Caperton, 110117 WVAGO, AGO 110117

Case DateNovember 01, 2017
CourtWest Virginia
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...

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