MSC 165166 MICHIGAN FARM BUREAU V DEPT OF ENVIRONMENT GREAT LAKES AND ENERGY Opinion - Leave Granted - Affirm CoA 7/31/2024

MICHIGAN FARM BUREAU v DEPARTMENT OF ENVIRONMENT, GREAT LAKES,
AND ENERGY
Docket No. 165166. Argued January 11, 2024 (Calendar No. 3). Decided July 31, 2024.
Michigan Farm Bureau, along with numerous farmer associations and livestock farms,
brought an action in the Court of Claims against the Department of Environment, Great Lakes, and
Energy (EGLE), seeking declaratory and injunctive relief. EGLE administers the National
Pollutant Discharge Elimination System (NPDES) program that is outlined in the federal Clean
Water Act, 33 USC 1251 et seq.; the federal Environmental Protection Agency (EPA) delegated
the power to administer the NPDES program within Michigan’s borders to Michigan under 33
USC 1342, and Michigan’s Legislature, in turn, delegated this authority to EGLE. Under its
authority to administer the NPDES program, EGLE has promulgated rules in Mich Admin Code,
R 323.2101 et seq., that provide requirements for NPDES permits and the process by which they
are issued. Under 40 CFR 122.44(d)(1) (2023), EGLE must include conditions in addition to or
more stringent than the conditions set forth in EGLE and EPA rules that EGLE deems necessary
to achieve water-quality standards in the relevant waterway; EGLE promulgated these water-
quality standards, which are codified in Part 4 of the Michigan Administrative Rules governing
water-resource protection, Mich Admin Code, R 323.1041 et seq. In this case, EGLE issued a
general permit in March 2020 that gave rise to this dispute. The 2020 general permit imposed new
conditions that included a reduction of the limit on the amount of phosphorus that may be applied
to land; revised setback provisions, requiring both: (1) that farms keep a 35-foot wide vegetated
barrier, in which CAFO waste may not be applied, along any surface water of the state, open tile
line intake structures, sinkholes, and agricultural well heads, including but not limited to roadside
or any ditches that are conduits to surface waters of the state (with the exception of surface waters
of the state that are up-gradient of the land application), and (2) that the permittee may not apply
waste within 100 feet of any surface water of the state or those same conduits to surface waters of
the state; and a presumptive three-month ban during January through March on applying waste on
land and on transferring waste to other entities that apply waste to land during those months.
Plaintiffs alleged that the added conditions exceeded EGLE’s statutory authority and were contrary
to state and federal law regulating concentrated animal feeding operations (CAFOs) under the
federal Clean Water Act and state law pursuant to Part 31 (Water Resources Protection), MCL
324.3101 et seq., of the Natural Resources and Environmental Protection Act (the NREPA), MCL
324.101 et seq.; lacked factual justification under the standard for setting conditions under Part 31
of the NREPA; were arbitrary and capricious; were unconstitutional; and were invalid because of
Michigan Supreme Court
Lansing, Michigan
Syllabus Chief Justice:
Elizabeth T. Clement
Justices:
Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
Kyra H. Bolden
This syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
Kathryn L. Loomis

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EGLE’s failure to follow the procedures required under the Michigan Administrative Procedures
Act (the APA), MCL 24.201 et seq., to promulgate the conditions as rules. A similar group of
farms and farm associations first petitioned for a contested-case hearing under Mich Admin Code,
R 323.2192(c) to appeal the 2020 general permit and the legality of the new conditions that the
permit imposed; however, before a contested-case hearing could be held, plaintiffs brought this
action in the Court of Claims. EGLE moved for summary disposition, arguing that because
plaintiffs failed to exhaust available administrative remedies, the Court of Claims lacked
jurisdiction. Plaintiffs argued that exhaustion was unnecessary because plaintiffs challenged
EGLE’s authority to include the new conditions in the general permit, which involved legal issues
that did not require factual development and exempted the issues from the exhaustion requirement.
The Court of Claims, CYNTHIA D. S TEPHENS , J., held that it lacked subject-matter jurisdiction
because plaintiffs did not exhaust their available administrative remedies and because plaintiffs’
contested case remained pending. Plaintiffs appealed, and the Court of Appeals, GADOLA , P.J.,
and S ERVITTO and R EDFORD , JJ., affirmed the Court of Claims’ ultimate holding that the Court of
Claims lacked subject-matter jurisdiction but held that plaintiffs could seek a declaratory judgment
by way of MCL 24.264. 343 Mich App 293 (2022). The Court of Appeals specifically held that
the 2020 permit conditions were “rules” under the APA because they were in addition to or more
stringent than the mandatory minimum conditions but that because plaintiffs had not first requested
a declaratory ruling from EGLE, the Court of Claims lacked subject-matter jurisdiction. EGLE
sought leave to appeal in the Supreme Court, arguing that the 2020 permit conditions were not
rules under the APA, and the Supreme Court granted the application. 511 Mich 971 (2023).
In an opinion by Chief Justice C LEMENT, joined by Justices B ERNSTEIN, C AVANAGH ,
WELCH (as to Parts I, II, III(A), III(B), and III(C)(1)), and B OLDEN, the Supreme Court held:
Because EGLE lacks the power to issue rules relating to NPDES permits issued to CAFOs,
neither the 2020 general permit EGLE issued pursuant to Part 31 of the NREPA nor the
discretionary conditions in that permit can have the force and effect of law, and so they cannot be
“rules” as defined by MCL 24.207 of the APA. Accordingly, the Court of Claims lacked subject-
matter jurisdiction under MCL 24.264.
1. EPA and EGLE rules require every CAFO permit to include certain conditions
(mandatory conditions), but federal and state law give EGLE discretion to include extra conditions
(discretionary conditions) in a permit that are more stringent than these mandatory conditions when
EGLE decides those discretionary conditions are necessary to achieve applicable Part 4 water-
quality standards or to comply with applicable laws and regulations. With regard to issuing general
permits, under Mich Admin Code, R 323.2191(2), EGLE must: (1) prepare a draft general permit
in which EGLE includes the mandatory conditions and any discretionary conditions that EGLE
deems necessary to achieve applicable Part 4 water-quality standards or to comply with other
applicable laws and regulations; (2) give public notice of the draft general permit; and (3) allow
opportunity for public comment and consider those comments before issuing a final draft of the
general permit. After receiving public comment on the draft general permit, EGLE makes a final
determination and either issues the general permit, issues the general permit with modifications,
or declines to issue it. If EGLE’s final determination is not acceptable to the permittee, the
applicant, or any other person, they may petition for a contested-case hearing under the APA
pursuant to MCL 324.3113(3) and Mich Admin Code, R 323.2133(2). Under MCL 324.1317,

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after an administrative law judge makes a final decision as to the general permit following a
contested-case hearing, an aggrieved party may appeal to have a panel of the Environmental Permit
Review Commission review the administrative law judge’s decision. And after the Environmental
Permit Review Commission issues a final decision, the final decision is subject to judicial review;
judicial review of the administrative law judge’s final decision may also be sought directly if no
party appeals to the Environmental Permit Review Commission.
2. When a general permit is finalized, the CAFO does not automatically have coverage;
the CAFO can apply to EGLE for coverage under the general permit pursuant to Mich Admin
Code, R 323.2192. If EGLE decides the CAFO meets the criteria for coverage under the general
permit, EGLE issues a certificate of coverage and the CAFO may discharge pollutants in
accordance with the mandatory and discretionary conditions in the general permit. If EGLE
decides the discretionary conditions are not appropriate as applied to the CAFO, EGLE may
require the CAFO to apply for an individual permit; in that case, EGLE will begin automatically
processing the application for an individual permit. Likewise, if a CAFO believes that the general-
permit conditions are inappropriate as applied to it, the CAFO may apply for an individual permit
from EGLE; however, EGLE may deny the CAFO an individual permit if it decides that the
general permit is more appropriate. If EGLE denies the CAFO coverage under a general permit,
denies the CAFO an individual permit, or the discretionary conditions in an individual permit are
unsatisfactory to the CAFO, the CAFO may petition for a contested-case hearing pursuant to Mich
Admin Code, R 323.2192(c) and MCL 324.3113(3).
3. Under MCL 24.264, a court has subject-matter jurisdiction to hear a declaratory-
judgment action in which a party challenges the validity or applicability of an agency rule unless
an exclusive procedure or remedy is provided by a statute governing the agency. MCL 24.264
further includes an exhaustion-of-administrative-remedies requirement: a party may not request a
declaratory judgment unless the party first requests a declaratory ruling from the agency and the
agency has denied the request or failed to act upon it expeditiously. In this case, to determine
whether the Court of Claims correctly concluded that it lacked subject-matter jurisdiction under
MCL 24.264, the question whether the general permit or discretionary conditions were “rules” had
to be answered.
4. MCL 24.207 of the APA defines “rule,” in pertinent part, as “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. Along with many other exceptions to the definition of a “rule” under
MCL 24.207, MCL 24.207(h) says that a rule does not include a form with instructions, an
interpretive statement, a guideline, an informational pamphlet, or other material that in itself does
not have the force and effect of law but is merely explanatory. An agency action is a “rule” under
the APA only if it meets, at minimum, the following elements: (1) it is an agency regulation,
statement, standard, policy, ruling, or instruction; (2) it is of general applicability; (3) it implements
or applies law enforced or administered by the agency, or it prescribes the organization, procedure,
or practice of the agency; and (4) it, in itself, has the force and effect of law. In this case, there
could be no serious debate that the discretionary conditions in the general permit satisfied the first
and third elements. With regard to the second element, the discretionary conditions were of
general applicability. The discretionary conditions were capable of being applied to or were

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relevant to all CAFOs because they were EGLE’s initial determination of what conditions in
addition to and more stringent than the mandatory conditions were necessary to achieve Part 4
water-quality standards for anything meeting the definition of a CAFO. Regarding the fourth
element, neither the general permit nor the discretionary conditions in it could have the force and
effect of law. EGLE has no power under the NREPA to make rules concerning NPDES permits
issued to CAFOs. And, under this Court’s decision in Clonlara, Inc v State Bd of Ed, 442 Mich
230 (1993), if the Legislature has not delegated to an agency the power to make rules as to a
particular subject matter, a statement of general applicability issued by the agency concerning that
subject cannot be considered a rule—either valid or invalid—under the APA. If an agency lacks
rulemaking power, any statement of general applicability issued by the agency necessarily lacks
the force and effect of law, no matter if the agency has issued it following the APA’s rulemaking
procedures. As a result, neither the general permit in this case nor the discretionary conditions in
it could have the force and effect of law, and so they were not rules under the APA.
5. An agency statement of general applicability in itself has the force and effect of law
when the statement itself alters rights or imposes obligations and has a present, binding effect on
regulated entities, the agency, and the courts. If an agency statement (1) merely explains what the
agency believes an ambiguous provision of a statute or agency rule means or (2) explains what
factors will be considered and what goals will be pursued when an agency exercises a discretionary
power or conducts an adjudication, the statement will generally not be considered to alter rights,
impose obligations, or have a present, binding effect.
6. The general permit itself cannot grant any entity meeting the definition of a CAFO the
right to discharge pollutants, nor can it require all CAFOs to operate in compliance with the
discretionary conditions. That does not mean that a CAFO is not required to comply with the
discretionary conditions in the general permit if the CAFO applies for and receives a certificate of
coverage. That is because it is the certificate of coverage—not the general permit itself—that
grants the rights and imposes obligations on the CAFO. And even though EGLE lacks the power
to alter rights or impose obligations by issuing a rule, Part 31 of the NREPA still empowers EGLE
to alter rights and impose obligations on individual parties proceeding before it that apply for
permits.
7. The general permit and discretionary conditions can be only (1) a statement explaining
what EGLE believes an ambiguous provision of the NREPA or one of EGLE’s rules means, i.e.,
an interpretive statement, or (2) a statement explaining how EGLE plans to exercise its
discretionary permitting power or a statement explaining what discretionary conditions EGLE
plans to prove are necessary to achieve applicable Part 4 water-quality standards or to comply with
other applicable laws and regulations in adjudications involving a CAFO. Because the general
permit and discretionary conditions were not EGLE’s attempt to discern the meaning of an
ambiguous provision of Part 31 of the NREPA or one of EGLE’s rules, they had to fall in the
second category. However, two points had to be emphasized. First, EGLE cannot act as though
the general permit or the discretionary conditions constrain its permitting discretion in individual
cases involving CAFOs. A CAFO must be allowed to apply for an individual permit with only the
mandatory conditions, and EGLE must genuinely evaluate whether the discretionary conditions in
the general permit or other discretionary conditions are necessary as applied to that particular
CAFO. At the same time, when a CAFO applies for a certificate of coverage under the general

