dissenting:
I respectfully dissent from the majority because in my opinion it affirmatively appears from the record and the findings of the Pollution Control Board, as contained in their opinion and supplemental opinion, that the Board did not have jurisdiction to proceed in this case and that its orders are therefore void.
It is a commanding tenet of administrative law that an administrative agency and its officers may exercise only those powers conferred upon them by statute. (Pearce Hospital Foundation v. Illinois Public Aid Com., 15 Ill. 2d 301, 154 N.E.2d 691; Trigg v. Industrial Com., 364 Ill. 581, 5 N.E.2d 394; Lambdin v. Commerce Com., 352 Ill. 104, 185 N.E. 221; Skokie Federal Savings & Loan Association v. Savings & Loan Board, 88 Ill. App. 2d 373, 232 N.E.2d 167.) In W. F. Hall Printing Co. v. Environmental Protection Agency, 16 Ill. App. 3d 864, 306 N.E.2d 595, the court commented upon the authority and jurisdiction of the Pollution Control Board as follows:
“We agree with plaintiffs to the extent that the Board is not authorized by the legislature to determine and proceed against common law nuisances. Rather it must proceed strictly within the authority defined by the Act.” (16 Ill. App. 3d 864, 869.)
Where jurisdiction is conferred by statute all facts necessary to the exercise of such jurisdiction must affirmatively appear from the record. (Illinois Commerce Commission ex rel. East St. Louis, Columbia & Waterloo Ry. v. East St. Louis & Carondelet Ry. Co., 361 Ill. 606, 198 N.E. 716; Lambdin v. Illinois Commerce Com.; People ex rel. Weaver v. Holmes, 348 Ill. 204, 180 N.E. 780.) There are no intendments in favor of the jurisdiction of an administrative body. Michelson v. Industrial Com., 375 Ill. 462, 31 N.E.2d 940; Trigg v. Industrial Com.
That we are concerned here with a hearing upon an application for a permit would not vary the necessity for the record to affirmatively show that the administrative agency and its officers were acting within the confines of their statutory jurisdiction. The denial of a permit can circumscribe or control a subject activity as effectively as an order that compels some positive action with regard to that activity.
The Board acknowledges in its original opinion that the Environmental Protection Agency could deny petitioner a permit only if Coffeen Lake is a “water of the State.” The premise goes to the heart of the jurisdiction of the Agency and the Board and its statement is compelled by the Act.
The original opinion of the Board states: “The Board feels that this question [whether Coffeen Lake is a water of the state’] is of such a variable nature that no hard and fast rule can be set down, and so the Board shall decide the case on its facts, and such other cases in the future will be decided on the merits of each case.” The opinion then recites the definition of “water” contained in section 3(o) of the Act and Rule 104 of Chapter 3 of the Water Pollution Regulations as — “all accumulations of water, * # * natural and artificial, public and private, * * * which are wholly or partially within, flow through, or border upon this state.” (Their emphasis.)
The Board’s opinion then noted that McDavid Branch, though an intermittently flowing stream, and Coffeen Lake, as an accumulation of surface water, fits the definition of “waters” under the Act. But the opinion did not rest its findings on what appears to be the obvious. Rather, the obvious finding was specifically rejected in the following language:
“This interpretation is very broad and would lead to the conclusion that all impoundments of water in the state are waters’ under the Act. The Board does not so find. This toould be too broad a stroke to take. [Emphasis supplied.]
The Board must look to the purpose of the Chapter 3 Regulations to determine what impoundments are to be covered. Rule 203, General Standards, states that one of the purposes of the standards is to protect the state’s waters for aquatic life. As such McDavid Creek [sic] was and is a water of the state to be protected. It has its own natural aquatic-based life, and as such falls under Chapter 3.”
If the Board had adopted the simple and plainly intended definition of “waters” given in the statute, then unquestionably Coffeen Lake would be a “water of the State.” So would the 900 other impoundments oí Water in Montgomery County (the figure is from the record). But, as noted, the obvious was specifically rejected as the basis of the Board’s jurisdiction.
The basis upon which the Board found Coffeen Lake to be a water of the State is completely and without foundation in the record and the Board and the Agency are accordingly without jurisdiction. The basis of their jurisdiction, as stated in the opinion, is that McDavid Branch, as enlarged by Coffeen Lake, has its own natural aquatic based life, and as such falls under Chapter 3. However, the only testimony regarding “aquatic based life” in the vicinity came from a witness for petitioner who testified, on croá?-examination, that he had seen some frogs while examining McDavid Branch as a possible site for a lake. Frogs, in hundreds of varieties, are found everywhere — in the desert, in trees, in the forest, in the mountains. Patently, the presence of frogs does not establish an “aquatic based life.” There was no other or further testimony to establish the presence of an aquatic based life.
The majority find that the supplemental opinion of the Board clarifies that the Board found Coffeen Lake a water of the State under section 3(o) of the Act and Rule 304. But such was not the case. Again, in its supplemental opinion the Board refused to adopt the obvious application, that Coffeen Lake, as an accumulation of surface water, was a water of the State. Rather, the emphasis shifts to McDavid Branch which they stated, without any findings or basis whatever, was, “without a doubt” a water of the State. The assumption is unwarranted for I think there is serious doubt. The record shows that at best McDavid Branch is an intermittent stream. Only cursory testing of this description against the section 3(o) definition of water fortifies the doubt for section 3(o) requires an accumulation of water which is within or flows through the State to constitute a water of the State.
“Too broad a stroke,” the Board opinion said, to define Coffeen Lake as a water of the State because it is an accumulation of water! Why so? It appears from the record that there áre 900 farm ponds in Montgomery County that would perforce be included in the broad “accumulation” definition rejected by the Board. There are doubtless many other non-farm accumulations of water in Montgomery County, not to mention the remainder of the counties in Illinois. If so encompassed by definition, the same environmental regulations and laws would be applicable to farm ponds and other accumulations as to Coffeen Lake. In short, the Board and the Agency would be compelled to treat everyone alike — a concept difficult to fault in our system of constitutional government.
• In view of this setting, the action of the Board in skirting the obvious application compellingly suggests that petitioner is being accorded treatment that will not be imposed upon others and is the hapless recipient of an unconstitutional selection for an enforcement action which surely lies in the offing. By the trite artifice grasped by the Board to ground its jurisdiction in this case, the very fundamental and basic rule of constitutional government, equal treatment before the law, has been crudely and blatantly circumvented. The Board’s design for jurisdiction permits it and the Agency to pick and choose whom to target for their permit grants or their enforcement actions. Certainly the legislature did not-intend such and this court should not condone it.