Opinion
No. WD 59650
January 15, 2002
Appeal from Cole County Circuit Court, The Honorable Thomas J. Brown, III, Judge.
J.A. Felton, Esq., Kansas City, MO, for Appellants.
Timothy P. Duggan, Esq., and Theodore A. Kardis, Esq., Jefferson City, MO, for Respondents.
Before Patricia A. Breckenridge, P.J., Thomas H. Newton and Lisa White Hardwick, JJ.
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., 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.
All Missouri statutory references are to RSMo 2000 unless otherwise indicated. All references to the United States Code are conspicuously made.
We affirm.
I. BACKGROUND A. General Background
The Clean Water Act, 33 U.S.C. § 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. § 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. § 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. § 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. § 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. § 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. § 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. § 1314(d); 40 C.F.R. § 130.2(h); see also 40 C.F.R. § 130.25 (providing that waterbodies impaired by nonpoint sources should be included on state 303(d) lists). 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. § 1251(a)(7) ("[I]t is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution."). 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. § 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. § 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. § 1315(b). In 1998, however, MDNR involved the public in the process of compiling the 303(d) list. See 40 C.F.R. § 130.10(d)(10)(iv); see also 40 C.F.R. § 25.3(a) ("EPA, State, interstate, and substate agencies carrying out activities described in section 25.2(a) shall provide for, encourage, and assist the participation of the public."); 40 C.F.R. § 130.36 ("What public participation requirements apply to your lists and TMDLs?"). Also, the process changed so that MDNR provided a recommended 303(d) list of impaired Missouri waters to the Commission. See generally section 644.026.1 (listing the powers and duties of the Commission). Upon receipt of MDNR's recommended list, the Commission then approved the final list and submitted it to EPA.
B. Factual and Procedural Background
In January 1998, MDNR issued its first public notice of section 303(d) waters, which comprised seventy-two bodies of water that had been determined to require TMDLs because existing required pollution controls were not stringent enough to implement state water quality standards, and solicited public comments on the proposed list. During public comment, the Sierra Club recommended that the Missouri River and the Mississippi River ("the Rivers") be added to the 303(d) list. Then in March of 1998, MDNR published a list of waters designated as "PROPOSED ADDITIONS TO THE SECTION section 303(d) WATERS LIST" that included the Mississippi River and the Missouri River. This list of proposed additions was noticed with the intention of soliciting additional data to support or refute the suggestion that the waters in question be included in the 303(d) list.
A second list of recommended impaired waters was noticed in May of 1998, and it recommended eighty-five bodies of water, the Rivers excepted, for inclusion on the 303(d) list. This notice made available for public review and comment the "Missouri 303(d) Strategy Document," which explained how the list was compiled and why certain waters were included in or omitted from the list. See 40 C.F.R. § 130.22 (providing what data and information needs to be assembled and considered when identifying and listing impaired waterbodies); 40 C.F.R. § 130.23 (providing how to develop and document a state's methodology for considering and evaluating all existing and readily available data and information to develop its list). 1998 was the first year that MDNR chose to furnish such a document in connection with its proposed 303(d) list.
A third list entitled "NOTICE OF AVAILABILITY FOR COMMENT MISSOURI 303(d) STRATEGY DOCUMENT AND RECOMMENDED SECTION 303(d) WATERS" was issued on August 14, 1998. In this list, MDNR divided the waters into three categories: (1) recommended section 303(d) waters required to have TMDLs; (2) recommended section 303(d) waters required to have additional monitoring prior to TMDL development; and (3) recommended section 303(d) waters required to have use attainability analyses or TMDL development. See 40 C.F.R. § 130.25(b). This notice provided, in pertinent part:
The Missouri and Mississippi Rivers are not listed because there are no water quality contaminant violations. The department recognizes that these two great rivers have diminished resource quality due to significant flow depletions and habitat alterations. The department further recognizes that the Mississippi and Missouri Rivers are national interest waters that must be protected against further flow depletions and habitat losses. The department looks to the U.S. Congress to build upon existing efforts for the restoration of these great river resources.
In an open meeting on September 23, 1998, MDNR presented its proposed list from August 14th and recommended that the Commission adopt that list. At the meeting, appellant Missouri Soybean Association provided oral testimony that the Rivers should not be included on the final list, and the Sierra Club recommended to include them. After commentors spoke, MDNR did not recommend inclusion of the Rivers. When a vote was called for the 303(d) list, an individual that the record identifies as "Commissioner Susan Lambert from St. Louis County" recommended that the Rivers be added to the final list. The Commission approved the 303(d) list recommended by MDNR, but added the Rivers to the 303(d) list after concluding that the Rivers would fit appropriately into the second tier of waterbodies that had been identified. This final list of waters adopted by the Commission as "SECTION 303(d) WATERS" was published shortly thereafter.
