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OPINION
GOULD, Circuit Judge: Defendant-Appellee Fidelity Exploration & Development Company (“Fidelity”) extracts methane gas for commercial sale from coal seams located deep underground in the Powder River Basin, Montana. In the process of extracting coal bed methane (CBM), Fidelity pumps groundwater to the surface and discharges this water into the Tongue River. The water discharged is “salty,” contains several chemical constituents identified as pollutants by Environmental Protection Agency (EPA) regulations, has characteristics that may degrade soil, and is unfit for irrigation. The Montana Department of Environmental Quality (MDEQ) advised Fidelity that no permit was required to discharge the coal bed methane groundwater because Montana state law exempts unaltered groundwater from state water quality requirements. Plaintiff-Appellant Northern Plains Resource Council (NPRC) filed a citizen suit under the federal Clean Water Act (CWA) in the District Court for the District of Montana, alleging that Fidelity unlawfully discharged pollutants into navigable waters of the United States. NPRC appeals the district court’s grant of summary judgment to Fidelity. On appeal, we decide (1) whether the CBM discharge water is a “pollutant” within the meaning of the CWA, and (2) whether Montana state law can exempt Fidelity from obtaining National Pollution Discharge Elimination System (NPDES) permits under the CWA. We hold that the unaltered groundwater produced in association with methane gas extraction, and discharged into the river, is a pollutant within the meaning of the CWA. We also hold that states cannot create exemptions to the CWA, whether or not the EPA has delegated permitting authority to the state. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NORTHERN PLAINS RESOURCE COUNCIL vs FIDELITY EXPLORATION AND DEVELOPMENT COMPANY, Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding Argued and Submitted March 4, 2003 Seattle, Washington Filed April 10, 2003 Before: Stephen Reinhardt, William A. Fletcher, and Ronald M. Gould, Circuit Judges. Opinion by Judge Gould
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