______________________________________ 

______________________________________________________________________________ 

TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 93-1001 

of : 

: May 13, 1994

DANIEL E. LUNGREN : 

Attorney General : 

: 

CLAYTON P. ROCHE : 

Deputy Attorney General : 

: 

THE HONORABLE PHILLIP S. CRONIN, COUNTY COUNSEL, FRESNO 

COUNTY, has requested an opinion on the following question: 

If a county holds a national pollution discharge elimination system permit, may a

member of its board of supervisors who receives a significant portion of his or her income from the

county be a member of a regional water quality control board? 

CONCLUSION 

If a county holds a national pollution discharge elimination system permit, a member

of its board of supervisors who receives a significant portion of his or her income from the county

may not be a member of a regional water quality control board. 

ANALYSIS 

The Porter-Cologne Water Quality Control Act (Wat. Code, §§ 13000-14958;

hereinafter "Act")1 was enacted in part to implement the Federal Water Pollution Control Act (33

U.S.C. §§ 1251-1387), commonly referred to as the Clean Water Act. Under the federal and state 

legislation, California is allowed to issue national pollution discharge elimination system (hereafter

"NPDES") permits. (§§ 13370-13389.) The permit program primarily regulates the discharge of

pollutants and dredged or fill material into navigable waters and the use and disposal of sewage

sludge. 

The Act provides "that the statewide program for water quality control can be best

effectively administered regionally, within a framework of statewide coordination and policy" (§ 

1

All unidentified section references are to the Water Code. 

1. 93-1001
 
13000) and that "the state board and each regional board shall be the principal state agencies with

primary responsibility for the coordination and control of water quality" (§ 13001). The "state 

board" is the State Water Resources Control Board (§§ 174-188.5) which consists of five members

appointed by the Governor. There are nine regional water quality control boards (§§ 13200-13284)

located throughout the state, each consisting of nine members appointed by the Governor. 

The question presented for resolution concerns the membership composition of the

regional boards. Section 13201 provides: 

"(a) There is a regional board for each of the regions described in Section 

13200. Each board shall consist of the following nine members appointed by the

Governor, each of whom shall represent and act on behalf of all the people and shall

reside or have a principal place of business within the region: 

"(1) One person associated with water supply, conservation, and production. 

"(2) One person associated with irrigated agriculture. 

"(3) One person associated with industrial water use. 

"(4) One person associated with municipal government. 

"(5) One person associated with county government. 

"(6) One person from a responsible nongovernmental organization associated

with recreation, fish or wildlife. 

"(7) Three persons not specifically associated with any of the foregoing

categories, two of whom shall have special competence in areas related to water

quality problems. 

"(b) All persons appointed to a regional board shall be subject to Senate

confirmation, but shall not be required to appear before any committee of the Senate

for purposes of such confirmation unless specifically requested to appear by the

Senate Committee on Rules. 

"(c) Insofar as practicable, appointment shall be made in such manner as to

result in representation on the board from all parts of the region. 

"(d) Notwithstanding subdivision (a), if appointment cannot be made of

persons associated with county government because of the requirements of Section

13388, those appointments may be made of persons not specifically associated with

any category." 

Section 13388 in turn states: 

"Notwithstanding any other provision of this division or Section 175, no

person shall be a member of the state board or a regional board if he receives or has

received during the previous two years a significant portion of his income directly

or indirectly from any person subject to waste discharge requirements or applicants

for waste discharge requirements pursuant to this chapter. . . ." 

2. 93-1001
 
 

 

 

 

Pursuant to section 13201, subdivision (a)(5), one member of each regional board is

to be "associated with county government" unless the person receives "a significant portion of his

income directly or indirectly from any person subject to waste discharge requirements or applicants

for waste discharge requirements" (§ 13388), in which case the appointment "may be made of

persons not specifically associated with any category" (§ 13201, subd. (d)). How are these statutes 

to be interpreted with respect to a person who is a county supervisor and receives a significant

portion of his or her income from the county? We conclude that the person may not serve on a

regional board.2 

Section 13388 implements a federal requirement "that no board or body which

approves permit applications or portions thereof shall include, as a member, any person who

receives, or during the previous two years received, a significant portion of his income directly or

indirectly from permit holders or applicants for a permit." (33 U.S.C. § 1314(i)(2)(D).) 