The October 1998 version of the strategy document explained: "the presently proposed list is divided into three categories, with a second category containing some of the waters classified as significantly impaired waters in the 305(b) report, but for which data quality assurance is not sufficient to support TMDL development at this time." The document further explained, "For the 303(d) process to address all appropriate waters, the Department of Natural Resources will make additional monitoring of those waters appearing in Category 2 . . . high priority so that their 303(d) status can be determined as soon as possible." The Rivers were listed as impaired because of "habitat loss." With regard to this problem, the document explained, in pertinent part:
About 1200 stream segments encompassing 40% of the stream miles in the state are believed to suffer some impairment in aquatic habitat quality. While the Department believes it may be counter productive [sic] to list and attempt TMDLs on all these streams, all the streams listed above as having potential nutrient concerns and the Mississippi and Missouri [R]ivers will be targeted as high priority for monitoring to better define the status of aquatic habitat quality and to determine the future 303(d) status of these waters.
Missouri's final list was submitted to EPA in October of that year.
The October strategy document also described the process as follows:
From September through November of every odd numbered year, all available water quality data with acceptable quality assurance is reviewed for compliance with applicable water quality standards by the Water Pollution Control Program of the Department of Natural Resources. Waters found not to be in compliance with these standards are listed in the biennial state water quality report. This report, called the 305(b) Report after the section of the federal Clean Water Act which requires it, represents the most complete list that the Department of Natural Resources has been able to document of the state's waters not meeting water quality standards.
The section 303(d) list is in general a subset of the waters listed in the 305(b) Report. The 1998 Missouri section 303(d) list contained certain 305(b) waters for which there was little hard data documentation of a problem, but for which staff felt a significant water quality problem had been identified making them worthy of a section 303(d) listing.
Waterbodies listed as not meeting water quality standards in the 305(b) Report also appeared on the section 303(d) list for the purpose of TMDL development unless a waterbody falls into one or more of the following categories [not relevant here]:
* * *
The proposed 1998 303(d) list . . . is composed of three lists of waterbodies. The first is a list of those waters where there is sufficient evidence through hard data of water quality impairment, including some that may still need the application of all conventional water pollution control practices. The waters on this list will require the development and implementation of total maximum daily loads (TMDLs). Those that lack conventional treatment will be required to attain that level, and proceed to TMDL development if the problem persists. The second list shows waters whose impairment status is less adequately documented and for which more environmental monitoring is needed to determine the 303(d) status of these waters. The third list is a list of impaired waters for which there is no practical solution to these water quality problems, and includes waters with chlordane contaminated sediments, and with naturally occurring contaminants. TMDLs or use attainability analysis for these waters would address these difficult situations.
EPA made determinations partially approving and disapproving the Commission's list in January of 1999. EPA did not recognize the three categories into which Missouri had segregated its list. Instead, EPA required Missouri to schedule and prepare a TMDL for all listed waterbodies. As a practical matter, EPA moved the category two and three waters, including the Rivers, to category one. As a result, EPA required TMDLs for the Rivers, which are, by far, the largest waters in the state and the largest bodies of water than have been designated on any state's 303(d) list. A determination regarding TMDLs for the Rivers will not be made until 2009.
Prior to reaching its decision to change Missouri's submission, EPA published for public comment EPA's proposed addition of fifteen waters to the 303(d) list on February 2, 1999, soliciting comments on EPA's changes to the Missouri list. With the exception of appellant Missouri Chamber of Commerce, appellants submitted comments. Appellant Missouri Soybean Association and appellant Associated Industries of Missouri requested a public hearing on the Missouri list, which EPA denied. See generally 40 C.F.R. § 130.7. The same two appellants, along with the Missouri Water Quality Coalition, commented that the state failed to follow proper rulemaking procedures and proper fiscal note procedures, and, while proposing that such comments should be addressed to the state, EPA submitted that the public had adequate opportunity to participate in the establishment of Missouri's 1998 303(d) list. EPA responded to public comments in April and made its final determination regarding Missouri's 1998 list. EPA made certain changes to the list, but the Rivers remained on it.
The record does not reflect that appellant Missouri Chamber of Commerce suffered any detriment in its ability to participate in or react to the process. See Friends of Agric. for the Reform of Mo. Envtl. Regulations v. Zimmerman, 51 S.W.3d 64, 76 (Mo.App.W.D. 2001).
EPA responded to a prior comment: The state public noticed the proposed 303(d) list four times. These notices were sent directly to more than 220 individuals, organizations, local governments permit applicants, agencies and others. In addition, the state issued a press release asking for additional comments. The state received 73 comment letters over the course of the public notice process. The Missouri Clean Water Commission held a meeting at which the 303(d) list was a topic. The agenda for this meeting was published prior to that meeting.
