Amicus Curiae Brief — South Florida Water Management District v. Miccosukee Tribe of Indians

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ae) Supreme Court, U.S.

fo YY FILED

SEP 1 0 2003

No. 02-626 ie ee

E ER

IN THE

Supreme Court of the Anited States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

Vv.

MICCOSUKEE TRIBE OF INDIANS, ef a/.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR THE UTILITY WATER ACT GROUP

AS AMICUS CURIAE IN

SUPPORT OF THE PETITIONER

KRISTY A. N. BULLEIT *

JAMES N. CHRISTMAN

HUNTON & WILLIAMS

1900 K Street, Nw

Washington, D.C. 20006

* Counsel of Record (202) 955-1500

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

4. (a\

4b V\

TABLE OF CONTENTS

Page

TAS Ge ATT URRIE 6 BED cecccscccesescecesersescssscssesousccsoes iil

oF | l

PG: CITT acctencinsesinisiontunnsanscaumnaumninaaiiteiiias

| ETE sniatnenwcinnisinsniniiaantsciiimneiiaianeninhiniiabinimianiba

I. THE TRANSFER OF WATER FROM

ONE PLACE TO ANOTHER DOES

NOT CHANGE THE WATER INTO A

“POLLUTANT” OR MAKE THE

TRANSFER AN “ADDITION” OF A

SEEN | cuscsccnesnecsiencsvasenininiaiiuniinipiintiiniens 8

| A. No Matter How Pristine, Water Is Never

Entirely Free of “Pollutants”....................0. 9

B. That Water is Polluted Does Not Make Ita

“Pollutant” Under the Clean Water Act,

and the Transfer of Such Water From One

Watercourse to Another Is Not the

“Addition” of a Pollutant ......................eeee 10

Il. THE ELEVENTH CIRCUIT IMPROPERLY

IGNORED OR REJECTED LONG-

STANDING PRECEDENTS RELEVANT

TO THIS ISSUE, INCLUDING EPA’S

OWN INTERPRETATION OF ITS

Py CUT crnntnnieccnuinnbtcsnninentsnineenpennene 13

lil. THE ELEVENTH CIRCUIT’S — INTER-

PRETATION IS NOT SUPPORTED BY

LEGISLATIVE HISTORY OR CON-

SISTENT WITH OTHER PROVISIONS OF

THEE CLEAN WATER ACT .cccsccccccccvsescscsssscsess 18

TABLE OF CONTENTS—Continued

IV. HOLDING THE WATER MANAGEMENT

DISTRICT RESPONSIBLE FOR POLLU-

TANTS IT CANNOT ANTICIPATE OR

CONTROL WOULD VIOLATE DUE

PROCESS ........ccccssscsesssesssscesseessessssessssscenesenees

CONCLUSION ..........ccccccesseeseeeeseneeeneeseenseneneeseenenennenens

Page

Saas

iil

TABLE OF AUTHORITIES

FEDERAL CASES Page

American Iron & Steel Inst. v. EPA, \15 F.3d

as EE OUT PD ccensnsecsonesssessnsessnnseenseconseoees 8

American Iron & Steel Institute v. EPA, 526 F.2d

1027 (3d Cir. 1975), amended on other

grounds, 560 F.2d 589 (1977), cert. denied,

recta cesintennnensmentenemannesetasse 24

American Petroleum Inst. v. EPA, 540 F.2d 1023

(10th Cir. 1976), cert. denied, Exxon Corp. v.

EPA, 430 U.S. 922 (1977) .........cccccsccscssceeseeeeeees 24

Appalachian Power Co. v. Train, 545 F.2d 1351

SII TTI tereetrrnseceentesemnmmseetemeonensineente 8

Ass'n to Protect Hammersley, Eld & Totten

Inlets v. Taylor Res., Inc., 299 F.3d 1007 (9th

a iareseeeeenemnrentnscccnceniananeimmneins 11

Bettis v. Ontario, 800 F. Supp. 1113 (W.D.N.Y.

Ea ee 5

Catskill Mountains Chapter of Trout Unlimited,

Inc v. City of New York, 273 F.3d 481 (2d. Cir.

II ihsteaalianadeehnasitaatiareinenimennmenaenmmemmasennen 12, 13, 15, 23

Chevron U.S.A. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)... cccccceeeee 15

Christensen v. Harris County, 529 U.S. 576

ES 15

Colautti v. Franklin, 439 U.S. 379 (1979)... 11

Diamond Shamrock Corp. v. Costle, 580 F.2d

ES 8

Dubois v United States Department of Agricul-

ture, 102 F.3d 1273 (Ist Cir. 1996)... 12

Edward J. DeBartolo Corp. v. Florida Gulf

Coast Bldg. & Constr. Trades Council, 485

| ee 25

Mathews v. Eldridge, 424 U.S. 319 (1976)............ 24

TABLE OF AUTHORITIES—Continued

Page

Miccosukee Tribe of Indians v. South Florida

Water Management District, 280 F.3d 1364

(1 Ith Cir. 2002), cert. granted, 123 S. Ct. 2638

CIID... .ccncccenccsnserenssninmnenenssammmentaninimmnentannitia passim

Nat'l Wildlife Fed’n v. Consumers Power Co.,

862 F.2d 580 (6th Cir. 1988) ............cccceeeeees 3, 7, 14, 18

Nat'l Wildlife Fed’n v. Gorsuch, 693 F.2d 156

NII passim

Natural Resources Defense Council, Inc. v. U.S.

EPA, 859 F.2d 156 (D.C. Cir. 1988).............0++ 8

Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. |

|, | ae aE EE 23

PUD No. | of Jefferson Co. v. Washington Dept

of Ecology, 511 U.S. 7004 1994).......cccceeeceeeeens 3

Solid Waste Agency of Northern Cook Co. v.

United States Army Corps of Engineers, 531

UG) |) 21, 25

United States v. M.C.C. of Florida, Inc., 772 F.2d

CO eg Oe EEE 12

FEDERAL STATUTES

Clean Water Act §§ 208, 319, 33 U.S.C.

BG 12IB, 1FDD .cccccccscccscccsncceseressessnssnssssssssconcssenes 18

Clean Water Act, 33 U.S.C. §§ 1251-1387............ 2

Clean Water Act § 101(g), 33 U.S.C. § 1251(g).... 19

Clean Water Act § 304(f), 33 U.S.C. § 1314(f..... 22

Clean Water Act § 319(a)(1)A), 33 U.S.C.