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permit, EGLE must retain discretion to decide whether the discretionary conditions in the general
permit are necessary as applied to the particular CAFO. And EGLE must genuinely evaluate
whether the discretionary conditions are necessary as applied to that particular CAFO. Second,
neither administrative law judges, the Environmental Permit Review Commission, nor the courts
can treat the general permit and discretionary conditions as though they restrict EGLE’s permitting
discretion. When EGLE issues a general permit and CAFOs with coverage under the prior general
permit petition for a contested case, as happened here, EGLE must carry its burden to prove that
any discretionary conditions in the general permit are necessary to achieve Part 4 water-quality
standards or to comply with applicable laws and regulations. If EGLE denies a CAFO’s
individual-permit application because EGLE concludes that the discretionary general-permit
conditions are more appropriate and the aggrieved CAFO petitions for a contested case, the
administrative law judge and the Environmental Permit Review Commission must require EGLE
to prove that the discretionary conditions in the general permit are necessary to achieve Part 4
water-quality standards or to comply with other applicable laws and regulations as applied to the
particular CAFO. If EGLE denies a CAFO’s general-permit application, EGLE issues an
individual permit, and the aggrieved CAFO petitions for a contested case, again, the administrative
law judge and the Environmental Permit Review Commission must require EGLE to prove that
any discretionary conditions in the individual permit are necessary as applied to the CAFO.
Finally, if an aggrieved party seeks judicial review, a court must ensure that EGLE sustained its
burden of proof.
Court of Appeals judgment affirmed; Court of Appeals holding that the discretionary
conditions in the general permit were rules vacated.
Justice WELCH, concurring, agreed with Chief Justice C LEMENT ’s analysis in part and
joined Parts I, II, III(A), III(B), and III(C)(1) of the majority opinion and concurred in the
judgment. The challenged conditions in the 2020 general permit could not be considered rules
under the APA because in 2020 EGLE lacked delegated rulemaking authority as to its NPDES
program for CAFOs under Part 31 of the NREPA and thus the conditions, on their own, could not
have the force and effect of law. Accordingly, plaintiffs’ declaratory-judgment action could not
move forward. However, Justice WELCH believed that it might have been unnecessary to decide
in this case whether the challenged conditions in the 2020 general permit could be considered rules
under MCL 24.207. MCL 24.264 is inapplicable if an exclusive procedure or remedy is provided
by a statute governing the agency, and the NREPA provides exclusive remedies and procedures
for disputing EGLE’s exercise of its authority to issue NPDES permits in two ways: (1) a
contested-case proceeding pursuant to MCL 324.3112 and MCL 324.3113, and (2) a petition for
permit review by the Environmental Permit Review Commission pursuant to MCL 324.1315 and
MCL 324.1317. Thus, whether the permit conditions were rules or not, any challenge to EGLE’s
actions under MCL 24.264 was prohibited given the exclusive remedies and procedures set forth
by the NREPA. Whether a statutory remedy or procedure is exclusive requires consideration of
both statutory text and the context in which a remedy or procedure exists. It was undisputed that
the rights, duties, and obligations associated with the NPDES program are purely statutory and
regulatory in nature. There was no indication in Part 31 of the NREPA that the Legislature
intended these extensive procedures to exempt the agency’s NPDES permitting program or allow
for direct litigation against EGLE for exercising its permitting power as a bypass to the
administrative review process. Accordingly, the presumption under Michigan law is that the

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statutory processes and procedures acknowledged by the NREPA are exclusive as to the
enforcement of purely statutory and regulatory rights. While Part 31 of the NREPA does not
explicitly refer to remedies or procedures as exclusive when discussing review through the
contested-case process or review by the Environmental Permit Review Commission, this was not
dispositive. Reading the relevant aspects of Part 31 of the NREPA in a holistic and contextual
manner, it was clear that the Legislature intended all challenges to EGLE’s exercise of NPDES
permitting authority to be funneled through one of its established administrative pathways before
the right to seek judicial review ripens.
Justice VIVIANO , joined by Justice ZAHRA , dissenting, would have held, under the NREPA,
the APA, and caselaw interpreting those statutes, that it was clear that the 2020 general permit is
a rule that could be challenged in a pre-enforcement declaratory-judgment action under MCL
24.264. When distinguishing between rules and interpretative statements, the crucial question is
whether the agency intends to exercise delegated power to make rules having the force of law, and
the intent usually can best be found in what the agency says at the time of issuing the rules; this
factor weighed heavily in favor of finding that the 2020 general permit is a rule because nothing
in the 2020 general permit states that it was intended as guidance, an interpretive statement, or
some other nonbinding action. Rather, the 2020 general permit commands, requires, orders, and
dictates what a CAFO must do to obtain coverage under it. Indeed, EGLE did not expressly argue
in this case that the 2020 general permit is nonbinding. Additionally, in determining whether an
agency action is a rule, the inquiry must focus on the actual action undertaken by the directive to
see whether the policy being implemented has the effect of being a rule; this factor also weighed
in favor of finding that the 2020 general permit is a rule. In this case, EGLE’s own regulations
and historical practice have treated the conditions as mandatory, denying coverage for applicants
who do not meet them. The legal effect of the 2020 general permit was clear—it sets the standards
that EGLE applies when determining whether to issue certificates of coverage under the general
permit. The language in the 2020 general permit itself could lead to no other conclusion than that
the 2020 general permit has the force and effect of law. And once a CAFO obtains coverage under
the 2020 general permit, its failure to comply with the general permit’s conditions carries fines
and penalties under MCL 324.3115, which strongly suggested that the 2020 general permit is a
rule. The following factors also weighed in favor of finding that the 2020 general permit is a rule:
it has conditions that are inconsistent with the existing rule for CAFO general permits, it is not
merely explanatory but instead creates new substantive standards, and other jurisdictions consider
general permits to be rules. Rather than address those factors, the majority improperly expanded
this Court’s holding in Clonlara by bringing a merits question into the threshold jurisdictional
issue of whether the action is a rule under the APA. Whether the 2020 GP conditions are within
the scope of EGLE’s Part 31 rulemaking power is a question on the merits. Finally, the majority
erred when it characterized the 2020 general permit as a policy that EGLE merely hopes to prove
is necessary in contested cases. The majority’s novel analysis reached a result that was not even
contemplated by the parties and that effectively ends EGLE’s general permitting program. The
confusion and contradictions in the new legal regime that the majority opinion created will require
further litigation to resolve, and will be to the financial detriment of CAFOs across the state and
will subject them to perpetual permitting litigation.

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FILED July 31, 2024
S T A T E O F M I C H I G A N
SUPREME COURT
MICHIGAN FARM BUREAU, et al.,
Plaintiffs-Appellees/Cross-
Appellants,
v No. 165166
DEPARTMENT OF ENVIRONMENT,
GREAT LAKES, AND ENERGY,
Defendant-Appellant/Cross-
Appellee.
BEFORE THE ENTIRE BENCH
CLEMENT , C.J.
Plaintiffs filed an original action for declaratory judgment in the Court of Claims
under MCL 24.264, which allows a litigant to challenge the validity or applicability of an
administrative agency “rule.” Plaintiffs argue that new conditions in a 2020 general
Michigan Supreme Court
Lansing, Michigan
OPINION Chief Justice:
Elizabeth T. Clement
Justices:
Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
Kyra H. Bolden

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2
permit1 issued by defendant, the Department of Environment, Great Lakes, and Energy
(EGLE), pursuant to Part 31 of the Natural Resources and Environmental Protection Act
(the NREPA), MCL 324.3101 to MCL 324.3134, are “rules” and that the conditions are
invalid because EGLE did not process them in accordance with the rulemaking procedures
in Michigan’s Administrative Procedures Act (the APA), MCL 24.201 et seq. We hold
that neither the general permit nor the challenged conditions in it are “rules” under the
APA, and we therefore conclude that the Court of Claims lacked subject-matter jurisdiction
under MCL 24.264. Accordingly, we affirm the judgment of the Court of Appeals but
vacate that part of its opinion holding that the challenged general-permit conditions are
rules.
I. BACKGROUND
To understand this case, some background on a complicated regulatory process is
in order. It starts with the Clean Water Act, 33 USC 1251 et seq. In furtherance of its goal
to restore and maintain the integrity of our nation’s water, see Maui v Hawaii Wildlife
Fund, 590 US 165, 170; 140 S Ct 1462; 206 L Ed 2d 640 (2020), the Clean Water Act sets
up a permitting system known as the National Pollutant Discharge Elimination System
(NPDES) program. See 33 USC 1342. Under the Clean Water Act, “point sources” are
prohibited from discharging any pollutants into navigable waters unless they have a valid
1 Michigan Department of Environment, Great Lakes, and Energy, National Pollutant
Discharge Elimination System Wastewater Discharge General Permit: Concentrated
Animal Feeding Operations, Permit No. MIG010000 (issued March 27, 2020), available at
<https://www.michigan.gov/-/media/Project/Websites/egle/Documents/Programs/WRD/
CAFO/MIG010000-General-Permit-2025.pdf?rev=a4d602d0165c41e096854abe036058f9>
(accessed June 6, 2024) [https://perma.cc/6YEW-WSX6].

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3
NPDES permit. See Maui, 590 US at 171. Point sources are “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 USC 1362(14) (emphasis added).
The plaintiffs in this case include the Michigan Farm Bureau (an agriculture-focused
trade association), concentrated animal feeding operations (CAFOs), and the owners of
CAFOs. CAFOs are large-scale agricultural operations that raise hundreds—or sometimes
thousands—of animals in close confinement for slaughter or dairy. See Waterkeeper
Alliance, Inc v US Environmental Protection Agency, 399 F3d 486, 492-493 (CA 2, 2005);
see also 40 CFR 122.32 (2023); Mich Admin Code, R 323.2102(i). These animals produce
a lot of manure and wastewater: a single large CAFO can produce “one and a half times
more than the annual sanitary waste produced by the city of Philadelphia . . . .”2 To dispose
of all this manure and wastewater, CAFOs often apply it to nearby farm fields or pay to
have it hauled to other locations. When properly applied, the nutrients in the manure—
largely phosphorus and nitrogen—serve as fertilizer for crops. See Centner, Courts and
the EPA Interpret NPDES General Permit Requirements for CAFOs, 38 Envt’l L 1215,
1220 (2008). But when excessively or improperly applied, the nutrients and bacteria from
the manure and wastewater can run off into navigable waters or leach into groundwater,
2 National Association of Local Boards of Health, Understanding Concentrated Animal
Feeding Operations and Their Impact on Communities (2010), p 2, available at
<https://www.cdc.gov/nceh/ehs/docs/understanding_cafos_nalboh.pdf> (accessed April 3,
2024) [https://perma.cc/2LPY-CD2J].

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4
impairing water quality. See Waterkeeper Alliance, Inc, 399 F3d at 493-494.3 This is why
CAFOs are considered point sources under the Clean Water Act and, with few exceptions,
must obtain NPDES permits before beginning operation and must renew permits as they
expire to continue operating. See Mich Admin Code, R 323.2196(1) and (2); Milwaukee v
Illinois & Michigan, 451 US 304, 318; 101 S Ct 1784; 68 L Ed 2d 114 (1981) (“Every
point source discharge is prohibited unless covered by a permit . . . .”).4
In Michigan, EGLE administers the NPDES program. See Sierra Club Mackinac
Chapter v Dep’t of Environmental Quality, 277 Mich App 531, 535; 747 NW2d 321 (2008)
(noting that the Environmental Protection Agency [the EPA] delegated the power to
administer the NPDES program within Michigan’s borders to Michigan under 33 USC
1342); MCL 324.3101 et seq. (wherein Michigan’s Legislature in turn delegated this
authority to EGLE). Under its authority to administer the NPDES program, EGLE has
promulgated rules that provide requirements for NPDES permits and the process by which
3 Animal waste includes a number of potentially harmful pollutants, including
(1) nutrients such as nitrogen and phosphorus; (2) organic matter; (3) solids,
including the manure itself and other elements mixed with it such as spilled
feed, bedding and litter materials, hair, feathers and animal corpses; (4)
pathogens (disease-causing organisms such as bacteria and viruses); (5) salts;
(6) trace elements such as arsenic; (7) odorous/volatile compounds such as
carbon dioxide, methane, hydrogen sulfide, and ammonia; (8) antibiotics;
and (9) pesticides and hormones. [Waterkeeper Alliance, Inc, 399 F3d at
494, citing National Pollutant Discharge Elimination System Permit
Regulation and Effluent Limitations Guidelines and Standards for
Concentrated Animal Feeding Operations, 66 Fed Reg 2960, 2976-2979
(proposed January 12, 2001).]
4 A CAFO may operate without an NPDES permit, for instance, if EGLE finds that a CAFO
has “ ‘no potential to discharge’ pursuant to [Mich Admin Code, R 323.2196(4)].” See
Mich Admin Code, R 323.2196(1)(b).