In the Circuit Court of Cole County, appellants sought a declaratory judgment challenging the promulgation of the 303(d) list and requested injunctive relief pursuant to section 536.050.1. Appellants argued that the creation of the list constituted a rulemaking under the Missouri Administrative Procedures Act (MAPA) because the Commission's submitted list fit within the definition of a rule under section 536.010(4). Appellants claimed that the 303(d) list was adopted without proper notice under section 536.021 by: (1) failing to file a notice of proposed rulemaking or an order of final rulemaking concerning the list; (2) failing to publish a notice of proposed rulemaking or final rulemaking in the Missouri Register; (3) failing to include the required information in a notice of proposed rulemaking or order of final rulemaking as required by sections 536.021(2) (6); and (4) failing to include notice that the Rivers would be included in the proposed list at the meeting on September 23, 1998. Secondly, appellants alleged noncompliance with MAPA because no fiscal note was filed with either the proposed or the final 303(d) list. In Count III, appellants charged that MDNR's and the Commission's actions in approving Missouri's 1998 303(d) list and adding the Rivers were arbitrary and capricious without evidence that effluent limitations are insufficient to meet water quality standards. Finally, appellants contended that Missouri's Sunshine Law was violated due to a failure to provide adequate notice of the September 23, 1998, meeting.
Apparently focusing on appellants' "arbitrary and capricious" language, the trial court held, in relevant part, that
See Weisenburger v. City of St. Joseph, 51 S.W.3d 119, 122-23 (Mo.App.W.D. 2001) ("The proper standard of review for a contested administrative decision is to 'uphold the agency decision unless that decision is not supported by substantial evidence, is arbitrary and capricious, or is not authorized by law.'")
While the Commission makes recommendations to EPA with respect to impaired waters, EPA is the final arbiter of whether a particular body is impaired. . . . EPA was the final arbiter as a matter of both fact and law. While EPA may have rendered a final decision for purposes of judicial review, it is clear that the Commission did not.
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. In so concluding, the court stated, "EPA may have rendered a final decision with respect to the 1998 list of impaired waters, but that agency's actions are beyond the purview of this court."
This appeal followed.
II. STANDARD OF REVIEW
"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Rule 55.27(g)(3). Thus, as the term "appear" suggests, the quantum of proof for granting a motion to dismiss for lack of subject matter jurisdiction is not high. Sexton v. Jenkins Assocs., Inc., 41 S.W.3d 1, 4 (Mo.App.W.D. 2000). Only a preponderance of the evidence is necessary. Preston v. State, 33 S.W.3d 574, 578 (Mo.App.W.D. 2000). "In determining whether it has jurisdiction, the trial court may consider affidavits, exhibits, and evidence pursuant to Rules 55.27 and 55.28." Sexton, 41 S.W.3d at 4.
All rule references are to Missouri Court Rules (2001) unless otherwise indicated.
In reviewing the trial court's dismissal of a petition, we must determine whether the facts pleaded and the reasonable inferences therefrom invoke principles of substantive law that would entitle the plaintiff to relief, while treating all facts alleged as true and construing the allegations liberally in favor of the pleader. Willamette Indus., 34 S.W.3d at 200. "The test for the sufficiency of a petition for declaratory judgement is not whether plaintiff is entitled to the relief requested, but whether he is entitled to a declaration of rights or status on the pleaded facts." Id. (citing Cooper v. State, 818 S.W.2d 653, 655 (Mo.App.W.D. 1991). Where, as here, the facts are uncontested, a question as to the subject matter jurisdiction of a court is purely a question of law, which we review de novo. B.C. Nat'l Banks v. Potts, 30 S.W.3d 220, 221 (Mo.App.W.D. 2000).
While couched in different terms, the gravamen of appellants' arguments is that the compilation of the 1998 Missouri 303(d) list constituted rulemaking activity and that the circuit court was therefore vested with jurisdiction over the subject matter pursuant to section 536.050.1. Further, appellants claim a right to injunctive relief due to respondents' failure to comply with the Missouri Administrative Procedure Act (MAPA) by failing to file a fiscal note and by failing to seek public notice and comment prior to placing the Rivers on the list. Thus, the core question is whether the creation Missouri's 1998 303(d) list amounted to rulemaking activity under MAPA. We review pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976), to determine whether the trial court correctly applied the law in deciding that it lacked jurisdiction.
III. ANALYSIS
In general, agency rulemaking occurs with the formulation of a "statement of general applicability that implements, interprets or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency." Section 536.010(4). MAPA sets forth certain procedural formalities that administrative agencies must observe when promulgating rules or regulations. For example, administrative agencies must file a notice of proposed rulemaking with the Secretary of State. Section 536.021. "The notice of proposed rulemaking provides notice to affected parties 'to allow opportunity for comment by supporters or opponents of the measure, and so to induce a modification.'" Corvera Abatement Techs., Inc. v. Air Conservation Comm'n, 973 S.W.2d 851, 854 (Mo.banc 1998) (quoting Missouri Hosp. Ass'n v. Air Conservation Comm'n, 874 S.W.2d 380, 391 (Mo.App.W.D. 1994)). Also, when an agency intends to adopt, amend, or repeal a rule that "would require an expenditure of money by or a reduction in income for any person, firm, corporation, association, partnership, proprietorship or business entity of any kind or character which is estimated to cost more than five hundred dollars in the aggregate," the agency must file a fiscal note along with the notice of proposed rulemaking. Section 536.205.1. A rule adopted in violation of the MAPA requirements is void. Kansas Ass'n of Private Investigators v. Mulvihill, 35 S.W.3d 425, 430 (Mo.App.W.D. 2000).
