/>iOn April 6, 2015, Trenton Farms applied to the Missouri DNR for a state no-discharge operating permit for a swine CAFO. DNR personnel reviewed the permit application and, on April 12, 2015, issued a permit to Trenton Farms to operate the requested CAFO after finding that the application met all statutory and regulatory requirements.
Hickory Neighbors United, Inc. filed a petition for appeal of the permit to the Administrative Hearing Commission ("AHC") on September 22, 2015. Trenton Farms intervened and the AHC held a hearing as to Hickory Neighbors' petition on October 23, 2015. The AHC found that DNR met its burden of showing that the operating permit was issued in accordance with applicable laws and recommended that the grant of the permit be upheld ("Recommended Decision"). The Recommended Decision was transmitted to the Clean Water Commission ("CWC") on January 4, 2016. The CWC heard additional oral argument from the parties and issued its final decision on February 24, 2016 ("Final Decision"). The CWC disagreed with the ultimate findings of the AHC, instead finding that the permit was not appropriately and lawfully issued to Trenton Farms because DNR failed to determine that Trenton Farms was a "continuing authority," as required by 10 CSR 20-6.010(3), and that DNR had also failed to adequately determine that the swine CAFO would be protected in the event of a one hundred-year flood in accordance with 10 CSR 20-8.300(5)(A). The Final Decision by the CWC overruled the DNR's grant of the permit to Trenton Farms. Trenton Farms appealed, raising five points of error--four alleging the CWC erred in its denial because it misinterpreted the permit requirements of 10 CSR 20-6.010(3) (re status as a "continuing authority") and one alleging the CWC erred in finding that Trenton Farms' application did not adequately prove that the CAFO operation was protected from a one hundred-year flood as required by 10 CSR 20-8.300(5)(A).
In its opinion, the Court of Appeals first focuses on whether Trenton Farms' permit application failed to adequately establish that the proposed CAFO was protected from a one hundred-year flood. The Court repeatedly emphasizes that it is mandated "to give deference to the CWC's finding of fact" and that the Court "will overturn [the CWC's] judgment only if it is unsupported by competent and substantial evidence; is arbitrary, capricious, unreasonable, or involves an abuse of discretion; or the decision is unauthorized by law." Deference aside, in this instance, the Court also happens to agree with the CWC that there was deficient evidence in the permit application to support a finding that Trenton Farms complied with the flood protection of certain areas of the operation or, in the alternative, evidence that certain operational areas were non-existent and thus no certification of protection was needed.
Because the Court finds that the CWC did not err in determining that Trenton Farms' permit application failed to establish that flood protection per 10 CSR 20-8.300(5)(A), whether the CWC properly interpreted the requirements for being a "continuing authority" is immaterial. Nevertheless, the Court briefly addresses the issues raised in Trenton Farms' first four points on appeal given that the record shows that Trenton Farms may retain the right to seek a CAFO permit from the DNR. The Court observes that "continuing authority" is not a defined term in the regulations and that it does not appear to have been previously interpreted by a Missouri court. The testimony on record concerning the permit revealed that, historically, DNR interpreted the regulations to require only a showing that an entity was a permanent organization to satisfy the "continuing authority" requirements and that financial information has never been required. As a result, the Court notes that in light of its historical application, interpreting "continuing authority" to require financial disclosures (as the CWC did) was arbitrary as applied to Trenton Farms and that CWC cannot change interpretations of "continuing authority" without some notice or other action. The Court does not take up Trenton Farms' constitutional challenges to CWC's interpretation of "continuing authority" because the Court finds that CWC's interpretation of the term is arbitrary and contrary to the plain and ordinary meaning of the relevant regulation.
Nevertheless, because Trenton Farms failed to adequately demonstrate that the entire swine CAFO was protected from a one hundred-year flood, as required by regulation, the CWC did not err in denying Trenton Farms' permit application.
Court Summary:
Appellant Trenton Farms RE, LLC ("Trenton Farms") appeals the decision of the Missouri Clean Water Commission ("CWC") to deny Trenton Farms' permit application for a swine concentrated animal feeding operation ("CAFO"). Trenton Farms raises five points of error on appeal, four alleging that the CWC erred in its denial because it misinterpreted the "continuing authority" requirements of 10 CSR 20-6.010(3) causing the regulation to be misapplied and resulting in violation of Trenton Farms' constitutional rights. The final point alleges that the CWC erred in finding that Trenton Farms' application failed to prove the CAFO was protected from a one hundred-year flood.
AFFIRMED.
Division Four holds:
(1) The CWC did not err in determining that Trenton Farm's permit application failed to adequately establish that the proposed CAFO was protected from a one hundred-year flood. We give deference to the CWC's finding of fact that the testimony presented and the engineer's certification relied on by Trenton Farms were insufficient to meet the requirements of 10 CSR 20-8.300(5)(A).
(2) The CWC did err in finding that Trenton Farms failed to present sufficient evidence that it was a "continuing authority" under 10 CSR 20-6.010(3). However, regardless of the CWC's erroneous interpretation of 10 CSR 20-6.010(3), we affirm the CWC's judgment based on the holding on Point V.
