year three minutes of my time this morning and i'd like to reserve two minutes rebuttal right i have three points this morning first i will discuss the army course failure to comply with water quality standards for temperature despite the army corps admission that operation of the lower snake river dams adversely affects water temperatures second i will discuss the errors in the army corps belief that because it need not comply with the clean water act for temperature result i believe your honor that if that were the case the army corps would be appropriate to speak that presidential waiver and then get the waiver of the water quality standards if they didn't have a waiver which they didn't have that's in excess of the standards which are both in american standards and the narrative standards for washington state right the record also has information from e p a s temperature study which shows that the existence and operation of the dam causes temperature violations for more days and for a longer duration and it would without that and so then is the real issue and that's the thing we don't have to figure out whether somebody is relying on the best scientific evidence like we do in most cases we just know that the temperature is elevated we need to figure out what the legal significance of that is these of the the government's obligations correct that's right your honor and i think what's illuminating is to think about how we got here in in february of two thousand and one the district court ruled that the prior two records of decision showed that the army corps had violated the water quality standards for both temperature and dissolved nitrogen and sent those decisions back and that's when we nitrogen the core admits that it has violation problems talks about monitoring talks about structural changes operational changes to address that scenario but if you look at the temperature discussion which is on page eight of the decision that we're talking about here which is the ministry of record two eighteen on the axis of record to eighteen you'll see that what they say for temperature is we are not causing this problem therefore we do not have to do go any further then th own mind what a fairly she's writing or trying to run is the buy off and the rot on this side and the endangered species act may be in the middle somewhere over here because that's what the virus is all about and the critical habitat an to the vile biological can use only under the endangered species act we did bring a clean water act case the challenging the federal government's failure to comply with section three thirteen and that is under a ministry to procedure act review water standards but they challenged the administrative action in accepting and making this record of that's right your honor and that challenge falls along a long line of cases from this court saying that is the way you challenge evidence about this it's not a trial right and i think that's so how can the judge make a determination they're violating the state bar on this right and i think you do it in the way you do all  review of record cases you look at the decision that the army corps maint and get on page c eight opinion it was not causing experiences of the temperature standard and then you go back and look at the record and you see whether the record supports or fails to under a different set of facts that have to be developed we challenge the final decision the final agency action here is but decision in two thousand and one how they're going to operate the river system that decision has to comply with quite a number of laws  beyond the endangered species act which is what the biological opinion a separate consultation process under the e s a by a separate federal agency not the army corps engages in the army corps in the may two thousand and one decision says how it's going to any document from a separate federal agency they're pointing outside their own authority mean army corps the army corps pointing to what the national fisheries service has done second what they have agreed to are neither mandatory steps nor are they funded and that's very clear if you look at the decision itself and so they are not in fact taking any steps to get to anything that looks like compliance with the water quality standards third there are additional actions from a clean water act perspective that are not in the would point you would be page seven sixty four to sixty five of the excerpts of record which is a clean water act compliance memo from the clean water act team that has a list of things that could be done to address temperature there are other things throughout the record but those are ones to look at and finally just making i say i have four points in my four things and the biological pinion that they rely on has been held invalid under the endangered species act itself by another district court and so even if you could do that which i would continue of the three things the biological painting is has been held invalid it's not still pending that legal decision is final what is going to be the next step obviously in continuing this process but there's no appeal pending that there is no appeal because want to share my brief time with you though and looking at the actual decision at the court made i think this helps answer the questions that were being asked about this intersection between the clean water act and the in interspecies act clearly and the are two eighteen the core into sentences that's the heart of the course clean water act decision the court decided on its own to do all of this decision making and one document so that and we were seeking judicial review of this document for its compliance with section three thirteen it's key to remember that we're not talking about a clean water act in force an action here we're talking about an administrative procedure act action and the question in and what the court looks at in an administrative procedure  water in the river is warmer than it would be under natural conditions for a few weeks in the fall ok what's the corps going to do about that well one thing it says about operations versus existence is that with regard to operations the operations of these four dams themselves aren't going to make much of a difference to that temperature shift because they're run of the river that means that there isn't this thermal stratification where you can drop cold water from the bottom to cool the water proportionately coming out of force of damage it has a significant effect on cooling temperatures on the river and i ask you i think i'm deluded myself into thinking that this might not be as complicated as some of the other environmental some options with what regard to force