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5
they are issued. These are EGLE’s Part 21 rules, which are derived from Part 31 of the
NREPA. See Mich Admin Code, R 323.2101 et seq.
A. PERMIT CONDITIONS
An NPDES permit from EGLE does not allow a point source to discharge pollutants
in any amount or in any manner the point source pleases. An NPDES permit includes
conditions that restrict the manner in which a point source operates or restrict the quantity
or concentrations of pollutants the point source may discharge. See 33 USC 1342(a)(2).
Usually, these conditions are in the form of either effluent limitations or best-management
practices.5 See Waterkeeper Alliance, Inc, 399 F3d at 496-497. Effluent limitations are
numerical limitations restricting “the quantities, rates, and concentrations of specified
substances which are discharged from point sources.” Arkansas v Oklahoma, 503 US 91,
101; 112 S Ct 1046; 117 L Ed 2d 239 (1992), citing 33 USC 1311 and 33 USC 1314. Best-
management practices are qualitative restrictions on the way a point source operates,
including schedules of activities, prohibitions of certain practices, or requirements of
certain maintenance procedures. See Waterkeeper Alliance, Inc, 399 F3d at 496.
There are certain conditions that every NPDES permit must include or that every
NPDES permit issued to a certain category of point source must include. Agency rules
issued by the EPA and EGLE list these conditions and require EGLE to include them in
every specified permit. See, e.g., 40 CFR 122.41 (2023); Mich Admin Code, R
5 Specifically, 40 CFR 122.44(k) (2023) requires an NPDES permit to include best-
management practices to control or abate discharge of pollutants when “[n]umeric effluent
limitations are infeasible” or “[t]he practices are reasonably necessary to achieve effluent
limitations and standards or to carry out the purposes and intent of the [Clean Water Act].”

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6
323.2196(5).6 Notably, EPA rules list certain best-management practices for CAFOs and
require EGLE to include these practices as conditions in every permit issued to a CAFO.
See 40 CFR 122.42(e) (2023); 40 CFR 412.4(c) (2023). Relevant here, one of the best-
management practices prohibits CAFOs from applying manure and wastewater closer than
100 feet to any surface waters or potential conduits to surface waters unless a CAFO puts
a 35-foot-wide “vegetated buffer” between the area where the waste was applied and the
surface waters or potential conduit. See 40 CFR 412.4(c)(5)(i). These EPA-established
best-management practices are incorporated by reference in EGLE’s Part 21 rules. See
Mich Admin Code, R 323.2189(2)(m). EGLE has also promulgated a Part 21 rule requiring
all CAFO permits to include certain best-management practices beyond the ones listed in
the EPA rules. See Mich Admin Code, R 323.2196(5). Relevant here, the EGLE rules
require CAFO permits to include restrictions on applying manure on water-saturated or
snow-covered ground. See Mich Admin Code, R 323.2196(5)(a)(ix).
It is important to highlight that these EPA rules and EGLE rules create only a
mandatory minimum set of conditions that every NPDES permit issued to a CAFO must
contain. Both federal and state law give EGLE discretion to include conditions in an
NPDES permit that are in addition to—or more stringent than—the conditions provided by
the rules. Specifically, under 40 CFR 122.44(d)(1) (2023), EGLE must include conditions
“in addition to or more stringent than” the conditions set forth in the EPA rules that EGLE
6 Technically speaking, the conditions are part of a CAFO’s “comprehensive nutrient
management plan,” but the comprehensive nutrient management plan is considered part of
a permit. See Sierra Club Mackinac Chapter, 277 Mich App at 552-553. And there is no
dispute that once a CAFO receives an individual permit or certificate of coverage under a
general permit, the CAFO is bound to follow the conditions. See MCL 324.3115.

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7
deems “necessary to . . . [a]chieve [applicable] water quality standards,” in the relevant
waterway. See also 33 USC 1313; American Paper Institute, Inc v US Environmental
Protection Agency, 302 US App DC 80, 83; 996 F2d 346 (1993). These “water quality
standards” are those that the Clean Water Act requires states to establish to safeguard
specified designated uses of water. See 33 USC 1313 through 33 USC 1315. EGLE
previously promulgated these water-quality standards on January 13, 2006, and they are
codified in Part 4 of the Michigan Administrative Rules governing water-resources
protection. See Mich Admin Code, R 323.1041 et seq.7
Similarly, in various provisions, Part 31 of the NREPA requires EGLE to include
any conditions in an NPDES permit that EGLE deems necessary to achieve applicable Part
4 water-quality standards or to comply with applicable laws and regulations.8 In particular,
MCL 324.3106 requires EGLE to ensure that any permit issued “will assure compliance
with state standards to regulate municipal, industrial, and commercial discharges or storage
of any substance that may affect the quality of the waters of the state,” and it allows EGLE
7 Water-quality standards specify a maximum concentration of pollutants that may be
present in water without impairing its suitability for a designated use, such as swimming
or drinking. See American Paper Institute, Inc, 302 US App DC at 83. In pertinent part,
EGLE’s water-quality standards limit the amount of nutrients (including phosphorus),
harmful microorganisms, and characteristics associated with excess nutrients. See Mich
Admin Code, R 323.1060(1) and (2) (plant nutrients, including phosphorus); R
323.1062(1) and (2) (microorganisms); R 323.1050 (physical characteristics); R 323.1055
(taste- or odor-producing substances); R 323.1064(1) (dissolved oxygen in the Great Lakes,
connecting waters, and inland streams); R 323.1065(1) and (2) (dissolved oxygen in inland
lakes); and R 323.1043(z) (defining “dissolved oxygen”).
8 Part 13 of the NREPA grants EGLE this power as well. See MCL 324.1307(5)
(“Approval of an application for a permit may be granted with conditions or modifications
necessary to achieve compliance with the part or parts of this act under which the permit
is issued.”).

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8
to “set permit restrictions that will assure compliance with applicable federal law and
regulations.” One such applicable federal regulation is 40 CFR 122.44(d)(1) (2023),
which, again, requires EGLE to include conditions “in addition to or more stringent than”
the conditions set forth in the EPA rules that EGLE deems necessary to ensure a waterway
receiving pollutants will meet Part 4 water-quality standards. Finally, MCL 324.3113(2)
provides, “If a permit is granted, the department shall condition the permit upon such
restrictions that the department considers necessary to adequately guard against unlawful
uses of the waters of the state as are set forth in [MCL 324.3109].”9
In sum, EPA and EGLE rules require every CAFO permit to include certain
conditions, but federal and state law give EGLE discretion to include extra conditions in a
permit that are more stringent than these conditions when EGLE decides those conditions
are necessary to achieve applicable Part 4 water-quality standards or to comply with
applicable laws and regulations. For ease of reference, we will refer to the former as
“mandatory conditions” and the latter as “discretionary conditions.”
B. THE INDIVIDUAL NPDES PERMITTING PROCESS
In addition to the Part 21 EGLE rules requiring all NPDES permits issued to CAFOs
to include certain best-management practices as conditions, see Mich Admin Code,
R 323.2189(2)(m); Mich Admin Code, R 323.2196(5), EGLE also promulgated Part 21
rules establishing procedures for issuing NPDES permits. To start, a point source sends a
9 In recognition of this authority granted by the NREPA, EGLE promulgated Mich Admin
Code, R 323.2137(d), which provides that any NPDES permit issued by EGLE must
contain conditions deemed necessary by EGLE to meet applicable Part 4 water-quality
standards.

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9
permit application to EGLE. See Mich Admin Code, R 323.2115(1). After receiving the
permit application, EGLE must make “preliminary determinations on the application,
including a proposed determination to issue or deny” the permit. Id. If EGLE’s preliminary
determination is to issue the permit, EGLE must prepare a draft permit including (1) the
mandatory conditions and (2) any discretionary conditions EGLE deems necessary to
achieve applicable Part 4 water-quality standards or to comply with other applicable laws
and regulations. See Mich Admin Code, R 323.2115(2) and (3).10
Once EGLE has prepared a draft permit, EGLE must give public notice of the draft
permit and any proposed discretionary conditions. See Mich Admin Code, R 323.2117; R
323.2118. For up to 30 days after EGLE publicly notices the draft permit, EGLE must
allow interested persons to submit written comments about the draft permit. See Mich
Admin Code, R 323.2119(1). EGLE must retain any written comments submitted and
consider them when determining whether to issue or deny the permit. See Mich Admin
Code, R 323.2119(2). Interested persons may also petition EGLE for a public hearing on
the draft permit, and EGLE has discretion to hold a public hearing. See Mich Admin Code,
R 323.2130(1). If EGLE exercises this discretion, it must give notice to the public. See
Mich Admin Code, R 323.2130(2).11
10 If EGLE’s preliminary determination is to deny the permit, the applicant or other person
may petition for a contested-case hearing, see MCL 324.3113(3), and the same process
described in the next few paragraphs of this opinion applies.
11 These public-notice and public-comment requirements stem from the Clean Water Act’s
requiring public notice and an opportunity for a public hearing before an NPDES permit
issues. See Sierra Club Mackinac Chapter, 277 Mich App at 553.

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10
After receiving comments and holding a public hearing (if EGLE decided to do so),
EGLE must “make a final determination on the permit application” and either issue the
permit or deny the permit. Mich Admin Code, R 323.2133(1). If EGLE’s final
determination “is not acceptable to the permittee, the applicant, or any other person,” they
may petition for a contested-case hearing under the APA. See MCL 324.3113(3); Mich
Admin Code, R 323.2133(2).12 After the contested-case hearing, an administrative law
judge makes a final decision as to the permit. See MCL 324.1317(1). Once the
administrative law judge makes a final decision, an aggrieved party may appeal to have a
panel of the Environmental Permit Review Commission review the decision of the
administrative law judge.13 See MCL 324.1317. The Environmental Permit Review
Commission may “adopt, remand, modify, or reverse” the administrative law judge’s
decision. See MCL 324.1317(4). After the Environmental Permit Review Commission
issues a final decision, the final decision is subject to judicial review. See MCL
324.1317(4); see also MCL 324.3113(3); MCL 324.3112(5). Alternatively, if no party
timely appeals the final decision of the administrative law judge to the Environmental
12 Broadly speaking, the contested-case procedures under the APA require that the parties
to the contested case be given the opportunity to have an impartial decision-maker preside
over a hearing, to present oral and written argument, to present evidence, and to cross-
examine witnesses. See MCL 24.271 to MCL 24.288.
13 The Environmental Permit Review Commission is a 15-member commission appointed
by the Governor; the commission is composed of persons who are not currently state
employees and who have not worked for EGLE within the preceding three years. See MCL
324.1313(2) and (3). The commission is charged with advising the director of EGLE on
disputes related to permits and permit applications. See MCL 324.1313(1).

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Permit Review Commission, then the administrative law judge’s ruling becomes the final
decision subject to “any applicable judicial review.” MCL 324.1317(7).
C. GENERAL NPDES PERMITS
Along with Part 21 rules setting up procedures for issuing individual NPDES
permits, EGLE also promulgated a Part 21 rule allowing it to issue what is called a general
permit. See Mich Admin Code, R 323.2191. A general permit covers a category of point
sources, such as CAFOs, rather than a single point source. EGLE may issue a general
permit for a category of point sources if EGLE determines: “(a) [t]he sources involve the
same or substantially similar types of operations”; “(b) [t]he sources discharge the same
types of wastes”; “(c) [t]he sources require the same effluent limitation or operating
conditions”; and “(d) [t]he sources require the same or similar monitoring.” Mich Admin
Code, R 323.2191(1). EGLE has no legal obligation to use the general permitting process
over the individual permitting process; general permits are effectively a tool of
convenience for both the regulator and the regulated entities.
When issuing a general permit, EGLE follows the same procedures as described
earlier. See Mich Admin Code, R 323.2191(2). That is, (1) EGLE must prepare a draft
general permit in which EGLE includes the mandatory conditions and any discretionary
conditions that EGLE deems necessary to achieve applicable Part 4 water-quality standards
or to comply with other applicable laws and regulations; (2) EGLE must give public notice
of the draft general permit; and (3) EGLE must allow opportunity for public comment and
must consider those comments before issuing a final draft of the general permit. As with
an individual permit, after receiving public comment on the draft general permit, EGLE

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12
makes a final determination and either issues the general permit, issues the general permit
with modifications, or declines to issue it.
And as with an individual permit, if EGLE’s final determination “is not acceptable
to the permittee, the applicant, or any other person,” they may petition for a contested-case
hearing under the APA. MCL 324.3113(3); Mich Admin Code, R 323.2133(2). Again,
after an administrative law judge makes a final decision as to the general permit following
a contested-case hearing, an aggrieved party may appeal to have a panel of the
Environmental Permit Review Commission review the administrative law judge’s
decision. After the Environmental Permit Review Commission issues a final decision, the
final decision is subject to judicial review, see MCL 324.1317(4), or judicial review of the
administrative law judge’s final decision may be sought directly if no party appeals to the
Environmental Permit Review Commission, MCL 324.1317(7). If issued, general permits
have a fixed term of not more than five years, see Mich Admin Code, R 323.2150, so every
five years, EGLE must reissue a new general permit.
When a general permit is finalized, the category of point sources the permit covers
does not automatically have coverage. Point sources within that category can apply to
EGLE for coverage under the general permit. See Mich Admin Code, R 323.2192. If
EGLE decides the applicant “meets the criteria for coverage under the general permit,”
EGLE issues a certificate of coverage and the point source may discharge pollutants in
accordance with the mandatory and discretionary conditions in the general permit. See
Mich Admin Code, R 323.2192(b).14 If EGLE decides the discretionary conditions are not
14 Mich Admin Code, R 323.2192(b) refers to the certificate of coverage as a “notice of
coverage.” But Mich Admin Code, R 323.2196(1)(b) refers to it as a “certificate of

