Mr. Austin Caperton
AGO 110117
No. 110117
West Virginia Attorney General Opinions
State of West Virginia Office of The Attorney General
November 1, 2017
Mr.
Austin Caperton
Cabinet
Secretary
West
Virginia Department of
Environmental
Protection
601
57th Street, Southeast
Charleston,
WV 25304
Dear
Secretary Caperton:
You
have asked for an Opinion of the Attorney General regarding
whether amendments to West Virginia Code § 22-11-7b
contained in House Bill 2506 and Senate Bill 687 can be
harmonized or whether effect must be given to Senate Bill 687
as the later-enacted statute. This Opinion is being issued
pursuant to West Virginia Code § 5-3-1, which provides
that the Attorney General "shall give written opinions
and advice upon questions of law . . . whenever required to
do so, in writing, by . . . the director of the division of
environmental protection." To the extent this Opinion
relies on facts, it is based solely upon the factual
assertions set forth in your correspondence with the Attorney
General's Office.
In your
letter, you explain that in the 2017 Regular Session of the
Legislature, the Legislature enacted two bills purporting to
amend the provisions of West Virginia Code § 22-11-7b.
According to your letter, prior to both enactments, West
Virginia Code § 22-11-7b(c) directed the Secretary of
the West Virginia Department of Environmental Protection
("DEP") to establish standards of water quality for
all surface and ground waters in the State and implement a
regulatory program to protect waters of the State from
activities that may degrade water quality. That provision did
not mandate that DEP use a particular formula or to assess
the quality of drinking water. A different subsection of the
same provision—West Virginia Code §
22-11-7b(f)—directed the Secretary to propose a
legislative rule implementing a method for determining the
health of a stream based on the presence and health of
aquatic life in the stream.
Your
letter further explains that, during the 2017 session, House
Bill 2506 added a provision to subsection (c) requiring DEP
to use harmonic mean flow in calculating permit limits when
implementing human health criteria to protect drinking water
sources and to allow mixing zones to overlap, subject to
certain conditions. The House bill passed the Legislature on
March 28 2017, was signed into law by the Governor on April
8, 2017, and had an effective date of June 26* 2017. Eleven
days after the House bill passed the Legislature, on April 8,
2017, the Legislature
State
Capitol Building 1, Room E-26, 1900 Kanawha Boulevard East,
Charleston, WV 25305 enacted Senate Bill 687, which removed a
provision from subsection (0 requiring the Secretary to
develop a method to determine the health of a stream based on
whether the stream "supports a balanced aquatic
community . . . diverse in species composition." The
Senate bill did not incorporate the amendment to subsection
(c) made by the House bill that required the use of harmonic
mean flow to assess the quality of drinking water. Senate
Bill 687 took effect on April 8 and was signed into law by
the Governor on April 26, 2017.
Finally,
your letter notes that DEP is aware of the West Virginia
Supreme Court of Appeals' opinion in Wiley v.
Toppings, 210 W.Va. 173, 556 S.E.2d 818 (2001), which
provides that "effect should always be given to the
latest. . . expression of the legislative will."
Your
letter raises the following specific legal question:
Whether the amendments to West Virginia Code §
22-11-7b contained in Senate Bill 687 supersede the
amendments to that provision in House Bill 2506?
We
conclude that a court is likely to hold that the currently
operative provisions of West Virginia Code § 22-11 -7b
include (1) subsection (c) of House Bill 2506, requiring DEP,
among other things, to use harmonic mean flow in assessing
drinking water quality, and (2) the remainder of Senate Bill
687, including subsection (1). which removes the balanced
aquatic community assessment requirement.
We
reach this conclusion through a combination of statutory and
constitutional analysis. We conclude first that the
Legislature intended that Senate Bill 687 expressly repeal
and replace House Bill 2506 in its entirety. In the
alternative, the amendments contained in Senate Bill 687
irreconcilably conflict with those in House Bill 2506, and
therefore, because the Senate Bill was enacted more recently,
it would control in its entirety absent some constitutional
defect in the bill. Second, we conclude that the Senate bill
does suffer in part from a constitutional defect,
namely, that the title of the bill nowhere reflects the
purported removal of the House amendment to subsection (c).
Accordingly, we conclude that a court would most likely deem
the Senate Bill's purported elimination of the House
amendment to this subsection to be unconstitutional under
Article VI, Section 30 of the West Virginia Constitution.
Finally, we conclude that a court would proceed to sever the
unconstitutional amendment contained in the Senate Bill and
permit the remainder of the bill to take full effect. The net
result would be that Senate Bill 687, including its amendment
to the aquatic life provisions in subsection (1), would take
full effect, with the exception of subsection (c), which
would continue to reflect the amendment made by House Bill
2506 requiring DEP to use harmonic mean flow.
The
"Last in Time" Rule
The
first step in our analysis requires us to determine what
provisions of West Virginia Code § 22-1 l-7b would be
operative absent some constitutional infirmity—that is,
what has the Legislature in fact enacted as the current
version of the law? Under this first step of the analysis, we
conclude that the Legislature, either expressly or impliedly,
repealed House Bill 2506 in its entirety when it enacted
Senate Bill 687. Accordingly, if Senate Bill 687 were free
from constitutional defect, it would control in full.
As your
letter points out, the West Virginia Supreme Court of Appeals
has developed a canon of construction that requires a court,
when two provisions of law are in actual conflict to give
effect...