JANSEN, J.
Plaintiffs commenced this declaratory judgment action in the circuit court to challenge an administrative rule promulgated by defendant Department of Environmental
The Federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., "is a comprehensive water quality statute designed to `restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" PUD No. 1 of Jefferson Co. v. Washington Dep't of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994), quoting 33 U.S.C. § 1251(a). By enacting the CWA, Congress sought to eliminate "the discharge of pollutants into the [nation's] navigable waters" and to attain "an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife. . . ." 33 U.S.C. § 1251(a)(1) and (2). "Toward this end, the [CWA] provides for two sets of water quality measures." Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). These two types of water quality measures are known as "effluent limitations," 33 U.S.C. § 1311, and "water quality standards," 33 U.S.C. § 1313.
"`Effluent limitations' are promulgated by the EPA and restrict the quantities, rates, and concentrations of specified substances which are discharged from point sources."
In 1973, the EPA granted Michigan the authority to administer its own NPDES program. Sierra Club, 277 Mich. App. at 535, 747 N.W.2d 321; see also United States v. Bay-Houston Towing Co., Inc., 197 F.Supp.2d 788, 801 (E.D.Mich., 2002). Part 31 of Michigan's Natural Resources and Environmental Protection Act (NREPA), MCL § 324.3101 et seq., governs the protection of water resources in this state. Under Part 31 of the NREPA, "the DEQ is responsible for issuing NPDES permits in Michigan and ensuring that those permits comply with applicable federal law and regulations." Sierra Club, 277 Mich.App. at 535-536, 747 N.W.2d 321.
As explained previously, the CWA requires an individual to seek and obtain an NPDES permit before he or she may discharge pollutants into the nation's navigable waters from any "point source." Id. at 534, 747 N.W.2d 321; see also Arkansas, 503 U.S. at 102, 112 S.Ct. 1046. The CWA defines the term "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362(14) (emphasis added). Concentrated animal feeding operations (CAFOs) are "large-scale industrial operations that raise extraordinary numbers of livestock." Waterkeeper Alliance, Inc. v. Environmental Protection Agency, 399 F.3d 486, 492 (C.A.2, 2005). The federal regulations promulgated under the CWA define and categorize CAFOs depending on the number of animals that they stable or confine.
The EPA first promulgated regulations for CAFOs in the 1970s. Waterkeeper, 399 F.3d at 494. These initial regulations, "very generally speaking, defined the types of animal feeding operations that
Among other things, the 2003 Federal CAFO Rule as originally promulgated provided that all CAFO owners or operators "must either apply for an individual NPDES permit or submit a notice of intent for coverage under an NPDES general permit." 40 C.F.R. § 122.23(d)(1); see also Waterkeeper, 399 F.3d at 495. The federal rule also contained an exception to this requirement for "CAFOs that have successfully demonstrated no potential to discharge. . . ." NPDES Permit Regulation and Effluent Guidelines and Standards for CAFOs, 68 Fed Reg at 7182 (emphasis added); see also former 40 C.F.R. § 122.23(d)(2).
In light of the EPA's promulgation of the 2003 Federal CAFO Rule, "Michigan promulgated its own administrative rules specific to the NPDES for CAFOs, which the EPA reviewed." Sierra Club, 277 Mich.App. at 536, 747 N.W.2d 321 (footnote omitted). Michigan's CAFO regulations are codified within Mich.Admin. Code, R 323.2102, R 323.2103, R 323.2104, and R 323.2196. Sierra Club, 277 Mich. App. at 536 n. 18, 747 N.W.2d 321. Like the 2003 Federal CAFO Rule as originally promulgated, the Michigan regulations provide that "[a]ll CAFO owners or operators shall apply either for an individual NPDES permit, or a certificate of coverage under an NPDES general permit[.]" Rule 2196(1)(b); see also Sierra Club, 277 Mich.App. at 536-537, 747 N.W.2d 321. Also like the 2003 Federal CAFO Rule as originally promulgated, the Michigan regulations provide an exception to this requirement for CAFO owners and operators who have "received a determination from the department, made after providing notice and opportunity for public comment, that the CAFO has `no potential to discharge[.]'"
In 2003 and 2004, various plaintiffs sought review of the 2003 Federal CAFO Rule in the United States Court of Appeals for the Second Circuit.
