Mike Mills: Ninth Circuit Rules Underground Injection Wells Required to Have NPDES Permit

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Environmental attorney Mike Mills authored an article for The Legal Intelligencer titled “Ninth Circuit: Underground Injection Wells Required to Have NPDES Permit,” published March 15, 2018. The article discusses a recent ruling by the Ninth Circuit Court of Appeals in which it held that the County of Maui (county) violated the Clean Water Act (CWA) for discharging treated effluent water into four underground injection wells without a national pollutant discharge elimination system (NPDES) permit. 

The suit originally filed in federal district court alleged that the county was in violation of the CWA because the effluent discharged into the wells then found a path that allowed it to seep into the Pacific Ocean. The county appealed the district court’s ruling, on the basis that the wells were not subject to the CWA permitting scheme, but the Ninth Circuit ruled against the county, finding that the CWA governs wells that discharge indirectly, as well as directly, into navigable waters and stating that there was an “undeniable connection between the wells and the Pacific Ocean.” The injection sites are one-half mile from the Pacific Ocean. 

Mills concludes: “The Ninth Circuit’s holding in this case is significant because it establishes that injection wells are subject to the CWA’s NPDES permit scheme if the discharge is “fairly traceable” from the point source to a navigable water. While we cannot imagine many instances where this would be the case for oil and gas operations, undoubtedly environmental activists will seek to test potential scenarios wherever possible.”

This article was adapted from a  post originally published on Stoel Rives’ California Environmental Law blog, “Injection Well Operators Beware: Ninth Circuit Finds Underground Injection Wells Require NPDES Permit under the Federal Clean Water Act,” authored by Mike Mills and associate Shannon Morrissey.

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Michael N. Mills
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