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

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N. PLAINs RESOURCE v. FIDELITY EXPLORATION 4827 cannot delegate to a state more authority than the EPA has under the CWA.' [111 Moreover, absent statutory authority in the CWA for Montana to create such exemptions, it cannot possibly be urged that Montana state law in itself can contradict or limit the scope of the CWA, for that would run squarely afoul of our Constitution's Supremacy Clause. U.S. Const. art. VI, cl. 2. See also Nat'l Audubon Soc y, Inc. v. Davis, 307 F.3d 835, 851 (9th Cir. 2002) (recognizing that the Supremacy Clause "invalidates state laws that `interfere with, or are contrary to,' federal law "). [12] We hold that Montana state law cannot exempt CBM water from being subject to the CWA when the Act does not provide the EPA or the State of Montana the authority to create such exemptions. IV Because CBM water is a pollutant subject to regulation by the CWA and because Montana cannot create an exemption for CBM water that is otherwise subject to the CWA, we reverse the district court's grant of summary judgment to Fidelity and remand with instructions to enter summary judg- ment for NPRC. REVERSED and REMANDED. Even if the EPA could have approved of the MDEQ's application of section 75- 5- 401(1)(b), the EPA did not do so here. In a letter sent to the MDEQ, the EPA disapproved of the application of section 75- 5- 401(1)(b) to discharges that would otherwise be regulated under the CWA. The MDEQ, however, maintained that the exemption was consistent with the CWA because "discharges of unaltered, natural groundwater do not con- tain `pollutants' as that term is defined" in the CWA. In a subsequent letter to the MDEQ, the EPA stated that revocation of Montana Code section 75- 5- 401(1)(b) would not be necessary if the MDEQ does not interpret that provision to authorize "any point source discharge of any pollutant to any water of the United States without an NPDES permit."