thank you we are here today because there is currently ongoing construction of developments that are forming a small city up on the two lower tribes reservation without any environmental review whatsoever  to terminate and the construction under the permit issue was over even though the big project was going on and will for years the challenge of this matter was to the entire business park which covers over four hundred acres  by the filed by the tribes like an application to be filed by the tribe damaged there have been several concern i know both sides say it's not it's not moved but the reason that  actually my translation of capable of repetition everything of you know that this is a construction permit and construction is the small window of time and the time within the impact that the construction is usually it could be six months it could be at the most poignant hour and we can't get all the way to the ninth circuit and all of these buildings would be built before we ever get a chance to be heard what you're saying is they should've issued a permit without doing another environmental assessment and that you think it had preparing another environmental impact statement and it seems to me that the last half of underlying permit being issued it's very similar to this case and i think it's probably is don't see how you can say you're not challenging the underlying harm because i have no challenge to the permit it's there the distinction  that court of appeals jurisdiction is typically bright and because you have an administrative record you're dealing with a very similar situation that you deal with with the court of appeals after and you're reviewing based on a standard overview giving some deference to be agency etc etc and there's no need for the district court because there's no need for findings of fact there's no need for a trial and so it makes sense that you would have a discretionary action come to the court of appeal on the other hand hands down every case that we've cited both tags show that and now discretionary action a mandatory julie that may involve that doesn't have a record beloved necessarily three maybe five years that it's going to take to bounce around between district and circuit court because otherwise the challenges mean that nobody can do anything that i would that i think that's consistent with what i'm arguing in that there is a discretionary decision that the court of appeals is going to review there has to be an administrative action to allow the court of appeals to even have this would be an entirely different situation if we're talking about in action if the p a hadn't acted at all we wouldn't have if the court of appeals wouldn't have original jurisdiction and that's repeated over and over again throughout the cases regulations or after and some of those are new just chargers and some of those are new sources there's two different types new sources e p a is required to conduct environmental review but is required to conduct environmental review for new sources and that's the focus of this case is whether there's construction activities a new source there is absolutely it is impossible literally impossible for this construction to be a new was on june seventh two thousand and two as sorry june find in the court of federal regulations regulation that's not the dictionary coming first of all the term regulation is not defined by the clean water act and it is found in  regulations in the first chapter of the code of federal fed of federal regulations and there it states that rule and regulation will have the same meaning but it states for purposes of this chapter only and so in fact if you have any regulation meant a rule or an order an order a permit is an order and in fact i'd like to point out that the construction general permanent applies like a regulation it's  it's basically work we're talking about if you look at the practical application of this general permit it applies to everybody generally it's not a permit specifically to one person and then what people do is they apply ty start new construction the e p a has promulgated standard just standards of control for how they operate of course it's a new source because the e p a i mean if you look at the general big picture the clean water act there's a new facility that you have promulgated regulations that cover how they're supposed to operate and this is exactly that situation so every construction and general permit should most certainly receive environmental  circuit the purpose is that a facility which is going to come online can be required to meet a heightened level of control because it can be designed to do lack and that was that those that's going that's how those controls for stablished in this general permit because there were not general effluent limitation guidelines for new source performance standards for just this category so they had to do it on a to significantly affecting the quality of the human environment within the meaning of the next environmental policy act sixty nine what that means does issuance of clean water act permits don't require environmental assessments or environmental impact facilities out there that get reissued permits constantly for example let's say you have a new storm water treatment plant that's already been dealt and they want to  have a point source of water going into puget sound e p a issues the permits of them and that permit is an individual permit that does not require a need for review because it's an existing facility and all of these reaching and it's a common and it's not asking any normal amount to act to have a federal agency conduct need but that's what the law is all about and it's very very important  a would essentially be probably saying me too and not even involved in the preparation of the i asked someone would be the lead agent there are lots of different agencies involved and one probably the county in a situation like this if it typical this is a very unusual because revealing with tribal government and tribal lands and in fact the freedom of information act doesn't apply and it's almost like saying the freedom of information act applies to the e p a and it's like saying oh well that's a really big that would be very difficult for the e p a to have to abide by the freedom of information act as they were responding to requests to be very time consuming it's the law it's what's required and it's it's every project typically does that and we're in a situation where we're in trouble property and the tribe doesn't have is its own government there it's the developer is the government and they're not required they haven't done any environment of you think when we asked for documents on wetlands in fact they wouldn't provide them to us so we're we have i just want to emphasize that it's not running up against the crime of sovereignty but it will now because i have there's just no freedom of information act within the i'm referring to is the dictionary definition of regulation encompasses the concept of an order being regulatory and a rule and the cases cited by the e p a that big circle and you have within the big circle of rate which is regulation you have both a rule which is a regulation and you have an order which is a regulation and that's how the blast logic defines it that's how webster's dictionary defines it that's how miriam parse the idea that because the e p a decided to issue these rule these control measures in the form of the permits which are regulatory and they do control what the people do know simply the challenge that you make could only be made in the circuit court that the circuit court has exclusive jurisdiction we would have to vacate an re manta dismissed and we would not be able to reach the question of whether the general permit was  a regulation yes thank you thank you very distant versus