In California, and in other parts of the country, when oil is produced, water is produced with it. This “produced” water is an oil and water mix that is typically also briny and brackish. It is unsuitable for drinking or other beneficial uses and so the most expedient way to dispose of it is to reinject it right back into the formation from where it came. This process has a number of benefits—it maintains pressure in the formation and can act as a form of enhanced oil recovery, it avoids off-site disposal costs, and it is regulated under the Class II Underground Injection Control Program, which is not subject to citizen enforcement under the federal Clean Water Act (CWA). A recent U.S. Court of Appeals for the Ninth Circuit decision, however, would potentially undermine that last benefit for oil and gas operators.

On Feb. 1, the Ninth Circuit upheld the Hawaii district court’s decision finding that the County of Maui (county) violated the CWA when it discharged treated effluent into underground injection wells, which then allowed the effluent to seep into the Pacific Ocean. The Ninth Circuit panel held that the wells were required to obtain a national pollutant discharge elimination system (NPDES) permit coverage because the discharge from the wells was “fairly traceable” from the discharge point (point source) to a navigable water.

Factual Background

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]