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

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4826 N. PLAINS RESOURCE v. FIDELITY EXPLORATION coning that the EPA implicitly approved of Montana's groundwater exemption because the EPA did not revoke Montana's authority to operate the EPA - approved state per- mitting program despite section 75- 5- 401(1)(b). Giving defer- ence to the EPA's "approval" of Montana's permitting program, the district court concluded that discharge of CBM water does not require a permit under Montana state law and thus does not violate the CWA. We disagree with the district court's conclusion for several reasons. [9] First, though the district court reasoned that the EPA approved of section 75- 5- 401(1)(b), the EPA does not have the authority to exempt discharges otherwise subject to the CWA. Only Congress may amend the CWA to create exemp- tions from regulation. See Am. Mining Congress v. E.P.A., 965 F.2d 759, 772 (9th Cir. 1992) (citing Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1374 (D.C. Cir. 1977)). The EPA could not have approved of the MDEQ's exemption of CBM water discharges under section 75- 5- 401(1)(b) even if the EPA wanted to do SO .4 [10] Second, Montana has no authority to create a permit exemption from the CWA for discharges that would otherwise be subject to the NPDES permitting process. See 33 U.S.C. § 1370 (states may not adopt or enforce standards that are less stringent than federal standards). Just as the EPA does not have the authority to create an exemption for unaltered groundwater, neither does the State of Montana, as the EPA 4Judicial deference to agency action is not warranted where the agency had no authority to act. See United States v. Mead, 533 U.S. 218, 226 -27 (2001) (Chevron deference applies only when Congress explicitly or implicitly gave the agency authority to fill certain gaps left by Congress). Therefore, the district court erred in giving judicial deference to the EPA's implicit "approval" of Montana's groundwater exemption. Congress did not grant the EPA the authority to create such exemptions.