good morning please the court robber promoter on behalf of appellants waterkeeper is northern california and bill jennings the underlying appeal in this case presents a single narrow issue if water keepers notice letter provides sufficient information violations that's the failure to implement the pollution prevention plan to conduct adage adequate monitoring and the like and the described violations the violations were pollutants actually discharged into the water with respect to the daily violations not to be the complaint is filed accordingly other the district court in its look we feel to mention either starts with marine which is right on point or at the daily violations which are throughout the notice letter in the complaint the notice that it was clearly adequate  as to those violations and the district court must be reversed on that grounds alone with respect to the discharge violations waterkeeper allege two distinct kinds of just charges first the notice letter allege that any md discharge stormwater instance the machinery in the equipment and the uncovered oil drums in the rusting equipment that's outside that's part of the industrial facility and then when it rains on that that water goes off site and that under the terms of the water back in the general permit that's a storm  out of the cart before the horse dealing with the issue of attorney's fees as i was preparing for stage hearing became aware of my sixth circuit one nine hundred ninety seven decision which was subsequently followed by thi and it is our position that not only did he make this type of determination as to the first cause bastion but also as to the fourth and fifth clauses of action dealing with whether or not within the sixty day period aim had adopted a storm water as i understand the situation for purposes of determining jurisdiction you look at the four corners of the complaint if the allegations are there then the court has jurisdiction to go further the allegations are there in the first second third fourth and fifth causes of action we attacked those allegations by showing that the allegations were false we show letter states that any violation occurred in the storm order area each time that there is bailey went rainfall of at least one they may have had a good faith belief when they made that statement in their letter but when that position was disavowed by their expert witness that is no longer then a basis for continued prosecution of an action if the notice letter could not correctly identify the dates that they allege discharged occur for example one of the things that i was thinking about is you know suppose that they just simply said stormwater just charges would occur when there was not point one but point one nine and as i recall the information they attached to their of these rain date had many in point one nine so as far as being an allegation that wasn't fully wiped out there is still that allegation right so i disagree we are not required to speculate when rainfall occurred if low to a protected waterway we are entitled to identification a dates when that event occurred and deal date specific information in there and here we have a situation where mr jennings apparently initially conducted he has investigation on august one thousand nine hundred ninety nine and also not the notice letter until june of two thousand so you've gone through an entire wet season we didn't know what was going to happen until we got hit with this lawsuit or this notice letter and we can't protect ourselves by getting that same information as any possible defense to the assertions of the other plaintiffs we're that they supplied to us was incorrect judgment of dismissal was appropriate they would have been better quite frankly i think if they had simply just said one tenth of an inch but when they submitted inaccurate show that it is false that is what we did we demonstrated that the notice letter did not have the substantial credentials that are required to constitute adequate notice to my clients when the  summary or lack of subject matter jurisdiction but ultimately this is also a ruling on summary judgment that this notice letter is inadequate before summarized judge toler refused to grant plaintiffs motion for summary judgment on the issue that a violation receiving want to limitations must occur each time that one tenth of an inch of daily rainfall the cur violated the general kimmitt but anyway getting back to the issue of attorney's fees i would suggest that the continued prosecution once they knew that one judge was not buying off on this of one inch concept and their own expert witness had not had had recanted on that issue the continued prosecution becomes frivolous he said just that in your complain my client had not filed a notice of in can't when they knew that to be the case to suggest that we had not adopted as a storm water pollution prevention plan when they knew that to be the case and in fact had a copy of it in their possession those allegations are under the general permit issued by the state of california for like industrial manufacturing companies like my client there is what's known as a general a permit you are required to in order to be able to legally city was merely to move storm water discharge on a grade down towards the delta so the initial storm drain system basically channeled all storm water under highway ninety nine where it would then proceed in a westerly direction until it went into the delta as development of lodi occurred over several years there have been many refinements to this city's storm drain system one of those refinements was the installation of what we call the and eventually direct it to the cluster of road lift station where it is then lifted into the mccallum the river in two thousand as of pure coincidence there was a major construction project on at the end of the ditch but the block wall has a couple of blocks out at the bottom so that some water can escape through and continue to go underneath the highway ninety nine we would concede that with the installation of that block wal it is more likely than not that on certain occasions you have water discharge from my client is in fact reaching the maccallum me but until that block wall went in it would be our position that no our water discharge did not go to the me the opportunity to explain why i said no to your your answers we just view that in advance of receipt of the notice letter that we in fact were discharging into the mccully me in violation of the clean water be brief i just want to make a few points the first is with respect to the point one inches of rain data that figure comes from a formal rule making in which the administrator of the u s e p a panel and after extensive our expert stephen bond said and there was deposition testimony on this submitted by counsel is that he can guarantee for purposes of summary judgment motion summary judgment he said in his expert report he said in the declaration that one point one nine inches of rain fell on four different locations surrounding this facility he and his expert judgment after twelve years working for a state agency whose job is to figure this out can guarantee that in each of those days there would be storm water violations we have never for a look at the district court opinion that was submitted by counsel in both appeals is attached here uses the same exact manner that we use in this case this court judge the other judge flushers opinion and i know because i argued the case  adequate no question about it it was their implementation of the plan that was inadequate and for that reason they were hit with eight hundred thousand dollars in penalties because their implementation of the plan was not it was inadequate and so they were in this case we don't dispute that before the complaint was filed to your question about whether or not they have met they were violating the act they admit that in every single one of their briefs and in their statement of undisputed facts the story about two thousand coincidentally the stormwater system was changed so that now they were just charging