AGO 1967 No. 39 - Nov 9 1967
OFFICES AND OFFICERS - STATE - POLLUTION CONTROL COMMISSION - ADOPTION OF WATER QUALITY STANDARDS FOR INTERSTATE WATERS WITHIN STATE - ENFORCEMENT.
The water pollution control commission is authorized, under state law, both to adopt water quality standards for interstate waters within the state of Washington and to enforce those standards.
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November 9, 1967
Honorable Roy M. Harris
Director, Water Pollution Control Commission
P.O. Box 829
Olympia, Washington 98501
Cite as: AGO 1967 No. 39
By letter previously acknowledged you requested the opinion of this office with regard to two questions which we have paraphrased as follows:
(1) Is the water pollution control commission authorized to adopt water quality standards for "interstate waters" within the state of Washington?
(2) If the answer to question (1) is "yes," is the water pollution control commission empowered to enforce these standards?
We answer both questions in the affirmative, for the reasons set forth in the following analysis:
Before answering your specific questions, a brief discussion of their background is in order.
33 U.S.C.A. § 466g (a) and (b), (which are portions of the United States Code commonly referred to as the Federal Water Pollution Control Act, as amended) reads as follows:
"(a) The pollution of interstate or navigable waters in or adjacent to any State or States (whether the matter causing or contributing to such pollution is discharged directly into such [[Orig. Op. Page 2]] waters or reaches such waters after discharge into a tributary of such waters), which endangers the health or welfare of any persons, shall be subject to abatement as provided in sections 466-466g and 466h-466k of this title.
"(b) Consistent with the policy declaration of sections 466-466g and 466h-466k of this title, State and interstate action to abate pollution of interstate or navigable waters shall be encouraged and shall not, except as otherwise provided by or pursuant to court order under subsection (h) of this section, be displaced by Federal enforcement action."
In 1965, in an obvious attempt to increase state action in the field of water pollution control, Congress passed the "Water Quality Act of 1965" (P.L. 89-234), as an amendment to the Federal Water Pollution Control Act. Among the new provisions added was a subsection codified as 33 U.S.C.A. § 466g (c), which provided in pertinent part as follows:
"(1) If the Governor of a State or a State water pollution control agency files, within one year October 2, 1965, a letter of intent that such State, after public hearings, will before June 30, 1967, adopt (A) water quality criteria applicable to interstate waters or portions thereof within such State, and (B) a plan for the implementation and enforcement of the water quality criteria adopted, and if such criteria and plan are established in accordance with the letter of intent, and if the Secretary determines that such State criteria and plan are consistent with paragraph (3) of this subsection, such State criteria and plan shall thereafter be the water quality standards applicable to such interstate waters or portions thereof.
"(2) If a State does not (A) file a letter of intent or (B) establish water quality standards in accordance with paragraph (1) of this subsection, or if the Secretary or the Governor of any State affected by water quality standards established pursuant to this [[Orig. Op. Page 3]] subsection desires a revision in such standards, the Secretary may, after reasonable notice and a conference of representatives of appropriate Federal departments and agencies, interstate agencies, States, municipalities and industries involved, prepare regulations setting forth standards of water quality to be applicable to interstate waters or portions thereof. . . .
"(3) Standards of quality established pursuant to this subsection shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of sections 466-466g and 466h-466k of this title. In establishing such standards the Secretary, the Hearing Board, or the appropriate State authority shall take into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other legitimate uses."
You have informed us that your agency has filed a "letter of intent" and adopted "water quality criteria" and an "implementation and enforcement" plan for interstate waters within the time limits prescribed in 33 U.S.C.A. § 466g (c)(1). As a part of the submission related to the criteria and plan proposed to the Secretary of the Interior, you desire to include the opinion of this office with regard to the two questions initially set forth herein.
We now turn to consideration of those questions:
Does the water pollution control commission have authority to adopt water quality standards for "interstate waters" within its boundaries?