The United States Court of Appeals began by observing that § 1342(a)(1) of the CWA authorizes the EPA to issue NPDES permits for "the discharge of any pollutant or combination of pollutants." Id. (emphasis in original); see also 33 U.S.C. § 1342(a)(1). "In other words," the Waterkeeper court continued, "unless there is a `discharge of any pollutant,' there is no violation of the [CWA], and point sources are, accordingly, neither statutorily obligated to comply with EPA regulations for point source discharges, nor are they statutorily obligated to seek or obtain an NPDES permit." Waterkeeper, 399 F.3d at 504. The Waterkeeper court then considered § 1362(12) of the CWA, which defines the phrase "discharge of any pollutant" as "`(A) any addition of any pollutant to navigable waters from any point source, [or] (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.'" Waterkeeper, 399 F.3d at 504-505, quoting 33 U.S.C. § 1362(12). On the basis of the language of § 1342(a)(1), as well as the definition of "discharge of any pollutant" set forth in § 1362(12), the court rejected the EPA's argument that it had statutory authority to promulgate rules requiring all CAFOs to seek and obtain an NPDES permit—even those CAFOs that were not actually discharging pollutants into the navigable waters:
The Waterkeeper court further disagreed with the EPA's argument that it was statutorily authorized to require the plaintiffs to seek and obtain NPDES permits because "all CAFOs have the potential to discharge pollutants." Id. (emphasis in original). Relying in part on Natural Resources Defense Council v. Environmental Protection Agency, 859 F.2d 156, 170 (C.A.D.C., 1988), the Waterkeeper court ruled that "the Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges—not potential discharges, and certainly not point sources themselves." Waterkeeper, 399 F.3d at 505 (emphasis in original). So, too, did the Waterkeeper court reject the EPA's argument that it had authority to require the plaintiffs to seek and obtain an NPDES permit because the term "point source" "is defined to mean not only `any discernible, confined and discrete conveyance' from which pollutants `are' discharged, but also `any discernible, confined and discrete conveyance' from which pollutants `may be' discharged." Id., quoting 33 U.S.C. § 1362(14) (emphasis in original). The Waterkeeper court noted that "while point sources are statutorily defined to include potential dischargers, effluent limitations can, pursuant to 33 U.S.C. § 1311(e), be applied only to `point sources of discharge of pollutants,' i.e. those point sources that are actually discharging." Waterkeeper, 399 F.3d at 505 (emphasis in original).
In the end, the Waterkeeper court determined that the challenged provisions of the 2003 Federal CAFO Rule exceeded the scope of the EPA's statutory rulemaking authority as conferred by the CWA. The court ruled that even though the plaintiffs had the potential to discharge, the EPA
On October 22, 2007, plaintiffs commenced the present action by filing a complaint for declaratory relief in the Newaygo Circuit Court. Relying in part on the Waterkeeper decision, plaintiffs alleged that Mich.Admin. Code, R 323.2196 (Rule 2196) violated the language of the CWA. Plaintiffs suggested that the federal and Michigan NPDES programs were intended to be coextensive and that the DEQ's authority to promulgate rules requiring CAFOs to obtain NPDES permits was therefore naturally constrained by the language of the CWA itself. Plaintiffs also alleged that Rule 2196 exceeded the scope of the DEQ's statutory rulemaking authority under Part 31 of the NREPA. Plaintiffs pointed out that, like the 2003 Federal CAFO Rule partially struck down in Waterkeeper, Rule 2196 purported to require all CAFOs to either (1) seek and obtain an NPDES permit (irrespective of whether they actually discharge pollutants), or (2) demonstrate that they have no potential to discharge. Relying on the rationale of Waterkeeper, plaintiffs alleged that the DEQ was without authority to promulgate any regulation requiring them to seek and obtain NPDES permits because they did not actually discharge any pollutants into the waters of Michigan. Plaintiffs asserted that, like the CWA, Part 31 of the NREPA authorizes administrative rulemaking with regard to actual discharges only. Lastly, plaintiffs alleged that by promulgating Rule 2196, the DEQ had violated the intent of the Legislature as expressed through § 229(a) of SB 1086, which ultimately became 2006 PA 343.
