civil violations that was recently short and it also allowed for an authorized state agency to oversee the feel out industry in idaho these defects  the program are important because they undermine the minimum federal standards out the clean water act in e p a s implementing regulations that are designed to protect water quality in idaho and for these reasons we asked the court to than the degree of knowledge of intent e p a must provide when it brings an action under the appropriate act so this court has held an us versus hand a sector that standard for e p a is simple negligence for mr meter violations of the clean water a became knowing knowing negligent or knowing negligent or knowing four misdemeanors versus versus versus felonies and that change in the statute was never never reflected in e p a s regulations which were predate the eighty seven dollars amendments so as to why that that that that's actually why are we trying to kind of stick square peg around here i agree that so all of the briefing both sides is trying to take that but does that make sense i mean so it seems to me that that's what e p a said they how they want to go about it but then your argument is basically taking them at face value and saying well that's the argument to be made  we look at our deference if there's just a purely legal question of interpretation is that something we're supposed to give our deference to i would say in this case no your honor if you or they clearly the case record recently clearly cabined our difference quite a bit and made it clear that if the if the if the interpretation was not reasonable you should not give deference to the agency and i would  think clearly this is not a reasonable interpretation of this regulation this regulation really if if if if one buys their argument that the subsection a three double i note is applies to a mandated a higher standard of care and if you know imposed a particular standard well that's not in the record your honor but if you look if you look outside the record they're all over the map there's no rhyme or reason to why what state has two years for scissors no none on the statue of limitations standard it's possible yes it's up to get it's outside the record and i think what well it says it with it's you know it's it's a i'm sure it's outside the record i can always take a look at other statutes correct right i'm just curious what was practice before i go do they have a or i have looked at those other states your honor and nobody says anything it's just like all of a sudden i know comes along boom the lights go off this is my lights go on and then they go right well that you know it's like all the sudden oh this is really what it means this is a problem that's been on the books for quite some time and has been largely ignored if you look at the piece approvals over those forty six part of states they are literally all over the map there's no rhyme or reason to is a general proposition of the men three standard from which is carved out a specific exception the only exception be a three to  regulations that have become antiquated by addition oh yes statutory so my question really is i don't whoa has told the with the revised clean water act language as interpreted by the federal courts is that right that's correct if if that's the case then i understand the remedy you've email and to give to give the e p a to give time for idaho to come into compliance yes they would need to see it statutory meme it's a state legislature that's why we  we can't you keep saying ignore the note that was at least prior to the amendment yes that was you concede that was in fact so now tell me why the amendment puts that at odds because  need felonies which we knowing they separated the two out they made it very clear what was unclear and the pretty seven amendments this is unclear here as to where you are where you are supposed to go let me ask you about the note itself so the notes is states which provide the criminal remedies based on criminal negligence gross negligence or strict liability what what would you should when you think of criminal negligen you think of gross negligence well you think that criminal negligence there just means negligence it's possible i don't know what e p a was this is a very confusing i recall your honor i've read the section one hundred times and i still don't understand what  say because it has gross negligence and as you know that i don't know supreme court of knowledge isn't in idaho criminal negligence is gross negligence but it seems like maybe what they were e p a was trying to do here was to give the states you know several options about liability so a state could have a statute under the oh no that said as criminal law any violation of this section is a criminal violation because there are strict liability would that be ok looked at as a way of giving the states an opportunity to devise different criminal remedies to states clearly in the e p a is interpreted even though it's got criminal negligence you know that well that we really simple negligence can also be clearly both negligence clearly the act is set up to give the states some flexibility in setting up their programs for section four a to b which is the section of the clean water act in which reviews these programs is clearly set up to give some flexibility but it's also designed to have minimum floor minimum standards which under which the states should not go and the they they say they're going to take two to four to five years for most of their inspections are going to specter once every two to five years and some of them is want to pull this off as a precondition for pleased every ten years with the discovery kind of trigger that's discovery of an injury you know and in our brief your honor we discussed the nancy mines interpretation of the discovery rule in idaho which teams seems to foreclose a discovery role which is also a largely foreclosing federal law as well idaho has they have discovered or should really have discovered i'm sorry your honor discovered or should have recently discovered the violation of the standard night where two different starting points apples and oranges seem i recently in some circumstances the discovery could be longer such notation could be longer because there was no discovery or no reason to discover yeah if i'm a defendant in idaho and i and you ought to have found this if you had devoted more resources to your inspection program you would have found this violation and and it was there and it was there for the world to see you just didn't look that's my st argument as a defendant in idaho if i did they bring a case against me  i think we have your argument in mind thank you i reserve the rest of my time   from a survey of thirty other state program approvals dating back to the inception of the clean water act in every field that fifteen states are approved with heightened criminal penalty standards that are higher than ordinary negligence to sort of answer that