(dissenting) — The first, and most important, issue raised in this appeal is set forth in the Petition for Review of Boise Cascade Corporation and Don Watts:
Did the trial court’s instructions misstate the law by using the Washington Water Pollution Control Act to create a nuisance per se rule, where none exists under the statute, which effectively made a finding of liability for nuisance against Boise Cascade inevitable?
Br. of Appellants Donald R. Watts, d/b/a Don Watts Farms; and Boise Cascade Corp. at 3. The gravamen of the assigned error focuses upon trial court Instruction No. 16, Clerk’s Papers (CP) at 120, which specifically defines “nuisance” for the purpose of the second element to be proved under Instruction No. 7.
Instruction No. 7, in its entirety, provides:
As to plaintiffs’ claim concerning the quality of irrigation water during the 1990 crop year, the plaintiffs have the burden of proving each of the following propositions:
First, that Boise Cascade contaminated the wells used to irrigate plaintiffs’ 1990 potato crop;
Second, that such contamination by Boise Cascade constituted a nuisance under the laws of the state of Washington-,
*28Third, that the plaintiffs were injured;
Fourth, that the conduct of Boise Cascade was a proximate cause of the injury to the plaintiffs; and
Fifth, the amount of damages proximately caused by such conduct.
CP at 113 (emphasis added).
Instruction No. 16 provides as follows:
You are instructed that the laws of the state of Washington provide 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 discharge into such waters any organic or inorganic matter that shall cause or tend to cause pollution of such waters ....
A violation of this statute constitues [sic] a nuisance.
CP at 120 (emphasis added).
The problem with these instructions, says Boise Cascade, is that Instruction No. 16 misstates the statutory reference by deleting the critical language which follows “such waters” in RCW 90.48.080:
according to the determination of the department, as provided for in this chapter.
It is the claim of Boise Cascade, a claim which permits no denial, that the trial court simply read the quoted phrase out of the statute for the purpose of instructing the jury.
To this claim of error the majority responds only in the most general fashion, if at all. However, Justice Madsen recognizes the error in her concurring opinion, yet refuses to correct it, claiming it is but harmless. However, “the use of an erroneous instruction is presumptively prejudicial and is considered harmless error only when the record affirmatively establishes that the manner in which the instruction was worded could have no effect on the outcome *29. . . .” State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10 (emphasis added), cert. denied, 501 U.S. 1237, 111 S. Ct. 2867, 115 L. Ed. 2d 1033 (1991).
If the jury followed the literal language of Instruction No. 16, which we must assume it did,82 the jurors would necessarily be compelled to conclude Boise created a nuisance if it discharged but a thimbleful of leachate into the ground or surface waters of the state—regardless of whether or not the effluent was previously treated by “all known available and reasonable methods” (RCW 90.48.010), regardless of whether the discharge was authorized by permit, and regardless of whether or not the Department of Ecology had “determin[ed]” (RCW 90.48.080) the discharge caused or tended to cause pollution. As each of these factors is relevant to determine whether or not the Boise Cascade operation fell within the negligence per se category, the trial court’s refusal to instruct the jury on these elements of plaintiffs’ proof was erroneous and constituted a gross violation of Boise’s legal rights.
RCW 90.48 Regulates, But Does Not Ehminate, Pollution
While some might advocate the return to an antediluvian hunter-gatherer society, where there is no industrial pollution whatsoever, that obviously was not the “[p]olicy enunciated” in RCW 90.48.010, which attempts to reconcile the dual objectives of water purity with “industrial development of the state.” “[T]o that end,” the Legislature does “require the use of all known available and reasonable methods by industries and others to prevent and control the pollution of the waters of the state of Washington,” which, by necessary implication, means that methodology which is not known, not available, or unreasonable is not required. To accomplish this legislative objective the state granted jurisdiction to the Department of Ecology “to control and prevent the pollution” of the state’s waters. *30RCW 90.48.030. RCW 90.48.037 empowers the department to bring enforcement actions, and RCW 90.48.080 prohibits discharge into the waters of the state of any pollutant “according to the determination of the department, as provided for in this chapter”; whereas RCW 90.48.120 sets forth a formal procedure whereby this “determination” is made:
Whenever, in the opinion of the department, any person shall violate or creates a substantial potential to violate the provisions of this chapter or chapter 90.56 RCW or fails to control the polluting content of waste discharged or to be discharged into any waters of the state, the department shall notify such person of its determination by registered mail. Such determination shall not constitute an order or directive under RCW 43.21B.310. Within thirty days from the receipt of notice of such determination, such person shall file with the department a full report stating what steps have been and are being taken to control such waste or pollution or to otherwise comply with the determination of the department.
RCW 90.48.120(1).
Central to the accomplishment of the legislatively defined objectives is the creation of a regulatory scheme whereby the Department of Ecology is vested with the authority to permit the discharge of pollutants and to specifically approve the design of facilities which will do the polluting so as to allow industrial development while minimizing the harmful effects to those which are reasonably inevitable. See, e.g., RCW 90.48.110 (“[A]ll engineering reports, plans, and specifications for the construction of new sewerage systems, sewage treatment or disposal plants or systems . . . and the proposed method of future operation and maintenance of said facility or facilities, shall be submitted to and be approved by the department, before construction thereof may begin.”). The wastewater discharge permit is one of the principal measures designed to implement this policy. Miotke v. City of Spokane, 101 Wn.2d 307, 321, 678 P.2d 803 (1984).
