morning to me please the court jeffrey schwartz from the northern california power agency i'll start with something on which both sides in this case a great both sides agree that if congress appropriates exactly fifty million dollars each year from the restoration fund then the c p i protects our contractors from having to pay disproportionate payments restoration charges in that case both sides agreed proportionality is binding and that means if water and proportional power payments together add up less than that add to the less than the targeted amount there are major goes on collected that interpret the act to require the opposite result if congress appropriates a dollar less than fifty million dollars each year for expenditure from the fund in that case they demote proportionality and prioritize threaten collection i'll explain why that's wrong can you either before you get into the meat of your argument can you clarify for me something i can't back and looked at the various appropriations acts for the last few years and the each ear by either the st sentence that you've just identified the two sentences the st sentence or the nd sentence or is there a single rule that applies to all of these appropriations acts going back to i went back to two dollars remember all of the dollar figures expressed in the statute are expressed in one thousand nine hundred and two dollars and that gets indexed up so there's one issue all of the references to nine hundred and ninety two dollars get indexed up almost all of them up on just bryson's point so when the government alleged ins brief because this was something that i was wondering about myself that one of the ways in which they tried to honor the greatest degree practicable portion was always charging the six dollars and the twelve dollars for water that isn't exactly right in that they weren't charging six dollars twelve cents they were charging whatever the inflationary rate for a given year was not necessarily six made it was six  refer to proportional is there some percentage established somewhere between water and power yes it refers to the share of the underlying project costs that each party supports before so can you tell me roughly shakes out yes currently it's about twenty five percent to power and seventy five percent to one ok so so so i don't project cost of twenty five percent power but what percentage are the power users in the years in which you're appealing actually paying so over the ten years preceding trial reclamation charged almost twice the proportional minimum so this is all it is or you're taking these extent congress's fault but the result of this is when one of the two resources has become scarce water the water people pay a disproportionately love a ballot for water economic terms this seems absurd inefficient right i mean when there's a scarcity of resources you would think it would drive cost up a but congress has kept the cost for the water users and they're making the power people for whom there is no scarcity of resource pay much much rational in the economic sense of the word that there's any there's one kind of the one clarification it would add though when there's no water there's no water but when there's no water there's also no hydro power so the government's interpretation of the way we interpret the sector has there ever been a high water year there are occasionally one and when there is a high water year it does the government do it i just had a press we have some sort of rolling basis and what i mean by that is why don't they look at the ten previous years in the way in which the power people disproportionately  paid and then tax the water people to make up for that well i agree with you they trumpet the stature consistently to favor water users now i have a few questions one is during all these  years the government has been trying to collect thirty million of them and are payments right yes collectively from power in the water and let's say for purposes of my question every year is off is authorize an appropriations of fifty million approximately fifty are there are any years where the government is reclamation is on able to hit that fifty million mark because from whatever other sources of payments they're supposed to collect from they never add up to twenty million do you think so actually when i heard two different things in that question not sure that i quite understood it let me try one i believe in most years perhaps all other revenues have not been equal to twenty million so on their interpretation they're constantly trying to get to the thirty million so for several years although there's this command at least from their point of view to to collect fifty year approximately fifty million there are several years where they don't do that even when they try to max out three thousand four hundred and seven d payments through collecting extracting thirty million from for us that's correct i think that's the typical situation ok and the other thing i heard in your question just when we show the record is clear i heard you say that if congress appropriates fifty  million well you know if congress appropriates fifty million then under the government's view proportionality would be binding and they would potentially collect less than thirty million dollars because the way they think it works wanted to drive collections to fifty million dollars every year they could if they didn't need to include the cap on combined water and power charges the thirty million dollars is phrased as a cat it's not a floor it's not a set amount that has to be recovered every you know that i'm it doesn't make sense to me but i guess as well good i guess that's what i'm saying it's affordability for water and by virtue of proportionality affordability for power and if there's a shortfall there are other appropriations available for c p i c p i purposes so i'm what the explanation if any do you think there is for the difference in the language that congress used with respect to the sentence one and sentence to where they said subject to and the nd iteration suster for the limitations of so why are government attaches significance to that what do you have by way of an explanation for so they do there is a difference under one under the st sentence they have to try to collect a fifty million dollars every year subject subsection under the nd sentence there's a three year rolling average  rationality to the way the statutes crafted and here i'm not finding an explanation so i'm looking to you for so i have a receipt i act the phrase subject to subsection d and the phrase subject to the limitations of subsection d my choice subject to my limitations on my ability or imposed externally i mean i think that there are different words there and they are we just have to start you know least by trying to find an exploit true but not at the not at the expense of distorting the plain meaning and to see to uses the word asians proportionality is a limitation to treat it as a limitation of the appropriations approach they actually treat it as a limitation under the other approach as well but let me ask another question about that which is what what do you when is the greatest degree practicable when do you see deviation from the two thousand five hundred and seventy five and when will that meet the practical ok so there are three there are three answers to that question the st one is the congress when it wrote the statute expected these charges to be calculated prospectively before the beginning of each of the school year based on estimates of water deliveries you can see that in thirty four of the seven d one you can estimate you're never going to turn out to be exactly spot on it's binding yes you can get to proportionality that's not a problem for congress congress said maximize proportionality due to the greatest degree achievable to maximum extent practicable if it is practicable that's a good thing to make it impracticable just to give some meaning to the words of the to the greatest to be practical they wanted us to maximize proportionality the thirty one rd of these are what you think congress in your view must have realized it had of time when it wrote that language that it or that i mean what circumstances did they mention that it would be impossible to to make an accurate and precise proportional arrangement between water power so as i said if you're doing this in advance based on estimates of how much water is going to be delivered remember howard doesn't get parent gets allocated a lump sum dollar amount and that gets told to western western charges the power contractors that gets collected regardless of how much water actually occurs during the year how little regardless of how much power is produced during the year the water contractors are different they get charged  are actually delivered so when you're setting charged ahead of time you're not you're going to make that guess as to what you think that's going to be but the reality is going to turn out to be different but then you show the true ups take care of that's correct but other than the start of the filters that  yes it's not clear the congress had that in mind but even under the true ups there is a circumstance under which proportionality stripper push o t would be impracticable there is one subsection d charge that the government if there's enough of that water in combat and enough of those charges in combination with other revenues that could take care of them that could exceed seventy five percent of the combined catholics which is now thirty million eventually later only drop to fifteen million dollars if there's enough of that water to go beyond seventy five percent of the combined power and water cap that would that would be a source of  from water by the government hypothetically if you were to win you know your statutory construction argument would you still have those arguments i mean those arguments which there would be no need to reach them would tend to cut in your favor that right because if they're under collecting from water and power payments are proportional to water payments you are it's actually good for you that i think alike from right after their payments go down then proportionally your payments are a benefit from their laziness retrospective lee in this one instance yes but so then i would put all those arguments from well you wouldn't need to reach them because this recession construction argument asks whether the government can impose just proportionate charges in order to make up for efficient water collections if the answer to that is no you don't need to decide whether the government minimise those deficiencies and going forward the government actually would have an incentive it is a lot so far to enforce the statute