On December 26, 2007, in lieu of filing an answer, the DEQ moved for summary disposition pursuant to MCR 2.116(C)(4) on the ground that the circuit court lacked jurisdiction over the present suit because plaintiffs had failed to exhaust certain requirements set forth in Michigan's Administrative Procedures Act (APA), MCL § 24.201 et seq. The DEQ pointed out
In its motion for summary disposition, the DEQ contended that rather than commencing the instant declaratory judgment action in circuit court, § 63 of the APA, MCL § 24.263, had required plaintiffs to seek judicial review of the DEQ's declaratory ruling pursuant to Chapter 6 of the APA, MCL § 24.301 et seq., which governs judicial review in contested cases. See MCL § 24.263 (providing that "[a] declaratory ruling is subject to judicial review in the same manner as an agency final decision or order in a contested case"). However, relying in part on Michigan Ass'n of Home Builders v. Dep't of Labor & Economic Growth Dir., 276 Mich.App. 467, 480-481, 741 N.W.2d 531 (2007), vacated in part on other grounds 481 Mich. 496, 750 N.W.2d 593 (2008), the circuit court determined that plaintiffs' request to the DEQ had, in reality, been a challenge to the validity of Rule 2196 rather than a request for a ruling on the applicability of Rule 2196 to "an actual state of facts" within the meaning of MCL § 24.263. The court noted that, in responding to plaintiffs' request, the DEQ had not considered the rule's applicability to any given set of facts, but had merely reiterated what the plain language of Rule 2196 already clearly required—namely, that all large CAFOs must either seek and obtain an NPDES permit or satisfactorily demonstrate that they have no potential to discharge. The court observed that plaintiffs' request for a declaratory ruling had raised "merely . . . a question of law" with "no need for factual development," and noted that although MCL § 24.263 would have authorized the DEQ to issue a declaratory ruling concerning the applicability of Rule 2196 to a particular set of facts, there was no statutory authority permitting the DEQ to make rulings or pronouncements concerning the "substantive validity" of its own rule. Instead, the court concluded that the proper mechanism for challenging the substantive validity of Rule 2196 was an action for declaratory relief in the circuit court. Accordingly, the circuit court denied the DEQ's motion for summary disposition and allowed the instant declaratory judgment action to go forward.
The DEQ opposed plaintiffs' motion and sought summary disposition in its favor pursuant to MCR 2.116(I)(2). The DEQ argued that the reasoning of the Waterkeeper decision was inapplicable to the present controversy and that the validity of Rule 2196 was purely a matter of state law. The DEQ claimed that it had full authority to promulgate Rule 2196 pursuant to §§ 3103 and 3106 of the NREPA, MCL § 324.3103 and MCL § 324.3106, and that these sections authorized it "to establish permit requirements that are more stringent and have greater specificity than [the] federal regulations." The DEQ also argued that Rule 2196 was neither arbitrary nor capricious, and that it fell squarely within the subject matter of Part 31 of the NREPA. Lastly, the DEQ pointed out that § 229(a) of SB 1086, which plaintiffs had referred to in support of their motion for summary disposition, was vetoed by Governor Granholm on August 15, 2006, and therefore never became part of 2006 PA 343, the DEQ appropriations act for fiscal year 2007.
The circuit court held oral argument on November 24, 2008. Plaintiffs' counsel pointed out that his clients were not currently discharging pollutants and had no present plans to discharge pollutants, and therefore argued that the DEQ was without authority to require them to seek and obtain an NPDES permit. He explained his position by way of an analogy, remarking that the DEQ's application of Rule 2196 to his clients was "something akin to the Secretary of State asking all potential drivers to get a driver's license even if they are not going to use one." Counsel argued that neither the CWA nor the NREPA authorized the DEQ to promulgate Rule 2196. Although plaintiffs' counsel seemed to acknowledge that §§ 3103 and 3106 of the NREPA confer broad rulemaking authority on the DEQ, he argued that the language of § 3103, like the relevant language of the CWA at issue in Waterkeeper, "doesn't talk about potential or hypothetical . . . [discharges], it talks about actual [discharges]; it uses an active voice." He also argued that even though § 3106 specifically grants the DEQ authority to regulate municipal, industrial, and commercial discharges, it does not mention "agricultural" discharges. Thus, he contended that under the doctrine expressio unius est exclusio alterius, § 3106 does not authorize the DEQ to regulate "agricultural" discharges.