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13
appropriate as applied to the applicant, EGLE may require the applicant to apply for an
individual permit. See Mich Admin Code, R 323.2191(3).15 In that case, EGLE will begin
automatically processing the application for an individual permit. See EGLE, NPDES
Appendix to the Permit Application (revised May 18, 2022), p 5, available at
<https://www.michigan.gov/-/media/Project/Websites/egle/Documents/Programs/WRD/
NPDES/permit-application-appendix.pdf?rev=4575168e1ebf4b6b95721728a21b1383>
(accessed July 28, 2024) [https://perma.cc/VT8J-MG6E]. Likewise, if an applicant
believes that the general-permit conditions are inappropriate as applied to it, the applicant
may apply for an individual permit from EGLE. See Mich Admin Code, R 323.2191(5).
coverage.” The 2020 general permit does as well. See Permit No. MIG010000, p 1. We
therefore use the term “certificate of coverage.”
15 Mich Admin Code, R 323.2191(3) provides:
(3) The department may require any person who is authorized to make
a discharge, by a general permit, to apply for and obtain an individual
national permit if any of the following circumstances apply:
(a) The discharge is a significant contributor to pollution as
determined by the department on a case-by-case basis.
(b) The discharger is not complying, or has not complied, with the
conditions of the general permit.
(c) A change has occurred in the availability of demonstrated
technology or practices for the control or abatement of waste applicable to
the point source discharge.
(d) Effluent standards and limitations are promulgated for point
source discharges subject to the general permit.
(e) The department determines that the criteria under which the
general permit was issued no longer apply. Any person may request the
department to take action pursuant to the provisions of this subrule.

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14
EGLE may deny the applicant an individual permit if it decides that the general permit is
more appropriate. See id. If EGLE denies a permit applicant coverage under a general
permit, denies a permit applicant an individual permit, or the discretionary conditions in an
individual permit are unsatisfactory to the permit applicant, the permit applicant may
petition for a contested-case hearing, and the same procedures discussed earlier apply. See
Mich Admin Code, R 323.2192(c); MCL 324.3113(3).
As this discussion shows, whether coverage is sought under an individual permit or
a general permit, EGLE must make an individualized determination as to each point source
seeking an NPDES permit. Even if a CAFO shows that it can comply with all the
conditions in a general permit, a CAFO is not automatically entitled to a certificate of
coverage. EGLE may decide that different conditions than those in the general permit are
necessary to achieve Part 4 water-quality standards or to comply with other applicable laws
and regulations as applied to the particular CAFO. If EGLE so decides, it will process the
CAFO’s application as one for an individual permit.
D. PROCEDURAL HISTORY
Having decided that CAFOs involve the same or substantially similar types of
operations, that they discharge the same types of wastes, that they require the same effluent
limitations or operating conditions, and that they require the same or similar monitoring,
EGLE first issued a general permit for CAFOs in 2005. As the 2005 general permit was
approaching expiration, EGLE issued another general permit for CAFOs in 2010. There
is no dispute that the 2010 general permit contained only the mandatory conditions, see 40
CFR 122.42(e) (2023); Mich Admin Code, R 323.2196(5); Mich Admin Code, R

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15
323.2189(2)(m), but no discretionary conditions in addition to or more stringent than those
conditions. Once the 2010 general permit expired five years later, EGLE issued a new
general permit in 2015, which again included only the mandatory conditions.
Mich Admin Code, R 323.2196(2)(g) requires all current permit holders to submit
an application to renew their permit not later than 180 days before its expiration. All
CAFOs with coverage under the 2015 general permit applied for renewal by August 1,
2019. EGLE issued the draft 2020 general permit on October 30, 2019, and gave public
notice of it per Mich Admin Code, R 323.2117 and R 323.2118.16 Unlike the 2010 and
2015 general permits, in the draft 2020 general permit, EGLE included discretionary
conditions in addition to or more stringent than the mandatory conditions. See 40 CFR
122.42(e) (2023); 40 CFR 412.4(c) (2023); Mich Admin Code, R 323.2196(5). EGLE
deemed these discretionary conditions necessary to achieve applicable Part 4 water-quality
standards or to comply with other applicable laws and regulations. According to EGLE’s
Environmental Quality Specialist, Bruce Washburn, the 2015 general permit had been
ineffective and CAFOs’ land application of manure had impaired water quality between
2015 and 2020.17
16 Although not required to do so, before publicly noticing the draft 2020 general permit,
EGLE held three stakeholder meetings between March and June 2019 at which
stakeholders were allowed to raise and discuss their concerns with the 2015 general permit
and offer suggestions for the 2020 general permit.
17 Washburn explained that the mandatory conditions required by the EPA rules and EGLE
rules did not ensure proper waste tracking, that CAFOs were applying more manure to the
land in winter than necessary for crop production, and that some CAFOs were creating
separate legal entities and transferring their waste to those entities to avoid responsibility
for the waste. As a result, Washburn explained, since 2015, “additional water bodies [have
been] listed as impaired . . . .”

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16
As an example of one of the discretionary conditions included, the 2020 general
permit included a condition presumptively banning land application of manure from
January through March and prohibiting a CAFO from transferring manure to another entity
from January through March. This was in addition to or more stringent than the mandatory
conditions listed in EGLE’s Part 21 rule; that rule only called for a condition restricting
land application of manure on snow-covered ground. See Mich Admin Code, R
323.2196(5)(a)(ix). Also, the 2020 general permit included a discretionary condition
prohibiting a CAFO from applying manure within 100 feet of surface waters or conduits
to surface waters and requiring a CAFO to keep a 35-foot vegetated barrier between the
application of manure and the surface waters or conduits to surface waters. This was in
addition to or more stringent than the mandatory conditions listed in EGLE’s Part 21 rule
because EGLE’s Part 21 rule only required a CAFO to keep a 35-foot vegetated barrier
between surface waters or conduits to surface waters if a CAFO applied manure within 100
feet of the surface waters or conduits to surface waters. See Mich Admin Code, R
323.2189(2)(m) (incorporating by reference 40 CFR 412.4(c)(5)(i) (2023)).
After EGLE gave public notice of the draft 2020 general permit on October 30,
2019, EGLE allowed for public comment on it until December 18, 2019. EGLE received
written comments from the public on the draft general permit and held three public hearings
in December 2019. After allowing for public comment, EGLE issued the final 2020
general permit on March 27, 2020, with an effective date of April 1, 2020. EGLE kept the
discretionary conditions as proposed, and the 2020 general permit issued in March 2020.
Two months later, Michigan Farm Bureau, half a dozen other industry groups, and
over 100 individual CAFOs that had applied for coverage under the 2020 general permit

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17
(collectively, petitioners) petitioned for a contested-case hearing under MCL 324.3112(5),
challenging the discretionary conditions in the 2020 general permit. As a result, EGLE did
not issue any notices of coverage under the 2020 general permit. All petitioners had their
coverage under the 2015 general permit extended pending the conclusion of the contested-
case hearing. See MCL 24.291(2).
In the contested-case hearing, petitioners challenged both the procedural and
substantive validity of the discretionary conditions in the general permit. They argued that
the conditions were procedurally invalid because they were actually “rules” under the APA
and because EGLE had not processed them in compliance with the APA’s rulemaking
procedures.18 They also argued that the new discretionary permit conditions exceeded
18 Because a rule alters rights or imposes obligations on society or an open-ended class, the
APA prescribes “an elaborate procedure for rule promulgation.” Detroit Base Coalition
for Human Rights of Handicapped v Dep’t of Social Servs, 431 Mich 172, 177; 428 NW2d
335 (1988). This procedure is set forth in MCL 24.231 through MCL 24.264. Overall,
that process requires an agency to obtain approval from what was then known as the Office
of Regulatory Reinvention to promulgate a rule, see MCL 24.239; MCL 18.446, to give
public notice of the proposed rule, see MCL 24.239a; MCL 24.241(1), to prepare a
regulatory-impact statement and small-business-impact statement for the proposed rule,
see MCL 24.245(3) and (4), to hold a public hearing at which the public may comment on
the proposed rule, see MCL 24.241(1), and to obtain approval from the Legislature’s joint
committee on administrative rules, see MCL 24.245a. When EGLE proposes a rule, it
must also obtain approval from the Environmental Rules Review Committee. See MCL
24.266. These procedures ensure that the various groups who will be affected by a rule
may take part in the rulemaking process and that the agency carefully considers all possible
consequences and implications before making a final decision. See Detroit Base Coalition,
431 Mich at 189-190 (noting that the rulemaking procedures “ ‘are calculated to invite
public participation in the rule-making process, prevent precipitous action by the agency,
prevent the adoption of rules that are illegal or that may be beyond the legislative intent,
notify affected and interested persons of the existence of the rules, and make the rules
readily accessible after adoption’ ”), quoting Bienenfeld, Michigan Administrative Law
(1st ed), § 4, p 4-1. A rule is invalid if an agency does not process the rule “in compliance

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18
EGLE’s statutory authority, were contrary to state and federal law regulating CAFOs, were
unnecessary to achieve applicable Part 4 water-quality standards, were arbitrary and
capricious, and were unconstitutional. Soon after petitioners petitioned for a contested-
case hearing, several environmental groups—including the Environmental Law and Policy
Center; the Michigan Environmental Council; the Environmentally Concerned Citizens of
South Central Michigan; Freshwater Future; For Love of Water; Food and Water Watch;
the Michigan League of Conservation Voters; and the Alliance for the Great Lakes—
moved to intervene in the contested case to support EGLE. Parties pre-filed direct and
rebuttal testimony, and the tribunal presided over two-and-a-half weeks of live testimony,
including both cross- and redirect examination. In total, 29 witnesses presented testimony
accompanied by more than 300 exhibits. The administrative law judge stayed the
contested-case proceeding without issuing a final decision to await resolution of this
appeal.
Two-and-a-half months after the contested-case hearing was started, Michigan Farm
Bureau led an overlapping, but not identical, group of parties (collectively, plaintiffs) in
filing an original action for declaratory judgment under MCL 24.264 in the Court of
Claims. In part, plaintiffs asked the court to declare that the discretionary conditions in the
general permit were procedurally invalid because they were actually “rules” under the APA
and because EGLE had not processed them in compliance with the APA’s rulemaking
with [MCL 24.266], if applicable, [MCL 24.242], and in substantial compliance with
[MCL 24.241(2), (3), (4), and (5)].” MCL 24.243(1).