The definition of "significant portion of his income" is defined in the California Code

of Regulations, title 23, section 644.2, as follows: 

"The term `significant portion of his income' shall mean ten percent of gross

personal income for a calendar year except that it shall mean 50 percent of gross

personal income for a calendar year if the recipient is over 60 years of age and is

receiving such portion pursuant to retirement, pension or similar arrangement."3 

Since a county is a "person" for purposes of the Act (§ 13050, subd. (c) ["`Person' includes any city,

county, district . . ."]) and would be an "applicant" for its NPDES permit, a county supervisor who

receives a "significant portion of his income" from a county holding an NPDES permit would be

prohibited from being a member of a regional board under the terms of section 13388. 

Despite the plain, prohibitory language of section 13388, it has been suggested that

a county supervisor would come within the exception to the statute's prohibition by virtue of an

administrative regulation (Cal. Code Reg., tit. 23, § 644.3; hereinafter "Regulation 644.3") issued

by the State Water Resources Control Board. Regulation 644.3 states: 

"The terms `persons subject to waste discharge requirements' and `applicant

for waste discharge requirements' shall apply only to persons regulated under

Chapter 5.5, Division 7, California Water Code (NPDES permits) but shall not

include any department or agency of the state government including the University

of California and the State University and Colleges."4 

2

We are informed that eight counties are not "subject to waste discharge requirements or

applicants for waste discharge requirements" (§ 13388); hence, the representative of one of these

counties, whether a supervisor or someone else associated with the county, would not be disqualified

for receiving a significant portion of his or her income from the county, under the terms of the 

statute. 

3

This definition parallels the definition found in the federal regulations for state issued NPDES

permits. (40 C.F.R. § 123.25(c)(1)(ii) (1992).) 

4

The parallel federal regulation provides: 

"`Permit holders or applicants for a permit' does not include any department

or agency of a State government, such as a Department of Parks or a Department of 

3. 93-1001
 
 

This suggestion is predicated upon the premise that a county is an "agency of the state government"

within the meaning of Regulation 644.3. We reject the suggestion for a number of reasons.5 

First of all, a county does not fall within the purpose of the exemption. Shortly after

the enactment of the federal law, the United States Environmental Protection Agency, the agency

responsible for administering the law, issued an explanatory statement dated February 14, 1973,

which included the following: 

"(a) State employment. Many State facilities will require Section 402 

discharge permits. If the term `permit holders or applicants for a permit' included

State agencies or facilities, all State officials and employees would then be

disqualified from membership on State boards. Since the State is to administer the 

permit program, it would be impossible to apply an interpretation of the statute

requiring that a State employee be disqualified from board membership where his

only `conflict' is the receipt of income from the State. Therefore, State departments

and agencies are not deemed to be permit holders or applicants for a permit for

purposes of this provision. This position is set forth in Section 124.94(c) of the 

Guidelines. 

"(b) Municipal employment. Most, if not all, municipalities will have

sewage treatment works and other discharges subject to permitting under Section

402. The rationale above relating to State agencies or departments does not apply

to municipalities. Municipalities are subject to regulation under the permit program

in the same manner as other point source dischargers. They, unlike States, however,

have no responsibility under Section 402 to administer the program." 

Accordingly, the federal exemption for state officers and employers was intended to apply only to

the state agency given the responsibility for issuing the NPDES permits. It was not intended to 

apply to any other agency (however denominated) having no enforcement responsibilities. In short, 

a county having a single member on a nine person regional board is not such a "state agency." As 

between "state employment" and "municipal employment" described in the federal explanatory

material, a single county representative would fall within the rationale for "municipal employment"

for purposes of the exemption. The 1973 federal explanation sets forth the historical circumstances

with respect to the exemption for "state agencies" and provides an authoritative guide for construing

the exemption. (See, e.g., Dix v. Superior Court (1991) 53 Cal.3d 442, 460; Dyna-Med, Inc. v. Fair 

Employment & Housing Com., supra, 43 Cal.3d at 1387.) 

Furthermore, section 13201 itself, in setting forth the membership composition of the

regional boards, contemplates the possibility that a conflict may exist with respect to county

representation. As previously quoted, subdivision (d) provides: 

Fish and Wildlife." (40 C.F.R. § 123.25(c)(1)(iii) (1992).) 

