start with the motion delaware river keeper network versus new york state department and millennium point good morning  specifically the court there said paid up which is the pennsylvania equivalent to the n y s d c argues that because we were keepers a petition would be untimely before the environmental hearing board it is also a timely before us  reject that argument because the regulation governing appeals before the environmental hearing board does not define the timeliness of petitions before this court opposing parties here cite two seventeen zero nine zero nine for the proposition procedure law and rules if you go to article seventy eight it pretty clearly states that where the proceedings are brought before a supreme court of the new york supreme court so going back to the statement made in the whether or not the issuance of the permit is an action order under seven seventeen argy one i go directly to the text of seven seventeen argy one which states that in this court has a clues of jurisdiction over any civil action for the review of an order or action of a federal agency or state administrative agency acting pursuant to federal law to issue condition or deny any permit license concurrence or approval required under federal law here we have the issu have we have affidavits that were included in the petition for review that pretty explicitly state that we have recreational or that our members and specifically our executive director has  the in her affidavit that she has visited the area and will visit the area again in the future and the area and to the extent that project construction occurs without proper or overly with the only living it is the delaware river keeper network it's the delaware river keeper and the delaware river keeper network and what is the what is the standing of those entities so the delaware river keeper or herself is  executive director and a member of the delaware river keeper she is the delaware river keep correct my van are awesome that's correct she's the executive director which is also the delaware river keeper and so that new york state new york state's pollution discharge elimination system is a new approved program with permits issued in accordance with the environmental conservation law further it states the general as p d s permit means a p d f permit issued pursuant to several provisions of state law what's in it the general permit issued under the appropriate section so we're talking about  a specific authorization under the general permit which is what's being appealed here versus the general permit itself and so the definition section says permits with an s permits issued in accordance with the environmental conservation law it clearly contemplate s the authorization of coverage or the issuance of a permit under under that section so if each notice of intent is treated permit then what's the idea of having a  water act public participation portions the portions of the public part public participation portions of the clean water act which only requires an opportunity for hearing not necessarily having a hearing only the opportunity of a hearing and the opportunity to be able to view and review the actual and why and the storm water pollution prevention plan as well right now they don't have that opportunities if  if i'm a land owner with a stream going through my backyard and there is going to be a discharge of a million gallons of who knows what into that stream i have no i have no idea when that's going to occur i have no idea how that's going to occur i have no idea what measures are in place until potentially after it occurs and what we're seeking here is simply process did you make an application to the federal energy regulatory commission with respect to this correct your honor and the riverkeeper had an opportunity to comment yes on and did yes and did and that is a completely separate proceeding the federal energy regulatory the very same project the same project a completely separate proceeding but you didn't you didn't approve of the project you objected to correct correct yes sorry got you so the fed i'm sure the federal energy regulatory commission issues an order related to what's called a certificate of public convenience and necessity that is a completely separate proceeding they're the the federal energy regulatory commission is the lead agency for the purposes of the national could have occurred that there was going to be a discharge and they had the permit through one of their letters that they filed with the federal energy regulatory commission as a virgin are in the affidavit we we had  we had no recollection or there was no evidence that we you know were indeed aware but i think that brings us to an important point which is that courts have already sort of looked at this issue and have rejected the premise that project applicants themselves can provide adequate public notice by burying notice by pairing such a notice within thousands of pages of comments to an agency such an action would quote turn notice into an elaborate treasure hunt in which interested parties must search the record  good morning your honour's lisa baryonic assistant attorney general for the state of new york coverage under the twenty fifteen construction general permit is not an order or action subject to this court's jurisdiction under the natural gas act and the motion for st should be denied because petitioners have not and cannot establish the that they've met the requirements for a stay and it should be you have a general permit and then you have any number of projects that can take place under the auspices of that general permit right just with a notice of intent yes the notice of intent is filed can anybody challenge any project at all because because the the general permit just covers for permits in this general area and permit and you don't have to give any separate notice to anybody cause there's nothing here to see the general permit is not the