The Ninth Circuit Court of Appeals has ruled that the federal government’s
authority to regulate underground injection wells to protect drinking water
under the Safe Drinking Water Act (SDWA) falls within the U.S. Constitution’s
Commerce Clause. United States v. King, No. 09-30442 (9th Cir. 10/03/11).
The issue arose from the criminal conviction of an Idaho farming and cattle
operation manager, who was charged with injecting fluids into wells more than
18 feet deep without a permit under the SDWA.

The defendant argued on appeal that “if the SDWA is construed to allow a
criminal conviction in his case, Congress has exceeded its authority under the
Commerce Clause.” Defendant further argued that the charges against him did
not allege that his injection of uncontaminated water affected drinking water in
any way, and, therefore, his lack of a permit was essentially a technical violation.

The court disagreed, ruling that drinking water is an “economic commodity”
that is properly regulated by Congress under the Commerce Clause.
The court also rejected defendant’s argument that the government was
required to prove that the injections actually affected an underground drinking
water source. According to the court, the SDWA presumes that any injection
will pose a threat, independent of location or lack of contamination. The statute
prohibits any injection without a permit, and the “government was not required
to prove, as an element of the crime” that the injection would have an adverse
impact on an underground drinking water source.