question  and i think that does go your honor to the flexibility and then you asked also about where other states were on the statute of limitations on page fifty one of our brief which is docket entry thirty seven in this case we note in  footnote fifteen that there are a number of states that have a shorter than a two year statute of limitations so i think looking to other states is useful instructive and i just want to fill in those blanks as we start turning back what you start with the e position on negligence in reading the e p a s correspondence with and in conjunction with me federal case law it appears that a p s position is that negligence means simple negligence is that correct you know there's no question and there's no debate in this case that when the e p a is seeking to enforce the clean water act for for criminal negligence that the mens rea or is simple or ordinary s position in its regulations which have been on the books for quite some time is that that doesn't necessarily it that's not necessary the case when a state gets approval and so if you look at what you know this is where i feel like the a is not consistent because if you look at b two it says that the burden shouldn't be greater than the e p a has when it brings an enforcement action under the clean water act and you've now told me that the e p a is a burden for negligence leave knowing or willful aside is simple negligence   so in this approval e p a was tasked with trying to figure out what these two provisions mean side by side a three small double i and b two and so in order to give meaning to every word of the statute of  the regulations excuse me they had to look at what which section is more specific which section is more general and so i think the if i may just lay this out for how it is supposed to work any piece of mind this is how it's starts be to talks about establishing violations ok and it addresses criminal and civil types of actions it uses the phrase actions generally it refers then to establishing violations and then it goes immediately to under paragraph three so right there you've got a specific reference out of b to saying there's going to be some more information coming in a three that could be more specific about how to establish these violations and then it if you come back to be two for a nd then it talks about not having a higher burden of proof or intense dander for the types of acts for the types of actions that e p a might seek what that means in this reading that e p a is set forth in trying to record reconcile a three and b two is that a state must have the same types of actions generally the e p a would be able to seek for example negligence for example they have to be able to bring civil cases and if and so it's supposed to generally address those it doesn't use the word negligence and b too by the way it doesn't a three which is more specific it doesn't use the word willful it doesn't have a note like the one in a three small double i enter your argument i dislike tell you that my problem with the argument and then you address it but my problem is this that when you're talking about a burden of proof that that is very clear and straightforward the it refers you back to the kind of violations that one might apply that to in be three and eighty three but the statute changed and when the language of the statute changed and the regulation was not changed to conform with the language of the statute why is it we're trying to fit the two together at this late stage because it seems that in idaho that you basically need gross negligence in order to have criminal negligence not simple negligence and that might have made sense under the old language but that's not those are not words that are even used in the current statute so why why are we trying to reconcile a note which has not been amended with the statute that has and what your support for that changes one changes as we discussed as you discussed with petitioner willful to know ok and then instead of being one section it split off into two nothing about the language regarding negligence nor even the penalties changed response the comments in the full explanation e p a gives it's it's trying to figure out how to have these two provisions work in tandem give give meaning to every word have the specific control the general be two is by definition more general it doesn't include the word negligence well let me give an example there could be if you look at the note in b two so not the note in a three but the note in b to k that note says that a state cannot require a mens raya for a civil violation ok so that means that b two is supposed to be addressing these general categories of what a state has to be able to enforce they have to be  after certain types of criminal and civil violations some of those violations differ in terms of the general mens rea a that applies negligence is different than willful or knowing civil doesn't have a mens rea is different than criminal the point that solve anything to our problem and you know it doesn't move the ball to the argument on either side it seems to me you're on i think it gives b to me is what i'm trying to say so be to as a general provision to say a state has to have and this goes back to section four to be seven the state has to have adequate authority to abate permit and other violations of the clean water act and the way that e p a sort of begins that discussion generally is looking in one hundred and twenty seven dollars b two and saying do you have the ability in force for negligent violations do you have the ability to force for willful knowing and the answer is yes but what standard are you using and then under the federal standard it can't be higher than simple negligence and under either will it's gross negligence so is do you agree the gross negligence is more than simple negligence absolutely or and so if i may be too if you have to do you have any internal departmental documents that reconcile these sections your honor i don't believe it's come up before in any litigation that i'm aware of i want to check with counsel on that i mean the reason i ask for that is that we have the e p a marching down the road over here saying well we think there's a problem and then they say it again and there's a problem because negligence means simple negligence and you have gross negligence so march march and then boom we get a final answer in response to a comment on the public proceedings that says well no it's ok so my question is i mean it it doesn't seem like there's a deliberative process here in which case we could say well e p a really considered the pros and cons in this we have these other states we're trying to figure out how to reconcile fifty state laws which is not an easy thing to do so that's why i'm asking whether when there is anything else and absent anything else does you my best to start and you tell me where you need me to go once we get going here so to start with i would take this court back to the defenders