Clean Water Act § 402, 33 U.S.C. § 1342............. 5

Clean Water Act § 402(d)(2), 33 U.S.C.

Clean Water Act § 502(6), 33 U.S.C. § 1362(6).... 6, 11

i A et I —

- ———_

TABLE OF AUTHORITIES—Continued

Clean Water Act § 502(12), 33 U.S.C.

hI Oe ee

Clean Water Act § 502(19), 33 U.S.C.

LRT ar

FEDERAL REGULATIONS

ee Lh LE

a LL ,

52 Fed. Reg. 37,010 (Oct. 2, 1987)

MISCELLANEOUS

3 A Legislative History of the Clean Water Act of

1977, 95th Cong., 2d Sess. 532 (Oct. 1978)

(Senate Debate of Dec. 15, 1977) oo... cccccccccee.

EPA, Implementing the Guiding Principles

through State and Tribal Watershed Ap

proaches, available at http://www.epa.gov/

owow/watershed/framework/ch6.html...............

Everglades Forever Act, FLA. STAT. ch.

373.4592(9)(k) & (1) (2002).......cccccccececeeeeseeeenees

G. Tracy Mehan, III, Committing EPA’s Water

Program to Advancing the Watershed Ap

proach (December 3, 2002), available at http://

www.epa.gov/owow/watershed/ memo.html.....

Gilbert M. Masters, /ntroduction to Environ-

mental Engineering and Science 107-09

[Suna sidiisihinrimaatiedibaalnaesitaitaairarranrarmamarinaas

John T. Holleman, Jn Arkansas Which Comes

First, the Chicken or the Environment?, 6 TUL.

—, See & |

TABLE OF AUTHORITIES—Continued

Page

Michael Brush, Water, Water, Everywhere, 12

THe SCIENTIST 18 (June 8, 1998), available at

http://www.the-scientist.com/ yr 1 998/june/

profile] 980608.HUML............--eceeceeeeeerenensensesseess 9

Random House Dictionary of the English

Language 770 (2d ed. 1987)... 15, 16, 25

S. Rep. No. 92-414 at 70 (1971), reprinted in

1972 U.S.C.C.A.N. 3668, 3736 ......:cccceceereeeeeees 24

IN THE

Supreme Court of the United States

No. 02-626

SOUTH FLORIDA WATER MANAGEMENT DiIsTRICT,

Petitioner,

Vv.

MICCOSUKEE TRIBE OF INDIANS, ef a/., .

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR THE UTILITY WATER ACT GROUP

AS AMICUS CURIAE IN

SUPPORT OF THE PETITIONER

INTEREST OF AMICUS

Amicus Utility Water Act Group (UWAG) represents the

electric power industry in this country.’ UWAG is an

association of 158 individual electric utilities and three

national trade associations of electric utilities, the Edison

Electric Institute, the National Rural Electric Cooperative

Association, and the American Public Power Association.

The individual utility companies operate power plants and

other facilities that generate, transmit, and distribute elec-

' Pursuant to Rule 37.6 of this Court, amicus states that its counsel

authored this brief, and amicus paid for it. This brief was not written in

whole or in part by counsel for a party, and no one other than amicus

made a monetary contribution to its preparation.

tricity to residential, commercial, industrial, and institutional

customers. The Edison Electric Institute is the association of

U.S. shareholder-owned electric companies, international

affiliates, and industry associates. The National Rural Elec-

tric Cooperative Association is the association of nonprofit

electric cooperatives supplying central station service through

generation, transmission, and distribution of electricity to

rural areas of the United States. The American Public Power

Association is the national trade association that repre-

sents publicly owned electric utilities in the United States.

UWAG’s purpose is to participate on behalf of its members in

the United States Environmental Protection Agency’s

(EPA’s) rulemakings under the Clean Water Act, 33 U.S.C.

§§ 1251-1387 (1994 & Supp. V 2000), and in lit' gation

arising from those rulemakings.

The electric power industry generates and distributes the

electric energy that is a foundation of the American economy,

more so with every passing year of the computer age. We

will refer to ourselves as the “Power Companies.” Electricity

is so important that, like water, there is a legal duty to supply

it to the public.

The Power Companies urge the Court to reverse the

Eleventh Circuit’s Miccosukee decision. Miccosukee Tribe of

Indians v. South Florida Water Management District, 280

F.3d 1364 (11th Cir. 2002), cert. granted, 123 S. Ct. 2638

(2003). That decision stretches the term “discharge of

pollutants” (and indeed the entire Clean Water Act permitting

program) well past the breaking point, proposing to require

water users to remove pollutants contributed by natural

causes or by other persons and threatening years of settled

law affecting power facilities. In so doing, the decision

unduly constrains prudent State and local management of the

water resources on which power generation by hydroelectric

and steam electric generating facilities rely, ignoring the

Clean Water Act’s explicit reservation of that authority to

the States.

The Power Companies have two particular concerns. The

first is hydroelectric facilities. A hydroelectric dam releases

water through the dam’s turbines to generate power. That

water always contains background pollutants to begin with,

and the mere process of passing water through turbines may

change the quality of the water. See Nat'l Wildlife Fed'n v.

Gorsuch, 693 F.2d 156, 161-164 (D.C. Cir. 1982), and Nat'l

Wildlife Fed'n v. Consumers Power Co., 82 F.2d 580 (6th

Cir. 1988). Nevertheless, passing the water through the dam

to the river below has never been considered a “discharge of a

pollutant” requiring an NPDES permit, and two courts of

appeals have so held, as explained below. The Miccosukee

decision, while not directly addressing dams, correctly

recognizes EPA’s policy that hydropower facilities do not

require permits for the discharge of pollutants, and this Court

Should likewise not disturb this longstanding precedent

especially since dams are already comprehensively regulated

to protect water quality. In particular, in the wake of the

Court’s decision in PUD No. | of Jefferson Co. vy.

Washington Dep't of Ecology, 5\\ U.S. 700 (1994),

hydropower projects licensed by the Federal Energy

Regulatory Commission are subject to extensive federal and

state water quality reviews and license conditions under

section 401 of the Clean Water Act as well as under the

Federal Power Act, Endangered Species Act, and National

Environmental Policy Act. To add yet another layer of water

quality review by the same agencies under the same Clean

Water Act would be unwarranted and inappropriate.