The record in this proceeding demonstrates that Boise Cascade appropriately sought and obtained department *31review of its proposed treatment and disposal facility and, moreover, the department approved the facility in specific contemplation of a discharge of effluent into both the groundwater and Columbia River. For example, on March 30, 1979, the Department of Ecology (DOE) wrote Dennis Ross, the Environmental Control Director of Boise Cascade, an express letter of authorization, which I quote in part:
A review of the proposed construction and modification of the primary and secondary ponds indicate [sic] that a design criteria [sic] is necessary to determine the degree of sealing required.
We therefore require that both primary and secondary ponds be constructed or modified to achieve a leakage rate not exceeding 0.25 inches per day. This requirement may be satisfied by conventional sealing methods or by soil tests and analysis where applicable.
Ex. 219 (emphasis added).
This seepage into the groundwater was in addition to the DOE-permitted discharge into the Columbia River; however, by the literal language of Instruction No. 16, the jury would be forced to conclude that the discharge of “pollutants” at either location, even within the standard set by the department itself, would nonetheless constitute a “nuisance” for the purpose of imposing civil liability. Such, however, is clearly not the law as RCW 90.48.080 makes unlawful only the discharge of polluting matters into the waters of this state, “according to the determination of the department, as provided for in this chapter”—critical language which was omitted from the instruction. This language is critical, and its omission was not harmless, because the department did not, in fact, make such a “determination” nor would it be expected to make such a determination unless it was proved that the treatment facility was constructed or operated inconsistent with department-approved design criteria in violation of the discharge permit. However, such fact, if it is a fact, was never *32proved to the department’s satisfaction nor did the court require plaintiffs to prove it to the jury’s satisfaction.
Permitting Pollution
A second extremely prejudicial aspect of the instruction, also inherent in the decision of the trial court to omit critical language regarding department “determination,” is the failure to inform the jury that one may discharge pollutants into the waters of the state at least insofar as they are permitted by a DOE permit. Although one may be civilly liable for violating the permit, Miotke, 101 Wn.2d at 322, “[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance. RCW 7.48.160.” Miotke, 101 Wn.2d at 331. But by the literal language of the instruction the jury was not so informed. Rather the jury was literally required to conclude Boise Cascade was operating a nuisance even if it operated in strict compliance with the regulatory scheme and its permit.
The error is particularly prejudicial in this case because the subject National Pollution Discharge Elimination System Wastewater Discharge Permit specifically provides:
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 at 20. It is apparent from the literal language of the permit that leachate is permitted to enter the ground or surface water provided it is first treated by “all. known, available and reasonable treatment . . . .” Further, the prohibition upon leachate entering the waters of the state is not absolute but only to the extent it would “cause any adverse effect on state ground or surface waters.” Notwithstanding, Instruction No. 16, the nuisance per se instruction, not only allows but compels the jury to conclude that Boise Cascade was operating a nuisance even if it had used *33“all known, available and reasonable treatment” for its effluent and even if leachate release did not cause “any adverse effect on state ground or surface waters,” i.e., it was obliged to find a nuisance per se even if Boise Cascade was discharging that effluent which the department lawfully permitted it to discharge.
Standard of Review
We have often held it is reversible error for the trial court to mislead the jury in its statement of the law through improvident jury instructions,83 as we have held it is equally reversible error for the trial court to refuse a factually supported and accurate charge of the law to the jury where said instruction is a necessary predicate for the argument of a party’s case.84
Applying such criteria to the instructions before us, I find reversible and prejudicial error which the majority has failed to recognize and the concurrence has refused to correct. Were the law of this case, as encapsulated by Instruction Nos. 7 and 16, to be applied generally throughout the industry, I think we would find continued maintenance of industrialized society all but impossible. If that be the appropriate step, it is for the Legislature to take it, not this court. I would therefore reverse and remand for a new trial based upon new instructions which accurately state the law.
See, e.g., Carnation Co. v. Hill, 115 Wn.2d 184, 796 P.2d 416 (1990) (July is presumed to follow curative instruction.).
See, e.g., Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995) (“On appeal, errors of law in jury instructions are reviewed de novo, and an instruction’s erroneous statement of the applicable law is reversible error where it prejudices a party.”).
See, e.g., State v. Griffin, 100 Wn.2d 417, 420, 670 P.2d 265 (1983); State v. Birdwell, 6 Wn. App. 284, 297, 492 P.2d 249 (“[Gjiving an instruction on a party’s theory of the case is required provided there is evidence to support it, . . . and the failure to do so, or the giving of otherwise incomplete instructions, constitutes reversible error.”), cert. denied, 409 U.S. 973, 93 S. Ct. 346, 34 L. Ed. 2d 237 (1972).