(concurring) — While I concur in the ultimate disposition of the case, I write separately to emphasize the trial court’s error in not giving the complete text of RCW 90.48.080 in its instructions to the jury.
At trial, the court instructed the jury on a nuisance per se theory over defendant’s objections. The court then quoted a portion of the Water Pollution Control Act, RCW 90.48.080, and advised the jury that a violation of the statute constituted a nuisance. The court instructed the jury as follows:
It shall be unlawful for any person to throw, drain, run, or otherwise discharge into any of the waters of this state, or to cause, permit or suffer to be thrown, run, drained, allowed to seep or otherwise discharged into such waters any organic or inorganic matter that shall cause or tend to cause pollution of such waters ....
RCW 90.48.080 (emphasis added). The instruction, however, *20omitted the remaining portion of the statute which read “according to the determination of the department as provided for in this chapter.” RCW 90.48.080.
Boise argues that the omitted language requires an affirmative departmental finding that Boise was in violation of the Act. However, the language of the statute and the decisions of this court do not support such an analysis. See Miotke v. City of Spokane, 101 Wn.2d 307, 678 P.2d 803 (1984). Instead, the language indicates that whether a party is in violation of RCW 90.48.080 is to be determined by departmental rules and regulations promulgated pursuant to the Act. Although the plaintiff must show that the facility was operating in violation of the law, that plaintiff need not also show that the Department of Ecology (DOE) has intervened in the matter.
In 1972, Congress passed the Federal Water Pollution Control Act (FWPCA) Amendments governing the discharge of pollutants into navigable waters. 33 U.S.C. § 1131 (1976). The stated goal of the FWPCA is to “ ‘eliminate the discharge of pollutants into the Nation’s waters by 1985 . . . through the enforcement of the strict timetables and technology-based effluent limitations established by the Act.’ ” Miotke, 101 Wn.2d at 322 (quoting Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1371 (D.C. Cir. 1977)). The FWPCA sets forth a permit program, the National Pollutant Discharge Efimination System (NP-DES), as the primary means of enforcing the Act’s effluent limitations. Id. at 323. Congress made it clear that any discharge without or in violation of the conditions or limitations of such a water permit is unlawful.
There are innumerable references in the legislative history to the effect that the Act is founded on the “basic premise that a discharge of pollutants without a permit is unlawful and that discharges not in compliance with the limitations and conditions for a permit are unlawful.”
Id. at 324 (quoting Natural Resources Defense Council, 568 F.2d at 1374-75).
*21The FWPCA includes a procedure whereby each state may assume the administration of the waste permit program, and Washington assumed control of the administration of permits within its jurisdiction in 1972. 33 U.S.C. § 1342(b). The duty of administering the program is imposed upon the Department of Ecology. The powers of the DOE in administering the program are enumerated in RCW 90.48.260, which provides, in part:
The department of ecology is hereby designated as the State Water Pollution Control Agency for all purposes of the federal clean water act as [amended] and is hereby authorized to participate fully in the programs of the act as well as to take all action necessary to secure to the state the benefits and to meet the requirements of that act .... The powers granted herein include, among others, and notwithstanding any other provisions of chapter 90.48 RCW or otherwise, the following:
(1) Complete authority to establish and administer a comprehensive state point source waste discharge or pollution discharge elimination permit program .... Program elements authorized herein may include, but are not limited to: (a) Effluent treatment and limitation requirements together with timing requirements related thereto; (b) applicable receiving water quality standards requirements ....
Pursuant to RCW 90.48, the DOE has established an elaborate process governing the application of water permits to discharge pollutants into the surface or groundwater of this state. WAC 173-220. The Department has also promulgated water quality standards for the state’s surface and groundwater. WAC 173-200, 201A. The rules make it clear that the waste discharge permits are the crucial regulatory devise to achieve and maintain the water quality standards set forth in WAC 173-200 and 201A. See WAC 173-201A-020; WAC 173-201A-100(1). Thus, it is unlawful to discharge any pollutant into the waters of this state without a water permit or to violate the conditions or limitations set forth in a water permit. See RCW 90.48.142, .160.