Second, the Power Companies are concerned about the

decision’s effect on the availability of water to disperse waste

heat from the electricity generating process. Many steam

electric power plants withdraw once-through cooling water,

which they use to condense and cool steam after it generates

electricity. Some power plants use “closed-cycle cooling”

(cooling towers), for which they still need to withdraw water

(though in smaller quantities) from a river or a lake. In either

case, the cooling water is returned to a receiving waterbody,

typically though not always the same waterbody from which

it came.

The Power Companies rely on State and local water

managers to consider their cooling water and process water

needs and any water rights to which they are entitled by

operation of law or contract to ensure that essential water

resources are available. The Eleventh Circuit’s opinion, by

raising doubts about a water user’s responsibility for

pollutants he or she did not add, jeopardizes that reliance.

INTRODUCTION

The Eleventh Circuit's Miccosukee decision is a radical

one. It holds that “{[w]hen a point source changes the natural

flow of a body of water which contains pollutants and causes

that water to flow into another distinct body of navigable

water into which it would not have otherwise flowed,” that

action itself is a “discharge of pollutants” because it is the

“cause-in-fact of the discharge of pollutants.” Miccosukee,

280 F.3d at 1368. In reaching this conclusion the court made

several errors.

First, the court determined, apparently as a matter of law,

that the water segments from and to which the water is

pumped in this Florida locale are “separate and distinct.” Id.

at 1369 n.8. The court ignored the fact that the S-9 pumping

station did not by itself cause the change in the “natural” flow

of waters that once intermingled. And it made no attempt to

inquire whether, under governing State law, the water

segments should be considered part of the same “body

of water.”

Second, the court created its own interpretation of the

statutory term “discharge of pollutants,” ignoring the plain

language and structure of the statute as well as EPA’s

longstanding interpretation of the term and well-established

judicial precedents accepting EPA’s interpretation.

Section 402 of the Clean Water Act, 33 U.S.C. § 1342

(1994), requiring NPDES (“National Pollutant Discharge

Elimination System”) permits for the “discharge of a pollu-

tant,” is a provision for permitting the release of pollutants

from industrial plants and municipal wastewater treatment

works, and it has been interpreted that way for 30 years.

Other provisions of the statute, as well as the structure of the

Act generally and the NPDES program specifically, sup-

port the view that NPDES permit requirements were never

intended to constrain water resource management, even

assuming, for the sake of argument, that a transfer of water

between two legally distinct waterbodies has occurred.

Yet the Eleventh Circuit opinion could be interpreted to

make illegal, without an NPDES permit, virtually all use and

management of water unless the water ends up back in the

“same body of water” (as judged by the court, not the State or

the permit writer) from which it was taken. This would make

any movement of water to what a court deems a “distinct

waterbody” subject to federal oversight and possible veto,

and to the particular mechanisms of the NPDES permit

program such as “technology-based” permit limits, which are

clearly inappropriate for transfers of water.

Water itself is not a pollutant. Bettis v. Ontario, 800

F. Supp. 1113, 1119 (W.D.N.Y. 1992). But all water, every-

where, contains substances that would be “pollutants” if

added to water by a point source. Some are waste products

added by humans. Some are added by Nature. Some occur

as a result of conditions instream, including hydrological

changes or rerouting attributable to humans. It is clear from

both the plain language of the statute and its structure that

only the first of these causes—the addition of one or more of

the statutorily enumerated “pollutants” to “navigable water

and only if “from” a “point source”—is subject to the

prohibition against the “discharge of pollutants” to which

NPDES permit requirements apply.

There is no dispute in this case about whether the South

Florida Water Management District (“Water Management

District” or “the District”) added any pollutants to the water it

was charged by the State with managing—it did not. Yet

because a pollutant (phosphorous) was present in the water as

a result of natural causes or other point or nonpoint sources,

the Eleventh Circuit has decided to treat that water itself as

a pollutant and its management within the Everglades as

a “discharge of pollutants.” The court 1s incorrect on

both counts.

ARGUMENT

According to the Clean Water Act, the action that requires

a permit is the “addition” of a “pollutant” “to” navigable

waters “from” a “point source.” Clean Water Act § 502(12),

33 U.S.C. § 1362(12) (1994). (The definition of “pollutant,”

33 U.S.C. § 1362(6), says “into” water.) The question raised

by the Miccosukee decision is whether a “discharge of

pollutants” occurs when humans merely move water that

already contains pollutants.

Even if we were to accept for the sake of argument, which

we do not, that the two sides of the levees in this case were

properly treated as legally distinct despite the historical

connection of the areas, the plain language and structure of

the Act show that water management activities of this kind

are not subject to NPDES permitting requirements. The

water pumped by the Water Management District was not

itself a “pollutant” as the statute defines that term. And even

though the water contained pollutants added by other point or

nonpoint sources, no “addition from” the point source at issue

here (the S-9 pumping station) occurred.

The court’s conclusion to the contrary rests on its own

reinterpretation of the phrase “addition from.” The court

chose to reject EPA’s longstanding interpretation and well-

established precedent finding that EPA’s ixterpretation is

reasonable. Also, the court did not discuss (and apparently

never considered) other provisions of the statute that reserve

to the State authority over water resource allocation and

management and that describe flow diversions as causes of

“pollution,” not discharges of “pollutants.” And in construing

“discharge of pollutants” to include actions designed to

manage the flows of already polluted waters, the court never

stopped to consider whether its view of the scope of the

NPDES program was consistent with the larger structure of

the Clean Water Act or whether there might be due process

problems with such a sweeping view. Also, as we have -

mentioned, the court made a legal determination that the C-1 1

Basin and the WCA-3A area are distinct, without any

discussion of relevant State or federal law.

For these reasons, which we will elaborate on in the rest of

this brief, the Power Companies urge the Court to overturn

the Eleventh Circuit’s decision in this case and to clarify that

no NPDES permit is required for transfers of water of the sort

involved in this case. Even if the Court does not overturn the

decision below, we encourage the Court (1) to take great care

not to upset settled law as to hydropower projects, namely the

Gorsuch and Consumers Power decisions cited above, and

(2) to keep the focus of the decision narrow and not venture

into other issues that also are not before the Court.

