Missouri Soybean Assoc. v. the Missouri Clean Water Commission
| Decision Date | 15 January 2002 |
| Docket Number | WD59650 |
| Parties | Missouri Soybean Association, et al., Missouri AG Industries Council, Inc., Associated Industries of Missouri, and Missouri Chamber of Commerce, Appellants, v. The Missouri Clean Water Commission, et al., Tom Herman in his capacity as chairman of the Missouri Clean Water Commission, The Department of Natural Resources for the State of Missouri, and Stephen M. Mahfood in his capacity as Director of the Missouri Department of Natural Resources, Respondents. WD59650 Missouri Court of Appeals Western District 0 |
| Court | Court of Appeal of Missouri (US) |
Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown, III
Counsel for Appellant: J.A. Felton
Counsel for Respondent: Timothy P. Duggan and Theodore A. Kardis
Opinion Summary:
Missouri Soybean Association, Missouri Ag Industries Council, Inc., Associated Industries of Missouri and Missouri Chamber of Commerce challenged the preparation and submission of Missouri's 1998 list of impaired waters, alleging that such listing of impaired waters for submission to the United States Environmental Protection Agency constituted rulemaking activity, and that such rules were void due to a failure to observe the rulemaking formalities provided by the Missouri Administrative Procedure Act.
Division Three holds: A list of impaired waters submitted to the EPA for approval is an intergovernmental communication that does not substantially affect the legal rights of, or procedures available to, the public or any segment thereof and, therefore, is not a rule by the express provisions of section 536.010(4)(c).
Missouri Soybean Association, et al., Missouri Ag Industries Council, Inc., Associated Industries of Missouri, and Missouri Chamber of Commerce ("appellants") appeal from the judgment of the Circuit Court of Cole County dismissing for lack of subject matter jurisdiction appellants' four-count petition for review under the Missouri Administrative Procedures Act (MAPA), section 536.010, et seq.,1 which claimed that the Missouri Clean Water Commission, Tom Herman in his capacity as Chairman of the Missouri Clean Water Commission, the Department of Natural Resources for the State of Missouri, and Stephen M. Mahfood in his capacity as Director of the Missouri Department of Natural Resources ("respondents") enacted administrative rules that were void and unenforceable in promulgating Missouri's 1998 "303(d) list" that was submitted to the United States Environmental Protection Agency ("EPA") for review and approval. Appellants charged that this list improperly included the Missouri River and the Mississippi River ("the Rivers") as "impaired waters" because respondents failed to file a fiscal note and failed to seek public notice and comment about the submission of the Rivers as impaired waters. The trial court dismissed the action for lack of subject matter jurisdiction, finding that neither the Commission nor MDNR rendered a final decision subject to judicial review. Appellants raise two points on appeal in which they claim the trial court erred in dismissing their petition for declaratory judgment and injunctive relief.
We affirm.I. BACKGROUND
A. General Background
The Clean Water Act, 33 U.S.C. sections 1251-1387 as amended, ("the Act") was passed in 1972 over President Nixon's veto. The Act anticipated a partnership between the states and the federal government, "animated by a shared objective: 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992) (quoting 33 U.S.C. section 1251(a) (1998)). This appeal focuses on section 303 of the Act, "Water Quality Standards and Implementation Plans."
Section 303 requires Missouri to adopt, subject to approval by the Administrator of the EPA ("the Administrator"), "water quality standards" by designating beneficial uses for every waterbody within the state's borders and adopting water quality criteria for the numeric level of pollutants allowable based on those uses. 33 U.S.C. section 1313(a)-(c). Under section 303(d), Missouri is required to develop a list of "impaired waters," or a "303(d) list," which contains waters that do not meet water quality standards, i.e., the presence of pollutants makes them unfit for the designated beneficial uses. 33 U.S.C. section 1313(d)(1)(A). The list prepared by Missouri in 1998 is the crux of the present appeal.
The Act requires Missouri to establish a priority ranking for each waterbody designated as impaired, taking into account "the severity of the pollution and the uses to be made of such waters." 33 U.S.C. section 1313(d)(1)(A). The state must also develop a "total maximum daily load" ("TMDL") of certain pollutants identified by EPA for each of the listed waters that is consistent with the priority rankings. Id. at section 1313(d)(1)(C). A TMDL identifies the amount of a pollutant that the body of water can readily assimilate without violating water quality standards. San Francisco Baykeeper, Inc. v. Browner, 147 F. Supp.2d 991, 995 (N.D. Cal. 2001) (citing 33 U.S.C. section 1313(d)(1)(C)).
