good morning ma'am please the court i'm peter mcgraw and i'm i'm here on behalf of the city of healdsburg as a collimator a matter we've been provided with a request to submit additional authorities this morning i don't know what the court's view is on how we handle that by the regional water quality control board issued to the city of healdsburg after the decision in this trial and the trial court was issued in this case and as a result of that decision i'm not entirely sure what the purpose of submission of th qualify as a water of the united states for clean water act purposes the second issue is does the waste treatment exception in the regulations encompass that assault upon a manmade pond that has been used historically for receipt  treated waste water so that again the salt pond is not a water of the us i'd like to first address the question of the gravel mining exception this is where the the corps of engineers has said  looked at that language and enjoy a line between excavation and operation and it drew it reached the conclusion that an excavation is different and is one hundred eighty degrees opposed from a filling or a reclamation sewage it's not filled with sewage it's not over treated waste water and think that's in a minute porton distinction because the waste water here is treated to secondary levels which is the level specified under the clean water act for publicly on treatment works but the point here is what we have is that we have a gravel mining pit that has been used it's been excavated and it is undergoing ongoing reclamation now the court said so how long can you go on if we just put being and for that me even the corps has said that that they don't generally assert jurisdiction until the reclamation operation is either complete or has been ceased for a period of ten years we clearly don't have either of those two could circumstances here  there's been no abandonment of the property by sire the reclamation operation is ongoing and there was no dispute about it that was absent undisputed fact that the trial court level where the trial court got twisted up was in this distinction between excavation as opposed to excavation operation and the information the court didn't have which was unfortunate was it didn't have the guidance of the corps two statements in the federal register from one thousand nine hundred nine in two thousand where the court has specifically said that they consider reclamation to be part of the ongoing gravel mining operation i'm sorry to what happened here is the court reached a conclusion which is diametrically opposed to the conclusion the corps of engineers have themselves placed upon their own regulations and what this court's this court has to review that determination it's a matter of law so this court has a good novel standard to apply this court has to look at the information available to it and the cor regulation is intitled to the highest level of deference of here the court has said not once but twice in the federal register that the core believes that on and reclamation operations are part and parcel of their view of what they meant when they said we don't assert jurisdiction over excavation operations the trial court just just missed that it's unfortunate but he made an erroneous decision and it's clearly subject to second i'd like to talk about the waste treatment system exception and here again the regulations specifically say that we had a p a will not assert clean water act jurisdiction over the internal operations of a waste treatment system we don't consider the internal components of a waste treatment system to be waters of the u s we will look at the end result of that process but we won't look at the internal pro where they've got ground water anything goes into the russian river and also if they've got wetlands in between it's very close and there's a dyke in the whole thing and it seems to me that they're talking about treatment facilities that are in and of themselves are not feeding into a river well i mean the river watch did raise that point in their brief and they talk about closed systems but in fact there is no such thing as a closed every water has to go someplace everywhere and so every system has an outlet somewhere whether it's an evaporation or percolation what is clear from the e p a regulations is that they consider p themselves to be part of a zero discharge system what he is talking about when they talk about discharges is point source just charges directly to a navigable waterway and a point source here is a discrete or confined a pipe it's a channel the one place there might ultimately be a point source discharges out of this waste treatment system known as the facility and including the pond if sire in the future builds a where and there was some testing whether they're thinking about building a we're across the levees so that they have a reinforced point at which the river could flood the pond in the future well if that happened have i had a question i don't want to forget i think it was in your reply brief you mentioned footnote something about that if the court that you wanted the court to say that the point source would be at the pond and not at the river and that did you say something i think what we said was if there is a point source it would be at the point where that we're would discharge into the river rather than at the point where a pipe goes into this final element of the waste transistor it seems to me that something like that if you have to if you have to get this permit and apparently there was there something out there that you didn't check get the permit how would a court to decide where that should be well that the question as seems to me that would strictly be within the experts that are out there knowing what's going waste treatment system the question then is from a regulatory standpoint where do you regulate within that system and what the what the court's ruling dictates is that the regulatory point the point at which you have to meet clean water act standards is it an internal point within that treatment process it's at the point after the primary clarifier after the disinfection after it travels through the pipe before it actually reaches it final treatment solution which is this percolation pond and the evidence was very clear that that was part of the designers of original intent for this weight treatment plant was to use these ponds as waste treatment the court found that that was again that was not dispute groundwater flow towards the river and there's no question ultimately what is the distance that the pond is approximately for and that the nearest edge of the pond is approximately four hundred feet from the river that may change if the river rises and it may get the roadway in the road was about fifty feet and so so it could get up as close as fifty feet from one side of the road to the other before it spills over and flows into the pond but that's a very unusual circumstance that's not the normal circumstance out there at this particular site i don't think there was anything in particular that i wanted to address in response to that but i do want to reinforce again the court's finding that it was the intent of the designer to incorporate these ponds into the system again the court got hung up on this language within the waste treatment system exception that says waste treatment systems including ponds and lagoons designed to comply with the clean water act and i think the history of that particular regulation clearly demonstrates that it's intended to it's important to