of wildlife versus national association of homebuilders case which is a case under  state approval for the state of arizona and there's language in that case because the challenger in that case try to say well e p a said something during the the process of developing this approval that's different than what it said in the end ok and because of the way these approval these transfer proceedings work with what the court said there is look e p a can say something at the beginning of this process is trying to figure out how to almost negotiate with the state about what the terms are going to be in a robust discussion it doesn't have to be exactly the same as where it ends up at the end it can change its mind in this proceeding so to begin with yes it did on a number of issues mainly the three that is raised here that i see has raised here including on this regulation it did sort of change the way it's approaching this and that's fair enough i mean that happens in these state federal approval process absolutely so then what you have is you have a trying to reconcile this and if you look at the record once if as a federal agency and took another look at the provision and try to figure out how to make these two provisions work together and came up with an interpretation announced in its response to comments that was signed by the the approval was signed by the administrator that the proposal was put out by the regional administrator there were you know a comment period you got response to comments and so this at this point this is the reason considered official word on this issue from  issued by the agency itself in a formal document and so to begin with that's where you know we think if you're getting at the st criteria of kaiser our difference is the officials agency puts at the official agents position i would say it comes from e p a has posted on the website around the same time so it's sort of it was approved to me that's correct you're on it would be approval is not so much as to the comment as to the final approval of the i supreme court is saying is look you've got before we get to these three factors that i think you're referring to judgment you know you've got to try to give you the traditional tools of statutory construction to figure out if if you even need keyser difference and so what  all that it looked at one thousand three hundred and forty two dollars b of the clean water act which only requires adequate authority to abate doesn't require the same standard exactly and it said ok the way for us to give meaning to all these words and to try to resolve what appears to be ambiguity is to look at b two as a general statute a general provision the way i was discussing with you just mccown and that the specifics laid out in a three double i have to govern ok so it has done its job under the st part of i'm sorry but with with respect i'm trying to get like a practical answer so it says it applies under a three does that apply is it used in any other kind axed that is violations established under under paragraph let me go back to my question right maybe there is not an answer to my answer my question is is there any other context in which the two applies your honor here's i think i understand a question i appreciate the clarity of clarification if a state applied for p d s authority and submitted a package in which it did not that it has the ability to seek to enforce against negligent violations regardless negligent criminal violations civil violations well let's just leave it at negligent criminal violations regardless of the even if even if the mens rea in the state were generally ordinary negligence if it did not establish that it was going to be able to force against negligent violations generally or willful knowing violations generally then be too would apply because the state state's application would be by by the general language and b to deficient and so that's i think what it means and to come back to the note and be to and i don't want to over emphasize this because i'm more interested in the no to a three d i but the node in b two makes clear how b two works a little bit it's saying look you have to have these civil and criminal types of actions and you and they have to be similar that some of the same to the ones that  general and here's an example of how this works you can't have a requirement that for a civil violation somebody has to prove amends or a civil violation is a violation period right and so that's i think the clarity you're looking for so that's how i see to live right that suggests to me there's at least one other eye maybe more do you know what why is it if there's a three because that would that would indicate what paragraph b two very two in the general statement so i'm looking at forty c if i want twenty three point two seven any which is titled any state agency administering program shell hell of a bailable the following remedies for violations of state program requirements when i get to three it starts with to assess pursue to recover in court civil penalties and to see criminal remedies including fines as follows one refers to civil penalties civil penalties shall be recoverable for the violation of any and p d s permit condition and goes on from there to dollar and three dollars but not to because of the note i'm sorry i'm not sure i understand the question are you saying best the question was what does b to refer to what it says under paragraph a three in this section questions your honor i want to make sure i understand your question because i don't want to answer it in a way that i that i later i think is incorrect so if i could ask for some clarity but let me tell you what i think you're asking me and then you help me so and be to your saying that it says establishes violations under under a three and i would say in general i think it's referring to all three of the civil and criminal pieces you're saying here you don't think that that's fine but i agree with that but there is an exception only with regard to one of the subsection and that's a three dollars to two dollars so are you saying your honor that the exception is the listing in the note of specific types of that are sufficient that might be different from e p a s i'm just trying to determine what the reference to under paragraph a three refers to i think i think it refers to all of a three and i would just say to the extent you're using the word exception i would just like i just say i think it's clear it's more specific it's significant that the note is under little too little too i does that have any significance it is to me i think that that means it applies problems and then the nd letter of your seventy five is from the division director of the region ten water division so these are not low level e mail correspondence going back these are official positions by e p a to to the state of argument and the briefing the case just argued idaho conservation league versus e p a is submitted and we're joined for the morning