thank you your honor good morning near me yes ok great man please the court my name is thomas maher on behalf of the palin's prairie rivers network your honour's we moved for summary reversal and  water and so holding the supreme court emphasized that this was necessarily a fact specific determination to be made by disparate courts in the st instance to stand up to you with the threshold question please but with what would you agree that your complaint is it currently stands does not adequately alleged that apply standing at the pleading stage of the supreme court's decision in ruhani which provides that general allegations in a complaints are presumed to embrace the specific facts necessary to support the the vermilion station and they have concerns and injuries relating to the diminished aesthetic enjoyment of the river concerned over the ecological impacts on the ecological vitality of the river their concerns over diminished recreation downstream of the river and in this case we didn't submit declarations so the court standing was not a challenge bolo so because  complaint we're relying solely on our current point your honor we believe that if the court wishes to valuate standings based on on the complaint the allegations in the complaint when reasonable inferences are drawn in implants favor and as they must approach yes your honor was because because standing was not challenge below was not challenged by dynasty and it was not raised by the district court we presented we made the motions to provide the court with the type of evidence that's typically available  correct or a means the record below so we don't think that it would preclude our filing you understand why we're asking this question if because it seemed that you must realize anyway ok i just wanted you to see you know the thought process here i understand you aren't and our intent was simply to provide the court with additional evidence rather than to suggest that there was any and in our opening these both could have been key considerations in county of maui if the supreme court thought they were significance three underground injection or waste water issue when the maori case was regulated both by state groundwater just carry permits and by the federal safe drinking water act and yet the supreme court did not identify either of these factors as significant to its determination of the scope of the water actors instead the supreme court of genocide seven factors relating to the characteristics of the has directed that district courts valuate this based on facts specific factors in the st instance and the mere fact that there is a pending state and federal piece is not really surprising given the nature of and given the dangerous nature of this activity it's no surprise that more than one set of legal requirements might apply but there's also no reason your honor to believe that there would be any inherent conflict between enforcement of state law enforcement of the federal can water act they have difference but complimentary goals and different in different processes that can work together and ultimately are there  ultimately boil down to whether the omission that is arriving at the navigable waters is functionally equivalent to a direct discharge that would that would pass over lands and that would apply at the site we continue to apply to the localised contamination of ground water whereas this report we need to make passable climbs to deter so confirm that there is a discharge through the middle million site based on the fact that the company is discharging to the middle works through different locations where called permit it out falls that make this permit operatives and require donnegan to comply with it across the entirety of its site where there are specific conditions that we allege dynasty is violating do not depend on the existence of point source discharges in order to create a violation so for example under conditions twenty three advantages permits solids including what the illinois administrator per defines as indirect discharge needs and it's our it's our contention that diana g and c violating those provisions and that every man would be appropriate whether or not the court mess the only question is whether it should be dismissed without prejudice because there is no article three standing or with prejudice because there is no clean water act claim both question our understanding is that that the typical course where as here there's a facial challenge to standing which looks only of the allegations in the complaint the proper the file and an amended complaint we think either either way we get to the same same place with respect to your question about the allegations in the declaration in our view to those those allegations only highlight what is missing from the complaint and under this court's precedent on a facial challenge his standing whether it is raised for the st time the district court  or before this court a facial challenge challenge you're looking at are the allegations of the complaint are they are they sufficient so in our view the declarations are simply irrelevant and i i further in response to your questions my friend the sma reference when you asked him about harm concerns about the pollution and diminishing creation activities the problem though is there is no allegation of either of those things in the complaint itself and in paragraph in paragraph thirteen and while it's certainly true that just in the hon said that courts are entitled to rely on general allegations or factual allegation s and we think here are the declarations only draw attention to what is missing in the complaint your honor court's mandate in maui not to create serious rests of undermining state regulation of groundwater and alternatively an independently it would frustrate congress as intent and create a circuit split with the  of your honor we we certainly agree that the factors the the non exclusive list of seven factors that justice prior set out we certainly agree that that that calls for a fact specific analysis of our argument is that the decision also says for the commands not a suggestion but a command that decisions cannot should create a serious risk of undermining state regulation of groundwater we see that as a threshold legal determination that this court can reach as a matter of law because here there is not just a serious risk of undermining the statement relation of there is a state where conflict that would result between state law and applying t it in the st instance it's certainly our honor and we we absolutely acknowledge that that that this is a court of of review and not st few but but we do think is this  is a somewhat unusual situation where the decision itself sets out of mandate and i will say i agree with my friend mister smart that this  easy case it's a clear case we just think it's an easy clear case where the clean water act cannot apply under county of maui's mandate that a decision cannot create a serious risk of of undermining state regulation of groundwater so we don't dispute that most likely as just aspires opinions that there will be middle i think he referred to them as little instances where the factors will be needed and of course those are incentives but we also think in instances where as in our case there is a clear conflict that would result that would not just raise soup create serious risks but would pose square conflicts i think also in a case of justice justice prior single this out specifically where you have an obvious manipulation kind of on the other end of the spectrum thank you had an obvious and inspect manipulation just spiers opinion said clearly  your honor i think i think that