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

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N. PLAINS RESOURCE v. FIDELITY EXPLORATION 4823 CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters "). Here, the alter- ation of the chemical integrity of the Tongue River is "man - induced," as the CBM water would not flow into the Tongue River but for Fidelity's methane extraction processes, and that must be a focus of our concern under the CWA. Contrary to the district court's conclusion, the definition of "pollution" supports a finding that CBM water is a pollutant. In arguing that CBM water is not a pollutant, Fidelity makes much of the fact that the CBM water is "unaltered," "naturally occurring," and that it is only water. Fidelity relies on APHETI to argue that only those substances "transformed by human activity" can be pollutants under the CWA. See APHETI, 299 F.3d at 1017. Fidelity misapplies APHETI. In APHETI, we clarified the meaning of "biological materi- als," a term included in the CWA's definition of "pollutant." Id. at 1016; see also 33 U.S.C. § 1362(6). In considering whether excrement from mussels suspended from rafts in Puget Sound was a pollutant under the CWA, we distin- guished between biological materials that naturally occur in receiving waters, such as mussel feces, and biological materi- als that result from human activity, such as the "heads, tails, and internal residuals" of fish dumped back into the waters after processing. APHETI, 299 F.3d at 1017. Because one purpose of the CWA is to protect shellfish, we concluded that shellfish are not pollutants under the CWA unless human activity transforms them. Id. This conclusion was necessary to preserve the "integrity of the [CWA's] prohibitions." Id. at 1016. APHETI cannot sensibly be read to require human transfor- mation of all materials identified in the CWA's definition of "pollutant." For one thing, the CWA definition of "pollutant" includes such terms as "rock," "sand," and "heat." See 33 U.S.C. § 1362(6). It is the introduction of these contaminants, not their transformation by humans, that renders them pollu-