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19
procedures.19 EGLE moved for summary disposition under MCR 2.116(C)(4) (lack of
subject-matter jurisdiction) and (8) (failure to state a claim), arguing that plaintiffs’
declaratory-judgment action was subject to dismissal because plaintiffs had not yet
exhausted their administrative remedies. EGLE asserted that the court would not have
jurisdiction at least until an administrative law judge issued a final decision and order
regarding the 2020 general permit at the end of the contested-case hearing.
The Court of Claims agreed with EGLE, concluding that plaintiffs’ failure to
exhaust administrative remedies by seeing the contested case to its end meant that the court
lacked subject-matter jurisdiction under MCL 24.301.20 Further, the court disagreed with
19 Plaintiffs also asked the court to declare that (1) the discretionary conditions were
substantively invalid because they were arbitrary and capricious, beyond EGLE’s
regulatory authority, and contrary to the intent of Part 31 of NREPA; (2) EGLE’s
incorporation of the conditions into the 2020 general permit was a violation of plaintiffs’
constitutionally guaranteed procedural and substantive due-process rights; (3) EGLE’s
incorporation of the conditions constituted a violation of the Constitution’s Separation of
Powers Clause, and any statutory authority on which EGLE relied for such adoption
violated the constitutional nondelegation doctrine; (4) EGLE’s assertion of control over
non-CAFOs went beyond its statutory authority, and its standard for determining such
authority was unconstitutionally void for vagueness; and (5) the permit condition requiring
CAFOs to install 35-foot permanent vegetated buffer strips and the requirement to have
100-foot setbacks converted cropland acreage to nonfarmable land, which was an
unconstitutional taking without just compensation in violation of US Const, Am V and
Const 1963, art 10, § 2.
20 MCL 24.301 states:
When a person has exhausted all administrative remedies available
within an agency, and is aggrieved by a final decision or order in a contested
case, whether such decision or order is affirmative or negative in form, the
decision or order is subject to direct review by the courts as provided by law.
Exhaustion of administrative remedies does not require the filing of a motion
or application for rehearing or reconsideration unless the agency rules require
the filing before judicial review is sought. A preliminary, procedural or

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20
plaintiffs that MCL 24.264 vested it with subject-matter jurisdiction to consider their
challenge to the validity of the discretionary conditions in the general permit. The court
reasoned that under Jones v Dep’t of Corrections, 185 Mich App 134, 138; 460 NW2d 575
(1990), MCL 24.264 applies only to rules processed in compliance with the APA’s
rulemaking procedures. Because EGLE did not process the conditions in compliance with
the APA’s rulemaking procedures, the court held that plaintiffs could not seek a declaratory
judgment by way of MCL 24.264 challenging the validity of those conditions.
On appeal, the Court of Appeals affirmed the Court of Claims’ ultimate holding that
the Court of Claims lacked subject-matter jurisdiction, but it held that plaintiffs could seek
a declaratory judgment by way of MCL 24.264. Mich Farm Bureau v Dep’t of
Environment, Great Lakes, & Energy, 343 Mich App 293, 314-315; 997 NW2d 467 (2022).
In the Court of Appeals’ view, the discretionary conditions in the general permit were
“rules” under the APA merely because they were in addition to or more stringent than the
previously promulgated mandatory minimum conditions. Id. at 312-313. The Court of
Appeals acknowledged that the Jones panel had held that MCL 24.264 applied only to rules
an agency processed following the APA’s rulemaking procedures, but the Court of Appeals
found this holding to be unpersuasive, nonbinding authority and declined to followed it.
Id. at 308.21 Although the Court of Appeals held that the challenged conditions were rules,
intermediate agency action or ruling is not immediately reviewable, except
that the court may grant leave for review of such action if review of the
agency’s final decision or order would not provide an adequate remedy.
21 Jones was issued before November 1, 1990, and a panel of the Court of Appeals is not
bound to follow a prior published decision of the Court of Appeals issued before
November 1, 1990. MCR 7.215(J)(1).

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21
the Court of Appeals ultimately affirmed the Court of Claims’ holding that it lacked
subject-matter jurisdiction. Id. at 314-315. The Court of Appeals noted that before
plaintiffs could seek a declaratory judgment from the courts, MCL 24.264 required
plaintiffs to first request a declaratory ruling from EGLE, and plaintiffs had not done so
here. Id.
EGLE sought leave to appeal, arguing that the Court of Appeals erroneously
concluded the challenged conditions were “rules” that could be challenged by way of
declaratory judgment under MCL 24.264.22 We granted EGLE’s application for leave to
appeal. Mich Farm Bureau v Dep’t of Environment, Great Lakes, & Energy, 511 Mich
971 (2023).23 The core issue we must decide is whether the Court of Claims had subject-
matter jurisdiction to hear plaintiffs’ declaratory-judgment action under MCL 24.264.
22 At the same time, plaintiffs filed a cross-application for leave to appeal, challenging the
Court of Appeals’ conclusion that summary disposition was still warranted because, while
MCL 24.264 would apply to their challenge, they did not first seek a declaratory ruling
from EGLE about the validity of the discretionary conditions in the general permit.
Because we conclude that the discretionary conditions are not rules, we deny plaintiffs’
cross-application for leave to appeal.
23 In response to EGLE’s application for leave to appeal, plaintiffs argued that EGLE
lacked appellate standing to challenge the judgment of the Court of Appeals. We disagree.
We have held that a party must be aggrieved by the actions of either the trial court or an
appellate-court judgment to have appellate standing. See League of Women Voters of Mich
v Secretary of State, 506 Mich 561, 577-578; 957 NW2d 731 (2020), citing Federated Ins
Co v Oakland Co Rd Comm, 475 Mich 286, 291-292; 715 NW2d 846 (2006). Although
the Court of Appeals affirmed the Court of Claims’ dismissal of plaintiffs’ action for lack
of jurisdiction, EGLE was aggrieved by the Court of Appeals’ decision because the Court
of Appeals’ holding that the discretionary conditions in the general permit are rules might
hinder EGLE’s ability to fulfill its statutory duties under Part 31 of the NREPA.

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22
II. SUBJECT-MATTER JURISDICTION
We review de novo a trial court’s decision to grant or deny a motion for summary
disposition and questions of subject-matter jurisdiction. See Winkler v Marist Fathers of
Detroit, Inc, 500 Mich 327, 333; 901 NW2d 566 (2017). We also review de novo questions
of statutory interpretation. See McQueer v Perfect Fence Co, 502 Mich 276, 285-286; 917
NW2d 584 (2018).
Subject-matter jurisdiction is a legal term of art that refers to the authority of the
court to exercise judicial power over a class or category of cases. See People v Washington,
508 Mich 107, 121; 972 NW2d 767 (2021). If a law specifies that a court has the power to
adjudicate a class or category of cases and a case falls within that class or category, the
court has subject-matter jurisdiction to hear the case, even if the facts of the case do not
entitle the plaintiff to relief. See Winkler, 500 Mich at 341 (“The existence of subject
matter jurisdiction turns not on the particular facts of the matter before the court, but on its
general legal classification.”). Because subject-matter jurisdiction is a prerequisite for a
court to hear and decide a claim, the court may consider it sua sponte at any time, and
parties cannot confer subject-matter jurisdiction by their conduct, nor can they waive a
subject-matter-jurisdiction challenge by not raising it. See Hillsdale Co Senior Servs, Inc
v Hillsdale Co, 494 Mich 46, 51 n 3; 832 NW2d 728 (2013).
There is no dispute here that MCL 24.264 delineates the class of cases over which
the Court of Claims has subject-matter jurisdiction.24 Broadly speaking, MCL 24.264 vests
24 Of course, MCL 24.264 refers to the circuit court, not the Court of Claims. But nothing
in MCL 24.264 purports to confer exclusive jurisdiction on the circuit courts. Given that
the circuit courts are not the exclusive forum for adjudicating these issues, if MCL 24.264
confers the circuit court with subject-matter jurisdiction, MCL 600.6419(1)(a) would

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23
the court with subject-matter jurisdiction to declare an agency “rule” invalid or inapplicable
before an agency actually enforces or applies the rule to a regulated entity. MCL 24.264
provides:
Unless an exclusive procedure or remedy is provided by a statute
governing the agency, the validity or applicability of a rule, including the
failure of an agency to accurately assess the impact of the rule on businesses,
including small businesses, in its regulatory impact statement, may be
determined in an action for declaratory judgment if the court finds that the
rule or its threatened application interferes with or impairs, or imminently
threatens to interfere with or impair, the legal rights or privileges of the
plaintiff. The action shall be filed in the circuit court of the county where the
plaintiff resides or has his or her principal place of business in this state or in
the circuit court for Ingham county. The agency shall be made a party to the
action. An action for declaratory judgment may not be commenced under
this section unless the plaintiff has first requested the agency for a
declaratory ruling and the agency has denied the request or failed to act
upon it expeditiously. This section shall not be construed to prohibit the
determination of the validity or applicability of the rule in any other action
or proceeding in which its invalidity or inapplicability is asserted. [Emphasis
added.]
Simply put, a court has subject-matter jurisdiction to hear a declaratory-judgment action in
which a party challenges the validity or applicability of an agency rule “[u]nless an
exclusive procedure or remedy is provided by a statute governing the agency . . . .” MCL
24.264 further includes an exhaustion-of-administrative-remedies requirement: a party
operate to transfer that subject-matter jurisdiction to the Court of Claims. Under MCL
600.6419(1)(a), the Court of Claims has exclusive jurisdiction “[t]o hear and determine
any claim or demand, statutory or constitutional, liquidated or unliquidated, ex contractu
or ex delicto, or any demand for monetary, equitable, or declaratory relief or any demand
for an extraordinary writ against the state or any of its departments or officers
notwithstanding another law that confers jurisdiction of the case in the circuit court.”
MCL 600.6419(1)(a) (emphasis added); see also Telford v Michigan, 327 Mich App 195,
198-201; 933 NW2d 347 (2019) (holding that this provision repealed contrary provisions
addressing Headlee Amendment suits).

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may not request a declaratory judgment unless the party “first request[s] the agency for a
declaratory ruling and the agency has denied the request or failed to act upon it
expeditiously.”25
Although a court without subject-matter jurisdiction has no power to decide the
merits of a case, a court must necessarily consider the “nature of the claim” to decide
whether it has subject-matter jurisdiction. See Parkwood Ltd Dividend Housing Ass’n v
25 The Court of Appeals assumed that this exhaustion-of-administrative-remedies
requirement was a jurisdictional prescription. Because we hold that the 2020 general-
permit conditions are not rules under the APA, we need not decide today whether this
assumption is correct. But we do question this assumption. The exhaustion-of-
administrative-remedies requirement in MCL 24.264 is one that seems to “seek to promote
the orderly progress of litigation by requiring that the parties take certain procedural steps
at certain specified times.” Henderson ex rel Henderson v Shinseki, 562 US 428, 435; 131
S Ct 1197; 179 L Ed 2d 159 (2011). So it might be more accurate to describe this
requirement as a mandatory claims-processing rule. See Santos-Zacaria v Garland, 598
US 411, 416-417; 143 S Ct 1103; 215 L Ed 2d 375 (2023) (noting that nonjurisdictional
claim-processing rules “seek to promote the orderly progress of litigation by requiring that
the parties take certain procedural steps at certain specified times” and that an
administrative-exhaustion requirement is “a quintessential claim-processing rule”)
(quotation marks and citation omitted). Though we need not decide this today, we caution
courts to exercise reasoned judgment before branding an exhaustion-of-administrative-
remedies requirement jurisdictional, because “[h]arsh consequences attend the
jurisdictional brand.” See Fort Bend Co v Davis, 587 US ___, ___; 139 S Ct 1843, 1849;
204 L Ed 2d 116 (2019) (quotation marks and citation omitted); see also Washington, 508
Mich at 118, 124 (noting the importance of distinguishing between the lack of subject-
matter jurisdiction and the error in the exercise of jurisdiction, and noting the unfortunate
practice among courts of using the term “jurisdiction” imprecisely). If a requirement is
jurisdictional, a party’s failure to comply with it can be raised at any point during the
proceedings, and a court must dismiss the action for the party’s failure to comply—even if
the issue is raised for the first time on appeal. See Lehman v Lehman, 312 Mich 102, 105-
106; 19 NW2d 502 (1945); In re Cody’s Estate, 293 Mich 697, 701; 292 NW 535 (1940);
In re Estate of Fraser, 288 Mich 392, 394; 285 NW 1 (1939). A court has no discretion to
fashion equitable exceptions to a jurisdictional rule or to otherwise excuse noncompliance;
subject-matter jurisdiction cannot be conferred by consent or waiver. See Travelers Ins Co
v Detroit Edison Co, 465 Mich 185, 204; 631 NW2d 733 (2001).

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State Housing Dev Auth, 468 Mich 763, 771; 664 NW2d 185 (2003). Put differently, a
court must decide whether a particular case falls within the category or class of cases over
which it has power to adjudicate the merits. See Winkler, 500 Mich at 334. Again, MCL
24.264 gives a court power to adjudicate a declaratory-judgment action challenging the
validity or applicability of an agency rule “[u]nless an exclusive procedure or remedy is
provided by a statute governing the agency . . . .” So, to decide whether it had subject-
matter jurisdiction under MCL 24.264, the Court of Claims needed first to consider whether
plaintiffs’ action was a declaratory judgment challenging the validity of a rule—
specifically, whether the discretionary conditions in the general permit were “rule[s].”
Accord Pacific Gas & Electric Co v Fed Power Comm, 164 US App DC 371, 374-375;
506 F2d 33 (1974) (holding that, to decide whether the court had jurisdiction to review an
agency action under a statute, the court needed to first decide whether the agency action
was a “rule” under the federal APA). Accordingly, to determine whether the Court of
Claims correctly concluded that it lacked subject-matter jurisdiction under MCL 24.264,
we must decide whether the general permit or discretionary conditions were “rules.”
III. RULES UNDER THE APA
A. LOWER COURTS’ REASONING
On the question of whether these conditions are rules, we initially note that we are
unpersuaded by the reasoning of the Court of Appeals. For its part, the Court of Appeals
offered little explanation for why it considered the discretionary conditions in the general
permit to be rules. In essence, the Court of Appeals concluded that the conditions were
rules because they were in addition to and more stringent than the mandatory conditions.
See Mich Admin Code, R 323.2196(5). But the Court of Appeals did not explain why this

