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

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N. PLAINS RESOURCE v. FIDELITY EXPLORATION 4825 from the deep aquifers of the Powder Basin and discharging that unaltered water into the surface water of the Tongue River. Similarly, each of the cases cited above involve trans- port of water that could degrade the water quality of receiving waters. The cases apply insofar as they reject the argument that discharge of water cannot be a pollutant simply because the discharged water is unaltered and transported from one body of water to another. [8] In light of the CWA's definition of pollutant and pollu- tion, our precedent in APHETI, and the conclusions of other circuits in analogous cases, we reject Fidelity's arguments and hold that CBM water is a pollutant pursuant to the CWA. III Having concluded that Fidelity's discharge of CBM water is subject to the CWA, we next consider whether Fidelity nev- ertheless can be relieved of permitting under the CWA by Montana state law. Section 75- 5- 401(1)(b) of the Montana Code provides: Discharge to surface water of groundwater that is not altered from its ambient quality does not constitute a discharge requiring a permit under this part if- (i) the discharge does not contain industrial waste, sewage, or other wastes; (ii) the water discharged does not cause the receiving waters to exceed appli- cable standards for any parameters; and (iii) to the extent that the receiving waters in their ambient state exceed standards for any parameters, the discharge does not increase the concentration of the parame- ters. Based on Montana Code section 75- 5- 401(1)(b), the MDEQ advised Fidelity that no permit was needed to discharge CBM water into the Tongue River. The district court agreed, rea-