only authorization that is required for approval of this particular project as the court noted there were further proceedings and department proceedings to review petition or excuse me for view millenniums out occasion that to construct this pipeline and both of those reviews required environmental assessments that were common and the fact of the matter is that the the general permit is one only one small portion of the approvals that far are you saying you can't file the notice tend to you've you've surmounted these earlier hurdles and which people have notice and have an opportunity to be heard well millennium actually filed in there in their application they indicated that they would be seeking coverage under the general permit and they also filed d notices of intent to be covered in the first proceeding so the had reason to know that millennium was going to be seeking coverage under the general permit it was also part of the first environmental review and it would be and the permits also dealt with the state's permits included the four and one water quality certification article fifteen and twenty four permits to cover wetlands as well as the requirement for millennium to obtain coverage under the general permit wetlands there are wetlands involved those are the fifteen and what the article fifteen and twenty four perm s your honor we we would suggest that the court review the the court of appeals decision in our d c versus the department says a case that reviewed in a and it general permit and in that decision the court found while it was in an a different general permit context that notices of intent are not permits or permit applications and they did not require public notice and comment in fact that court noted that public notice and comment that's required under the clean water act that requirement had been satisfied when that general permit was issued by the department and we would submit that in this case whe the twenty fifteen general permit for construction stormwater was issued that is when the department satisfy the requirements of the clean water does the river keeper and the river keeper network of standing  and if my second question is if not who does in this river keeper i would submit to the corps still riverkeeper does they don't have an injury because of the the this permit being available to millennium they don't have an injury there is irreparable harm they don't have standing right yes judge who does does nobody has to be well it's they're not river keepers not without remedy the fact is is that while they might they may not have standing to bring this particular natural gas sector challenge on the general permit they could have brought a challenge to the fore when water quality certification which in compass is all of state permits  for the riverkeeper standing to do that they were a party in the first proceeding and they have they opposed the fur license of your party to this any of the environmental harms that they're claiming they had they had notice they had been as construction scheduled to start it's my understanding your honor the there is some construction or pre good morning your honor i want to first touch on judge jacobs your question about how a party like the lower riverkeeper could know about these permits and i'd like to direct the court's attention first to our supplemental appendix which is in our motion to dismiss in opposition to the stay motion if you look at page thirty six of that supplemental appendix this is the general permit this is our first exhibit and if you look at sup apps thirty six there is a section of the general permit section seven f that specifically says that the holder of a general permit needs to make available to the public within five days of any written request any notices of intent and stormwater pollution prevention plans which go by the acronym swip so that is how a party like delaware river keeper would would have notice and w they would like to get the notices so that goes to your point about the front proceeding the first proceeding was filed in july up twenty sixteen and in that proceeding in the very first application the certificate application millennium said among other things we intend to seek coverage under the new york general permit for construction stormwater discharge they said it again in august of two thousand and sixteen when they actually filed in ferk and this is at the point where  riverkeeper is a party receiving service of all of these things if if they had come forward then and commenced this proceeding you would have said it was premature if they had come for words then and commenced this proceeding i think it looks like a very premature or too late well the reason the reason i think it would be caught in the middle is that the timing of this particular challenge has to do with according to the delaware river keeper itself the way that they have formulated their challenge it keys off of that august thirty is that knowledge amount of coverage so if we accept that premise the reason it's too late is for the reason that we mention in our brief that sixty days have passed since that sort of acknowledgement of coverage long before they filed this action w show up i didn't see it in the newspaper the acknowledgment shows up among other things in the front docket itself and i'd like to direct the court's attention to one other thing if i could mr stempel it says that there was no way the delaware river keeper or the riverkeeper could have had knowledge or notice that the use notices of intent and permits were in the offing in addition to those filings that i mentioned if you look at exhibit eight to the delaware river keepers of the natural gas yes if you look at the i think the last two exhibits of our motion to dismiss an opposition you'll see references to those contracts so that's the reason why we need to keep construction moving because if we don't keep construction moving at pace even  though miss