Court upholds conviction of Idaho farm manager - felony charged for replenishing irrigation wells with creek runoff

Capital Press

October 6, 2011

An Idaho farm manager committed a felony by causing runoff from a creek to replenish his irrigation wells, according to a federal appeals court.

The 9th U.S. Circuit Court of Appeals has upheld the conviction of Cory King, who was found guilty of violating a national drinking water protection law.

King -- who was sentenced to four months home detention, three years probation and a $5,000 fine -- claimed the federal government's interpretation of the drinking water statute was unconstitutional.

The 9th Circuit has now rejected that argument, ruling that the government has broad authority to prevent potentially polluted water from being injected into underground aquifers.

The criminal case against King stems from an 2005 investigation by Idaho state officials that found he had caused runoff to flow into wells at the Double C farm and feedlot near Burley, Idaho, without a permit.

The Safe Drinking Water Act, which mandates such permits, is overseen by the U.S. Environmental Protection Agency but the program is enforced by state officials.

In 1987, King had applied for a permit to inject runoff from a creek into wells during winter so the water could later be used for irrigation, but Idaho rejected the application.

After the investigation by state officials in 2005, the farming operation reached a deal with the Idaho Department of Water Resources not to further inject runoff water into wells.

Nearly three years later, however, the federal government indicted King on several counts of criminally violating the Safe Drinking Water Act based on that investigation.

The government's indictment originally claimed state officials had detected bacteria, including E. coli, within wells and irrigation ponds at the farm, and accused King of injecting wastewater into wells.

In a superseding indictment, however, the government deleted the allegations about bacteria and simply accused him of "injecting water from the facility" into wells without a permit.

A jury found King guilty on all counts in 2009. He has since paid the fine and completed the term of home confinement, though the probation term doesn't end until late 2012.

Even so, King appealed the decision, arguing that the scope of the indictment exceeded the federal government's authority to control interstate commerce under the U.S. Constitution.

The law shouldn't apply to King because the government did not prove the water being injected into wells was contaminated or that the aquifer was connected to public drinking water, according to King's legal brief.

If the statute worked this way, then it would unconstitutionally apply to actions the federal government doesn't have the power to control -- "absent a connection to either drinking water or contamination, no such substantial effect on interstate commerce can be shown," the document said.

A three-judge panel of the 9th Circuit rejected these arguments, ruling that "drinking water is an economic commodity" and that its potential for contamination clearly affects interstate commerce.

The Safe Drinking Water Act is a preventative law, thus it permissibly assumes that injection will contaminate drinking water until a permit applicant can prove otherwise, the ruling said.

King violated the law by injecting runoff into wells without a permit, regardless of whether the water was contaminated, the 9th Circuit said.