To support their assertion that the list is an improperly promulgated rule, appellants submit that the 303(d) list has "general applicability" to Missouri citizens because the list encompassed 165 bodies of water throughout the state that may potentially be subjected to TMDL restrictions. See Baugus v. Dir. of Revenue, 878 S.W.2d 39, 42 (Mo.banc 1994). Appellants maintain that the 303(d) list implements state policy because the statement of policy in Missouri's Clean Water Law expressly provides, in pertinent part:
[I]t is hereby declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies and for domestic, agricultural, industrial, recreational and other legitimate beneficial uses and for the propagation of wildlife, fish and aquatic life; to provide that no waste be discharged into any waters of the state without first receiving the necessary treatment or other corrective action to protect the legitimate beneficial uses of such waters and meet the requirements of the Federal Water Pollution Control Act as amended; to provide for the prevention, abatement and control of new or existing water pollution; and to cooperate with other agencies of the state, agencies of other states, the federal government and any other persons in carrying out these objectives.
Section 644.011. Thus, they argue, respondents' preparation and ratification of the 303(d) list therefore constituted a statewide attempt to implement this public policy. In addition, appellants state that the 303(d) list constitutes a rule under the express provisions of the Missouri Clean Water Law, which provides, in relevant part, that the Commission shall:
Adopt, amend, promulgate, or repeal after due notice and hearing, rules and regulations to enforce, implement, and effectuate the powers and duties of sections 644.006 to 644.141 and any required of this state by any federal water pollution control act, and as the commission may deem necessary to prevent, control and abate existing or potential pollution[.]
The record clearly demonstrates that MDNR provided the public with notice and opportunity for comment when preparing its list of recommended 303(d) waters prior to submitting that list to the Commission. When MDNR finally recommended its list, the recommendation was made at a public hearing before the Commission, and the public was afforded the opportunity to submit oral commentaries regarding MDNR's recommended list prior to the Commission's adoption of a final 303(d) list. Although the process that was employed in developing the list possessed some aspects common to rulemaking, the notice and comment feature does not necessarily arise from any requirements under MAPA. Before attributing to the 303(d) list the quality of a rule, a review of the Missouri Clean Water Law is insightful.
The Missouri Clean Water Law is replete with requirements of notice and comment opportunities, as well as public hearing requirements, whenever the Commission considers taking any action. Particularly significant is the statutory command that "All actions of the commission shall be taken at meetings open to the public." Section 644.021.3. The term "shall" eliminates any agency discretion on the matter; if the Commission acts, it must have a meeting open to the public. Also, the Commission can neither identify waters of the state nor prescribe water quality standards for them until after holding public hearings. Section 644.026.1(7). The Commission is also bound to "[h]old such hearings, issue such notices of hearings . . . and take such testimony" as necessary or as required. Section 644.026.1(11). Federal regulations similarly bind the Commission. See 40 C.F.R. § 130.36(a) (requiring public notice and comment prior to submitting a list of impaired waterbodies to EPA); 40 C.F.R. § 130.36(b) (requiring states to provide EPA with a summary of all public comments and responses); 40 C.F.R. § 130.10(d)(10)(iv) (requiring notice of EPA's notice of approval or disapproval to include its own "list of waters, point sources, or pollutants" if "the Regional Administrator determines that a state did not provide adequate public notice and an opportunity to comment on the lists prepared"); see also 40 C.F.R. § 25.3(4) (stating that it is the objective of "EPA, State, interstate, and substate agencies . . . [t]o encourage public involvement in implementing environmental laws"). With these requirements in mind, the Commission has a duty to advise, consult, and cooperate with other agencies of the state, the federal government, other states and interstate agencies, and with affected groups, political subdivisions and industries, section 644.026.1(3); to encourage, participate in, or conduct studies, investigations, and research and demonstrations relating to water pollution and causes, prevention, control and abatement thereof, section 644.026.1(5); and to collect and disseminate information relating to water pollution and the prevention, control and abatement thereof, section 644.026.1(6)
Certainly, the Commission must comply with MAPA when promulgating rules. Section 644.026.2; see also section 644.036 ("Public hearings — rules and regulations, how promulgated"). It does not follow, however, that any action taken by a state agency in which the public is afforded notice and comment opportunities must ipso facto be rulemaking. Focusing on the definition of a rule under section 536.010, we note that appellants do not assert that the 303(d) list comprised an agency statement of general applicability that interprets or prescribes law or policy, but rather they claim that the list comprised a statement of general applicability that implemented the policy espoused in section 644.011.
Appellants rely on Tonnar v. Missouri State Highway and Transportation Commission, 640 S.W.2d 527 (Mo.App.W.D. 1982), in which a house and some property owned by the Tonnars were taken by the Missouri Highway and Transportation Commission to improve Route 65 in Carroll County. Id. at 528. The Tonnars claimed relocation assistance funds for the purchase of a replacement home, in addition to the payment of compensation for the property taken. Id. The Highway and Transportation Commission based its award of relocation assistance on its Right-of-Way Manual, a publication that "declare[d] the policy of the Commission in respect to certain compensation and relocation payments and . . . set practices and procedures governing rights of the public in these areas." Id. at 531. The court held that the provisions of this manual had no binding effect because they fell within the section 536.010 definition of a rule and because the provisions had never been promulgated in accordance with section 536.021. Id. at 531-32. The underlying rationale was that the manual provided the formula for proper compensation and thereby rendered the hearing a worthless exercise because appraisals and testimony had no chance of overcoming the manual.
