreparable harm that the court found is is happening as we speak i implo this court if if you are considering up holding the injunction to lift the stay because by the time that an opinion is issued it may be too late one more question is there anything in this record that tells us what this compensation this really gauge and what it looks like there we know what it looks like it will really know how far it is from the he it is in the watershed there is a component of the project that is restoration of swamp we're not challenging that we're challenging the destruction of cypress swamp in favor of bottom land hardwoods which are very different kind of he where he said that there were findings that were actually required by that that were not made what it said is actually that the district engineer determines using the water had approach in accordance with  determined because of starting a page sixty five he said that this was appropriate compensation even though it was in part  approved you know the project we sort of assume that they necessarily found that that is sort of implicit and unless the stat that expressly says that formal findings need to be made no more need be said with respect to l i think but at least you know the district court would have engaged what the court actually did all what this report did here was to ignore the explanation that i was actually provided by the core in favor of saying that there was not an iota of explanation the contention evidence and conclusions that were before the agency and the merits of whether the war was right or wrong everything stopped when the core issued its judgment and everything has been challenge on the basis of what was put in front of the agency before that rationed as to how the base unwarped what the what where the mitigation war or where the trees are if they were not put in the administrative record and here they were not or whether the cumulative impacts