question for me in other words if if you want everything you wanted what would happen what word would whose d m v all would be ineffective nanny it's a complicated question your honor because there's a state court action that was pending we prevailed on some by the state either an actual submission or a constructive submission so that would be the first step in the process that's a form of attack on that is the former executive officer of the regional board on with the intent of the regional board would be with respect to future actions and what his his individual beliefs would be in terms of how the city and the i would be implemented in enforceable he claims that the t that argument ignores the plain language of that between the old self that has expressed compliance dates starting with the first year of implementation is to begin october one two thousand and three in fact in july of two thousand to the state adopted a regulation and when you look at the codified regulations that the state adopted with respect to this t m deal and with respect to the implementation date the  that is by september thirtieth two thousand and four the cities are required to have reduced the amount of trash that is discharged into the l a river basin by ten percent by september thirtieth two thousand and five that's a collective two thousand to express fleets relied upon him commented that the state had provided the public completely adequate opportunity to review and comment on the g m deal secondly the whole purpose of having the e p a review and approve safety and deal to make sure the process was probably complied with if improper notice or no notice was provided that is an immediate procedural violation that causes a case to be right and we would suggest that the district court erred in determining if the case was not have the authority to review conference submissions both of the key n d l in a request to list the water body that made fact be the case that they have the ability to do so but it's here in the open only i believe that they could actually do that but they would first have to approve the listing of the extra very first because the clean water act says team deals are only in my listing i guess jane and what if they just say this is impaired and approved the t m b l stating quote the team details are hereby proved pursuant to the clean water act section three or three d to no statement was made about approving the extra is a listed water body there was a whole process that applie that process was not followed they can say yes we can do it concurrently so long as the impaired water bodies first listed and then the t and d l comes behind it but they didn't do it here they didn't follow any portion of that process there was no this clarification memo in addition attempted to expand the t n d l to not only the asteroid but to a series of identified tributaries and in fact in the entire five hundred eighty four square miles a river and in fact the municipalities would be in violation of their commit and liable for dealing with that one bubble gum wrapper now e p a s argument is well but we only apply the  secondly if you look at the definition of waste load allocation and i'm quoting now from the regulations this is forty c f r one three point two eight it defines the ways the allocation as the portion of  the receiving water not for the entire five hundred eighty four square miles of the watershed the arm that you also have the u s supreme court decision in swank which says the clean water act is supposed to be applied to waters of the united states clearly can't be applied to non waters does not mean they were dealing with something that never had any connection or effect on interstate water i mean it never that was the problem it seems it's really true fair enough but the point is you still have to have water cation have to be developed for the receding water that's right out of the regulation the t m b l can all be applied to receiving water there is no basis anywhere in the clean water act three exactly right educate the public exactly right all those things will be done and are being done but to say that if a single piece of trash ten years from now and up in the street never made it to the to the river itself that we're in violation of our permit that inconsistent with the clean water act they can impose limits we wait for that case well but the question here is does the e p a have the know that trash in a storm drain is likely to end up at some point in the waterway why does the clean water act prohibit e p a from issuing regulations to try and prevent that sunset boulevard that you're not that the reach of the regulation doesn't extend that far isn't that what you're really saying no no i don't believe so you and i are human is we cannot be held responsible for that one bubble sidewalk or in somebody's stratton lawn or any drug a private driveway or are we responsible for dealing with for preventing people from littering anywhere in the entire five hundred eighty four square miles of the watershed that's not with a clean water  excluded that evidence is a public document it has independent legal significance that document says to do in order to to be in compliance to be sure that you're in compliance you have to put in full capture devices throughout the basin if you want to make that you know under the consent decree the deadline they did not clearly need to meet the deadline but here's what actually happened the state had already approved the team in the you know the only thing you had gone through the regional board level had gone to the state was in the process of developing a team the l's there was not a full and complete failure to develop the team and you know when you have when you're months away the thing is already been approved clearly there in that you can't they cannot argue that there was a constructive submission and in the face of the clear language of the clean water act the