Focusing on ambient monitoring of water quality, Missouri then develops two types of allocations for each TMDL. The first is "wasteload allocations" for discharges into the water from specific sites, such as the outfall pipe from a sewage treatment plant, called "point sources." 33 U.S.C. section 1362(14); see section 644.016(14) (defining "point source"). The second is "load allocations" for nonpoint sources and the natural occurrence of the pollutant in the waterbody. See 33 U.S.C. section 1314(d); 40 C.F.R. section 130.2(h); see also 40 C.F.R. section 130.25 (). Nonpoint source pollutants are substances of widespread origin that run off, wash off, or seep through the ground, eventually entering surface waters or ground waters. A nonpoint source can consist of, for example, runoff due to the agricultural use of land adjoining a river. Although nonpoint sources were historically left subject to state regulation, "TMDLs were intended, in part, to be used to help states evaluate and develop land-management practices to mitigate nonpoint-source pollution." Pronsolino v. Marcus, 91 F. Supp.2d 1337, 1347 (N.D. Cal. 2000); see also 33 U.S.C. section 1251(a)(7) (). Once the allocations in each TMDL have been determined, they are implemented through effluent limits in discharge permits for point sources or implementation of voluntary or local controls regarding management practices on nonpoint sources of pollution, such as agriculture.
The Regional Administrator of the EPA is required to review and approve or disapprove the 303(d) list submitted by Missouri and any TMDLs developed by the state. The most recent Missouri list of impaired waters was approved by EPA in 1998. Between 1992 and 2000, the states were required to submit their 303(d) lists biennially. See 40 C.F.R. section 130.7(d). In March 2000, EPA issued a rule removing the requirement for states to file lists in 2000. Beginning in 2002, a list of impaired waterbodies must be submitted every four years. 40 C.F.R. section 130.30(a). Federal regulations provide Missouri with approximately eight to fifteen years in which to develop TMDLs for the waters on the 303(d) list prepared in 1998.Missouri's 1998 303(d) list was submitted to EPA by the Clean Water Commission of the State of Missouri ("the Commission"), the state's water contaminant control agency. Section 644.021.1. "The Commission's statutory charges include: (1) general supervision of the administration and enforcement of the Missouri Clean Water Law, (2) issuing, renewing, revoking, modifying or denying permits to prevent, control or abate water pollution or violations of the Missouri Clean Water Law or federal water pollution control laws." Willamette Indus., Inc. v. Clean Water Comm'n of State of Mo., 34 S.W.3d 197, 199 (Mo. App. W.D. 2000) (footnotes omitted). The Commission "is also charged with developing 'comprehensive plans and programs for the prevention, control and abatement of new or existing pollution of the waters of the state[.]'" Moats v. Pulaski County Sewer Dist. No. I, 23 S.W.3d 868, 872 (Mo. App. S.D. 2000) (quoting section 644.026.1(2)).
The Department of Natural Resources for the State of Missouri ("MDNR") is "Missouri's general environmental agency charged with administering 'the programs assigned to the Department relating to environmental control and the conservation and management of natural resources.'" Willamette Indus., 34 S.W.3d at 199. Structurally, the Commission is assigned to MDNR. Section 640.010.3; see also Craven v. State ex rel. Premium Standard Farms, Inc., 19 S.W.3d 160, 164 (Mo. App. W.D. 2000) (discussing the Omnibus State Reorganization Act of 1974). Overall, however, the power to carry out the Clean Water Law's goal of ensuring the continued purity of the State's waters is vested in the Commission. Moats, 23 S.W.3d at 872. This is evident in the Commission's statutory grant of authority to "[e]xercise all incidental powers necessary to carry out the purposes of [the Missouri Clean Water Law]." Section 644.026.1(16).
MDNR traditionally sent Missouri's 303(d) list merely as an attachment to its biennial water quality status report, "the 305(b) Report." See 33 U.S.C. section 1315(b). In 1998, however, MDNR involved the public in the process of compiling the 303(d) list. See 40 C.F.R. section 130.10(d)(10)(iv); see also 40 C.F.R. section 25.3(a) (...
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