Which Kentucky agency handled complaints about sewage discharged from houseboats?

Plain-English summary

A Kentucky health official asked which state agency could address complaints about sewage discharged from houseboats. In 1995, the Attorney General said the Natural Resources and Environmental Protection Cabinet retained primary responsibility for the marine toilet provisions of KRS Chapter 235. The 1994 transfer of the Division of Water Patrol to the Department of Fish and Wildlife did not transfer those particular enforcement duties.

The AG also recognized a role for local boards of health. KRS 212.210 gave them general authority over nuisances, filth, and causes of sickness, so the requesting district health department could act in appropriate cases. That did not displace the Natural Resources Cabinet's primary marine toilet authority under the provisions the opinion examined.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

State marine toilet enforcement

Senate Bill 128 had moved the Division of Water Patrol to Fish and Wildlife and changed the general Chapter 235 definition of "Cabinet." The AG found that the marine toilet provisions had a separate definition in KRS 235.410(7), which still pointed to the Natural Resources and Environmental Protection Cabinet. The opinion therefore assigned enforcement of those provisions to that cabinet despite the organizational transfer.

Local health boards

The AG read KRS 212.210 as giving local health boards general power to investigate and abate nuisances, sources of filth, and causes of sickness. It said the Kentucky River District Health Department had jurisdiction to act in appropriate cases. The opinion did not describe a particular enforcement action against a houseboat.

Motorboat owners under the 1995 rules

The opinion quoted prohibitions on vessel sewage discharges unless the cabinet authorized them or approved a disposal system. It also identified device requirements for motorboats with marine toilets, a way for the cabinet to accept an inoperable toilet, and penalties under the then existing law. These descriptions were part of its explanation of which agency administered the rules.

Common questions

Did moving Kentucky's Water Patrol to Fish and Wildlife also move houseboat sewage enforcement in 1994?

No. The AG said the marine toilet provisions retained their own cabinet definition and enforcement authority with the Natural Resources and Environmental Protection Cabinet.

Could a local health department investigate a houseboat sewage complaint?

The AG said KRS 212.210 gave local boards of health general nuisance and public health authority. It concluded that the requesting district health department could act in appropriate cases, while the Natural Resources Cabinet had primary marine toilet authority.

Which provisions did the AG identify as governing discharge from a vessel?

The opinion discussed KRS 235.420's restriction on sewage discharge and KRS 235.430's treatment or disposal system requirement. It also cited KRS 235.470 for the cabinet's power to issue standards and approve equipment for marine toilet enforcement.

Did the AG decide whether a particular houseboat violated the law?

No. The question concerned which agency had authority. The opinion did not determine the facts of a particular discharge complaint.

Background and statutory framework

The opinion followed the structure of KRS Chapter 235 after Senate Bill 128's 1994 agency transfer. It distinguished the chapter's general definition of "Cabinet" from the definition for marine toilets in KRS 235.410(7). The AG read KRS 235.420, KRS 235.430, and KRS 235.470 as preserving Natural Resources Cabinet responsibility, with KRS 212.210 providing separate local health board authority.

Citations and references

• KRS 212.210: local health board nuisance and public health authority.
• KRS 235.410(7): cabinet definition for marine toilet provisions.
• KRS 235.420: sewage discharge prohibition discussed by the AG.
• KRS 235.430: approved disposal or treatment system provision.
• KRS 235.470: cabinet rulemaking and equipment approval for marine toilet enforcement.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG95-019.htm

Original opinion text

OAG 95-19

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.

CHRIS GORMAN

ATTORNEY GENERAL

John S. Gillig

Assistant Attorney General