Counsel for the DEQ asserted that because the EPA had granted Michigan authority
On January 20, 2009, the circuit court issued a thoughtful and detailed opinion denying plaintiffs' motion for summary disposition and granting summary disposition in favor of the DEQ. Judge Monton reasoned in pertinent part:
We review de novo the circuit court's decision to grant or deny a motion for summary disposition. Spiek v. Dep't of Transp., 456 Mich. 331, 337, 572 N.W.2d 201 (1998). The scope of an administrative agency's statutory rulemaking authority and whether an agency has exceeded that authority are questions of law that we review de novo. Consumers Power Co. v. Pub. Serv. Comm., 460 Mich. 148, 157, 596 N.W.2d 126 (1999); In re Complaint of Pelland Against Ameritech Mich., 254 Mich.App. 675, 682, 658 N.W.2d 849 (2003). Whether an administrative rule is arbitrary and capricious is a question of law, as is the question whether a rule comports with the intent of the Legislature. See Chesapeake & Ohio R. Co. v. Pub. Serv. Comm., 59 Mich.App. 88, 99, 228 N.W.2d 843 (1975); see also Blank v. Dep't of Corrections, 222 Mich.App. 385, 407-408, 564 N.W.2d 130 (1997). Statutory interpretation is a question of law that we review de novo on appeal. In re Complaint of Rovas Against SBC Mich., 482 Mich. 90, 102, 754 N.W.2d 259 (2008).
Plaintiffs argue that the circuit court erred by denying their motion for summary disposition and by granting summary disposition in favor of the DEQ. Specifically,
In Michigan, the rulemaking authority of a state administrative agency "derives from powers that the Michigan Legislature has granted." Wolverine Power Supply Coop., Inc. v. Dep't of Environmental Quality, 285 Mich.App. 548, 557, 777 N.W.2d 1 (2009). "It is firmly established that the [L]egislature may authorize the adoption by an administrative agency, charged with the administration of a particular enactment, of rules and regulations designed to effectuate the purposes of the enactment." Sterling Secret Service, Inc. v. Dep't of State Police, 20 Mich.App. 502, 513, 174 N.W.2d 298 (1969). At the same time, however, it is well settled that "[a] statute that grants power to an administrative agency must be strictly construed and the administrative authority drawn from such statute must be granted plainly, because doubtful power does not exist." In re Procedure & Format for Filing Tariffs Under the Mich. Telecom. Act, 210 Mich.App. 533, 539, 534 N.W.2d 194 (1995).
To be enforceable, administrative rules must be constitutionally valid, procedurally valid, and substantively valid.
The construction of a statute by a state administrative agency charged with administering it "`is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons.'" In re Complaint of Rovas, 482 Mich. at 103, 754 N.W.2d 259, quoting Boyer-Campbell Co. v. Fry, 271 Mich. 282, 296, 260 N.W. 165 (1935). Even so, "`[r]espectful consideration' is not equivalent to any normative understanding of `deference' as the latter term is commonly used. . . ." In re Complaint of Rovas, 482 Mich. at 108, 754 N.W.2d 259. Indeed, an administrative agency's interpretation "is not binding on the courts, and it cannot conflict with the Legislature's intent as expressed in the language of the statute at issue." Id. at 103, 754 N.W.2d 259; see also Ins. Institute of Mich., 486 Mich. at 385, 785 N.W.2d 67. Thus, even a longstanding administrative interpretation cannot overcome the plain language of a statute. Kinder Morgan Michigan, LLC v. City of Jackson, 277 Mich.App. 159, 173, 744 N.W.2d 184 (2007). The Michigan
On appeal, plaintiffs appear to have abandoned their argument that Rule 2196 is violative of the CWA. However, lest there be any lingering confusion on the subject, we wish to make clear that the scope of the DEQ's statutory authority to promulgate administrative rules concerning NPDES permitting in Michigan is purely a matter of state law. As explained earlier, the EPA granted Michigan the authority to administer its own NPDES program in 1973. Once the EPA has approved a state's request to administer its own NPDES program, that state's NPDES program is administered pursuant to state law rather than federal law. Ringbolt Farms, 714 F.Supp. at 1253; see also Sierra Club, 277 Mich.App. at 556, 747 N.W.2d 321 (ZAHRA, J., dissenting). The DEQ's administration of Michigan's NPDES permitting system is governed by and carried out pursuant to Part 31 of the NREPA. Sierra Club, 277 Mich.App. at 535-536, 747 N.W.2d 321. We reiterate that although a state's discharge standards and effluent limitations may not be less stringent than the federal standards and limitations, 33 U.S.C. § 1370, a state which administers its own NPDES program may adopt discharge standards and effluent limitations that are more stringent than the federal standards and limitations, 40 C.F.R. § 123.1(i)(1); West Virginia Highlands, 625 F.3d at 162.