states could never again after never met and i would say that your honor but when i get in by the way that is in this case there is no new facts or change circumstances that justify the state position there's no others the sake look we need to come up with something different because there's been a change in circumstances if something else came about where it required potentially to really looking at the t l you're dealing state would be it would be their burden to go back even say ok we think you guys need to make a change to your team in the you know here is some additional evidence to consider but remember at that point we're dealing with  want to make some provision for a state that is laggard but i don't know they want to see if you're legged up to a certain point you lose the power to act ever after you just have to follow the you well again not the case in this case because it's not changed circumstances but accomplished here before everyone will agree that these regulations now are fully of clickable but i understood your briefing to mean that the monitoring process is essentially fine tuning the is that is to connect with the legal issues being a certain against e p a doesn't seem to me they're going to get any riper if they were attacking something that the state was going to do to  them down the line that'd be one thing but they're really attacking the authority to do this in the first place and it's kind of a basic structural legal question the night i don't know that's a record going to get any better on as time goes on  it legal question was not all legal questions are automatically right for reno i know that but you know but very often one of the considerations is and that if you want to and decide something on a more fully developed record that at least is not a consideration now so you're if that's not the problem then you have to say well this just isn't enough of a threat to the cities and this can all be litigated in two years right that's it that's practic and we won't know any more but these issues in two years but then we'll know the cities are being hurt well your honor we don't know at that point i will know what it is it's actually happening in the cities and you might have a different set of don't really know the answer to that you know what i need to follow up on which is first question what does the city of arcadia do in the interim i'm do they have to go out and buy the nets for the storm drains there's a job it would have been the street department sweep the put in it any explanation of what it means to then to have to do this he's right in the writings here is fake entirely on the other languages affirmative rights and they try to tell the district court this is going to cost us two billion dollars w plants here may know attempts to put anything like that in the record and if there were and if they try to offer conservation but mr martin answered the district or rejected it i don't want to hear anything what the district court said that the cops information they relied on which is what was in and that's what they did here and that's what the  that the court is aware of the fact that there is i think a collateral attacking me on a consent decree and that collateral attack is based on the fact that mr march of the day was arguing to you that there's something wrong with the clear that during the district court proceedings there was multiple amendments of the complaint and at the end of that process the e p a established and yell required by the consent to create a separate feel the bay case was not being challenged and so this notion of constructive submission in any peace obligations under the consensus really should not factor into the decision in this matter because the e p a approved the al is not an issue rather following reality which i'm sure you are you cannot collaterally attack a consent decree the cases are this high in every circuit of the united states court of appeals that's not that's her boat you can't do that but even if you could  distinguishes this case from the facts of all the other cases that all the parties have cited to you and that is that in this case there was a guaranteed reopening guaranteed not only by the regional water administrator here the regional board but by the overarching there was a whole calculus which if you read the record the team and you'll go through with us it's a mathematical formula about what actually each city has to do so before any city could be held to the violated a deadline before any citizen group could conceivably rightly or wrongly interject themselves into this matter there is a real concern and that's very different from all the other cases and i think it's probably the best basis on which this court should uphold the district court's ruling on ri as environmental organizations we're sensitive to the fact that reasonable access to courts at early juncture is important and we certainly don't want the ninth circuit you to write a decision saying that you have to wait until the lengthy time when a te l m has been issued but in this circumstance where the only rightness the allegation or rather the only harm allegation is the cost of compliance it does become relevant to wait for the cost to be sufficiently fixed by  possible i don't know it's very hard to assess what will happen but i think it's telegraphed in the record that it may be that after the underlying baseline monitoring occurs which is was going on over the last few years that they'll find it allocations might be very different just like we had it right there's still the opportunity and the district court decision preserves the opportunity for these plaintiffs come back to the district court and say ok we're back we have the problem that we told you about three years ago and now you need to hear us and to the extent th know you'd be well within your rights to tell the district court to take a different view if you have any estimate as to how