5

Of course, "`"[a]dministrative regulations that alter or amend the statute or enlarge or impair its

scope are void and courts not only may, but it is their obligation to strike down such regulations."'"

(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1389.) Such 

treatment is unnecessary here since we find that a county does not come under the exemption

provisions contained in Regulation 644.3. 

4. 93-1001
 
 

"Notwithstanding subdivision (a), if appointments cannot be made of persons

associated with county government because of the requirements of Section 13388,

those appointments may be made of persons not specifically associated with any

category." 

Harmonizing this language with that of section 13388 and giving effect to each (see, e.g., California 

Mfgrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844; Moyer v. Workman's Comp.

Appeals Bd. (1973) 10 Cal.3d 222, 230), we find that a county would not come within the exception

for "any department or agency of the state government" as provided in Regulation 644.3. We view 

the regulation as consistent with the two statutory provisions. 

Additionally, both the federal government and the State Water Resources Control

Board have interpreted federal and state law respectively to exclude a county officer from serving

on a regional board if the officer falls within the prohibitory language of section 13388 and its

federal counterpart. These administrative interpretations may be relied upon to construe the

language of both the statutes and implementing regulations. (See E.I. Du Pont de Nemours & Co. 

v. Train (1977) 430 U.S. 112, 134; Dix v. Superior Court, supra, 53 Cal.3d at 460; Industrial 

Indemnity Co. v. City and County of San Francisco (1990) 218 Cal.App.3d 3d 999, 1009; Norian 

v. Department of Administration (1970) 11 Cal.App.3d 651, 655.) 

Finally, although a county is a subdivision of the state (Gov. Code, § 23002; Union 

of American Physicians & Dentists v. County of Santa Clara (1983) 149 Cal.App.3d 45, 50) and is

sometimes described as a "state agency" (see, e.g., County of Los Angeles v. Graves (1930) 210 Cal.

21, 25; Bryant v. County of Monterey (1954) 125 Cal.App.2d 470, 474) in our view it is not a

"department or agency of state government" within the meaning of Regulation 644.3. A county is

also a unit of local government and a local agency in many contexts. (See, e.g., Gov. Code, §§

25003, 50001; 20 Ops.Cal.Atty.Gen. 69, 70 (1952).) As previously quoted, the language of the

counterpart federal regulation exempts "any department or agency of a State government, such as

a Department of Parks or a Department of Fish and Wildlife." (40 C.F.R. § 123.25(c)(1)(iii) (1992).)

A county is not similar to the examples set forth in the federal regulation. Hence, a county would

not survive the application of the rule of statutory interpretation known as ejusdem generis (see

Harris v. Capitol Growth Investors XIV (1991) 52 Cal.3d 1142, 1160 ["`". . . general words will be

construed as applicable only to persons or things of the same general nature or class as those

enumerated"'"]) in interpreting the federal regulation. 

If each county had the duty to administer the federal law, a reasonable argument

could be made that a county was a "state agency" for purpose of the NPDES permit program.

However, such is not the case. Counties have at most a single member on each of the nine regional

boards, the same as do "municipal corporations." In our view, such potential limited membership

does not elevate a county to the status of an "agency of the state government" for purposes of

Regulation 644.3. (Compare Watson v. Los Altos School Dist. (1957) 149 Cal.App.2d 768, 772.) 

In sum, the federal law, which the Act is intended to implement, exempts from its

conflict of interest provisions only representatives of the agency which in fact administers the

NPDES permit program, in our case the state and the regional boards. This is evident from the 

federal regulations and their administrative interpretation. Since California law is intended to 

parallel the federal law, a county is not an "agency of the state government" for purposes of

Regulation 644.3.6 

6

Insofar as it is urged that the same interpretation should be given to section 13388 as given to

the Political Reform Act of 1974 (Gov. Code, §§ 81000-91015) which excludes income received 

5. 93-1001 
Accordingly, we conclude that if a county holds an NPDES permit, a member of its

board of supervisors who receives a significant portion of his or her income from the county may

not be a member of a regional water quality control board. 

* * * * * 

from a public entity for conflict of interest purposes (Gov. Code, § 82030, subd. (b)(2)), we believe

that such suggestion is more properly directed to Congress and the Legislature than to this office.

The federal law does not distinguish between income received from "public" as opposed to "private"

NPDES permit holders. 

6. 93-1001