Specifically, if the Court does not overturn the Eleventh

Circuit’s decision, the Court need not and should not reach a

related but distinct question that is not presented on the facts

here: Where (unlike here) a point source discharge of

pollutants actually occurs, is the point source responsible not

only for the pollutants it adds but also for other pollutants that

it does not add but that are present in its source or “intake”

water? The only court to have squarely considered this

question concluded that point sources are not responsible for

such “intake pollutants.” Appalachian Power Co. v. Train,

545 F.2d 1351, 1377 (4th Cir. 1976). Other courts, asked to

opine on the validity of EPA’s “intake credit” rules, have

found those rules unripe for review. See American Iron &

Steel Institute v. EPA, \15 F.3d 979, 998-99 (D.C. Cir. 1997);

Natural Resources Defense Council, Inc. v. U.S. EPA, 859

F.2d 156, 204-05 (D.C. Cir. 1988); Diamond Shamrock Corp.

v. Costle, 580 F.2d 670, 674 (D.C. Cir. 1978).

The Power Companies do not believe that this case is a

suitable setting for engaging this important question. We

note, however, that the Eleventh Circuit’s decision in

Miccosukee raises the same types of jurisdictional and due

process concerns that are raised by the “net/gross” issue.

I. THE TRANSFER OF WATER FROM ONE

PLACE TO ANOTHER DOES NOT CHANGE

THE WATER INTO A “POLLUTANT” OR

MAKE THE TRANSFER AN “ADDITION” OF A

“POLLUTANT”

If merely collecting and pumping polluted water required a

Clean Water Act permit, then anyone who moved water from

one place to another, even if the water was not a waste

product and the user had introduced no substances of any

kind, would need a permit.

The implications of such a result would be disturbing,

simply because a// water contains substances, some of which

may well be “pollutants” from many sources. This means

that all transfers of water to a different waterbody, under the

Eleventh Circuit’s reasoning, would be illegal without an

NPDES permit, thereby transforming even purely intrastate

water resource management decisions into functions that the

—

a —

federal government would have to oversee through the

NPDES permit program.’ This plainly is not what the Clean

Water Act anticipates.

A. No Matter How Pristine, Water Is Never

Entirely Free of “Pollutants”

The nation’s waters, no matter how untouched by humans,

have never been pure like distilled water’. -To the contrary,

all natural water contains substances, some “good” and some

“bad,” depending on the context.

Many substances are added to water by nature.’ Coliform

bacteria come from the digestive tracts of birds, deer, and

beaver. Other naturally occurring substances leach out of

soil or rock and into the water. As many as 50 minerals occur

* Typically it is the State, not the federal government, that administers

the NPDES permit program. But even so, a State-issued NPDES permit is

subject to review and disapproval by EPA. More important, the mech-

anism for regulating the water is the particular type of permit, with

measures such as technology-based permit limits, prescribed by the fed-

eral statute. This is an enormous change from allowing States to regulate

water resources in their own ways.

* Even the purest water (used, for example, in the semiconductor and

pharmaceutical industries or in laboratories) is not free of contaminants.

Type | or ultrapure water is the most pure reagent-grade water for labora-

tories. For practical purposes, Type | water has a specific resistance of at

least 18 megohms-cm and meets other criteria for specific conductance

(micromhos per centimeter), total silica, total organic carbon, and bac-

terial count. See Michael Brush, Water, Water, Everywhere, 12 THE

SCIENTIST 18 (June 8, 1998), available at http://www.the-scientist.

com/yr1998/june/profile! 980608.html.

* See generally Gilbert M. Masters, /ntroduction to Environmental

Engineering and Science 107-09 (1991) (naturally occurring organic

matter, protozoa from wild animals); EPA, Sole Source Aquifer Petition,

52 Fed. Reg. 37,010 col. 2 (Oct. 2, 1987) (final determination) (dolomite);

John T. Holleman, /n Arkansas Which Comes First, the Chicken or the

Environment?, 6 TUL. ENVTL. L.J. 21, 29 (1992) (coliform bacteria in

warm-blooded animals).

naturally in water, including calcium, magnesium, silica, and

fluoride. A river with a bed of dolomite will contain calcium

and magnesium. Streams pick up organic acids as they flow

through swamps or sulfur from sulfur springs. Phosphorous

in water can come from human sources (fertilizer) or natural

ones, such as weathering of phosphate rocks and bird guano.

Also, pollutants are added by events, both natural and

human. Man may add wastes from point sources or nonpoint

sources. A variety of substances, some natural and some

manmade, settle onto the water from the air. To give just one

example, rainwater falling through air picks up carbon

dioxide and becomes weak carbonic acid, which can slowly

dissolve limestone. By this means many of the country’s

caves were created. Sunlight heats the water. Severe weather

creates turbidity. The variety of changes that can occur is

endless and, of course, constantly changing.

B. That Water is Polluted Does Not Make It a

“Pollutant” Under the Clean Water Act, and

the Transfer of Such Water From One

Watercourse to Another Is Not the “Addition”

of a Pollutant

Section 502 of the Clean Water Act defines “pollutant’ as a

waste material discharged into water:

The term pollutant means dredged spoil, solid waste,

incinerator residue, sewage, garbage, sewage sludge,

munitions, chemical wastes, biological materials, radio-

active materials, heat, wrecked or discarded equipment,

rock, sand, cellar dirt and industrial, municipal, and

agricultural waste discharged into water. This term does

not mean (A) “sewage from vessels or a discharge

incidental to the normal operation of a vessel of the

Armed Forces” within the meaning of section 1322 of

this title; or (B) water, gas, or other material which is

injected into a well to facilitate production of oil or gas,

or water derived in association with oil or gas production

—_ Og,

and disposed of in a well, if the well used either to

facilitate production or for disposal purposes is approved

by authority of the State in which the well is located, and

if such State determines that such injection or disposal

will not result in the degradation of ground or surface

water resources.

Clean Water Act, 33 U.S.C. 1362(6) (Supp. V 2000).

This definition is broad but by no means unlimited. This

Cc ourt has recognized that use of the restrictive term “means”

instead of the looser phrase “includes” generally indicates

Congress’ intent to exclude any meaning that is not stated.

