PCHB Rules Puddles Are Not "Waters of the State" Under Water Pollution Control Act

Published Jan 08, 2013

TMW’s Sarah Mack examines BNSF Railway Company v. Washington State Department of Ecology, PCHB No. 11-181 (Order on Motion for Summary Judgment), in the December 2012 issue of Western Water Law & Policy Reporter. This appeal involved a penalty order issued by the Department of Ecology against BNSF Railway Company based on a chemical spill after a freight train derailment in 2011.

In a case testing the limits of the extremely broad coverage of Washington’s water pollution control statutes, the Pollution Control Hearings Board ruled that “waters of the state” do not include puddles, which the Board defined as shallow depressions full of water, especially muddy or dirty water.  The PCHB’s summary judgment ruling makes clear that even a very large puddle, “unconnected to any other water body, with no outlet to any other water body, and wholly transitory in nature,” is not a “water of the state” for purposes of liability for pollution discharges. For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the Western Water Law & Policy Reporter article by Sarah Mack, click here.