Water Discharge is a Pollutant, Appeals Court Says: Land Letter

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N. PLAINS RESOURCE v. FIDELITY EXPLORATION 4819 ment de novo, see Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002), and we reverse. [2] To determine whether CBM water is a "pollutant" regu- lated by the CWA, we begin with the plain language of the statute. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56 (1987). The CWA defines "pol- lutant" broadly: The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological mate- rials, radioactive materials, heat, wrecked or dis- carded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste dis- charged into water. This term does not mean .. . water, gas, or other material which is injected into a well to facilitate production of oil and gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facili- tate 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. 33 U.S.C. § 1362(6) (emphasis added). Because this defini- tion does not literally list "unaltered groundwater" as a pollu- tant, Fidelity argues, and the district court held, that CBM water is not a "pollutant." Fidelity's argument and the district court's holding are untenable. The plain language of the CWA requires the conclusion that CBM water is a pollutant subject to regulation under the CWA. [3] The reasons for our conclusion are apparent from the statute's terms. First, CBM water is a "pollutant" because it is "industrial waste." Contrary to Fidelity's suggestion that "industrial waste" refers to "sludge oozing from manufactur-