recognize this pond was not a water of the u s at the time it was incorporated into the system the court specifically found it was not a water of the u s as late as one thousand nine hundred six this pond came into use and was part of the waste treatment system that was not a water of the u s at that time so the question is can a piece of a waste treatment system lose its character because of things that happen after it's been incorporated into the system  teacher that's right that's right once it's part of the waste treatment system unless there's some dramatic act that we haven't considered it is part of the waste treatment system and the fact that what lands grow up around it the fact that it's undergoing reclamation and it's becoming better doesn't change its character as part of the waste treatment system if it impacts the river that's a separate question but there's no evidence again that this one impacted the river and the question is not not so much as it impact the river the question that i'm talking about right now is is the pond itself a water the us not is there i mean we all know the rivers of water the us there's no dispute about that but does the pond itself somehow lose its character  i guess we probably ought to talk a little bit about the adjacency issue because that is obviously what's got the courtroom filled with and that's what everyone's interested in what we can't ignore baccarat baccarat just came down from this court  obviously reaches some conclusions but there are some very significant differences between this case and the baccarat case first of all we have a larger distances between the the waters in the wetlands involved in our case baccarat was somewhere between sixty to seventy feet and some descriptions of two hundred fifty feet but it's unclear here we've got four hundred feet second in baccarat they were looking at a jurisdictional determination by the corps that found a very rarely now against that in a situation where you have evidence in the record that this individual didn't do any investigation relates our relationship w the lowest level employee in the corps involved in this did conduct an investigation he was familiar with the site from previous visits he solicited information from fire the owner of the site about their ongoing reclamation activity those facts were never dispute the fact that sire was engaged in ongoing reclamation activity was not disputed so mr straub had in his hands the facts he needed to make that decision his letter reflected those facts and in fact his letter reflects exactly the interpretation that the corps places on its own regulations the interpretation that says that ongoing reclamation activity exempts these waters from designation as waters of the u s that the court does not a jurisdiction so there was nothing wrong with mr straub's analysis i think where the court made the mistake here was first of all in applying an incorrect standard of deference to the course determination here the trial court used a power to persuade standard from the christianson case in fact that this was a jurisdictional determination by the corps of engineers it was subject to review under the provisions of the administrative procedures act and as the court again stated in ba peter straub but it then worked up through jane here it was reviewed by district council john aft and it was approved finally and signed not by peter straub but by calvin fong the district engineer so this was not peter straub pain this was calvin fong approval of that opinion and there were changes made to that letter during the review process so this is not just one low level staffers point of view this is in fact the point of view of the court i consistent with the corps own interpretation of its own regulations long before this issue arose and this is not just a single court engineer going off on a tangent this is consistent with the court's position as stated in the of your honor's my name's charlie to that i'm an attorney with the western environmental law center representing northern california river watching this case i want to cover three particular issues today first as water is the united states second is the excavation exemption the third is the wastewater treatment exemption first the water is the united states there are six grounds upon which the court can affirm the district court ruling any one of which makes northern california river watch the prevailing party  deference issue this this letter is not in the title to chevron deference this entire this letter is entitled to me differences only need skidmore type deference fall in lee but the court went through those factors very specifically and it fou nd that the validity of that letter was undermined by a number of different issues therefore factors to deal with in me and they are the agency's care the relative expert persuasiveness of the position and the consistency with earlier later pronouncements and the court and this is in the record at its record ten and it goes of pages twenty four through twenty five discusses this in detail there were witnesses presented mr straw was a witness another one of the corps of engineers people was a witness and the court specifically found that there was no agency care  went out to the site after he got the letter he relied on an investigation from some five years prior he had seen a change in circumstances of the relative expertness the court found that none of the four people that supposedly went up the chain and that i would say that the record is not very clear on this and i would like to add that mr magara i believe is playing a little fast and loose with the facts as he did in his is opening brief which we pointed to with a very long  of footnote eleven of our response brief but in any case the relative expertness there was no expert is found by the court for any of those four people as to their knowledge of how to d with the information the court went through in detail the court heard the witnesses that the court heard the different people talk about this and found that mr scruggs letter which is really that is the whole basis here mr strub is the only one that did ongoing excavation going on but if you look at the issue of excavation an excavation operation mr magara tries to conflate two words in fact the excavation operation applies to obtaining sand and gravel there's no standing gravel here that is being obtained there is waste water being discharged into it and i think the court needs to step back for just a moment if you will and look at that the excavation exemption only applies to sire sire is not this court today the excavation exemption does not apply and goes out the window when i mean a simple sewage treatment system is discharging into a pond there's nothing in the regulations about excavation exemptions right and it's a very lengthy permit it has very specific conditions far more specific than the p agency had given but are you trying to face traffic from the standpoint that the fact that the issue  way you win a point source i guess i know yeah yeah we're perfectly comfortable with all the arguments in our briefs even without this permit thing there but this is additional information that the court should have the for it with a court like to discuss the waste treatment exemption first over the waters the united states question you you aside all right but i'd like to go the waters the united states question because i think that is the real issue here today and there are six reasons  miles from any navigable in fact water it was not a situation