Similarly, Missouri State Division of Family Services v. Barclay, 705 S.W.2d 518 (Mo.App.W.D. 1985), involved a Division of Family Services determination that was based on an unpromulgated agency policy that took the form of a method for computing the income of benefit recipients. Id. at 520. Finding that the method constituted a rule under section 536.010(4), we declared it void because it had not been properly promulgated. Id. at 520-21.
More recently, in Kansas Association of Private Investigators v. Mulvihill, 35 S.W.3d 425 (Mo.App.W.D. 2000), the Kansas City, Missouri, Board of Police Commissioners increased the licensure fees charged to private security officers seeking limited police powers in the city. Id. at 426. The Board posted the license fees at the agency's office instead of following proper notice requirements. Id. at 430. We concluded that the license fee was a rule that should have been published. Id. at 430 n. 9.
The common thread in these cases is that the manual, the policy, or the fee at issue had "a potential, however slight, of impacting the substantive or procedural rights of some member of the public." Baugus, 878 S.W.2d at 42. It is axiomatic, however, that "[n]ot every generally applicable statement or 'announcement' of intent by a state agency is a rule." Id. Before the 303(d) list can qualify as a rule, it must act on unnamed and unspecified persons or facts. See Bruemmer v. Mo. Dep't of Labor Relations, 997 S.W.2d 112, 116 (Mo.App.W.D. 1999). Indeed, "[r]ulemaking, by its nature, involves an agency statement that affects the rights of individuals in the abstract." Baugus, 878 S.W.2d at 42 (citing Bonfield, State Administrative Rule Making, section 3.3.1 (1986)).
Respondents maintain that the 303(d) list had no such effect. They contend that the list merely embodied the Commission's formal offer of advice and information to EPA concerning what was known and what needed to be studied about the health of Missouri's public waters. Respondents explain that EPA is not bound by any list submitted by any state, which is evidenced by EPA's additions to Missouri's 1998 list.
Appellants cite to an Illinois case, Senn Park Nursing Center v. Miller, 455 N.E.2d 153 (Ill.App.Ct. 1983) ( Senn Park I), aff'd 470 N.E.2d 1029 (Ill. 1984), for the proposition that EPA's involvement in finally approving the Missouri's 303(d) list is immaterial to whether respondents enacted a rule under section 536.010(4). Because this is a case of first impression, we may review cases from other jurisdictions that are helpful to our analysis of this issue. Lay v. P G Health Care, Inc., 37 S.W.3d 310, 320 (Mo.App.W.D. 2000).
In Senn Park I, three nursing home facilities sought a writ of mandamus against the Director of the Illinois Department of Public Aid (IDPA) for reimbursement of Medicaid services. 455 N.E.2d at 155. The dispute arose after the adoption of a rule amending the Illinois state Medicaid plan. Id. Comparable to the relationship between the Commission and EPA under the Clean Water Act, the Social Security Act required Illinois to implement a state plan approved by the Department of Health and Human Services in order to participate in the federal reimbursement program. Id. at 155-56. The IPDA sent copies of changes to the state Medicaid plan to nursing home facilities, and the copies sent included an amended procedure for calculating the inflation update factor. Id. at 156. The plaintiffs in Senn Park I filed a complaint for mandamus demanding that IDPA pay them according to the preamended method, alleging, in part, that the amended inflation update procedure was an invalid rule because it was not published in accordance with the Illinois Administrative Procedure Act (IAPA). Id.
The IAPA defined rule as follows:
"Rule" means each agency statement of general applicability that implements, applies, interprets, or prescribes law or policy, but does not include (a) statements concerning only the internal management of an agency and not affecting private rights or procedures available to persons or entities outside the agency, (b) informal advisory rulings . . ., (c) intra-agency memoranda or (d) the prescription of standardized forms.
Senn Park I, 455 N.E.2d at 157 (quoting Ill. Rev. Stat. 1979, ch. 127, par. 1003.09). The court continued:
Plainly, the amended inflation update procedure is an agency statement of general applicability that implements policy. Looking at the IAPA definition of a rule and its exclusions, it is obvious that the emphasis is on general applicability, not on an agency's autonomy in adopting a rule. None of the exclusions even suggests that a federal approval requirement would have any effect on the characterization of an agency statement as a rule. Thus, we will not read an autonomy requirement into the definition for a rule.
Id. (emphasis added). After finding that the amendment was not excepted from the notice and comment procedures of the IAPA, the appellate court affirmed the trial court's decision that the amended inflation update procedure was invalid. Id. at 157-161.