Colautti v. Franklin, 439 U.S. 379, 392 n.10 (1979) (citations

omitted); see also Gorsuch, 693 F.2d at 172.

| The specific items Congress chose to list share one

important characteristic: they are all “waste material of a

human or industrial process.” Ass'n to Protect Hammersley,

Eld & Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007, 1016

(9th Cir. 2002). Notably, the list does not include already

polluted natural waters. Instead, what Congress intended to

prohibit, absent a permit, was the addition to navigable waters

of one or more of the enumerated manmade waste materials

from a point source. :

Here the Water Management District added no waste

material to navigable waters. Everyone agrees that any waste

material present in the waters managed by the District was

added by other sources. Miccosukee, 280 F.3d at 1366.

Some of that waste material may have been added from

permitted point sources; some from unpermitted “nonpoint”

sources like fertilizer on farmers’ fields, which are controlled

by States under Clean Water Act provisions other than the

NPDES permit requirement; and some from natural causes.

The Eleventh Circuit says that an “addition” of manmade

wastes “to navigable waters” “from” a point source occurs

each time those wastes pass from one “distinct” watercourse

to another via a point source. /d. at 1368-69. Under this

theory, only the receiving waterbody is a “navigable water.

Id. at 1368. In effect, the source water becomes the

“pollutant.”

There is no support in the statute for such an interpretation,

and the Eleven Circuit cites none. Instead, as support for its

decision, the court cites three cases: Catskill Mountains

Chapter of Trout Unlimited, Inc. v. City of New York, 273

F.3d 481 (2d. Cir. 2001); Dubois v United States Department

of Agriculture, 102 F.3d 1273 (Ist Cir. 1996); and United

States v. M.C.C. of Florida, Inc., 772 F.2d 1501 (11th Cir.

1985) (history omitted).

The court’s reliance on Dubois and M.C.C. is misplaced.

In both cases the point source in question itself “added”

material that at least arguably met the definition of

“pollutant.”

In Dubois the point source took water from one navigable

water, used it in its snowmaking equipment, and discharged it

to another navigable water. The parties contested whether

pollutants were added during the snowmaking process, but

the First Circuit did not reach that issue because it found, in

effect, that the source water had ceased to be a “navigable

water” and became a wastewater when it was taken out of

navigable waters and used by humans. Dubois, 102 F.3d at

1296-97. Even if Dubois is correct, it is readily distin-

guishable from the Miccosukee case. In Dubois the water

was removed from the waterbody, made into snow, used for a

commercial purpose, melted, and returned to the waterbody;

in Miccosukee the water was merely pumped through a

manmade structure to a different location.

In A4.C.C. boat propellers ripped up bottom sediments,

allegedly to create a channel and redeposit the unwanted

“dredged material” outside the channel. M.C.C., 772 F.2d at

1505-06. Thus, while the critical statutory element of an

= —_—— -

addition “into” water was missing, at least the activity being

regulated was the disposal of waste (dredged spoil), not the

mere movement of water as in this case.

Only the Second Circuit’s decision in Catskill Mountains

fits the analytical framework adopted by the Eleventh Circuit

in Miccosukee. The Power Companies believe that in both

cases that analysis is, quite simply, wrong. As we discuss

below, neither court adequately considered EPA’s long-

standing interpretation of the statutory terms, which has been

reviewed and upheld by Courts of Appeals for both the D.C.

Circuit and the Sixth Circuit. In a rush to require a permit,

neither court looked at whether the NPDES permit program is

designed to regulate the activity in question. And neither

court adequately considered other statutory provisions that

indicate Congress’ intent to treat water management activities

of this kind as “nonpoint” sources and to leave water resource

allocation to the States.

il. THE ELEVENTH CIRCUIT IMPROPERLY

IGNORED OR REJECTED LONGSTANDING

PRECEDENTS RELEVANT TO THIS ISSUE,

INCLUDING EPA’S OWN INTERPRETATION

OF ITS JURISDICTION

EPA has never interpreted the term “discharge of

pollutants” to include transfers of navigable waters, even

between two distinct segments. Indeed, it has been EPA’s

longstanding position, articulated contemporaneously with

the passage of the statute, that an “addition of pollutants to

navigable waters from a point source” occurs when a point

source from outside navigable waters introduces a material

meeting the definition of a “pollutant” into navigable waters.

EPA has fully articulated this position, reflecting its inter-

pretation both of the statute and its NPDES rules imple-

menting the statute (40 C.F.R. Part 122 (2002)), in cases

contesting its decision not to require NPDES permits for

hydroelectric dams.

As EPA has said and the courts have long recognized, the

term “addition from” is a limiting factor, used to distinguish

pollutants that are added—and therefore subject to regu-

lation—from those that merely pass through a point source:

[1jt does not appear that Congress wanted to apply the

NPDES system wherever feasible. Had it wanted to do

so, it could easily have chosen suitable language, e.g.,

“all pollution released through a point source.” Instead,

as we have seen, the NPDES system was limited to

“addition” of “pollutants” “from” a point source.

Gorsuch, 693 F.2d at 176. Indeed, EPA itself argued in

Gorsuch that “any addition must occur ‘from’ a point source

and not merely through a point source.” /d. at 175 n.58. EPA

explained that “the point or nonpoint character of pollution ts

established when the pollutant first enters navigable water,

and does not change when the polluted water later passes . . .

from one body of navigable water... to another... .” /d. at

175 (characterizing EPA’s argument) (emphasis added).

EPA has articulated its position in a variety of documents

stemming back very nearly to the passage of the Act. See

Gorsuch, 693 F.2d at 167 n.33 (discussing EPA’s consistent

contemporaneous interpretation). EPA’s interpretation has

been thoroughly reviewed, found reasonable and consistent

with the statute, and affirmed by both the D.C. Circuit and the

Sixth Circuit. See Nat'l Wildlife Fed'n v. Consumers Power

Co., 862 F.2d 580 (6th Cir. 1988) (upholding EPA position

that “added” means “introduction of pollutant to water from

outside world” as reasonable construction of statutory terms);

Gorsuch, 693 F.2d at 167 (concluding that EPA interpretation

is entitled to great deference because it was made by the

regulatory agency charged with enforcing the statute, was

consistent and contemporaneous, reflected agency expertise,

was thorough, and was a reasonable interpretation of the

statutory terms, taking into account both specific terms and

policies of the Act).

