say we we live in this area or we come to this area we enjoy these waters and they've been polluted by this defended and that establishes article three equivalent that's a i think that's a fair summary of what it says even if even even putting aside whether or not the answer to the request for admission should have been introduced into the record at whether or not the instructions were proper it not everybody under the assumption that as judge collins says that circuits previous more lenient standard applied we now know it doesn't dispute about discharge of the orders united states i got this request for admission with these guys say they indirectly discharge waters into the creek and it may be logically that that would establish direct discharge b agrees with that position where they greatly don't mean that we ask a question about that i thought their position wives and i may have it wrong you don't need to have a current or immediate discharge as always you had one at some point in the past you think their position is you don't even need to have a discharge in the past why we're talking past each other a bit on the question of jurisdiction there is a requirement for a regulatory agency before you can require an m p s pardon that there have been at least one discharge to waters united states saying the same thing so let me make sure we are saying the same say because they have a permit there must have been a discharge right for the permit to have been validly issued there had to  ok and therefore from your perspective that's enough to meet the jurisdictional requirements and now now you don't need additional discharge in your view to make a claim relating to not dish george violations violation that you are proceeding against so if you're going if you're proceeding against monitoring and reporting violations you must show that there will be a repeat monitoring and reporting violations you couldn't show well is going to repeat of in this case it seems to me we have a practical problem which is that it seems to be plenty of evidence of discharge before filing of the complaint and you really don't contest that i don't even see that you can test in your brief if they the district court made it clear to them before trial that age you want to argue ground water you want to argue this broader standard you can do it they don't make that argument because it doesn't apply there's nothing in the record to indicate that water came close they might have either set a different request for measured or put in different proof this happens all the time with a lot of changes when the case is on appeal you can't blame them for not making the case that a lot of people required on the other hand we can't punish you for that either we send it back to retry it is that the appropriate thing to do or not when do you want it we're operating under which was a nice circuit's decision accounting molly was more generous to them and that's the whole point of what what judge carter said go ahead and argue it but that wasn't their argument they're arguing was the water comes going down that was it was never ever part of their case but the fact that take that takes me to a point we didn't get to discuss why didn't judge carter make a mistake in not telling the jury that the fact that your client indirectly discharges stormwater into the creek has been admitted i've never seen a i've never seen a trial where somebody was required to put yeah well because the request for mr only goes so far which is something we point out right indirectly to do it doesn't mean it actually reaches to mask or create and by the way the request for admission really distracts what the storm water pollution prevention revenue and make it let's assume your client is three mile island and the government imposes a bunch of reporting requirements to prevent a nuclear disaster and your client ignores the reporting requirements violation you don't have a violent you don't have standing for a reporting violation in their services well not to look after our you have a jest redress ability issue right where your your claim about paperwork doesn't match up in the past and you haven't according to them adopted the appropriate technology or reporting mechanism to avoid future ones sufficient to give rise to a clean water act clean well i would say that because i don't want to get back into the fight about the county of maui changing the rules but let's just assume for a moment that they put established discharges into navigable waters in the past and reporting and monitoring violations bring just you know procedural violations well yeah when it's connected to a case where there's actual discharge that's proved or established or admitted or conceded and you got ok well part of that is you didn't do your if there were simply no discharge whatsoever in the past i take your position would be that you couldn't bring a clean water act claim that's absolutely true yes i would agree ok if there were one your position seems to be you i think there still needs to be a tie between you know either witness statements or the declarations between that paperwork and previous discharge right somehow there's a some link between it it's with down now back to this case and assume a previous discharge just for the moment they say you were supposed to put in a certain types of machinery protective measures that were come in and say there was a discharge very shortly ago and therefore we have a right to sue for discharge violations even though that there are continuing because it's a reasonable inference that we need an injunction to stop it no evidence of a nother discharge would would citizeness in mr sprouse client's position be have article three standing to bring a suit about the reportin says we're not dealing today with reporting violations so it doesn't it just says we're just not we're not really we're not ruling about that we're talking about this george regulations yeah and that also was dealing with as laidlaw later said dealing with the statutory