The facts of our case present some interesting similarities to those of Senn Park I. Under the Clean Water Act, each state is responsible for compiling its list of impaired waters, and the EPA Administrator then approves the list. 33 U.S.C. § 1313(d)(1). Similarly, the Social Security Act as it existed at the time of Senn Park I involved little federal control other than verification of cost-finding methods by the Secretary of Health and Human Services, and the states were left free to develop the methods and standards of payment under the state plan. Senn Park I, 455 N.E.2d at 157. Also consistent with the IAPA, the definition of "rule" under section 536.010(4) of MAPA does not exempt an agency statement that is federally approved.
The critical distinction between the instant appeal and Senn Park, however, is that "rule" is defined differently in Missouri. While the IAPA contained four exclusions, MAPA has thirteen. "Our primary role in construing this statute is to ascertain the intent of the legislature from the language used and, if possible, give effect to that intent." Callahan v. Cardinal Glennon Children's Hosp., 901 S.W.2d 270, 273 (Mo.App.E.D. 1995). In addition, "each portion of the statute must be given meaning unless it conflicts with ascertained legislative intent." State v. Sweeney, 701 S.W.2d 420, 423 (Mo.banc 1985). Examining section 536.010(4) more closely, the statute not only defines what a "rule" is, but also what it is not. Willamette Indus., 34 S.W.3d at 201. Inasmuch as the exclusions supplement the general definition of a rule under section 536.010(4), each exclusion is rendered nearly as important as the general definition. Thus, by providing a broad general definition with specific exclusions, the statutory language indicates that the General Assembly intended the definition of "rule" to be applied comprehensively, and we will apply section 536.010(4) in that manner.
Central to our resolution of this appeal is that any "intergovernmental, interagency, or intraagency memorandum, directive, manual or other communication which does not substantially affect the legal rights of, or procedures available to, the public or any segment thereof" is excluded from the statutory definition of "rule." Section 536.010(4)(c). The IAPA contained no such exemption. In fact, our research of other jurisdictions has revealed only a few states that contain a similar exemption.
The Code of Alabama defines rule as follows:
RULE. Each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule or by federal statute or by federal rule or regulation; provided, however, all forms shall be filed with the secretary of the agency and with the Legislative Reference Service and all forms, except intergovernmental, interagency, and intra-agency forms which do not affect the rights of the public and emergency forms adopted pursuant to Section 41-22-5, shall be published in the Agency Administrative Code. The term includes the amendment or repeal of all existing rules, but does not include any of the following:
* * *
c. Intergovernmental, interagency, and intra-agency memoranda, directives, manuals, or other communications which do not substantially affect the legal rights of, or procedures available to, the public or any segment thereof.
Ala. Code section 41-22-3(9) (2000) (emphasis added). The included commentary at (9) explains that "Exclusion clause (c) is adopted from Iowa Code section 17A.2(7)(c) (1976 Cum. Supp.)." Presently, the Code of Iowa exempts "An intergovernmental, interagency, or intra-agency memorandum, directive, manual, or other communication which does not substantially affect the legal rights of, or procedures available to, the public or any segment thereof." Iowa Code Ann. Section 17A.2.11.c (West 2000). Iowa has had one occasion to address the exclusion, but, under the facts of the particular case, the Iowa Court of Appeals found that the agency's product substantially affected the legal rights of the public. Fears v. Iowa Dep't of Human Servs., 382 N.W.2d 473, 475 (Iowa Ct.App. 1985); see also Wood v. State Personnel Bd., 705 So.2d 413, 416-17 (Ala.Civ.App. 1997) (finding that the legal rights of the public were not substantially affected because "the regulation is an internal policy and procedure statement relating strictly to DOC personnel" ( i.e., "intra-agency") that had "no appreciable effect on the public" and apparently relying primarily on another exception to find the rulemaking requirements inapplicable).
The Michigan Compiled Laws defines "rule" as follows:
"Rule" means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission of the law enforced or administered by the agency. Rule does not include any of the following:
* * *
(g) An intergovernmental, interagency, or intra-agency memorandum, directive, or communication that does not affect the rights of, or procedures and practices available to, the public.
Mich. Comp. Laws section 24.207 (2001) (emphasis added). Working from the premise that inmates are members of the public, see Thompson v. Dep't of Corr., 371 N.W.2d 472, 473 (Mich.Ct.App. 1985), the Michigan courts have not had many occasions to fully address this exclusion and determine what constitutes "an intergovernmental, interagency, or intra-agency memorandum, directive, or communication." See, e.g., Jordan v. Dep't of Corr., 418 N.W.2d 914, 917 (Mich.Ct.App. 1987) (per curiam); Martin v. Dep't of Corr., 384 N.W.2d 392, 393-95 (Mich. 1986). But, in a recent case, the issue was addressed by the Michigan Court of Appeals, which found the exclusion applicable. Although not squarely on all fours with the present appeal, the case is instructive as to what constitutes an intergovernmental communication for purposes of section 536.010(4)(c).