The Eleventh Circuit scorned any argument about EPA’s |

interpretation, claiming that it could “ascertain no EPA

position applicable to S-9 to which to give any deference,

much less Chevron deference.”” Miccosukee, 280 F.3d at

1368 n.4. How the Eleventh Circuit could conclude that

EPA’s interpretation of the very statutory terms at issue here

was wholly irrelevant to the court’s analysis, we cannot tell.

Suffice it to say that Power Companies believe the court had

an obligation to consider EPA’s interpretation before sub-

stituting its Own interpretation based largely on a selective

reading of the Random House Dictionary and its uncritical

acceptance of Catskill Mountains.

But even if this Court were to give no deference at all to

EPA's interpretation, the Eleventh Circuit’s contrary inter-

* EPA has adopted a rule defining the “discharge of pollutants” in

general terms. See 40 C.F.R. § 122.2 (2002). EPA has consistently said

that that definition, and the accompanying permitting rules, do not apply

to the passage of pollutants from one waterbody to another. Any

argument that EPA’s interpretation is not entitled to Chevron deference

because it is just a “policy statement” is therefore inapposite. See

Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). In any case. requiring an agency to go through a rulemaking each

time it decides nos to regulate as the price of receiving Chevron deference

does not seem to be what this Court had in mind in Christensen v. Harris

County, 529 U.S. 576 (2000). In that case. the Court considered the

amount of deference to be accorded a Department of Labor opinion let-

ter setting conditions for compensatory time payments, where those

conditions were not authorized by the statute. The Court said the opinion

letter deserved “respect.” but only to the extent the opinion had the

“power to persuade.” Christensen, 529 U.S. at 587 (quoting Skidmore vy.

Swift & Co., 323 U.S. 134, 140 (1944)). The Court considered the

Department's opinion but did not find it persuasive given the specific

terms of the statute. Here the Eleventh Circuit has not considered EPA's

interpretation of the specific terms of the statute or explained why it is not—

apposite or does not have the “power to persuade.”

pretation would fail on its own merits. The Eleventh

Circuit’s theory of what constitutes an addition “from” a

point source is based primarily on the dictionary, the Random

House Dictionary of the English Language 770 (2d ed. 1987),

to be precise. See Miccosukee, 280 F.3d at 1368 n.6. From

among the multiple definitions there, the court selected two; it

says that “from” can mean “agent or instrumentality” or

“cause or reason.” /d. These two the court prefers to “source

or origin” or its use as a preposition “used to specify a

starting point in spatial movement.” See Random House

Dictionary of the English Language 770 (2d ed. 1987).

Based on its selection, the court then leaps to the conclusion

that “from” means “by” and that the relevant inquiry

therefore is whether “but for the point source—the pollutants

would have been added to the receiving body of water.” An

addition from the point source occurs, says the court, if a

point source is the cause-in-fact of the release of pollutants

into navigable waters. Miccosukee, 280 F.3d at 1368. One

might summarize the logic this way:

from = agent, instrumentality, cause or reason = by =

cause-in-fact.

Even if the court’s tour of the dictionary made sense,

which we submit it does not, the Eleventh Circuit was not

entitled to select its favorite definition, rather than other,

equally plausible definitions, and apply it without regard to

other applicable statutory provisions or relevant precedent.

Yet this is just what the court did. In essence, it concluded

that a distinct navigable water containing pollutants equals a

pollutant from the outside world and that routing navigable

waters from one segment to another through a pump equals

an addition of pollutants from the pump. Other than the

(admittedly laudable) goal of preventing pollution, it cites no

legislative authority for this proposition. As we show in the

following discussion, there is none.

Moreover, the Eleventh Circuit’s taking for itself the job of

defining what is a distinct “waterbody” runs afoul of EPA

policy. For about a decade EPA has been encouraging a

“watershed approach” to regulating water quality. G. Tracy

Mehan, III, Committing EPA’s Water Program to Advancing

. the Watershed Approach (December 3, 2002), available at

http://www.epa.gov/owow/watershed/memo.html. Part. of

this approach calls for empowering States to define the

watersheds or waterbasins that are to be used as management

units. See EPA, Implementing the Guiding Principles

through State and Tribal Watershed Approaches, available

at http://www.epa.gov/owow/watershed/framework/ch6.html.

As EPA says, “for large river basins or lakes, state and tribal

agencies are likely to lead watershed planning efforts, while

local government, conservation districts, and watershed

councils may take the lead in developing and implementing

solutions in smaller watersheds.” /d. In this respect EPA’s

policy, both past and present, is diametrically opposed to the

Eleventh Circuit’s approach of having different waterbodies

defined by federal courts.

We might add that the Eleventh Circuit’s decision raises a

host of issues that the court appears not to have recognized.

Even leaving aside the question of what constitutes a different

waterbody (a question, and possibly a complex one, both of

law and of hydrology), how is one to know when natural

water is polluted enough to become a “pollutant”? Probably

the court below intended to require a permit only when the

water moved is by some definition “dirtier” than the water in

the receiving waterbody. But what if the pumped water is

ower in pollutants than the receiving water? Under the

Eleventh Circuit’s reasoning this would still be the “discharge

of pollutants” so long as the pumped water had any nonwater

molecules in it at all, though we doubt the court intended that

result. The effect of the decision below is really to re-

write the Clean Water Act, but without the deliberation that

accompanies legislative action.

We are told that the S-9 pump discharges have been

permitted by the State under the Everglades Forever Act,

FLA. STAT. ch. 373.4592(9)(k) & (1) (2002). The permit

requires the facility to meet all State water quality standards.

Moreover the C-11 Basin and WCA-3A area have been

consistently treated as parts of a single system by State and

federal regulators and legislatures. It is astonishing that the

Eleventh Circuit would decide what is a separate waterbody

for regulatory purposes without even considering what State

law says about the question, let alone the complex hydro-

logical facts that might be relevant.

il. THE ELEVENTH CIRCUIT’S INTERPRE-

TATION IS NOT SUPPORTED BY LEGIS-

LATIVE HISTORY OR CONSISTENT WITH

OTHER PROVISIONS OF THE CLEAN

WATER ACT

As EPA and reviewing courts have recognized, the NPDES

program is not the exclusive method by which Congress

intended to meet the Act’s goals. See Nat'l Wildlife Fed'n v.