In order to determine whether the DEQ exceeded its statutory rulemaking authority in this case, we must begin with the first prong of the Luttrell test. This requires us to ask whether Rule 2196 falls within the subject matter of the NREPA, see Luttrell, 421 Mich. at 100, 365 N.W.2d 74, and is essentially a question of statutory construction, see Wolverine Power, 285 Mich.App. at 557-558, 777 N.W.2d 1.
Our primary goal when interpreting a statute is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). "`[T]he Legislature's intent must be gathered from the language used, and the language must be given its ordinary meaning.'" Id. (citation omitted). The Legislature is presumed to have intended the meaning that it plainly expressed, Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 219, 731 N.W.2d 41 (2007), and clear statutory language must be enforced as written, Fluor Enterprises, Inc. v. Dep't of Treasury, 477 Mich. 170, 174, 730 N.W.2d 722 (2007). We presume that every word of a statute has some meaning and must avoid any interpretation that would render any part of a statute
Under Part 31 of the NREPA the DEQ has broad powers to regulate the discharge of pollutants into the waters of the state, to set standards concerning water pollution, to issue permits regarding the discharge or potential discharge of pollutants into Michigan's waters, and to compel compliance with those permits. See MCL § 324.3103(1); MCL § 324.3106; MCL § 324.3112(1). In order to allow the DEQ to effectively perform its duties with regard to the control of water pollution under Part 31, the Legislature has expressly conferred various rulemaking powers upon the DEQ. See, e.g., MCL § 324.3103(2); MCL § 324.3103(3); MCL § 324.3106; MCL § 324.3107; MCL § 324.3111; MCL § 324.3112(6); MCL § 324.3131(1). While many of the rulemaking powers conferred by Part 31 of the NREPA plainly do not apply in this case, the DEQ contends that it was authorized to promulgate Rule 2196 pursuant to the rulemaking authority set forth in §§ 3103 and 3106. The circuit court concurred with the DEQ, ruling that "sections 3103 and 3106 of NREPA provide the authority to adopt Rule 2196[.]" We agree that the DEQ had authority to promulgate Rule 2196 under the rulemaking provision of § 3103(2), but conclude that the DEQ lacked authority to do so under the rulemaking provision of § 3106.
There are two separate rulemaking provisions set forth in § 3103. Those provisions state in pertinent part:
Section 3103(2) contains a broad and general grant of rulemaking authority, authorizing the DEQ to promulgate any rules "as it considers necessary to carry out its duties under this part."
Accordingly, the question becomes whether the subject matter of Rule 2196 is encompassed by, or falls within, any of the abovementioned statutory duties. We answer this question in the affirmative. Unlike the EPA, which is limited by the plain language of the CWA to regulating the "discharge of pollutants" or the "discharge of any pollutant," see 33 U.S.C. § 1311(e); 33 U.S.C. § 1342(a)(1); Waterkeeper, 399 F.3d at 504-505, the DEQ has much broader duties and powers with respect to the regulation of water pollution under Part 31 of the NREPA. For instance, as explained earlier, the DEQ has the duty to "protect and conserve the water resources of the state," MCL § 324.3103(1), and to "take all appropriate steps to prevent any pollution the [DEQ] considers to be unreasonable and against public interest in view of the existing conditions in any . . . waters of the state,"
It is well established that an agency may exercise some discretion concerning the rules that it promulgates, as long as the ultimate rules are consistent with the legislative scheme. See Bunce v. Secretary of State, 239 Mich.App. 204, 217, 607 N.W.2d 372 (1999); see also Argo Oil Corp. v. Atwood, 274 Mich. 47, 52, 264 N.W. 285 (1935). Here, the DEQ has chosen to carry out its duties under Part 31 of the NREPA by requiring all CAFOs to either (1) seek and obtain an NPDES permit (irrespective of whether they actually discharge pollutants) or (2) satisfactorily
In contrast, the rulemaking provision of § 3106 is plainly inapplicable to the present controversy. That provision grants the DEQ authority to promulgate rules "restricting the polluting content of any waste material or polluting substance discharged or sought to be discharged. . . ." MCL § 324.3106 (emphasis added). In other words, it grants the DEQ power to promulgate rules concerning the actual content or composition of waste and other polluting substances that are discharged into Michigan's waters. Purely by way of example, the rulemaking provision of § 3106 would authorize the DEQ to promulgate rules setting the maximum amount of mercury that could be contained in any waste effluent or the maximum number of harmful bacteria that could be contained in every gallon of discharged waste. However, the provision simply does not contain any language authorizing the DEQ to promulgate rules concerning the types of point-source dischargers (CAFOs, for example) that must seek and obtain NPDES permits. As explained earlier, "[a] statute that grants power to an administrative agency must be strictly construed and the administrative authority drawn from such statute must be granted plainly, because doubtful power does not exist." In re Procedure & Format for Filing Tariffs, 210 Mich.App. at 539, 534 N.W.2d 194. An agency may not expand its rulemaking authority beyond that which the Legislature has delegated to it. Jackson v. Secretary of State, 105 Mich.App. 132, 139, 306 N.W.2d 422 (1981).