In Kent County Aeronautics Board v. Department of State Police, 609 N.W.2d 593 (Mich.App.Ct. 2000), the Michigan Court of Appeals found that a state agency was exempt from the rulemaking requirements of the Michigan Administrative Procedures Act because of the "intergovernmental, interagency, or intra-agency memorandum, directive, or communication" exclusion. There, the Michigan Department of State Police (the State Police) identified problems with the State Police radio system, and, to address the problems with the old radio system, the state legislature created the Michigan Public Safety Communications System (MPSCS). Id. at 596-97. The successful bidder (Motorola), selected by the State Police, was awarded a contract to design and implement the MSPCS, which comprised nearly 200 radio towers to be constructed throughout the state of Michigan. Id. at 597. According to construction plans, the State Police and Motorola selected a site at which a 475-foot radio communications tower would be built. Id.
The affected township was notified of the intention to construct the tower and was advised to either issue a special use permit authorizing construction of the tower at the selected site or to propose an alternative site if it opposed the site State Police had selected. Id. The alternative site, however, had to meet "Equivalent Site Criteria" that the State Police had adopted. Kent County, 609 N.W.2d. at 597. The township approved a special use permit, but it limited the height of the tower to 175 feet, applied restrictions contained in the township zoning ordinance, and incorporated height restrictions contained in the Kent County International Airport Zoning Ordinance. Id. The State Police then notified Kent County of its intention to construct the communications tower and advised the county to propose an equivalent site or grant a special use permit if the county believed that the proposed tower did not comply with its zoning ordinance. Id. Kent County did neither and, instead, advised the State Police to apply for a permit to construct the tower. Id. Shortly thereafter, the State Police and Motorola notified the township and the county that they intended to proceed with construction and began pre-construction activity. Id. The township then reached an agreement with the State Police under which the State Police would consider building the tower at an alternative site recommended by the township. Kent County, 609 N.W.2d. at 597. The agreement provided that the State Police would return to the original site if third-parties challenged construction at the alternative site. Id. The next month, a group of citizens filed suit to compel the State Police to construct the tower at the original site, and the State Police immediately commenced construction at the original site. Id. at 597-98.
The township filed a complaint against the State Police alleging, in part, that the State Police violated Michigan's Administrative Procedures Act because the "Equivalent Site Criteria" were not promulgated pursuant to the rulemaking procedures in the state's Administrative Procedures Act. Id. at 598. The trial court granted the State Police's motion for summary disposition, finding that the "Equivalent Site Criteria" were not rules. Id. at 598-99. The Court of Appeals of Michigan held that the State Police's "Equivalent Site Criteria" "was simply an intergovernmental communication that does not affect the rights of the public." Kent County, 609 N.W.2d at 604-04. The court explained:
The "Equivalent Site Criteria" is analogous to a set of instruction intended to guide [the township] in proposing an equivalent, alternative site for construction. As the trial court correctly noted, the criteria do not create any legal obligation on behalf of the township to propose a site, nor do they enlarge, abridge, or in any way affect the rights of the public. The criteria simply advise a local governmental unit, by way of explanation, what will constitute an equivalent site for construction of a communications tower. The construction of the radio tower involved communications between two governmental agencies that did not affect the public's rights, or the procedures and practices available to the public .
Id. (emphasis added).
Here, the 303(d) list constituted little more than discussions between Missouri and EPA. The Commission instructed EPA as to what waterbodies it determined to need improvement. EPA finally approved the list of impaired waters, and, therefore, the state is now required to establish TMDLs for those listed waters. 33 U.S.C. § 1313(d)(1)(D). So, the placement of waters on the list is, at best, a prerequisite to the Commission's obligation under the Act to develop TMDLs or other controls. As such, the 303(d) list does nothing to define what pollutants may be put in, for example, the Rivers, nor does the list propose or remotely suggest what should be done to clean the particular waters. In this respect, the Commission's final 303(d) list "does not substantially affect the legal rights of, or procedures available to, the public," section 536.010(4)(c) (emphasis added), because the placement of a waterbody on the list merely triggers the State's obligation to establish a TMDL for that particular waterbody. The list simply advised the federal government, in the form of a list and supporting materials, what waterbodies the State has determined to potentially require TMDLs. Thus, the 1998 Missouri 303(d) list involved communications between two governmental agencies that did not substantially affect the public's rights or the procedures available to the public. Therefore, by definition, the development of the list submitted to EPA did not constitute rulemaking activity.
The wisdom of this exclusion, and its application to this particular situation, is apparent when considering a functional, generic definition of rules and rulemaking. Administrative rules are analogous to statutory legislation. Hedges v. Dep't of Soc. Servs., 585 S.W.2d 170, 172 (Mo.App.W.D. 1979). A rule "affects the rights of individuals in the abstract and must be applied in a further proceeding before the legal position of any particular individual will be definitively touched by it[.]" 1 Kenneth Culp Davis Richard J. Pierce, Jr., Administrative Law Treatise section 6.1, at 228 (3d. ed. 1994) (quoting J. Dickinson, Administrative Justice and the Supremacy of Law 2 (1927)). We do not feel respondents intended the list to be a "statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency" and, thus, constitute a rule under section 536.010. Nor do we feel the identification of waterbodies impaired by pollutants possesses the power and force of law so as to bind indicated but unnamed or unspecified persons or situations. Overall, the preparation of the 303(d) list was not an attempt by the Commission or MDNR to exercise the legislative power granted by the General Assembly.