The first comprehensive act dealing with water pollution control in this state was chapter 216, Laws of 1945,1/ now codified in chapter 90.48 RCW. Section 3 of this act created a [[Orig. Op. Page 4]] "Pollution Control Commission" (now the water pollution control commission)2/ composed ". . . of the Director of the Department of Conservation and Development; the Director of the Department of Fisheries; the Director of the Department of Game; the Director of the Department of Health; and the Director of the Department of Agriculture." The scope of the agency's authority over waters of the state is found in RCW 90.48.030, as follows:
"The commission shall have the jurisdiction to control and prevent the pollution of streams, lakes, rivers, ponds, inland waters, salt waters, water courses, and other surface and underground waters of the state of Washington."
RCW 90.48.020 defines the term "waters of the state" as
". . . lakes, rivers, ponds, streams, inland waters, underground waters, salt waters and all other surface waters and water courses within the jurisdiction of the state of Washington."
Pollution is defined in RCW 90.48.020, as amended by § 1, chapter 13, Laws of 1967, to mean
". . . such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life. . . ."
[[Orig. Op. Page 5]]
Specific authority is granted to the commission by RCW 90.48.035, as amended by § 6, chapter 13, Laws of 1967, to adopt water quality standards, as follows:
"The commission shall have the authority to, and shall promulgate, amend, or rescind such rules and regulations as it shall deem necessary to carry out the provisions of this chapter,including but not limited to rules and regulations relating to standards of quality for waters of the state and for substances discharged therein, as such substances relate to the characteristics of the receiving waters."3/ (Emphasis supplied.)
From the scope of the definition of "waters of the state" as contained in RCW 90.48.020,supra, it seems apparent that these waters -over which the water pollution control commission has authority to promulgate standards of quality - include interstate waters within the state of Washington.4/
[[Orig. Op. Page 6]]
As previously noted, the Federal Water Pollution Control Act was amended two years ago by the "Water Quality Act of 1965." It is largely due to the pressure for state action found in these federal acts that chapter 13, Laws of 1967, was passed.5/ Among the new and significant sections added to chapter 90.48 RCW was § 24, chapter 13, Laws of 1967, which provides:
"The commission is hereby designated as the State Water Pollution Control Agency for all purposes of the Federal Water Pollution Control Act as it now exists or shall hereafter be amended and is hereby authorized to take all action necessary to secure to the state the benefits of that act."
[[Orig. Op. Page 7]]
From this discussion it is clear that the water pollution control commission is the agency of state government which has primary jurisdiction over the control of the quality of the "interstate" waters located in the state, and further that it is the agency which represents the state with regard to actions pertaining to the Federal Water Pollution Control Act. Accordingly, we answer your first question -regarding the authority of the commission to adopt water quality standards for interstate waters in the state of Washington -in the affirmative.
Does the water pollution control commission have authority to enforce water quality standards?
In our opinion it does. In support thereof, we refer to the following provisions of chapter 90.48 RCW:
(1) RCW 90.48.120, as amended by § 11, chapter 13, Laws of 1967, which provides:
"Whenever, in the opinion of the commission, any person shall violate or is about to violate the provisions of this chapter, or fails to control the polluting content of waste discharged or to be discharged into any waters of the state, the commission shall notify such person of its determination by registered mail. Such determination shall not constitute an order or directive under section 12 of this 1967 amendatory act. Within thirty days from the receipt of notice of such determination, such person shall file with the commission a full report stating what steps have been and are being taken to control such waste or pollution or to otherwise comply with the determination of the commission. Whereupon the commission shall issue such order or directive as it deems appropriate under the circumstances, and shall notify such person thereof by registered mail."6/
[[Orig. Op. Page 8]]
(2) Section 22, chapter 13, Laws of 1967, which provides:
"Notwithstanding any other provisions of this chapter, whenever it appears to the director that water quality conditions exist which require immediate action to protect the public health or welfare, or that a person required by section 13 of this 1967 amendatory act to obtain a waste discharge permit prior to discharge is discharging without the same, or that a person conducting an operation which is subject to a permit issued pursuant to section 13 of this 1967 amendatory act conducts the same in violation of the terms of said permit, causing water quality conditions to exist which require immediate action to protect the public health or welfare, the commission or director may issue a written order to the person or persons responsible without prior notice or hearing, directing and affording the person or persons responsible the alternative of either (1) immediately discontinuing or modifying the discharge into the waters of the state, or (2) appearing before the commission at the time and place specified in said written order for the purpose of a hearing pertaining to the violations and conditions alleged in said written order. The responsible person or persons shall be afforded not less than twenty-four hours notice of such hearing. If following such hearing a majority of the commission find that water quality conditions exist which require immediate action as described herein, the commission may issue a written order requiring immediate discontinuance or modification of the discharge into the waters of the state. The order issued following such hearing is subject to judicial review as provided in section 12 of this 1967 amendatory act but shall not be stayed pending such judicial review unless the commission so directs, or unless the court finds the commission to have acted capriciously or arbitrarily. In the event an order is not [[Orig. Op. Page 9]] immediately complied with the attorney general, upon request of the commission or director, shall seek and obtain an order of the superior court of the county in which the violation took place directing compliance with the order of the commission."