We conclude that Rule 2196 is within the scope of Part 31 of the NREPA and that the DEQ had authority, under § 3103(2), to promulgate Rule 2196 in furtherance of its statutory duty "to prevent any pollution" of the waters of the state. MCL § 324.3106. We also conclude that, because the powers conferred upon the DEQ by Part 31 of the NREPA are broader than the powers conferred upon the EPA by the CWA, the reasoning of the Waterkeeper decision does not apply in this case. As the DEQ acknowledges in its brief on appeal, the effect of the Waterkeeper decision has been to "ma[ke] the Michigan CAFO Rule more stringent than the federal
We must next determine whether Rule 2196 comports with the legislative intent underlying Part 31 of the NREPA. See Luttrell, 421 Mich. at 100, 365 N.W.2d 74. We conclude that it does. Plaintiffs' primary argument in this regard is that the Legislature intended to limit the DEQ's rulemaking powers to the regulation of actual or imminent discharges of waste or pollutants. In support of their argument, plaintiffs cite MCL § 324.3110 (requiring the certification of wastewater treatment facility operators for any "entity that discharges liquid wastes into any surface water or groundwater"), MCL § 324.3111 (requiring an annual report from any person "who discharges to the waters of the state"), MCL § 324.3113(1) (requiring a person who intends to make a new or increased discharge to file an application describing the "proposed point of discharge" and "the estimated amount to be discharged"), and MCL § 324.3120(1) (setting forth fees that must accompany an application for a permit "authorizing a discharge into surface water"). Plaintiffs argue that "[n]one of these requirements apply [sic] to a person that `might' discharge." Plaintiffs additionally contend that, with the possible exception of MCL § 324.3112(6) (requiring "all ocean going vessels engaging in port operations" to seek and obtain a permit), there are no provisions of Part 31 of the NREPA that extend NPDES permit requirements to point sources which are not actively discharging but which merely have the potential to discharge. We concede that many of the statutory sections relied on by plaintiffs are phrased in terms of present discharges. But plaintiffs' arguments wholly disregard the Legislature's specific command that the DEQ "take all appropriate steps to prevent any pollution the department considers to be unreasonable and against public interest in view of the existing conditions in any . . . waters of the state." MCL § 324.3106 (emphasis added). The Legislature has declared that "[a]ll words and phrases shall be construed and understood according to the common and approved usage of the language[.]" MCL § 8.3a. As we have already explained, the common and approved meaning of the verb "prevent" is "to keep from occurring," or "to stop something effectually by forestalling action and rendering it impossible." Random House Webster's College Dictionary (1997). Accordingly, and for the reasons already stated, § 3106 confers upon the DEQ broad powers to preempt or forestall the pollution of the waters of this state before any pollutants are ever discharged in the first instance.