back and we're going to make use of the options we have here to do something about this issue in my internal doesn't answer the question i mean i feel like we're kind of literally swimming around the bottom line are temperature shift the temperature shifts that we're talking about this fall period is because of the existence of the dams themselves not because of operations and in fact all the operations that are contemplated and that have been put into place in the two thousand and one ri action this right that is not an option they also submitted a declaration below from an expert offering a variety of measures to supposedly to decrease water temperature and one of them including for example monitoring of temperature when monitoring of temperature and the attempt to allow the salmon population just revived in those duties or look over here it seems to me this are in parameters you're arguing that are natural and cannot be changed in other words you put your science to work and cannot word for word apply for instance we can monitor the temperature every day and maybe we could get it down with a certain point every day that would absolutely comply with the clean water act but it would work into the dances that were revealing with your well i think the think remember is that there actually  operations that have been put into place for the two thousand and one rock to deal with the temperature shift that we're talking about i understand but the key is if you've done that what's the problem with the clean water act that seems to be another fallback by by those who are looking at you saying would you still don't satisfy the clean water act so it seems like it's this it's this is actually tori language and requiring versus this operation that involves all these people and all of the stuff constantly trying to make the system work and that's where i'm having trouble reading through this trying to figure out what's the answer other than tearing the dams now and then and then you're saying now only work anyway because it won't be as good as it is now well there were there is an issue about one of the models suggest that without the dams river administrative procedure act action ultimately and the question is have they followed the procedures they need to have they taken a careful look at this question are they doing everything they can is there anything in the record that indicates they're going down the wrong path as you're at all that there's something more they should have done that they saying they needed to comply with the clean water act as part of this decision you see that right i'm having maybe that's just slightly an artful way of phrasing it but we're still even if she were wrong on that we're sort of back trying to figure out if as you say you have to comply with the clean water act then your decision has to rot has to be in compliance is that correct right and i think what she's focusing you know here is what are the operations that are being authorized by this rot these are operations to bring down the temperature and what i can look at here is what's being contemplated in this drop i'm not looking at larger issues about congressional decisions taken a long time ago i'm not looking at it seems as though it may have been in place prior that's right i'm looking at what this rock authorizes and when i look at that and i look at the question of whether we're dealing with we've got focused on it more in the total dissolved gas area i don't think we're quite at that point in the temperature area yet but that is one of the many things that the corps has to juggle here in looking at how it's going to operate the stance that congress says it has to operate all right thank you i think enforcement action how can you tell us the core violating a water quality standard without getting that evidence into the record no one's really discussed the washington standard here but significantly it's not just a number where you go out and you measure the water temperature and say oh well it's warmer than twenty degrees the standard here has is based on an incremental allowable increase of water temperature and as i believe has been made evident it's very complicated to establish what is the exact temperature impact of any particular source of heat and heat in particular things something that's naturally present in the water which is affected by atmospheric conditions in that ri frankly it does not examine the language of section three one three which is the sovereign immunity waiver i don't believe when i see even quote the statutory language if we look at that language and see what does it say it requires  comply and its budget to all of this dame federal state and local pollution control requirements in the same manner and to the same extent as a non governmental entity and yet nonfederal dam operator are not subject to a cause of action to enforce water quality standards there is computing president of this court finding that water quality standards are not directly enforceable in the manner sought to be imposed in this case operational turn of i think in answer to some of judge burnett he's concerned that i would suggest that it's not unusual for a federal agency to have to comply with several statutes of the same time in making decisions and what we have in this case conflict here between the endangered species act in the clean water act as i said earlier i think the endangered species act as it is giving us a floor to what these families are going to need to survive but it's certainly not saying what else and what more needs to be done to comply with other obligations especially those to have their thing water necessary and we're talking about temperature here not something where you could do harm to the salmon by trying to do good i also think that it's important to go look and see what the court decided the  first time she said they haven't considered their temperature their clean water act really is she also said and she specifically trounce that there is evidence in the record that the core is causing experiences of temperature and that was where in the decisions for ninety five and ninety eight and there is or surprisingly that they have to the core is causing the course operations are causing and that's quoted in our briefs as well and there is nothing in the record then between the judge's decision in february of two thousand and one and this decision we're talking about here versus the army corps of engineers has committed i want to thank all counsel the or all counsel to the briefs are excellent you might not have divined that from our questions we have but i think that they really raise the issues quite well so thank you for the arguments and for the