is i think that is a very i think that's a very apt observation and i think specifically with respect to the issue posed in our case the court was very concerned with not extending court to reach the issue is we think it would provide helpful guidance to the lower courts because we think this kind of case no pun intended sense a very it's a straightforward case of the high water where you have a for sport where conflicts with state regulation of groundwater as you do here and i'm crying when i'm trying to figure out is  the the big dispute here which is whether the discharge here is substantially exceptional case where the court's mandate about what a decision cannot do it cannot create a substantial razzed is is straightforward and that our submission of that question can be answered as as that's i think that's a very apt absa metaphor and i think the court's if you'll let me answer it in sort of this way answer your question this way i think throughout its decision the court was very concerned that it not tranch on state regulation of groundwater and so it honed in on an obvious manipulation of a pipe and i think the court was really focused laser like on on to sort of north star city well st was not intruding upon state regulation of groundwater any more than had which was not at all the nd thing it was focused on was at the same time it didn't want to allow an obvious loophole in in the federal regime so if in in my reading of county i'm howie the reason not just the riaa was so insistent on saying after he went through the factors reiterating the importance of of any decision along these lines should not create a serious rest of undermining state regulation of groundwater however how whatever way the factors point they keep their p r not be incrementing if you would create yes i think i think that's i think that's why just as pryor was so insistent on the functional equivalency right because where we know that the seat r b a did not want congress did not want to transfer on state regulation so it's either a direct discharge which doesn't do that or the functionally equivalent which doesn't do that either moving on briefly to to our alternative independent argument about reprimand just missile is warranted for the nd independent reason that applying the clean water act here would just place the groundwater but it also makes records and the clean water act mutually exclusive when it comes to regulating point sources just charges which are the only just charges that are being alleged in this case and that's  disagree with my friend mister smart at all that there will be instances of overlap between reproach and the c w a this case is most not one of them because of the plaintext of the point source exclusion which provides that in terms of the regulation of this ground water a choice has to be made it cannot be both it has to be or it has to be the c w a and so in our submission and as the th and th circuits have have explained particularly the th circuit in kentucky waterways it would the later more specific statute that congress designed specifically to address just charges c c r under these precise circumstances so in our view this is this and finally i will say just a few words about count two count two fails as derivative of count one from both claims require a jurisdictional just charge both count one and count two require a jurisdictional just charge so there is no jurisdictional discharge for purposes of count one as a district court correctly held and as a we've argued to alternative reason count to needs means the same thing so misho you read judge bruce's decision that the college wanted to stand or fall together yes john that's correct because because there is both  charge you say it's not jurisdiction but the only just charge that this complaint has alleged is this is the same just charge that is the basis of count one so you're right they they they fell together in our view for lack raised is the pendant lawsuit that is that is ongoing that's before the illinois and pollution control board and that is based on the same allegations  this as this case seeks the same relief it just isn't we think that is strong corroboration both of these strengths and robustness of illinois regulation of groundwater and it shows there is there is ne to stretch clean water act jurisdiction to cover the alleged just charges  requirement that associations name their individual members and allege the same types of specifics that would be expected in testimonial evidence in a complaint none of the cases that diana g has relied on require that in all of the case law the diner's he is relying on in this case involved court evaluation of testimony it's a very different standard when testimony is at issue and so we would again renew our request that the court review our complaint under the standards in little honorable that general allegations of standing are soon to embrace the specific facts necessary to demonstrate harm concerning as we point out in our reply brief that e p a and state her mid under the clean water act discharges like this for decades and there's never been any any evidence that permitting discharge to a surface water through a hydrological connected ground water would in any way undermine the state's traditional authority over regulating groundwater itself and here in this case it's worth noting that eleanor and state agencies would be involved in administering both laws and but the state groundwater laws and the clean water act permitting and would be able to use their discretion to address any any possibility of conflict between between under the different provisions and this was a position that the state of illinois took in the maui case the state of illinois signed on to an amicus brief filed with the supreme court in which it asked the court to recognize clean water act jurisdiction over discharges that passed through groundwater so clearly the state of illinois is not is not concerned about this issue of a conflict and there's no again as i said earlier there's no evidence there would be any conflict in this case at a minimum it's something that would need to be addressed on remand once there's a full factual record available i'd also like to note that county of maui did not limit its functional equivalent tests to intentional discharges the clean water act is a strict liability statute and the supreme court would not have read into its interpretation of what it characterized as the broad and expansive language of the clean water act a requirement that discharges  intentional that does not not actually exist in the statute concerning the the point source exclusion this is not an all or nothing proposition as i explained earlier e p a since one thousand eight hundred limited recurrent point source exclusion to actual point source discharges so again this is an issue that we need to be addressed on re mans ground water is not a single thing it is a complicated subsurface  discharges is because it intended it was very important for rick to continue to apply to localized groundwater contamination at a site i only your honour's with respect to count our count two we have a jurisdictional just charge here it's in paragraph thirty seven dollars of our complaint which is that diner g is discharging as it does not dispute to the middle for pursuant to a permit clean water act permits are like contracts and once  in initiates that discharge and gets a permit it's required to comply with that permit throughout the entirety of its site so the bottom line here your honour's is that the plain language of that permit those permit conditions is what controls and we've alleged will be taking a ten minute recess