Plaintiffs also argue that Rule 2196 violates the Legislature's intent as expressed in § 229(a) of SB 1086, which ultimately became 2006 PA 343. As passed by the Michigan House of Representatives and Michigan Senate, § 229(a) provided in pertinent part that the DEQ "shall not implement or enforce administrative rules, policies, guidelines, or procedures that . . . [r]equire a farm to obtain a [NPDES] permit under part 31 of the [NREPA] . . . if the farm has not been found by the [DEQ] to have a regulated discharge of pollutants into waters of this state." However, while Governor Granholm signed SB 1086, she exercised her
Notwithstanding the fact that § 229(a) of SB 1086 never became part the final DEQ appropriations act for fiscal year 2007, plaintiffs maintain that the language contained in § 229(a) was still indicative of the Legislature's intent to limit the DEQ's authority to require certain CAFOs to seek and obtain NPDES permits. However, the Michigan Constitution sets forth the sole means by which the Legislature's intent may be expressed: (1) three readings in each house, (2) enactment, and (3) gubernatorial approval or passage over the governor's veto. Const. 1963, art. 4, § 26; Const. 1963, art. 4, § 33; see also Craig v. Larson, 432 Mich. 346, 365, 439 N.W.2d 899 (1989) (LEVIN, J., concurring in part and dissenting in part). Because the language of § 229(a) was vetoed by the governor and was not reenacted over her veto, that language cannot be cited as evidence of the Legislature's intent.
All told, the Legislature has conferred upon the DEQ broad powers to regulate the pollution of Michigan's waters, MCL § 324.3103(1); MCL § 324.3106, and to promulgate any rules that it "considers necessary to carry out its duties" under Part 31 of the NREPA, MCL § 324.3103(2). It cannot be gainsaid that most CAFOs, by virtue of their sheer size and number of animals, accumulate great amounts of waste that must either be stored or ultimately discharged. While plaintiffs claim that they have no present plans to discharge pollutants into Michigan's waters, there is always a possibility that large CAFOs will be forced to discharge some or all of their animal waste and that these discharges may eventually find their way into the "waters of this state." MCL § 324.3106. Likely aware of these possibilities, the Legislature not only empowered the DEQ to regulate actual or present discharges, but also charged the DEQ with the duty to "take all appropriate steps to prevent any pollution the [DEQ] considers to be unreasonable and against public interest in view of the existing conditions in any . . . waters of the state." Id. (emphasis added). In order to carry out this duty, the DEQ has found it necessary to require all CAFOs to either (1) seek and obtain an NPDES permit (irrespective of whether they actually discharge pollutants), or (2) demonstrate that they have
The final question, then, is whether Rule 2196 is arbitrary and capricious. See Luttrell, 421 Mich. at 100, 365 N.W.2d 74. "Arbitrary means fixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances or significance, and capricious means apt to change suddenly, freakish or whimsical[.]" Nolan v. Dep't of Licensing & Regulation, 151 Mich.App. 641, 652, 391 N.W.2d 424 (1986); see also Bundo v. City of Walled Lake, 395 Mich. 679, 703 n. 17, 238 N.W.2d 154 (1976). In general, an agency's rules will be found to be arbitrary only if the agency "had no reasonable ground for the exercise of judgment." American Trucking Associations, Inc. v. United States, 344 U.S. 298, 314, 73 S.Ct. 307, 97 L.Ed. 337 (1953).
Plaintiffs argue that Rule 2196 is arbitrary and capricious for several reasons. First, plaintiffs contend that the DEQ arbitrarily modeled Rule 2196 on the 2003 Federal CAFO Rule, even after the DEQ knew or should have known that the Waterkeeper court had struck down the challenged federal regulation. Second, plaintiffs contend that Rule 2196 "violates common sense" because it is similar to a rule "requiring a 10 year old . . . to obtain a driver's license." Third, plaintiffs assert that the DEQ "flip-flopped on its earlier stated position" by promulgating Rule 2196 after the election of Governor Granholm. Lastly, plaintiffs argue that the DEQ acted arbitrarily by promulgating Rule 2196 without considering any "alternative options." We disagree in all respects.