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necessarily meant that the discretionary conditions were themselves rules. The Court of
Appeals recited the general definition of “rule” in MCL 24.207 and noted that the term
“rule” does not include “a ‘decision by an agency to exercise or not to exercise a permissive
statutory power, although private rights or interests are affected,’ ” but the Court of
Appeals did not discuss how the conditions fall within this definition or outside of this
exclusion. Mich Farm Bureau, 343 Mich App at 308, quoting MCL 24.207(j).
B. APA’S DEFINITION OF A RULE
Finding the reasoning of the Court of Appeals unpersuasive, we turn to the APA’s
definition of a rule. The APA generally defines a rule as “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 . . . .” MCL 24.207; see also American Federation of State, Co
& Muni Employees v Dep’t of Mental Health, 452 Mich 1, 8; 550 NW2d 190 (1996)
(AFSCME). But along with many other exceptions to the definition of a “rule” under MCL
24.207, MCL 24.207(h) says that a “[r]ule does not include . . . [a] form with instructions,
an interpretive statement, a guideline, an informational pamphlet, or other material that in
itself does not have the force and effect of law but is merely explanatory.” Hence, like the
federal APA distinguishes between legislative rules (which have the force and effect of
law) and interpretive rules and general statements of policy (which do not), see Nat’l
Mining Ass’n v McCarthy, 411 US App DC 52, 60; 758 F3d 243 (2014); American Hosp
Ass’n v Bowen, 266 US App DC 190, 198; 834 F2d 1037 (1987), the Michigan APA
distinguishes between legislative rules and “[a] form with instructions, an interpretive

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statement, a guideline, an informational pamphlet, or other material that in itself does not
have the force and effect of law but is merely explanatory.” Unlike under the federal APA,
however, under the Michigan APA, the latter are not considered rules at all. See Mich
Farm Bureau v Bureau of Workmen’s Compensation, 408 Mich 141, 148; 289 NW2d 699
(1980) (“Hence, while under the Federal act a rule can be legislative or interpretative, under
the Michigan act an ‘interpretive statement’ is not, by definition, a rule at all. It would
seem, then, that rules which are ‘legislative’ under the Federal act would be analogous to
‘rules’ under our act.”).
That said, an agency action is a “rule” under the Michigan APA only if it meets, at
minimum,26 the following elements: (1) it is an agency regulation, statement, standard,
policy, ruling, or instruction; (2) it is of general applicability; (3) it implements or applies
law enforced or administered by the agency, or it prescribes the organization, procedure,
or practice of the agency; and (4) it, in itself, has the force and effect of law. There can be
no serious debate that the discretionary conditions in the general permit satisfy the first and
third elements. They are either an agency regulation, statement, standard, policy, ruling,
or instruction. And they implement law enforced or administered by EGLE: they give
effect to the NREPA requirement that EGLE include conditions in general permits that
EGLE deems necessary to achieve applicable Part 4 water-quality standards or to comply
with other applicable laws and regulations. See MCL 324.3106; MCL 324.3113(2).
26 Beyond MCL 24.207(h), MCL 24.207 includes a list of other administrative actions that
are not rules. Because we conclude that neither the general permit nor the discretionary
conditions are rules under MCL 24.207(h), we need not address whether they fall within
any other agency action that MCL 24.207 lists as not being a “rule.”

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Whether the conditions in the general permit satisfy Elements (2) or (4), however, calls for
closer inspection.
To begin, are the discretionary conditions of general applicability? EGLE argues
that they are not, but we disagree. Michigan courts have considered a statement to be of
general applicability when it is capable of being applied to or is relevant to an open-ended
class or category of entities or situations. See, e.g., Hinderer v Dep’t of Social Servs, 95
Mich App 716, 725; 291 NW2d 672 (1980) (holding that a lag-budgeting system met this
requirement because it affected recipients of benefits generally); see also AFSCME, 452
Mich at 9-10 (observing that the guidelines at issue in that case directly applied to all who
live and work in private group homes). In construing the phrase in the context of their own
administrative procedures acts, other jurisdictions have defined the phrase along the same
lines.27 Applying this here, we conclude that discretionary conditions in the general permit
are of general applicability. The conditions are capable of being applied to or are relevant
to all CAFOs because they are EGLE’s initial determination of what conditions in addition
to and more stringent than the mandatory conditions are necessary to achieve Part 4 water-
27 See, e.g., Emergency Med Care Facilities, PC v Div of TennCare, 671 SW3d 507, 514
(Tenn, 2023) (using dictionary definitions to define “general applicability”); Blinzinger v
Americana Healthcare Corp, 466 NE2d 1371, 1375 (Ind App, 1984) (stating that
rulemaking “is distinguished from the adjudicatory function in that the former embraces
an element of generality, operating upon a class of individuals or situations whereas an
adjudication operates upon a particular individual or circumstance”); Northwest Pulp &
Paper Ass’n v Dep’t of Ecology, 200 Wash 2d 666, 673; 520 P3d 985 (2022) (en banc)
(holding that an action is of general applicability if it applies uniformly to all members of
a class); NC Dep’t of Environmental Quality v NC Farm Bureau Federation, Inc, 895 SE2d
437, 442-443 (NC App, 2023) (holding that a rule is generally applicable if it applies in
most situations); Nat’l Org of Veterans’ Advocates, Inc v Secretary of Veterans Affairs, 981
F3d 1360, 1374 (CA Fed, 2020) (noting that a rule is generally applicable when it affects
an “open-ended category” of people or entities).

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quality standards for anything meeting the definition of a CAFO. EGLE does not fashion
the discretionary conditions in a general permit with an identifiable CAFO in mind, and so
anytime a CAFO applies for permit coverage, the necessity of the discretionary conditions
in the general permit will be relevant.
Next, do the general permit or discretionary conditions have the force and effect of
law? The answer to this question must be “no.” Since December 31, 2006, Part 31 of the
NREPA has empowered EGLE to make only rules concerning permits issued to
oceangoing vessels engaging in port operations in Michigan. See MCL 324.3103(2) (“The
department shall enforce this part and may promulgate rules as it considers necessary to
carry out its duties under this part. However, notwithstanding any rule-promulgation
authority that is provided in this part, except for rules authorized under [MCL
324.3112(6)], the department shall not promulgate any additional rules under this part after
December 31, 2006.”); MCL 324.3112(6) (requiring oceangoing vessels engaging in port
operations in Michigan to obtain a permit, which EGLE may issue only if the applicant can
show that the oceangoing vessel complies with a federal regulation specifying ballast-
water-management requirements or that the oceangoing vessel will use environmentally
sound technology and methods approved by EGLE to prevent the discharge of aquatic
nuisance species); MCL 324.3112(8) (“The department may promulgate rules to
implement subsections (6) to (8).”).28 EGLE otherwise has no power to make rules to carry
28 Plaintiffs claim that Part 31 of the NREPA empowers EGLE to make rules necessary to
comply with the Clean Water Act. See MCL 324.3103(3) (“The department may
promulgate rules and take other actions as may be necessary to comply with the federal
water pollution control act . . . .”). But MCL 324.3103(2) says “notwithstanding any rule-
promulgation authority that is provided in [Part 31], except for rules authorized under

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out its duties under Part 31 of the NREPA, a point which EGLE concedes. EGLE,
therefore, clearly has no power to make rules concerning NPDES permits issued to CAFOs.
See MCL 324.3103(2). And as we held in Clonlara, if the Legislature has not delegated
to an agency the power to make rules, a statement of general applicability issued by the
agency cannot be considered a “rule”—either valid or invalid—under the Michigan APA.
See Clonlara, Inc v State Bd of Ed, 442 Mich 230, 245-248; 501 NW2d 88 (1993).29 This
is because, if an agency lacks rulemaking power, any statement of general applicability
issued by the agency necessarily lacks the force and effect of law, no matter if the agency
has issued it following the APA’s rulemaking procedures. See id. at 243 (“An
[MCL 324.3112(6)], the department shall not promulgate any additional rules under this
part after December 31, 2006.” (Emphasis added.) The Legislature thus unequivocally
said that EGLE cannot make rules to comply with the Clean Water Act after December 31,
2006, despite MCL 324.3103(3) saying that EGLE may promulgates rules to comply with
the Clean Water Act. The Legislature’s intent is clear given that MCL 324.3103
empowered EGLE to make rules necessary to comply with the Clean Water Act when the
Legislature amended MCL 324.3103 in April 2004 to divest EGLE of rulemaking authority
under Part 31 of the NREPA “notwithstanding any rule-promulgating authority that is
provided in [Part 31] . . . .” Compare MCL 324.3103, as enacted by 1994 PA 451, with
MCL 324.3103, as amended by 2004 PA 91.
29 See also Mich Farm Bureau, 408 Mich at 149 (“ ‘When an agency has no delegated
power to make law through rulemaking, the rules it issues are necessarily interpretive.’ ”),
quoting Davis, Administrative Law of the Seventies, Supplementing Administrative Law
Treatise, § 5.03, pp 147-148; Nat’l Park Hospitality Ass’n v Dep’t of Interior, 538 US 803,
809; 123 S Ct 2026; 155 L Ed 2d 1017 (2003) (considering an agency statement “to be
nothing more than a ‘general statemen[t] of policy’ ” where the agency had no delegated
rulemaking authority) (citation omitted; alteration by the Nat’l Park Court); Anthony,
Interpretive Rules, Policy Statements, Guidances, Manuals and the Like—Should Federal
Agencies Use Them to Bind the Public?, 41 Duke L J 1311, 1321-1323 (1992) (noting that
when an agency lacks “delegated statutory authority to act with respect to the subject matter
of the rule,” statements of general applicability issued by the agency are “either interpretive
rules (if they interpret specific statutory or regulatory language) or policy statements (if
they do not)”) (emphasis omitted).

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interpretation not supported by the enabling act is an invalid interpretation, not a rule.
Otherwise, ‘wrong’ interpretive statements might become rules with the force of law on
the false premise that they were promulgated in accordance with the APA procedures.”);
see also Batterton v Marshall, 208 US App DC 321, 329; 648 F2d 694 (1980) (“Although
an agency empowered to enact legislative rules may choose to issue non-legislative
statements, an agency without legislative rulemaking authority may issue only non-binding
statements. Unlike legislative rules, non-binding agency statements carry no more weight
on judicial review than their inherent persuasiveness commands.”) (citations omitted). As
a result, neither the general permit nor the discretionary conditions in it can have the force
and effect of law, and so they cannot be “rules” under the Michigan APA. This would be
true even if EGLE followed the APA’s rulemaking procedures to issue the general permit
and discretionary conditions.30
In Justice V IVIANO ’s view, our holding from Clonlara does not apply here. As he
sees it, our holding from Clonlara applies only when an agency has no power to make rules
whatsoever. Here, he says, Part 31 of the NREPA gives EGLE at least some power to
make rules. So according to Justice V IVIANO, whether Part 31 of the NREPA empowers
EGLE to make rules related to NPDES permits issued to CAFOs is irrelevant to deciding
30 Because it is clear based on our decision in Clonlara that the general permit and
discretionary conditions must lack the force and effect of law due to EGLE’s lack of
rulemaking power, we need not address the Court of Claims’ ruling that they were not
rules, which was based on the Court of Appeals’ decision in Jones. See Jones, 185 Mich
App at 137 (holding that the plaintiff could maintain an action under MCL 24.264 only if
the plaintiff “challenge[d] the validity or applicability of a rule which had been formally
promulgated as a rule” under the APA’s rulemaking procedures).