Gorsuch, 693 F.2d 156 (D.C. Cir. 1982); Nat'l Wildlife Fed'n

v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988).

Congress defined the term “pollution” more broadly than the

term “discharge of pollutants,” and it established separate

programs for “nonpoint sources” causing pollution. See

Clean Water Act §§ 208, 319, 33 U.S.C. §§ 1218, 1329 (1994

& Supp. V 2000). Clearly, it understood that nonpoint

sources can have serious water quality consequences.’ Yet it

° Under the Clean Water Act, “pollution” means “the man-made or

man-induced alteration of the chemical, physical, biological and radio-

logical integrity of water.” Clean Water Act § 502(19), 33 U.S.C.

§ 1362(19) (1994).

’ Indeed, Congress required States to identify waters that would not

meet water quality standards due to nonpoint sources. See Clean Water

Act § 319%a)(1 (A), 33 U.S.C. § 1329 a 1 (A) (1994).

also understood that requiring such sources to get an NPDES

permit, with all of the associated effluent limits, monitoring

requirements, and liabilities, would be inappropriate or even

impossible for some sources. See Gorsuch, 693 F.2d at 176.

There is no evidence, either in the legislative hisiory or

elsewhere, that Congress would have considered a water

transfer like the one in this case a candidate for NPDES

regulation. In fact, all the evidence points the other way. The

D.C. Circuit, examining the legislative history, found that

“[t]hroughout its consideration of the Act, Congress’ focus

was on traditional industrial and municipal wastes ....” /d.

at 175.

Even more important, Congress inserted two specific

provisions, highly relevant to this question, which the Elev-

enth Circuit failed to consider. The first is Clean Water Act

§ 101(g), which reads as follows:

It is the policy of Congress that the authority of each

State to allocate quantities of water within its jurisdiction

shall not be superseded, abrogated or otnerwise impaired

by this chapter. It is the further policy of Congress that

nothing in this chapter shall be construed to supersede or

abrogate rights to quantities of water which have been

established by any State. Federal agencies shall co-

operate with State and local agencies to develop com-

prehensive solutions to prevent, reduce and eliminate

poliution in concert with programs for managing water

resources.

Clean Water Act § 101(g), 33 U.S.C. § 1251(g) (1994).5

Prohibiting the Water Management District from pumping

* The legislative history shows that Congress intended to preset ve State

allocation of water. “The requirements of section 402 and 404 permits

may incidentally affect individual water rights. ... It is not the purpose of

this amendment to prohibit those incidental effects. It is the purpose of

this amendment to insure that State allocation systems are not subverted.

water between the C-I1 Canal and the WCA-3A area

would interfere with the State’s authority to allocate water

resources—that is, to put water where it is needed and keep it

away from places where it is harmful—with disastrous

consequences.” While the court acknowledged that shutting

down the S-9 pump was unwarranted, it seems to have

assumed without discussion that the District could solve the

problem just by getting a permit.

But the NPDES permit program is particularly unsuited to

activities of this kind, for the obvious reason that the Water

Management District does not control the “pollutants” in the

first place. These pollutants come from other sources in

Broward County, which the District cannot anticipate or

control. The only factor the District can control is whether or

not the pump operates; there is no other place to put the

water, which comes to the District in a quantity and quality

that it cannot control. How is the District to design a

treatment system under these circumstances? What if the

point and nonpoint sources that actually contribute the

pollutants change over time? What technology should it use?

For what pollutants should it plan to treat? For what should it

monitor? How are permit limits to be set, and what happens

if those limits are exceeded? For the “discharges of pol-

lutants” over which EPA has exercised jurisdiction under the

NPDES program, those questions are relatively easy to

answer. But when the same questions are asked in this case,

and that effects on individual rights, if any, are prompted by legitimate

and necessary water quality considerations. This amendment is an

attempt to recognize the historic allocation rights contained in State

constitutions” (emphasis added). 3 A Legislative History of the Clean

Water Act of 1977, 95th Cong., 2d Sess. 532 (Oct. 1978) (Senate Debate

of Dec. 15, 1977).

° Even the Eleventh Circuit agrees that the consequences would be

disastrous—so disastrous that it vacated the district court’s injunction.

iccosukee, 280 F.3d at 1371.

— eee ee re

there is no logical answer at all. The only real answer would

have the Water Management District build a new water

management system that sends the water elsewhere. But that

result would violate the policy expressed in § 101(g).

Less than three years ago this Court, in Solid Waste Agency

of Northern Cook County v. United States Army Corps of

Engineers, 531 U.S. 159 (2001), held that where an admin-

istrative interpretation of a statute invokes the outer limits of

Congress’ power, the Court expects a “clear indication that

Congress intended that result.” 531 U.S. at 172. Yet here the

Eleventh Circuit’s decision federalizes the entire corpus of

State water resources law and threatens to replace the

mechanisms the States have developed for allocating water

with the federally imposed NPDES permit program, even

though Congress gave no indication at all that that was its

intent. The problems of federalism would be severe if, for

example, a State authorized a diversion of water but EPA

disagreed with the State’s decision and vetoed the diversion

under Clean Water Act § 402(d)(2), 33 U.S.C. § 1342(d)(2).

There is absolutely no indication in the legislative history that

Congress intended such a result.

The Eleventh Circuit cited no evidence in the statute or the

legislative history that Congress intended to require NPDES

permits for the movement of water, and we know of none. It

is implausible that Congress would have intended this result,

for one simple reason: the way that pollutants are regulated

under the NPDES permit program is to impose permit limits,

based on what available control technology can accomplish

and what is needed to meet instream water quality criteria.

For reasons outlined elsewhere in this brief, there is no ap-

parent way to set permit limits for phosphorus, for example,

in water that is collected in a canal through a drainage basin,

let alone numeric limits for the other “pollutants” that are

always present in the same water.