(3) Section 7, chapter 13, Laws of 1967, which provides:
"The commission, with the assistance of the attorney general, is authorized to bring any appropriate action at law or in equity, including action for injunctive relief, in the name of the people of the state of Washington as may be necessary to carry out the provisions of this chapter."
In our opinion these sections provide adequate tools to enforce standards established by the commission.7/
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
CHARLES B. ROE, JR.
Assistant Attorney General
*** FOOTNOTES ***
1/This act has been amended or added to on four occasions; in 1949 (chapter 58, Laws of 1949), in 1955 (chapter 71, Laws of 1955), in 1967 (chapter 13, Laws of 1967, and §§ 13 and 14, chapter 139, Laws of 1967, Ex. Sess.).
2/The word "water" was added to the title of the agency by § 2, chapter 13, Laws of 1967.
3/See, also, RCW 90.48.070.
4/For purposes of this opinion, "interstate waters" mean the entire stretch within the state of Washington of all rivers, lakes, and other waters that flow across or form part of the state or international boundaries anywhere along the length including coastal waters. "Coastal waters" are defined as the ocean waters along straight coasts and the waters along indented coasts which are subject to the ebb and flow of the tides. See subsection IV. 1. of the regulation of the Washington water pollution control commission relating to "Water Quality Standards for Interstate and Coastal Waters of the State of Washington and a Plan for Implementation and Enforcement of such Standards," promulgated June 29, 1967. See, also, 33 U.S.C.A. § 466j (e) and page 10 of the "Guidelines for Establishing Water Quality Standards for Interstate Waters," May, 1966, published by the Federal Water Pollution Control Administration, United States Department of the Interior.
5/Four of the principal proponents of chapter 13, Laws of 1967, were Representatives Stewart Bledsoe, Robert W. O'Dell, Eric Anderson and Dan Jolly. At the time of final vote in the House of Representatives, they submitted a statement urging its passage, which reads in pertinent part:
"The principle thrust of the bill is to upgrade our pollution control laws. I wish to emphasize that it is not designed to pick upon or single out one specific segment of our society which discharges wastes, such as agriculture, industry or municipalities. What it is designed to do is to provide for a broadly based strengthening of the statutes under which our existing water pollution control commission operates, especially as it relates to its enforcement powers. It is also designed to clarify existing legislation. And most important, it is the sponsors' intent to provide the State of Washington with the type of legislation which will enable it to participate in the water quality regulation field in an effective manner so as to insure a federal-state balance and cooperation, and at the same time discourage a complete federal preemption of water quality programs in our state." (Emphasis supplied.)
See, House Journal, Washington State Legislature, 1967 Session, page 531.
6/RCW 90.48.135 (§ 12, chapter 13, Laws of 1967) provides that "Any person having an interest of economic or noneconomic nature who feels aggrieved by an order or directive . . ." of the water pollution control commission may request an administrative hearing before the agency. Orders of the commission issued after said hearing are subject to review by a superior court.
7/For other enforcement "tools" available to the commission, see RCW 90.48.160 through 90.48.210 and §§ 13 and 14, chapter