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whether the general permit or discretionary conditions have the force and effect of law.
We disagree.
For starters, we did not suggest in Clonlara that its holding applies only if an agency
has no rulemaking power. This Court in Clonlara noted that the School Code, MCL 380.1
et seq., as enacted by 1976 PA 451, had empowered the Department of Education to make
rules, see Clonlara, 442 Mich at 246 n 31, but it was clear the Department of Education
did not have the power to issue rules relating to the subject matter that the policy at issue
in that case covered. The policy at issue in Clonlara related to the nonpublic school act,
MCL 388.551 et seq., as enacted by 1921 PA 302, and the “Department of Education [was]
not authorized, explicitly or implicitly, to promulgate rules relating to the nonpublic school
act.” Id. at 248. So while it is true that Part 31 of the NREPA does give EGLE some
rulemaking power, like in Clonlara, it is beyond dispute that EGLE is not empowered to
issue rules concerning the subject matter that the general permit and discretionary
conditions cover—that is, NPDES permits issued to CAFOs. Because this is beyond
dispute, it is clear that EGLE cannot give any statement of general applicability related to
CAFO permits the force and effect of law, even if EGLE intends to do so or else follows
the APA’s rulemaking procedures before issuing them.
C. THE FORCE AND EFFECT OF LAW
Even so, this does not mean that EGLE cannot issue a general permit with
discretionary conditions in addition to or more stringent than the mandatory conditions.
Nor does it mean that those CAFOs that apply for and receive certificates of coverage under
the general permit are not required to comply with the discretionary conditions. To explain

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why this is the case, a deeper dive into what it means for something to have the force and
effect of law is in order.
1. LEGISLATIVE RULES VERSUS NONBINDING POLICY STATEMENTS
Generally speaking, an agency statement of general applicability in itself has the
force and effect of law—or is a legislative rule—when the statement itself alters rights or
imposes obligations and has a “present binding effect” on regulated entities, the agency,
and the courts. See, e.g., Interstate Natural Gas Ass’n of America v Fed Energy Regulatory
Comm, 350 US App DC 366, 407; 285 F3d 18 (2002); see also American Hosp Ass’n, 266
US App DC at 198 (observing that agency statements lacking the force and effect of law
are those that “are not determinative of issues or rights addressed” and that do not
“conclusively affect rights of private parties”) (quotation marks and citation omitted);
Detroit Base Coalition for Human Rights of Handicapped v Dep’t of Social Servs, 431
Mich 172, 189; 428 NW2d 335 (1988) (holding that agencies are bound to follow their
own rules). An interpretive statement, for instance, in itself lacks the force and effect of
law because it is the underlying statute that determines how an entity must act, i.e., that
alters rights or imposes obligations. See Clonlara, 442 Mich at 245. Even if a regulated
entity does not comply with the statement, the interpretive statement does not bind an
administrative law judge to sanction an entity in an enforcement action, nor does it bind a
court on judicial review. See In re Complaint of Rovas Against SBC Mich, 482 Mich 90,
104-108; 754 NW2d 259 (2008) (holding that agency interpretations of statutes are entitled
to respectful consideration and should not be overruled without cogent reasons but that

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agency interpretations are not binding on courts and cannot conflict with the Legislature’s
intent as expressed in the plain language of a statute).
For similar reasons, statements explaining how an agency plans to exercise a
discretionary power are usually considered to lack the force and effect of law.31 See Nat’l
Mining Ass’n, 411 US App DC at 61 (holding that an agency statement explaining how an
agency will exercise its broad permitting discretion under some statute or rule is a general
statement of policy under the federal APA and not a rule with the force of law). Consider
the Court of Appeals’ decision in Kent Co Aeronautics Bd v Dep’t of State Police, 239
Mich App 563; 609 NW2d 593 (2000), aff’d sub nom Byrne v Michigan, 463 Mich 652
(2001). There, the Legislature, in 1996 PA 538, had amended MCL 28.282 of the radio
broadcasting stations act, MCL 28.281 et seq., to provide the Department of State Police
the power to construct the Michigan Public Safety Communications System, which would
entail the construction of 181 new radio towers across Michigan. Kent Co Aeronautics Bd,
239 Mich App at 566-567, 574. The Legislature gave the department discretion to decide
the site upon which to build each tower. Once the department selected a site, the local unit
of government with zoning authority over the site had 30 days to either grant the
department a special-use permit to build a tower or, if the local unit of government
preferred that the department build on a different site, to “ ‘propose an equivalent site’ ” to
the department. Id. at 574-575, quoting MCL 28.282(2), as amended by 1996 PA 538. If
the local unit of government did not do either within 30 days, the Legislature allowed the
department to build the tower despite any local zoning ordinance prohibiting construction
31 Under the federal APA, these are termed “general statements of policy.”

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of the tower. Id. Without following the APA’s rulemaking procedures, the department
issued “Equivalent Site Criteria” that explained what the State Police might consider a
suitable equivalent site. Id. at 570, 583-584. This way, local units of government had some
idea about what the department would consider a suitable equivalent site if they wished to
propose an alternative site to the department. Id. Because these Equivalent Site Criteria
simply explained how the department planned to exercise its discretion to decide what
constituted a suitable site, the Court of Appeals held that the criteria lacked the force and
effect of law. Id.32 The Equivalent Site Criteria did not bind the department and did not
grant any right or impose any obligation on local units of government: even if a local unit
of government proposed an alternative site that matched the Equivalent Site Criteria, the
department was not bound to build on that site instead of its originally selected site. Id.
The department still had discretion to reject a local unit of government’s proposed
alternative. Id.
32 Specifically, the Court of Appeals held that the Equivalent Site Criteria were either “[a]n
intergovernmental, interagency, or intra-agency memorandum, directive, or
communication that does not affect the rights of, or procedures and practices available to,
the public” under MCL 24.207(g), or “[a] form with instructions, an interpretive statement,
a guideline, an informational pamphlet, or other material that in itself does not have the
force and effect of law but is merely explanatory” under MCL 24.207(h). Kent Co, 239
Mich App at 582-583. Justice V IVIANO says we “fail[] to properly acknowledge” that the
Court of Appeals also concluded that the Equivalent Site Criteria fell within MCL
24.207(g). But it is clear the panel concluded that the Equivalent Site Criteria fell within
Subsection (g) only because it found that the Equivalent Site Criteria lacked the force and
effect of law. Indeed, it is difficult to imagine an instance in which 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,” would have the
force and effect of law. Stated differently, it is difficult to imagine an instance when an
agency statement would fall under the Subsection (g) exception but not the Subsection (h)
exception.

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Finally, statements announcing a policy the agency plans to establish in future
adjudications generally lack the force and effect of law. See, e.g., Pacific Gas, 164 US
App DC at 376. Pacific Gas aptly illustrates this. During a natural-gas shortage, natural-
gas-pipeline companies had to submit curtailment plans to the Federal Power Commission
(the FPC) for approval, explaining which customers the pipeline company would deliver
to first if demand exceeded supply. Id. at 373 n 7. Under the governing statute, the FPC
would approve a pipeline company’s plan only after an adjudicatory hearing and only after
finding that the plan was just and reasonable under the circumstances. Id. at 374, 379; see
also Hercules Inc v Fed Power Comm, 552 F2d 74, 77 (CA 3, 1977). At the adjudicatory
hearing, customers with low priority under the plan would have an opportunity to contest
the plan. Pacific Gas, 164 US App DC at 378. Without following the federal APA’s
rulemaking procedures, the FPC issued a statement announcing that it planned to show at
adjudicatory hearings that curtailment plans giving priority to residential customers were
just and reasonable. Id. at 374, 388. The United States Court of Appeals for the District
of Columbia Circuit held that the statement lacked the force and effect of law because the
statement itself did not alter rights or impose obligations: pipeline companies were free to
submit a curtailment plan giving priority to other types of customers, and an administrative
law judge would be free to approve that plan after an adjudicatory hearing. Id. at 378-379.
Likewise, the statement itself did not deprive nonresidential customers of their contract
rights to natural gas, as again, an administrative law judge would be free to approve
curtailment plans giving priority to nonresidential customers. Id. If an administrative law
judge did approve curtailment plans giving priority to residential customers, a court on

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judicial review would be free to reject the FPC’s decisions if the agency did not provide
reasoning or evidence sufficient to support them. Id. at 379.
In short, an agency statement of general applicability in itself has the force and effect
of law when the statement itself alters rights or imposes obligations and has a present,
binding effect on regulated entities, the agency, and the courts. If an agency statement (1)
merely explains what the agency believes an ambiguous provision of a statute or agency
rule means or (2) explains what factors will be considered and what goals will be pursued
when an agency exercises a discretionary power or conducts an adjudication, the statement
will generally not be considered to alter rights, impose obligations, or have a present,
binding effect. See Clonlara, 442 Mich at 245 n 30; Asimow, Nonlegislative Rulemaking
and Regulatory Reform, 1985 Duke L J 381, 383 (1985) (“For example, a policy statement
might indicate what factors will be considered and what goals will be pursued when an
agency conducts investigation, prosecution, legislative rulemaking, or formal or informal
adjudication.”).
2. APPLICATION
With that in mind, when we say neither the general permit nor the discretionary
conditions in it can have the force and effect of law, we mean that the general permit itself
cannot grant any entity meeting the definition of a CAFO the right to discharge pollutants,
nor can it require all CAFOs to operate in compliance with the discretionary conditions.33
This does not mean, however, that a CAFO is not required to comply with the discretionary
33 Compare the general permit here with Mich Admin Code, R 323.2190(1), which
provides that an entity automatically has permit coverage if certain conditions are met.

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conditions in the general permit if the CAFO applies for and receives a certificate of
coverage. That is because it is the certificate of coverage—not the general permit itself—
that grants the rights and imposes obligations on the CAFO.34 And even though EGLE
lacks the power to alter rights or impose obligations by issuing a rule, Part 31 of the NREPA
still empowers EGLE to alter rights and impose obligations on individual parties
proceeding before it that apply for permits. See Freedman, Administrative Procedure and
the Control of Foreign Direct Investment, 119 U Pa L Rev 1, 9 (1970) (noting that an
administrative agency is generally a governmental authority that has the power to affect
the rights of private parties through either adjudication or rulemaking).
An analogy illustrates the point. Say each CAFO were required to apply for an
individual permit, and rather than issue a general permit, EGLE circulated a letter to all
CAFOs explaining that it tentatively planned to tell its permit writers to include the
discretionary conditions at issue here in each individual permit issued to CAFOs. If EGLE
then issued a CAFO an individual permit with those conditions, a CAFO could not argue
in an enforcement proceeding that it had no obligation to comply with the conditions
because the conditions were listed in a nonbinding letter. While it is true that EGLE could
not bind CAFOs as a class through the letter itself, EGLE could undoubtedly bind the
specific CAFO proceeding before it by issuing an individual permit to that CAFO. The
same logic applies here. The general permit is functionally the same as the letter, and the
34 We thus agree with Justice V IVIANO that a CAFO with a certificate of coverage under
the general permit may be fined or penalized pursuant to MCL 324.3115 for failing to
comply with the discretionary conditions. But that does not suggest that the general permit
and discretionary conditions themselves have the force and effect of law. It means only
that the certificate of coverage has the force and effect of law.

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39
certificate of coverage is functionally the same as the individual permit. The certificate of
coverage is simply an individual permit that includes the discretionary conditions listed in
the general permit.35
When we say that the general permit and discretionary conditions cannot have the
force and effect of law, then, we mean only this: that they can be only (1) a statement
explaining what EGLE believes an ambiguous provision of the NREPA or one of EGLE’s
rules means, i.e., an interpretive statement, or (2) a statement explaining how EGLE plans
to exercise its discretionary permitting power or a statement explaining what discretionary
conditions EGLE plans to prove are necessary to achieve applicable Part 4 water-quality
standards or to comply with other applicable laws and regulations in adjudications
involving a CAFO.36 The general permit and discretionary conditions are not EGLE’s
attempt to discern the meaning of an ambiguous provision of Part 31 of the NREPA or one
of EGLE’s rules,37 so they must fall into the latter category. Two points must therefore be
emphasized.
35 Indeed, if we were to hold that EGLE cannot issue the general permit, all that would
change is that CAFOs would have to apply for individual permits, and EGLE would
exercise its discretion to impose the same challenged general-permit conditions in most
individual CAFO permits.
36 We do not suggest that either the general permit or discretionary conditions are
necessarily “guideline[s]” as that term is used under MCL 24.207(h) and defined by MCL
24.203(7) (“ ‘Guideline’ means an agency statement or declaration of policy that the
agency intends to follow, that does not have the force or effect of law, and that binds the
agency but does not bind any other person.”). The only issue before us now is whether the
general permit or discretionary conditions are rules, and so we need not decide whether
they meet the APA’s definition of a guideline.
37 As noted earlier in this opinion, various provisions of Part 31 of the NREPA require
EGLE to include any discretionary conditions in the permit that EGLE deems necessary to

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40
First and foremost, EGLE cannot act as though the general permit or the
discretionary conditions constrain its permitting discretion in individual cases involving
CAFOs. A CAFO must be allowed to apply for an individual permit with only the
mandatory conditions, and EGLE must genuinely evaluate whether the discretionary
conditions in the general permit or other discretionary conditions are necessary as applied
to that particular CAFO. See American Bus Ass’n v United States, 201 US App DC 66,
70; 627 F2d 525 (1980) (noting that, when deciding whether an agency statement is
binding, courts consider “whether a purported policy statement genuinely leaves the
agency and its decision-makers free to exercise discretion”). At the same time, when a
CAFO applies for a certificate of coverage under the general permit, EGLE must retain
discretion to decide whether the discretionary conditions in the general permit are
necessary as applied to the particular CAFO. And again, EGLE must genuinely evaluate
whether the discretionary conditions are necessary as applied to that particular CAFO.38
achieve applicable Part 4 water-quality standards or other applicable laws and regulations.
See MCL 324.3106; MCL 324.3113(2). But the discretionary conditions EGLE includes
under this statutory authority are not EGLE’s explanation of what unclear or ambiguous
provisions of the NREPA mean. See Interpretive Rules, 41 Duke L J at 1324 (contrasting
interpretive rules with general statements of policy and noting that, unlike interpretive
rules, general statements of policy “do not rest upon existing positive legislation that has
tangible meaning. Neither Congress nor the agency, acting legislatively, has already made
the law that the policy statements express. Thus these documents are looked upon as
creating new policy, albeit not legally binding policy as the documents were not
promulgated legislatively”).
38 We do not suggest that “EGLE must create a full record specific to each CAFO that
applies for coverage” under the 2020 general permit or any future general permit, as Justice
VIVIANO claims. All we hold is that, when a CAFO applies for a certificate of coverage
and agrees to comply with the discretionary conditions in the general permit, EGLE cannot
act as though the CAFO is automatically entitled to a certificate of coverage. EGLE must

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41
There is nothing in the record to suggest that EGLE does not already genuinely exercise
discretion each time a CAFO applies for NPDES permit coverage. EGLE’s rules provide
that, if an applicant believes that the discretionary conditions in the general permit are
inappropriate as applied to it, the applicant may apply for an individual permit from EGLE,
and EGLE may grant an individual permit if EGLE determines that to do so would be
appropriate. See Mich Admin Code, R 323.2191(5).39 The rules also provide that EGLE
retains discretion to process an applicant’s general-permit application as an application for
an individual permit if EGLE decides that the discretionary conditions in the general permit
are inappropriate as to the general-permit applicant. See Mich Admin Code,
retain discretion to deny a certificate of coverage and process the CAFO’s application as
an individual permit.
39 Mich Admin Code, R 323.2191(5) says:
Any person having a discharge which is authorized, or proposing a
discharge which may be authorized by a general permit, may request to be
excluded from the coverage of the general permit and apply for an individual
national permit. An application shall be submitted pursuant to these rules,
with reasons supporting the request, to the department. The department may
deny an application for an individual national permit if it determines that the
general permit is more appropriate.