long we're talking about when is the baseline monitoring going to be let's i'm glad you asked and roger basically years and they start to do it now i don't think so in fact i think because there allocations haven't been faxed i don't know how if you don't if one does not know yet what obligation they have what  numerical amount of trash how many times within their jurisdiction remember verisign of the t and yeah they don't know what that limit is i don't know how they can begin to address their ultimate obligation and i think that the just the court was well aware of that factual development that you wouldn't you would ask the council earlier about well isn't this right now or is right this is what jack and not on this point it's not this right it's going to get because the numerical responsibility platinum approach to trash removal which i think was a conservative approach that they they decided to take in other words they said let's take the most expensive technological fix and what they basically came up with the record any one of these cities or all of them will face is a pure hypothetical issue it was b is if you asked me what is an automobile products and i said it's five hundred thousand dollars because that's what a  multiple approaches like nets which are very inexpensive like education like boarding up storm drains during the dry season and so i think the district court properly recognized not only that those numbers were not properly before terms of figuring out what it has to do one thing you can actually monitor and figure out how much trash really is being discharged and then it can reduce from there ten percent a year over fourteen years yes exactly this let me let me a rolling basis so they can meet they can miss that limit in any given year on a rolling basis as long as they make it out within a three year period so the if you're i think that the point is i think the point of your question is don't they have to do something now in order ultimately to meet that compliance point and i think the answer to the question is no and especially because the monitoring was still ongoing they don't even know what they have to do the whole point  and has no response no allocation to any city for trash they have no reduction obligation does the permit say something about the t n d l being if i'm adopted it recognizes that t m t else can be adopted but everybody that discharges from the m s for the cause or contribute to the violation of water quality standards or water quality objectives are prohibited period there is nothing else in this permit that takes away from this obligation thirdly and i guess i'm asking for reconsideration we had made a request for judicial notice of a public document in this document is the staff report that was submitted by regional boards death in connection so the decisions that e p a has made with respect to this t l are final they're concrete and those decisions are having impacts throughout the county is to say that nobody's taking any action is ignoring reality we never were given the opportunity to get into any discovery to challenge mr dickerson's declaration but i can represent to this court that cities are taking action today to comply with the team because they can't wait till third quarter to get in the game they can't wait until two thousand and five two thousand and you know yet no thirty percent of what ok but is that mean we can wait in nothing and i guess the argument is what is it that they are saying we have to do it is the do nothing alternative because what it's going to cost a dollar it's something that is going to cost much more than dollars but the the argument i guess i'm making is we don't have to do a darn thing to comply with this team the i wonder of the cadillac approach we're we're the toyota approach we have to do something we can't start playing the game in the third quarter this thing has expressed compliance deadlines into wait until two thousand and six not responsible public officials going to do their i don't know because we're going to be sued street cleaning this streets or putting in these for tax systems but we don't have the option of doing absolutely nothing and that's really the point they're trying to to make to this court finally they haven't addressed the procedural injury issue never once did they say they were going to fly this thing the entire five hundred four square miles they waited until after the all the hearings were concluded and two days before the e p a approved the thing to slip in and they didn't publish this notice slip in his nose and say oh by the way we are drastically expanding the application the city and the are there is an immediate procedural injury that occurred at one time in a case with the specter that procedural injury could never be right or similarly with respect to the other legal issues there's nothing else is go we have not challenged you consent decree the consent decree contains a provision that nothing with with its terms is to be construed as being high story to existing law the consent decree could not even if the court had wanted to do that which i'm sure she did not want to do could not have changed the clean water act e p a had an obligation to wait until the states ability and you know that obligation exists irrespective of the consent decree if the e p a had no authority talking about as you know we were talking about this ten percent a year and then in consistent with law but then they said ok we met the deadline and the interviews agree ok you guys can sit back and do nothing for four and a half years it's not credible and if we had the opportunity to know you were here and saying yes yes but i  response to the court's argument the court's question there is nothing in the concentric resile redid that provides these municipalities protection with respect to implementing the team the zero one would have to look at the team itself the team to has expressed compliance state