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

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4822 N. PLAINS RESOURCE v. FIDELITY EXPLORATION sheds would be slightly to severely degraded, resulting in restricted downstream use of some waters." Montana FEIS at 4 -72. And, unregulated discharge of CBM water to the Tongue River threatens to make the water unfit for irrigation. Id. at 4 -138. [7] Because Fidelity's discharges of CBM water alter the water quality of the Tongue River, those discharges cause "pollution" as defined by the CWA. See PUD No. I of Jeffer- son County. v. Wash. Dep't of Ecology, 511 U.S. 700, 705 (1994) (citing 33 U.S.C. § 1313(d)(4)(B) and recognizing CWA's "antidegradation policy" requiring state water quality standards to prevent further degradation of the Nation's waters); 40 C.F.R. § 131.12 (antidegradation policy regula- tion). Were we to conclude otherwise, and hold that the mas- sive pumping of salty, industrial waste water into protected waters does not involve discharge of a "pollutant," even though it would degrade the receiving waters to the detriment of farmers and ranchers, we would improperly "undermine the integrity of [the CWA's] prohibitions." APHETI, 299 F.3d at 1016. The district court determined that the CWA's definition of "pollution" supports a conclusion that CBM water is not a pollutant because Fidelity does not alter the CBM water before discharging it. We disagree with the district court's interpretation of the definition. The requirement that the phys- ical, biological, or chemical integrity of the water be a "man - induced" alteration refers to the effect of the discharge on the receiving water; it does not require that the discharged water be altered by man. See Miccosukee Tribe v. S. Fla. Water Mgmt. Dist., 280 F.3d 1364, 1368 (11th Cir. 2002) ( "[I]n determining whether pollutants are added to the navigable waters for purposes of the CWA, the receiving body of water is the relevant body of navigable water. "). A contrary reading of the definition is illogical because the goal of the CWA is to protect receiving waters, not to police the alteration of the discharged water. See 33 U.S.C. § 1251 (The objective of the