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

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N. PLAINS RESOURCE V. FIDELITY EXPLORATION 4821 435.11(bb) (emphasis added). Fidelity argues that the CBM water is not "produced water" because Fidelity adds no chem- icals to the water. Whether CBM water is "produced water," however, does not turn on the addition of chemicals or any other alteration. The EPA regulations provide that "produced water" can include added chemicals, but the definition does not require it. See id. CBM water is "produced water" because it is brought up from the coal seams underlying Powder Basin to extract methane gas. [5] The CWA contemplates that produced water, as defined by EPA regulations, is a pollutant within the meaning of the Act. The CWA only exempts water derived from gas extrac- tion from regulation when the water is disposed of in a well and will not result in the degradation of other water bodies. 33 U.S.C. § 1362(6)(B). Cf. Cedar Point Oil, 73 F.3d at 568 ( "produced water" is a pollutant if its discharge does not meet exemption criteria). Fidelity disposes of the CBM water by direct discharge to the Tongue, not by reinjection into a state - approved well. Because Fidelity discharges "produced water" and does not meet § 1362(6) exemption criteria, the CBM water discharged by Fidelity is a pollutant within the plain meaning of the CWA and is subject to NPDES permitting requirements. [6] Third, concluding that CBM water is a pollutant is con- sistent with the CWA's definition of "pollution." Cf. APHETT 299 F.3d at 1017 (considering the definition of "pollution" to determine whether biological materials emitted by mussels are "pollutants "). "Pollution" is the "man -made or man - induced alteration of the chemical, physical, biological, and radiological integrity of water." 33 U.S.C. § 1362(19). By dis- charging CBM water into the Tongue River, Fidelity alters the water quality of the Tongue River. In particular, the MDEQ, in the Montana Environmental Impact Statement analyzing the impact of CBM production on Montana waterways, cau- tions that the resulting alteration may degrade, and limit uses of, the receiving water: "Surface water quality in some water-