Section 304(f) of the Act also gives clear evidence of

Congress’ intent that water management activities of this kind

be treated as “nonpoint source” “pollution.” In pertinent part

it provides as follows:

§ 1314(f). Identification and evaluation of nonpoint

sources of pollution; processes, procedures, and

methods to control pollution

* * *

The Administrator, after consultation with appropriate

Federal and State agencies and other interested persons,

shall issue to appropriate Federal agencies, the States,

water pollution control agencies, and agencies

designated under section 1288 of this title, within one

year after October 18, 1972 (and from time to time

thereafter) information including (1) guidelines for

identifying and evaluating the nature and extent of

nonpoint sources of pollutants, and (2) processes,

procedures, and methods to control pollution resulting

from—

x * *

(F) changes in the movement, flow, or circulation of

any navigable waters or ground waters, including

changes caused by the construction of dams, levees,

channels, causeways, or flow diversion facilities.

Clean Water Act § 304(f), 33 U.S.C. § 1314(f) (1994).

Although EPA has suggested that § 304(f) does not

preclude it from regulating any aspect of an activity that

changes water flow or diverts water as a “point source,” it has

argued that it is a clear indication that Congress intended such

activities generally to be treated as nonpoint sources. See

Gorsuch, 693 F.2d at 168. As discussed above, this is exactly

what EPA has done.

The Eleventh Circuit never mentions this clearly rele

vant language. The Second Circuit decision on which the

Eleventh Circuit relies for support, Catskill Mountains,

dismisses both these provisions with almost no discussion on

the ground that they are irrelevant in light of the “plain

meaning of its text.” Catskill Mountains, 273 F.3d at 494.

The Power Companies submit that the Eleventh and

Second Circuits’ interpretation is unsupported by the “plain

language” of the statute, inconsistent with prevailing EPA

interpretation and applicable precedent, and contradicted by

other statutory provisions.

IV. HOLDING THE WATER MANAGEMENT

DISTRICT RESPONSIBLE FOR POLLUTANTS

IT CANNOT ANTICIPATE OR CONTROL

WOULD VIOLATE DUE PROCESS

To hold the Water Management District (and others

similarly situated) responsible for someone else’s pollutants,

which the District can neither anticipate nor control, would

violate the Due Process Clauses of the Fifth and Fourteenth

Amendments because the means is not rationally related to

the end. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1,

14-15 (1991).

In determining whether a provision holding one party

responsible for another’s acts has a rational basis, the key is

control. For example, a State may hold an innocent employer

liable for an employee’s fraudulent acts, within the scope of

employment, because the State could rationally conclude that

such a strict liability rule would make the employer “more

likely to prevent an agent’s fraud.” /d. at 14. By contrast, a

point source has no power to control what pollutants other

sources add, and it likewise cannot control pollutants

naturally present in its intake water. Indeed, a discharger

cannot even anticipate what pollutants or pollutant levels will

appear in its intake water until the water is actually

withdrawn.'” There is simply nothing a discharger can do

that will enable him or her to control what pollutants are

introduced by others or by nature.

It was this lack of control that led the court in American

Iron & Steel Institute v. EPA, 526 F.2d 1027, 1056 (3d Cir.

1975), amended on other grounds, 560 F.2d 589 (1977), cert.

denied, 435 U.S. 914 (1978), to conclude that “an adjustment

[in effluent limitations to account for intake pollutants] would

seem required by due process, since without it a plant could

be subjected to heavy penalties because of circumstances

beyond its control.”

In American Iron & Steel Institute the steel industry

successfully argued that EPA’s technology-based regulations

were defective because, among other things, they established

limitations on a gross, rather than a net, basis. Otherwise, the

dischargers argued, they “would be forced to clean up

water... polluted by other companies.” /d. at 1056. The

court agreed and instructed EPA to revise the rules to

“establish precise guidelines” for allowing intake pollutant

credits, including the instances when such credits must be

allowed. /d.; see also American Petroleum Inst. v. EPA, 540

F.2d 1023, 1034-35 (10th Cir. 1976), cert. denied, Exxon

Corp. v. EPA, 430 U.S. 922 (1977).

The NPDES program’s purpose is to “control, on a source

by source basis the discharge of pollutants into navigable

waters.” S. Rep. No. 92-414 at 70 (1971), reprinted in 1972

U.S.C.C.A.N. 3668, 3736. Holding dischargers liable for

pollutants they cannot control is not rationally related to that

' Holding a discharger liable for background pollutants would also

violate due process in the procedural sense, since dischargers would be

responsible for pollutants in intake water whether or not those pollutants

were present when its permit limits were established. Dischargers would

not have. with respect to such pollutants, the opportunity to be heard “at a

meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424

U.S. 319, 333 (1976).

purpose, since it will not result in the control of the actual

sources of those pollutants, which have already “added” the

pollutant to navigable waters.

The court below found that an NPDES permit is needed to

pump impure water into “another distinct body of navigable

water.” Miccosukee, 280 F.3d at 1368. It rejected the Water

District’s argument to the contrary. /d. at 1369 n.8. Yet at

the same time the court recognized that without the human

improvements both sides of the levees would “essentially be a

single body of water.” /d. In this respect the court’s decision

is internally inconsistent. Moreover, the complexity of the

hydrological question of whether the two sides are one

waterbody or two makes it unsuitable for summary judgment,

and the court’s taking for itself the authority to decide this

issue without resort to State water resources law raises

serious questions about the State-federal relationship. In such

a case the statute should be interpreted to avoid such

constitutional issues. See Solid Waste Agency of Northern

Cook Co. v. United States Army Corps of Engineers, 53\ U.S.

159, 172 (2001); Edward J. DeBartolo Corp. v. Florida Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575

(1988).

CONCLUSION

The Supreme Court’s intervention in this case is much

needed. The Eleventh Circuit opinion threatens to change the

Clean Water Act from a statute regulating “discharges of

pollutants” from “point sources” to a statute regulating water

resources generally in a freewheeling, knows-no-bounds

fashion, all based on the Random House Dictionary.

The Clean Water Act is not a generalized mandate to

regulate all water pollution but a detailed program of specific

statutory words. This Court needs to bring the statute back to

earth by overturning the Eleventh Circuit's decision in this

case as inconsistent with the wording, legislative history,

administrative interpretation, and case law pertaining to the

NPDES program.

Respectfully submitted,

Kristy A. N. BULLEIT *

JAMES N. CHRISTMAN

HUNTON & WILLIAMS —

1900 K Street, Nw

Washington, D.C. 20006

* Counsel of Record (202) 955-1500

September 10, 2003

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.