(concurring) — While I agree with the majority’s disposition of this case generally and its resolution of the statute of frauds and damages issues specifically, I write separately to emphasize my views regarding nuisance.
Boise Cascade Corporation (Boise Cascade) indicated in oral argument it was not relying on the so-called permit shield defense.80 Boise Cascade instead now argues the trial court’s instruction 16 was erroneous because Boise Cascade’s wastewater system was constructed to meet the Department of Ecology’s (DOE) requirements for the National Pollutant Discharge Elimination System (NPDES) permit and therefore cannot violate RCW 90.48.080 so as to constitute a nuisance per se. Boise Cascade argues the trial court should have given its proposed instruction 40 which would have allowed the jury to consider all conduct in determining whether or not Boise Cascade’s behavior was reasonable and therefore a nuisance. In effect, Boise *25Cascade argues for something in the nature of a “reasonable polluter” standard for nuisance.
Boise Cascade’s position is neither supported in the law nor in the facts of this case. In Miotke v. City of Spokane, 101 Wn.2d 307, 678 P.2d 803 (1984), we held owners of certain waterfront property stated a claim for nuisance per se against the City of Spokane and DOE for discharging raw sewage into the Spokane River, affecting their property. We rejected the defendants’ contention that the decision to discharge the raw sewage was the result of a carefully reasoned choice among available alternatives, holding: “[ujnfortunately, no matter how reasonable their decision might have been . . ., defendants were not authorized to make it. They had no alternative under federal and state law but to comply with the waste discharge permit.” Id. at 329-30.
In Miotke, the discharge of raw sewage into the Spokane River violated a waste disposal permit which had been granted to the City by DOE during the City’s construction of a new sewage treatment facility. DOE issued an NPDES permit to the City for discharge of sewage into the Spokane River. DOE actually authorized the discharge of raw sewage into the Spokane River in violation of the NPDES permit it had issued to the City. We, nevertheless, held the downstream property owners stated a cause of action for nuisance per se under such circumstances. Even with the specific approval of the wrongful discharge of sewage in violation of RCW 90.48 by the governmental regulatory agency, we found nuisance per se:
The DOE, in authorizing the bypass without requiring a new permit, also violated the permit provisions of RCW 90.48. Nowhere in that statute is there any indication that the requirement of a waste disposal permit may be avoided by means of a modification of water quality standards.
Miotke, 101 Wn.2d at 328. It is similarly nuisance per se in this case for Boise Cascade to permit leaching from its treatment ponds, regardless of DOE’s conduct. The trial *26court did not err in instructing the jury pursuant to instruction 16 under RCW 90.48.020.81
Additionally, under the facts of this case, Boise Cascade’s argument is misplaced. An NPDES permit allowed Boise Cascade to discharge pollutants into the Columbia River. Boise Cascade argues it impliedly had the authority to allow more than 100,000 gallons per day of pollutants to enter the groundwater from its aeration ponds because the aeration ponds were part of the system for which an NP-DES permit was granted. The language of the NPDES permit is clear, authorizing Boise’s discharge of pollutants “at the location described,” defining the “Discharge Location” as “River Mile 316” and the “Receiving Water” as “[the] Columbia River.” See Ex. 337 (Waste Discharge Permit) at 1. There is nothing in the NPDES permit authorizing Boise Cascade to pollute the groundwater in the area near its aeration ponds to the extent of 100,000 gallons per day. Indeed, the actual language of the NPDES permit here contradicts Boise Cascade’s contention. The permit mandates that Boise Cascade prevent the entry of all solid waste material into the groundwaters of the state and further notes:
The permittee 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, § S.3(IV)(B), at 20 (emphasis added). Boise Cascade cannot transform its NPDES permit, allowing pollutants *27into surface waters, into a generalized permit to pollute the groundwater or any and all other waters in the vicinity of its treatment facilities.
The trial court correctly instructed the jury in instruction 16 regarding nuisance per se. Boise Cascade cannot transform an NPDES permit into a generalized license to pollute any surface waters and groundwaters arguably associated with its enterprise. Nor do we recognize a “reasonable polluter” defense to pollution of Washington’s environmental heritage. Under Miotke, even with a government agency’s tacit or implicit blessing, a polluter’s damage to the property interest of others is actionable as nuisance per se.
The permit shield defense is a creature of federal statute applicable in citizen enforcement actions based on the federal Clean Water Act (CWA). See Daniel Riesel, Citizen Suits and the Award of Attorneys’ Fees in Environmental Litigation, C921 ALI-ABA 1073, June 20, 1994, noting:
[s]imply stated, the permit shield defense states that if a party is in compliance with its NPDES or state-delegated program permit, it is deemed for purposes of the citizen suit and enforcement provisions to be in compliance with critical sections of the Clean Water Act.
Id. at 1121 (citing CWA § 402(k), 33 U.S.C. § 1342(k)). See also Atlantic States Legal Found., Inc. v. Eastman Kodak Co., 12 F.3d 353, 357 (2d Cir. 1993), as amended (1994), cert. denied, 513 U.S. 811, 115 S. Ct. 62,130 L. Ed. 2d 19 (1994), applying broadly the “shield provision” of the Clean Water Act, 33 U.S.C. § 1342(k) and holding “[o]nce within the NPDES or SPDES scheme . . . polluters may discharge pollutants not specifically listed in their permits so long as they comply with the appropriate reporting requirements and abide by any new limitations when imposed on such pollutants.” Id. at 357.
The Washington water pollution control act, RCW chapter 90.48, contains no equivalent permit shield provision.
The Court of Appeals here stated:
We agree with Boise that specific conduct which is approved and authorized hy the agency charged with enforcing the act in question does not constitute a nuisance per se. Miotke and Branch both involved illegal activity. Nevertheless, Boise did not present any evidence that DOE approved the amount of seepage that occurred here.
Tiegs v. Boise Cascade Corp., 83 Wn. App. 411, 419, 922 P.2d 115 (1996) (emphasis added). The majority correctly declined to find that an agency’s involvement absolved a polluter from liability for nuisance. Majority op. at 18-19.