Pedersen v. Washington State Department of Transportation

No. 7297-8-I (611 P.2d 1293, 25 Wash. App. 781) (Wash. Ct. App. April 7, 1980)

ELR Digest

Lakeside property owners sought an injunction barring discharges into the lake from a storm sewer pumping station owned and operated by the state. The pumping station was first constructed in 1961 and modified in 1978 in reduce the pollutant load of its discharge. Appellants argued before the trial court that the state was required under the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251 et seq., ELR STAT. & REG. 42100, and WASH. REV. CODE § 90.48.260, to obtain a national pollutant discharge elimination system (NPDES) permit for the facility.

The trial court disagreed. Focusing on the definition of "discharge of a pollutant" in § 502(12) of the FWPCA, which refers to the "addition" of any pollutant to a navigable water, the court reasoned that since the 1978 modifications to the facility decreased its discharges, they could not be construed as an "addition" and thus did not require a permit. The appellate court reverses, ruling that the term "addition" refers to any discharge of a pollutant, regardless of the history of its magnitude. This conclusion is supported by the prime goal of the Act, which is to eliminate all discharges by 1985, as well as Environmental Protection Agency regulations, which clearly bring storm sewer discharges within the statutory definition of "discharge." The court rejects appellees' alternative argument that they need not obtain a permit until the state develops a general permit program to augment its existing individual permit program. Finally, after agreeing with appellees and the lower court that the storm sewer pumping station is not subject to a local surface water runoff policy, the appellate court remands the case for consideration of appellees' NPDES claim.

The full text of this opinion is available from ELR (5 pp. $1.25, ELR Order No. C-1220).

Counsel for Appellants
J. Richard Aramburu
505 Madison St., Seattle WA 98104
(206) 725-9515

Counsel for Respondents
John Kirschner, Ass't Attorney General
Temple of Justice, Olympia WA 98504
(206) 753-2550

Thomas Wolfendale, Deputy Prosecuting Attorney
King County Cthse., 516 3d Ave., Seattle WA 98104
(206) 583-2200

James, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]