Thus, the sentence left out of the jury instructions, “ac*22cording to the determination of the department, as provided for in this chapter,” speaks to any violation of the rules and regulations promulgated pursuant to the Water Pollution Control Act, which necessarily includes discharging wastes without or in violation of a water permit. RCW 90.48.080.
The danger in not including the last portion of the statute is that it did not require the plaintiff to prove that Boise operated its facility in violation of the statutes and regulations governing the Water Pollution Control Act. See Adcox v. Children’s Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 36, 864 P.2d 921 (1993) (jury instructions should accurately inform the jury of the applicable law). The instruction states that it is a violation of the Act and, therefore, a nuisance per se if the plaintiff discharged or seeped into the waters of this state any pollutant. However, without the remaining language this is not an accurate statement of the law. For example, a business may discharge pollutants into the waters of this state but will not be in violation of the Act if the business has a water permit allowing for the particular discharge. By omitting the last sentence, “according to the determination of the department,” the trial court has misstated the law and created a situation whereby the plaintiff could be found liable for nuisance per se without establishing that the plaintiff has operated its business in violation of the law. RCW 90.48.080.
It is undisputed that a lawful business is never a nuisance per se. State ex rel. Bradford v. Stubblefield, 36 Wn.2d 664, 670, 220 P.2d 305, 17 A.L.R.2d 1258 (1950). Only when a business has operated in violation of law is a nuisance per se established. Id.
A nuisance per se, by definition, means an act, thing, omission, or use which “is not permissible or excusable under any circumstances,” and hence has never been lawful.
Id. at 671. Although a lawful business is not a nuisance per se, it may become a nuisance in fact if operated in such an unreasonable manner that it materially interferes with the *23reasonable and comfortable enjoyment by another of his property. Bruskland, v. Oak Theater, Inc., 422 Wn.2d 346, 350-51, 254 P.2d 1035 (1953); see also Parker v. Ashford, 661 So. 2d 213 (Ala. 1995). By omitting the last sentence of RCW 90.48.080, the trial court has erroneously reduced the plaintiffs burden of proof in this matter, allowing the plaintiff to possibly claim under a nuisance per se theory without establishing that an actual violation has occurred. In the absence of a nuisance per se a nuisance in fact may be established, however, the jury in this case was not instructed regarding nuisance in fact.
Although the court erred, its error was harmless in this case, as it is readily apparent from the record that Boise was in violation of the Act. “ ‘Harmless error is error which is trivial, formal, or academic.’ ” Adcox, 123 Wn.2d at 36 (quoting State v. Ray, 116 Wn.2d 531, 543, 806 P.2d 1220 (1991)). As Justice Talmadge points out, Boise Cascade did not have a permit to leak pollutants into the groundwaters of this State. Although Boise had a point source permit to emit certain pollutants into the Columbia River, their permit did not authorize a discharge from any other source, including the one at issue here. Thus, Boise polluted the state’s waters without a permit, and was therefore in violation of the Act.
Moreover, Boise Cascade operated its facility in violation of its water permit, which regulates its discharges into the Columbia River. Boise Cascade’s water permit specifically states that the facility “shall not allow leachate from solid waste material to enter state ground or surface waters without providing all known, available and reasonable treatment, nor allow such leachate to cause any adverse effect on state ground or surface waters.” Ex. 337, at 20 IV B. The evidence in this case shows that Boise Cascade was leaching pollutants from its facility without proper treatment in violation of its water permit. Thus, not only was the defendant’s facility discharging pollutants without a permit but it was also leaching pollutants into the groundwater of this state in violation of its permit. Both actions *24constitute a violation of the Act. Thus, any instructional error in this case was harmless. For these reasons, I respectfully concur.
Durham, C.J., and Alexander, J., concur with Madsen, J.