where there was an adjacent water body or an adjacent wetland to and navigable in fact river so we i don't believe this court needs to worry argument goes where no one has ever gone correct well it's not it's a nurse to tell me that you don't have to you don't have to have that when but exactly and that was going to be my point you don't have to find that the water is a tributary under the clean water act therefore waters of the united states the ground water acts as a conduit for pollution and congress intended to stop pollution at its source it said let's go to the source and stop that it doesn't matter where it's going if it's going into a water that's hydrological connected i e a conduit to a surface water and navigable and track water if you're in the door and that's actually the issue i wish to address today and i hope the co issue because i think this is very important and that is hydrological connected waters our waters the united states that issue has never been addressed by this circuit directly another circuit has other district courts have district courts within this circuit have addressed this question and come up with varying opinions although the majority is that hydrological are connected waters or waters the united states as judge windmill said he and i are see versus by whether pollution is introduced by a visible of bug party and some system whether pollution is introduced by a visible above ground conduit again is an above ground whether the pollution goes by above ground conduit or enters the surface water through the aquifer matters little to the fish water fowl and recreational users which are affected by the degradation of our nation's rivers and streams and that's the salient point and i believe this court essentially made that same determination in headwaters versus palin irrigation district or something that at some point the fleas that down i wish you'd tell us what you think the bottom line of pollutants into the nation's waters must be stopped and that's what congress intended and that's what we have here in this regard believe in his opening arguments that there's no impact on the russian river the court found otherwise very clearly the court found otherwise and that's that's what we have here we have a situation where hydrological connected waters the russian river navigable in fact river is being affected by pollution and that's why i think this court needs to address  again well in that situation the pond would be designed such that pollution does not reach the groundwater that's not at all what happened here the pond would be designed to percolate to to filter out to allow basin filters that are right and in arizona a lot of it is actually evaporation and so between those two things that the contaminants are reduced to the level that they don't cause a problem because congress didn't tend to protect the nation's ground waters as well actually reaching the navigable in fact river and that's the that's the that is the issue that the majority of courts have found if the pollution is reaching the surface water from a hydrological connected water then it's covered by the clean water act and virtually all the courts have either address that and found that to be the case or in the cases that go against it are in the minority have found that there weren't facts presented enough to make a determination that the hydrologic connected water was impacting surface water they didn't say it can never be covered and again on the hydrological connection question congress sought to protect the physical chemical and biological integrity of our nation's waters and that is the salient point which judge ferrous i would like you  focus on and and all of your honors here we have pollution reaching to the russian river and in fact now we have the salt pond but it's become waters the united states when it started out it wasn't waters the united states but he has now been reclaimed to the point where it river and that that doesn't even get us to the issue of adjacent water body and adjacent wetlands this court obvious the back or at cases on all fours with this this is an adjacent well there are adjacent wetlands present the bigger question is what's an open body of water an open body of water isn't defined and we don't have all these machinations in law about that because an open body of water you know when you see it this is an open body  and again the reason the regs don't talk about it jason water bodies is because wetlands are different where it is a wetland start as one does that end is a much more difficult question then you look and you see a pond or a lake that's covered by the regulations in our nation's waters and we have pollution here in the situation that's flowing directly into the water flowing well if there's a there's a pipe that's going into the salt pond and that's all pond is transmitting pollution to the russian river by two means through the levee that's between the manmade levee by the way that's between the salt pond and the russian river and also through the groundwater so you have both means to make your determination it's not just the groundwater but the groundwater clearly is tributary to the russian river and it adds water to the russian river so that it is there just so many grounds for this court to affirm the lower court decision we bosnia where the court found that if we proved that pollution from the surface water reached the into groundwater then reached another surface water that that groundwater essentially would be with a court like to hear anything about the waste water treatment issue well let me let me just briefly i only just have a couple minutes left the waste water treatment exemption doesn't apply because the claim water act was not part of that discussion wastewater treatment exemption applies to ponds that are built as part of the clean water act protections that wasn't present your theory we need go no further in addition this pond was not built by cia are to meet clean water act but excuse me healdsburg to me clean water act standards it's a hole in the ground through which water flows into the russian river and may just take one moment to see if they have missed anything the letter first and very quickly the court rejected the letter because it found its non persuasive the reason the trial court found the letter non persuasive was because it didn't agree with the court's evaluation of excavation versus reclamation of the track or said the corps letter is wrong because if he quotes those two things one fact that's exactly what the corps of engineers does and the court didn't know that he didn't realise that so the basis for the court rejecting this letter was it was concerned about mr straub's relationship with cyrus but most first and foremost the court didn't find the letter persuasive but that's because the court got it wrong not because  reclamation those facts are true they're correct they're in disputed the letter then says this is the standard we apply ongoing reclamation is not deemed to be abandoned so you look at the facts you look at the law that the core applies if those two things make sense it's not arbitrary and it's not capricious and so when the derivation of the letter is unimportant at that point it's inappropriate to go beyond the four corners of the letter frankly so in this case what what the instance great strain the strength of the letter is it's right it accurately applies the corps interpretation of its own regulations which is an interpretation which has to be applied by this court unless it is just so