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

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4824 N. PLAINS RESOURCE v. FIDELITY EXPLORATION tants. Also, by allowing the degradation of the quality of receiving waters, the consequences of Fidelity's interpretation of APHETI would upset the integrity of the CWA, a result that APHETI was careful to avoid. Fidelity's interpretation of APHETI is not correct, for it would allow someone to pipe the Atlantic Ocean into the Great Lakes and then argue that there is no liability under the CWA because the salt water from the Atlantic Ocean was not altered before being discharged into the fresh water of the Great Lakes. Or, water naturally laced with sulfur could be freely discharged into receiving water used for drinking water simply because the sulfur was not added to the discharged water. Such an argument cannot sen- sibly be credited. Even though Fidelity argues that CBM discharges are "only water," other circuits have held that transporting water from one water body to another can violate the CWA. See Micco- sukee Tribe, 280 F.3d at 1367 (affirming the district court's grant of summary judgment to the plaintiffs where the defen- dant discharged already polluted water into a navigable water even though the defendant did not introduce additional pollu- tants into the discharged water but only rerouted the dis- charged water into the receiving water); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 492 -93 (2d Cir. 2001) (concluding that the transfer of water containing pollutants from one body of water to another requires an NPDES permit); Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1299 (1st Cir. 1996) (holding that the transfer of water from one body of water to another distinct body of water requires a NPDES permit where the discharged water contains pollutants). Fidelity attempts to distinguish these cases because they addressed the issue of whether there was an "addition" of a pollutant under the CWA, not whether there was a pollutant. This distinction is inapposite. The issue of whether CBM water is a pollutant is practically indistinguishable from the issues considered by these cases. Fidelity is transporting water