Court of Appeals of Missouri, Western District, Fourth Division
IN THE MATTER OF: TRENTON FARMS RE, LLC Permit No. MOGS10500, Appellant,
MISSOURI DEPARTMENT OF NATURAL RESOURCES, HICKORY NEIGHBORS UNITED, INC., Respondent.
from the Clean Water Commission
Before: Mark D. Pfeiffer, Chief Judge, Presiding, Karen King
Mitchell, Judge and Gary D. Witt, Judge
D. Witt, Judge
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") to be operated in Grundy County, Missouri.
Trenton Farms raises five points of error on appeal, four
alleging that the CWC erred in its denial because it
misinterpreted the permit requirements of 10 CSR 20-
6.010(3) causing the regulation to be misapplied
and resulting in violations of Trenton Farms'
constitutional rights. Trenton Farms' final point alleges
that 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). We affirm.
and Procedural Background
Missouri, the Clean Water Act ("CWA") is
implemented by two administrative agencies: the Missouri
Department of Natural Resources ("DNR") and the
CWC. The DNR 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."
Mo. Soybean Ass'n v. Mo. Clean Water
Comm'n, 102 S.W.3d 10, 19 (Mo. banc 2003) (internal
quotation omitted). The CWC is charged by statute with a
number of duties and granted numerous powers including:
(1) the "general supervision of the administration and
enforcement" of the Missouri Clean Water Law, sec.
644.026.1(1); (2) developing "comprehensive plans and
programs for the prevention, control and abatement of new or
existing pollution of the waters of the state."
sec.644.026.1(2); (3) identifying waters of the state and
prescribing water quality standards for them,
sec.644.026.1(7); (4) the power to promulgate rules and
regulations to enforce and implement Missouri's Clean
Water Law, and the duties imposed on the state by the CWA,
sec.644.026.1(8); and (5) the power to exercise all
incidental powers necessary to carry out the purposes of
Missouri's Clean Water Law, and to assure that the State
of Missouri complies with the CWA, sec.644.026.1(16).
Id. at 19 n.15. The CWC's "domicile"
is within the DNR. Section 644.021.1. DNR reviews all
applications for CAFOs and determines eligibility for
permits. 10 CSR 20-6.010(2). Such decisions, however, are
reviewed by the CWC and the CWC acts as the final deciding
agency regarding whether an applicant will or will not
receive a permit. Section 644.026.1.
April 6, 2015, Trenton Farms applied to the DNR for a state
no-discharge operating permit for a swine CAFO ("Permit
Application"). The Permit Application was reviewed by
DNR employee Greg Caldwell ("Caldwell"). Caldwell
determined that the Permit Application met all statutory and
regulatory requirements and, on August 12, 2015, DNR issued
Permit MOGS10500 ("Permit") to Trenton Farms to
operate the requested swine CAFO.
Neighbors United, Inc. ("Hickory Neighbors") filed
a Petition for Appeal of the Permit to the Administrative
Hearing Commission ("AHC") on August 28, 2015, and
a subsequent Amended Petition for Appeal ("Amended
Petition") on September 22, 2015. Trenton Farms
intervened in the AHC action, and the AHC held a hearing on
Hickory Neighbors' Amended 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 CWC on January 4, 2016. The CWC heard
additional oral argument from the parties on February 17,
2016, issuing 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 further that DNR 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. This appeal
644.051.6 provides that decisions by the CWC shall be subject
to appellate review pursuant to chapter 536 of the Missouri
Administrative Procedure Act. Section 536.140.2 provides
that, on review, this Court may determine whether the action
of the agency: (1) violates a constitutional provision; (2)
is in excess of statutory authority or jurisdiction of the
agency; (3) is unsupported by competent and substantial
evidence upon the whole record; (4) is unauthorized by law;
(5) is made upon unlawful procedure or without a fair trial;
(6) is arbitrary capricious or unreasonable; or (7) involves
an abuse of discretion.
deference to the agency's findings of fact so long as
they are supported by competent and substantial evidence.
Bd. of Educ. of City of St. Louis v. Mo. State Bd. of
Educ., 271 S.W.3d 1, 7, 12 (Mo. banc 2008). As to
questions of law, this Court conducts its review de
novo. Albanna v. State Bd. of Registration for
Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009);
ITT Commercial Fin. Corp. v. Mid-America Marine Supply
Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
is dispositive of this appeal, we will first discuss Trenton
Farms' final Point Relied On. In Point Relied On V,
Trenton Farms alleges that the CWC erred in denying the
Permit in that "there was no evidence in the record that
the barns were not protected from inundation by the 100-year
Manure Storage Design Regulations, which apply to this type
of CAFO operation, require that "[m]anure storage
structures, confinement buildings, open lots, composting
pads, and other manure storage areas in the production area
shall be protected from inundation or damage due to the one
hundred-year flood." 10 CSR 20-8.300(5)(A). This
protection may be accomplished by constructing all listed
sites above the one hundred-year flood plain or by including
with the permit application certification from an engineer
that all relevant sites are protected.
Farms argues that there was sufficient evidence presented to
the CWC to support a conclusion that the manure management
barns of the CAFO were adequately protected from a one
hundred-year flood. First, Trenton Farms relies on the
testimony of Caldwell who reviewed the Permit Application on
behalf of DNR. Caldwell testified that Trenton Farms
submitted a map with the application showing the flood plain
but it was difficult to determine where the buildings would
be placed on that map. He also noted that the flood boundary
map crossed topographical lines, which prevented him from
determining whether the CAFO was located within flood
boundary lines based strictly on the map submitted. As a
result, he obtained a FEMA map and a soil data map to
determine that the CAFO was not actually located within the
one hundred-year flood plain. He testified that his
determination was based solely on the three additional maps
that he obtained and which were entered into evidence by DNR.
Unfortunately, as noted by Hickory Neighbors, the maps
identified and entered into evidence by the DNR and allegedly
relied upon by Caldwell are from counties other than
Grundy. Ultimately, although the AHC found that
Caldwell was credible, it found that his conclusions merely
went to the issue of flooding of the soil and were not
actually dispositive of the issue of whether the CAFO project
was located in a FEMA Zone A floodplain.
County Emergency Management Director, Glen Briggs
("Briggs"), submitted an affidavit in support of
Trenton Farms stating that he concluded that the CAFO
building site is not located in the FEMA Zone A
floodplain--also known as a one hundred-year floodplain. The
AHC, however, noted that the orientation of the buildings on
the map examined by Briggs did not match the ...