It is true, by and large, that the DEQ modeled the language of Rule 2196 on the 2003 Federal CAFO Rule. It is also true that the DEQ went forward with the finalization of Rule 2196 even after the United States Court of Appeals for the Second Circuit had struck down the analogous provisions of the 2003 Federal CAFO Rule in Waterkeeper. But it does not necessarily follow that Rule 2196 is arbitrary and capricious. After the Waterkeeper decision, the DEQ determined that Rule 2196 was still necessary as a means to protect Michigan's waters from CAFO-originated pollution. Indeed, in its regulatory impact statement,
We also reject plaintiffs' assertion that Rule 2196 is arbitrary and capricious because
Nor can we agree with plaintiffs' contention that Rule 2196 "violates common sense" because it is akin to a rule "requiring a 10 year old ... to obtain a driver's license." As explained earlier, CAFOs generate large amounts of animal waste and pose known risks to Michigan's water resources. Rule 2196 is rationally related to the Legislature's purpose to prevent the pollution of the waters of this state. See Dykstra v. Dep't of Natural Resources, 198 Mich.App. 482, 491, 499 N.W.2d 367 (1993); Binsfeld v. Dep't of Natural Resources, 173 Mich.App. 779, 787, 434 N.W.2d 245 (1988).
Finally, we fully acknowledge that counsel for the DEQ stated at oral argument before the circuit court that the promulgation of Rule 2196 was motivated, at least in part, by a change of administrations in Lansing. But Rule 2196 is not arbitrary and capricious merely because the DEQ changed its position with regard to CAFOs following the election of Governor Granholm. Administrative agencies such as the DEQ are part of the executive branch of state government. In re Complaint of Rovas, 482 Mich. at 97, 754 N.W.2d 259. The executive power of the state is vested exclusively in the governor. Const. 1963, art. 5, § 1. The Framers of the Michigan Constitution desired to give the governor "real control over the executive branch," House Speaker v. Governor, 443 Mich. 560, 562, 506 N.W.2d 190 (1993), including the power to appoint the heads of departments like the DEQ, Const. 1963, art. 5, § 3, and to supervise the affairs of each principal department, Const. 1963, art. 5, § 8. For our constitutional framework to operate as it was intended, each newly elected governor must possess the power and ability to manage the bureaucracy, to supervise the administrative agencies, and to influence those agencies' rulemaking decisions through his or her appointments and directives. It would be illogical, indeed, to conclude that an administrative rule is arbitrary and capricious merely because it differs from a prior rule that was promulgated under a previous administration.
On the facts before us, we simply cannot conclude that Rule 2196 is arbitrary or capricious. Rule 2196 is a regulation of general applicability that the DEQ intends to apply to all CAFOs of a certain size. Accordingly, it is not "apt to change suddenly, freakish or whimsical[.]" Nolan, 151 Mich.App. at 652, 391 N.W.2d 424. Nor is there any evidence that the DEQ was motivated by caprice, prejudice, or animus or that Rule 2196 was promulgated without reference to adequate principles or standards. See id. Instead, it strikes us that Rule 2196 was promulgated deliberatively, with reference to sufficient standards, and without improper motives. We recognize that plaintiffs are unhappy with Rule 2196, which will certainly impose new costs and requirements. But a rule is not
Lastly, plaintiffs suggest that the DEQ has improperly attempted to bolster Rule 2196 by citing certain justifications for the rule that are not contained in the administrative record. It is true, at least in the federal context, that an agency must typically defend its actions on the basis of justifications contained in the administrative record rather than post hoc rationalizations developed during litigation. See, e.g., Securities & Exchange Comm. v. Chenery Corp., 332 U.S. 194, 196-197, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). However, this issue is not properly before us because it is not contained in plaintiffs' statement of the questions presented. MCR 7.212(C)(5); Mettler Walloon, LLC v. Melrose Twp., 281 Mich.App. 184, 221, 761 N.W.2d 293 (2008); McGoldrick v. Holiday Amusements, Inc., 242 Mich.App. 286, 298, 618 N.W.2d 98 (2000). We therefore decline to address it further.
Rule 2196 does not exceed the scope of the DEQ's statutory rulemaking authority. The rule falls squarely within the scope of Part 31 of the NREPA, is consistent with the underlying legislative intent, and is not arbitrary or capricious. We conclude that the DEQ was fully authorized to require CAFOs to either (1) seek and obtain an NPDES permit (irrespective of whether they actually discharge pollutants) or (2) satisfactorily demonstrate that they have no potential to discharge. The circuit court properly denied plaintiffs' motion for summary disposition and granted summary disposition in favor of the DEQ.
In light of our conclusions in this case, we need not consider the remaining arguments raised by the parties on appeal.
Affirmed. No taxable costs pursuant to MCR 7.219, a public question having been involved.