Because Missouri's 1998 303(d) list was not a rule, and because the development of the list was not rulemaking, the circuit court did not have subject matter jurisdiction pursuant to section 536.050.1, which empowers the courts of this state to render declaratory judgments respecting the validity of rules or of threatened applications thereof, because there was no rule for appellants to challenge. Although our research has revealed that other courts have determined that the development of a 303(d) list is rulemaking, compare Sierra Club v. EPA, 162 F. Supp.2d 406, 419-20 (D.Md. 2001) ("[A]pproval or disapproval of state submissions under the Clean Water Act is not rule making; it is only the actual development of the list or load that is rule making. Therefore, as to the initial submission to the EPA, it is the state, not EPA, which is required to meet the notice and comment requirements.") (citing American Canoe Ass'n v. EPA, 54 F. Supp. d 621, 629 (E.D.Va. 1999); City of Albuquerque v. Browner, 97 F.3d 415, 425 (10th Cir. 1996), cert. denied, 522 U.S. 965 (1997)); with Pronsolino, 91 F. Supp.2d at 1355 ("Aggrieved landowners . . . might collectively or singly challenge . . . a Section 303(d) listing under the [federal] Administrative Procedure Act as 'arbitrary' or 'capricious,' or 'unsupported by substantial evidence,' or an 'abuse of discretion.'") (citing 5 U.S.C. § 702, 706), appellants' appeal consisted of a claim that the 1998 Missouri 303(d) list was a rule as defined by section 536.010(4), and such a claim conflicts with the clear language of section 536.010(4)(c). Therefore, the circuit court properly dismissed appellants' petition for declaratory judgment and injunctive relief.
We are not unmindful of the practical effect of our holding today: parties will be precluded from seeking judicial review of future 303(d) lists developed by the state by invoking section 536.050.1. We also acknowledge that the legislature has authorized judicial review under the Missouri Clean Water Law in section 644.071, which provides that "[a]ll final orders or determinations of the commission or the director made pursuant to the provisions of section 644.006 to 644.141 are subject to judicial review pursuant to the provisions of chapter 536, RSMo." If Chapter 536 provides no avenue of review for 303(d) lists, we must presume the legislature was aware of section 536.010(4)(c) at the time section 644.071 was enacted. See Suffian v. Usher, 19 S.W.3d 130, 133 (Mo. banc 2000). Thus, this is a dilemma that must be resolved, if at all, by the legislature, and, based on the record and our understanding of the TMDL process, we believe that appellants' concerns would be better addressed in a challenge to TMDLs proposed or promulgated for the waters on the 303(d) list. Whether TMDLs can be appropriately challenged under MAPA, however, we leave for another court to decide.
IV. CONCLUSION
As it relates to appellants' specific concern of the Rivers' inclusion on the list, respondents were empowered to limit public participation as they did. The essence of appellants' claim is that the divergence between the list proposed by MDNR in January 1998 and the Commission's final list was so great that they had no way of knowing that the Rivers were being considered for inclusion on the list. This sort of argument is frequently made any time a final rule includes a requirement that was not included at all in the proposed rule. Davis, et al., supra, section 7.3, at 300. The record refutes such an assertion. Even so, "[n]otice cannot possibly be held inadequate every time such a divergence exists, however." Id. (discussing challenges to rules based on inadequate notice). The opportunity to comment is provided by section 536.021 with the expectation that comments often will persuade agencies to modify their original proposal or to adopt alternatives to their original proposal. See id.; Mulvihill, 35 S.W.3d at 429-30 (quoting NME Hosps., Inc. v. Dep't of Soc. Servs., 850 S.W.2d 71, 74 (Mo.banc 1993); St. Louis Christian Home v. Mo. Comm'n on Human Rights, 634 S.W.2d 508, 515 (Mo.App.W.D. 1982)); Corvera, 973 S.W.2d at 854 (quoting Mo. Hosp. Ass'n v. Air Conservation Comm'n, 874 S.W.2d 380, 391 (Mo.App.W.D. 1994)). If the Commission was required to issue another notice and provide an opportunity for another set of comments each time it decided to make a change in response to the previous comments, the development of the 303(d) list would be endless. Cf. Davis, et al., supra, section 7.3, at 301 (discussing rulemaking). Under the facts of this case, interested parties had ample opportunity to provide both MDNR and the Commission with comments so as to allow the Commission to weigh the pros and cons of including the Rivers on the final list.
After a thorough review of the record, the briefs, and the relevant laws, we hold that the 303(d) list is not a rule by the express provisions of section 536.010(4)(c). Because no rule was promulgated, appellants were not entitled to a declaration of rights or status on the pleaded facts pursuant to section 536.050.1. Therefore, the judgment of the circuit court dismissing for lack of subject matter jurisdiction appellants' petition for declaratory judgment and injunctive relief is affirmed.
AFFIRMED.
Breckenridge and Hardwick, JJ., concur.