May 24, 1995
Subject: Waste or Sewage Discharge by Motorized Watercraft
Written by: John S. Gillig
Requested by: John Summers,Environmental Director, Kentucky River District, Health Department
Syllabus: Despite transfer of the Division of Water Patrol from the Natural Resources and Environmental Protection Cabinet to the Department of Fish and Wildlife, the Natural Resources and Environmental Protection Cabinet retains jurisdiction for enforcement of statutes relating to marine toilets found in KRS Chapter 235.
Statutes construed: KRS 212.210, KRS 235.410-235.990
OPINION OF THE ATTORNEY GENERAL
The Office of the Attorney General has been asked to render an opinion on the proper agency to regulate waste or sewage discharges from houseboats. A local public health official, after receiving several complaints, made inquiries of two parts of state government. In his opinion request, the local public health official stated: "I have spoken with representatives of the Division of Water, both in Hazard and Frankfort, and was told that they did not regulate waste disposal from houseboats. . . . I have also spoken with representatives of the Division of Water Patrol and was advised that they did not investigate complaints of this nature."
As an initial observation, KRS 212.210 gives local boards of health general authority to investigate and abate "nuisances, sources of filth and causes of sickness." This statute provides the Kentucky River District Health Department jurisdiction to take action is appropriate cases. However, other statutes make it apparent that the legislature has vested primary authority for the regulation of marine toilets and sewage dicharges from vessels operating in the waters of the Commonwealth with the Natural Resources and Environmental Protection Cabinet.
The general statutes providing for the policing of Kentucky's waterways are found in KRS Chapter 235 (Boats and Boating). The Division of Water Patrol was part of the Natural Resources and Environmental Protection Cabinet until July 15, 1994 when, in accordance with Senate Bill (SB) 128, the division was transferred to the Department of Fish and Wildlife, a part of the Tourism Cabinet.
SB 128 amended the general definitions section of KRS Chapter 235 to substitute "Tourism" for "Natural Resources" in the definition of "Cabinet." KRS 235.010(7). Other changes throughout the chapter made this transition of authority complete, with one exception. That exception is the part of KRS Chapter 235 dealing with marine toilets and sewage discharges from such toilets, which contains its own set of definitions. KRS 235.410-235.480. SB 128 amended the definition of "Cabinet" found at KRS 235.410(7) to delete the reference to the "Water Enforcement Program of the Department for Natural Resources" but left the enforcement authority for KRS 235.410 to KRS 235.480 with the Natural Resources and Environmental Protection Cabinet. When these sections use the term "Cabinet," it is the Natural Resources Cabinet that is clearly intended. By deleting this reference to the water enforcement program which, by the same bill, was transferred to the Department of Fish and Wildlife, the legislature removed specific authority for the Department of Fish and Wildlife to enforce the marine toilet sections of KRS Chapter 235.
KRS 235.420 specifically prohibits the discharge of sewage into the waters of the Commonwealth from any vessel "except as specifically authorized by the cabinet." Discharge of sewage to the waters of the Commonwealth is also prohibited by KRS 235.430 unless disposal is accomplished "through a disposal system or treatment works approved by the cabinet." Under KRS 235.440, no motorboat
equipped with marine toilet facilites shall be operated on the waters of the Commonwealth unless such motor boat[sic] is equipped with a water pollution control device of one (1) of the following types:
(1) Holding tanks. . . .
(2) Incinerators. . . .
(3) Devices with effluent discharges.
In addition, KRS 235.450 provides the Natural Resources and Environmental Protection Cabinet with authority to allow motorboat owners to render their marine toilets inoperable (in a manner acceptable to the Cabinet), thus avoiding any penalties for failure to comply with these sections. Penalties are found in KRS 235.990(1). The Cabinet has also promulgated a regulation that adopts certain U. S. Coast Guard regulations regarding marine sanitation devices. 402 KAR 4:200.
Finally, and of specific relevance to this question, KRS 235.470 states: "The cabinet shall issue such regulations and standards and approve such equipment as may be necessary for the proper enforcement of the provisions of KRS 235.410 to 235.470." Very clearly, then, the Natural Resources and Environmental Protection Cabinet is charged with and has the authority to regulate and to enforce the prohibition against the use of marine toilets to discharge untreated sewage into the waters of the Commonwealth.
John S. Gillig
Assistant Attorney General