that deadline even over the winter even over the winter construction is occurring now in the answer to your question we are clearing trees and performing the kind of pre construction that ms bionic mentioned let me speak essentially stay piecemeal this particular project the construction is moving in parallel at another with your engineers i don't think so and i certainly don't have the ability here and i don't think that we have ever conceived of this as being something that could be piecemeal stable the construction that is happening is happening in a number of different sites in parallel with each other in order to stay on track let me make one more point if i could just about timing mr stamp limits stempel it's mentioned that there is no time limitation under their reading pursuant to the natural gas act jurisdictional provision of course that can't be true the national natural gas act actually provide for expedited review in this court the proceeding brought pursuant to that provision the provision that he's referring to is a provision that says we are the action can be filed that challenges a state agency action when you look at the timing for that challenge you look to the underlying state judicial review provision the reason the third circuit didn't go that way is because that wasn't a judicial review provision that was an administrative appeal provided the state judicial review provision concerning the statute of limitations sixty days your honor so if you conceive of this as a challenge to the general permit which it almost certainly is then there would be sixty days from january i think twenty ninth of two thousand and fifteen to challenge the general permit and the reason i emphasize that only permit was first put in place in january of tw fifteen yes after public notice and comment so if you conceive of that as being what this challenge is which it demonstrably is from the motions discussion itself that that sixty days passes for two years if the general true it would be pretty hard to come up with any concrete harm or even any any act to challenge because without the notice k to the delaware river keepers stay motion and what cilla dorf says they're from paragraphs and these are the subset of paragraphs a through fourteen is here are all the problems with the general permit regime it doesn't permit individual eyes notice of underlying notices an intent it doesn't permit someone to comment on those underlying notices of intent that is their challenge but but but the reason i'm the reason i'm resisting your question is because that's what they're challenging but they're not challenging morpheus to come in and say i'm challenging a permit that would permit people to do things that i don't even know what they are yet that i might object but it was exactly that challenge your honor that was brought in this court's waterkeeper case in the ninth circuit's environmental defense counsel case and the seventh circuit case that we cited in our brief in the n r d c case that ms periodic mentioned each of those was a challenge to the first three were federal and the last was a state general purpose as in each of those two of them were successful and two of them were not it was based on the nature of the general permits at issue there the energy see case that mentioned is the one that's most significant here because that's the case where the court of appeals less than three years ago blessed the new york general permeating system that's why she put the emphasis on it that she did it because for these purposes to the extent that the general permits being challenged the general permit has already been blessed by the court of appeals and that question of state law than a settled thank you thank you for a minute rebuttal so we'll hear  respond quickly to the very first point that was made or the very last point that was made there the extent that we were we would challenge the general permit that was issued in two thousand and fifteen there was nothing in the language of the s p d us permit that says there will be no public and there would be no way for us to bring this challenge at that time because because there was nothing in the permit at that time that that would have prevented public participation and i think that's an important point i think on the merits when we're talking about cases that have that have grappled with this issue we have a two cases the environmental defense center on the ninth circuit and the second case in more keeper line sort of sort of aligned with our position  as opposed to the seventh circuit in the texas independent producer so those are the two one sort of split there bendish into the state courts and state courts have also grappled with this we have the n r d c case which opposing counsel has cited but they did not cite cases from michigan and minnesota which have dealt with this exact issue we cited them in our brief that have been aligned with our position on public participation opportunities for general permits in both cases both at the federal level and the state challenges to the general permits and that just seems to be what your adversaries which is what you do you make you challenge the general permit and you had sixty days to do that right so our challenge is fundamentally different from challenging the the two thousand and the formulation of the two thousand and fifteen permit itself were challenging new york new york's implementation of the s p d permitting program we clearly here have a i have a permit that was issued by by new york that authorizes a specific activity that change that have legal consequences that flowed from that decision making from new york's decision that a that the notice of intent was complete that was their decision making they decided it was complete five days after they decide it's complete it automatically gets issued that's the consummation of of the agency's decision making and therefore that constitutes final agency action on