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42
R323.2191(3).40 And the 2020 general permit notifies applicants of these rules.41 It says
that “[EGLE] may require any person who is authorized to discharge by a [certificate of
coverage] and this permit to apply for and obtain an individual NPDES permit if any of the
following circumstances apply” and that “[a]ny person may request [EGLE] to take action
pursuant to the provisions of Rule 2191 (Rule 323.2191 of the Michigan Administrative
Code).” Permit No. MIG010000, p 27.42
40 Mich Admin Code, R 323.2191(3) says:
(3) The department may require any person who is authorized to make
a discharge, by a general permit, to apply for and obtain an individual
national permit if any of the following circumstances apply:
(a) The discharge is a significant contributor to pollution as
determined by the department on a case-by-case basis.
(b) The discharger is not complying, or has not complied, with the
conditions of the general permit.
(c) A change has occurred in the availability of demonstrated
technology or practices for the control or abatement of waste applicable to
the point source discharge.
(d) Effluent standards and limitations are promulgated for point
source discharges subject to the general permit.
(e) The department determines that the criteria under which the
general permit was issued no longer apply. Any person may request the
department to take action pursuant to the provisions of this subrule.
41 We therefore disagree with Justice VIVIANO ’s suggestion that the 2020 general permit
contains no disclaimer that the discretionary conditions therein are not legally binding.
42 This is what distinguishes this case from AFSCME and the Court of Appeals’ decision
in Delta Co v Dep’t of Natural Resources, 118 Mich App 458; 325 NW2d 455 (1982).
AFSCME and Delta Co each dealt with instances in which an agency purported that a
statement was nonbinding, but in practice, the agency treated the statement as binding. In
AFSCME, the Department of Mental Health issued guidelines that listed what terms and

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43
Second, this means that neither administrative law judges, the Environmental Permit
Review Commission, nor the courts can treat the general permit and discretionary
conditions as though they restrict EGLE’s permitting discretion. So when EGLE issues a
general permit and CAFOs with coverage under the prior general permit petition for a
contested case, such as here, EGLE must carry its burden to prove that any discretionary
conditions in the general permit are necessary to achieve Part 4 water-quality standards or
to comply with applicable laws and regulations. And if EGLE denies a CAFO’s individual-
permit application because EGLE concludes that the discretionary general-permit
conditions are more appropriate and the aggrieved CAFO petitions for a contested case,
the administrative law judge and the Environmental Permit Review Commission must
require EGLE to prove that the discretionary conditions in the general permit are necessary
to achieve Part 4 water-quality standards or to comply with other applicable laws and
conditions every contract with a private-group-home operator had to include. AFSCME,
452 Mich at 6-8. While the guidelines purported to allow a private-group-home operator
to negotiate different contract terms, “the record indicate[d] that, in reality, group home
providers may only do business with the department if they agree to the standard form
contract without modifications.” Id. at 6. Because the Department of Mental Health
effectively required every contract with a private-group-home operator to include the
provided terms, then, we held that the guidelines had the force and effect of law and were
rules. Id. at 10-11. Similarly, in Delta Co, the Court of Appeals held that the Department
of Natural Resources’ guidelines conditioning the issuance of solid-waste-disposal-area
licenses on 31 conditions being met were rules because the guidelines “were binding.”
Delta Co, 118 Mich App at 467-468. In contrast to AFSCME and Delta Co, here, there is
nothing in the record to suggest that EGLE treats the general permit and conditions as
though they restrict its permitting discretion. Not only that, in AFSCME, the Department
of Mental Health unquestionably had the power to make rules with respect to the provision
of care in private group homes. See AFSCME, 452 Mich at 7-8. Put otherwise, unlike
EGLE, the Department of Mental Health could give statements of general applicability the
force and effect of law if it so intended. Even if EGLE intended to give the general permit
or the discretionary conditions the force and effect of law here, it could not do so.

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44
regulations as applied to the particular CAFO. By the same token, if EGLE denies a
CAFO’s general-permit application, EGLE issues an individual permit, and the aggrieved
CAFO petitions for a contested case, again, the administrative law judge and the
Environmental Permit Review Commission must require EGLE to prove that any
discretionary conditions in the individual permit are necessary as applied to the CAFO.
See Pacific Gas, 164 US App DC at 376 (“When the agency applies the policy in a
particular situation, it must be prepared to support the policy just as if the policy statement
had never been issued.”). Finally, if an aggrieved party seeks judicial review, a court must
ensure that EGLE sustained its burden of proof. See id. at 379 (“[T]he courts are in a
position to police the [FPC]’s application of the policy and to insure that the [FPC] gives
no greater effect to Order No. 467 than the order is entitled to as a general statement of
policy.”).
All in all, if the discretionary general-permit conditions have the force and effect of
law, then like the conditions listed in Mich Admin Code, R 323.2196(5), EGLE would
have no choice but to include them in every permit issued to a CAFO, individual or general.
And CAFOs would not be able to contest the necessity of the conditions in administrative
proceedings or on judicial review. In either case, an administrative law judge, the
Environmental Permit Review Commission, and courts would be bound to give effect to
them. See 1 Hickman & Pierce, Administrative Law Treatise (7th ed), § 4.3.1, p 535 (“A
legislative rule can have the effect of eliminating what otherwise would be a party’s right
to a hearing to resolve contested issues of fact.”).

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3. RESPONSE TO DISSENT
As a final matter, we respond to several points Justice V IVIANO makes in his dissent.
First, primarily based on Mich Admin Code, R 323.2192(b) (requiring EGLE to “determine
if the [applicant] meets the criteria for coverage under the general permit”), Justice
VIVIANO believes the discretionary conditions in the general permit are decisive of whether
a CAFO will receive a certificate of coverage. We agree that a CAFO applying for a
certificate of coverage might have to show how it plans to comply with any discretionary
conditions in the comprehensive nutrient management plan it submits along with its
application.43 But we disagree that this can or does control whether a CAFO will receive
a certificate of coverage. As discussed earlier, EGLE’s rules confirm that it has discretion
to deny an application for a certificate of coverage when EGLE determines that the
discretionary conditions are inappropriate as applied to the applicant. See Mich Admin
Code, R 323.2192(b). So even if a CAFO shows that it can comply with any discretionary
conditions in the general permit, this does not—nor could it—legally entitle the applicant
to a certificate of coverage. Just like in Kent Co where the Department of State Police was
not obligated to build on an alternative site when a local unit of government proposed an
alternative site satisfying the Equivalent Site Criteria, so too EGLE is not obligated to issue
a certificate of coverage because a CAFO shows how it plans to comply with the
discretionary conditions in the general permit.
43 Along with their permit applications, CAFOs must submit comprehensive nutrient
management plans. See Mich Admin Code, R 323.2196(5); Sierra Club Mackinac
Chapter, 277 Mich App at 536, 539. Among other things, CAFOs may show in this plan
how they intend to comply with the mandatory conditions and any discretionary conditions
in the general permit. See Mich Admin Code, R 323.2196(5); Sierra Club Mackinac
Chapter, 277 Mich App at 536, 539.

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Second, Justice VIVIANO seems to believe that the general permit and discretionary
conditions have the force and effect of law simply because of their practical effect on
CAFOs. In reality, Justice V IVIANO suggests, most CAFOs apply for certificates of
coverage under general permits, and EGLE will likely grant those CAFOs a certificate of
coverage under the general permit. Yet even if Justice V IVIANO is correct that most CAFOs
will feel pressured to apply for a certificate of coverage under the general permit and that
EGLE is likely to grant them a certificate of coverage, this would not mean that the general
permit or discretionary conditions have the force and effect of law. As we held in Clonlara,
when the Legislature has not empowered an agency to make rules with respect to a
particular subject matter, statements of general applicability on that subject matter do not
have the force and effect of law even if they have a substantial effect on regulated parties.
See Clonlara, 442 Mich at 248-249. That is because these statements can in fact have no
legal effect—they have no actual power to bind the agency, the public, or the courts, even
if the agency issues the statement following the APA’s rulemaking procedures.44 The
statement issued by the FPC in Pacific Gas might have induced natural-gas-pipeline
companies to submit curtailment plans giving priority to residential customers, but the fact
remained that the FPC had not finally approved any such plan, and so no nonresidential
44 For that reason, we reject plaintiffs’ and Justice V IVIANO ’s claim that EGLE was
attempting to avoid the APA’s rulemaking procedures in this case. Because EGLE lacks
the power to make rules with respect to CAFO permits, the general permit and discretionary
conditions could not have the force and effect of law even if EGLE followed the APA’s
rulemaking procedures to issue the general permit and discretionary conditions. As we
said in Clonlara, when an “agency has not been empowered to promulgate rules, policy
statements issued by it need not be promulgated in accordance with APA procedures and
do not have the force of law.” Clonlara, 442 Mich at 239.

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47
customers’ contract rights had been altered yet. And in Kent Co, the Equivalent Site
Criteria might have induced local units of government to propose alternative sites matching
that criteria, but even if they did so, the fact remained that the Department of State Police
was not bound to build on that site. Likewise, the general permit and discretionary
conditions might induce CAFOs to apply for a certificate of coverage under the general
permit, and EGLE might even be likely to grant it. But the fact remains that the general
permit and discretionary conditions cannot grant rights or impose obligations on EGLE,
CAFOs, or the courts.
Justice V IVIANO laments that our holding today means that agencies without
rulemaking power will be able to take actions that have a substantial effect on people
without public input or any court oversight. He insists that “agencies will be free to issue
documents and take actions that look like a rule, sound like a rule, and have the practical
effect of a rule without public input and without court oversight under the APA.” This
alarmism is unfounded. To begin, when an agency without rulemaking power issues a
statement of general applicability, people affected by the statement will have a chance to
challenge the soundness and applicability of the statement when the agency enforces or
applies it in an individual case—both in agency proceedings and on judicial review. Pacific
Gas, 164 US App DC at 376 (noting that, if a statement of general application has the force
and effect of law, “[t]he underlying policy embodied in [it] is not generally subject to
challenge before the agency”). So if an agency fails to establish the soundness of the policy
underlying its statement, or the agency or administrative law judge wrongfully treats a
statement as legally binding, any order applying or enforcing the policy may be vacated on
judicial review. All said, even if an agency without rulemaking power may issue such a

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48
statement without following the APA’s rulemaking procedures, it is not as if people
affected by the statement have no opportunity to offer input before their rights and
obligations are finally decided. And even if a person affected by the statement cannot file
a declaratory-judgment action under MCL 24.264 to challenge the statement, it is not as if
the regulated party has no other means for judicial review. Here, for example, though
EGLE is not required to follow the APA’s rulemaking procedures, plaintiffs and other
CAFOs still have a full opportunity to challenge any discretionary permit conditions in a
contested-case hearing. If it turns out that EGLE did not sustain its burden of proving the
discretionary conditions are necessary to achieve applicable Part 4 water-quality standards
or to comply with other applicable laws and regulations, the administrative law judge or
Environmental Permit Review Commission may strike the discretionary conditions from
the general permit. If the administrative law judge or the Environmental Permit Review
Commission wrongfully treats the discretionary conditions as legally binding, plaintiffs
may seek judicial review, and a court may vacate the final order.45 See MCL 24.306.
In fact, if agencies without rulemaking power were required to fully comply with
the APA’s rulemaking procedures based on the anticipated practical effect of an
interpretive statement or other statement or policy of general applicability, it could in fact
lead to less rather than more transparency. A statement or policy of general applicability
45 If the discretionary conditions had the force and effect of law like the mandatory
conditions listed in Mich Admin Code, R 323.2196(5), a CAFO or CAFOs could not argue
in a contested-case hearing that EGLE has not shown that the mandatory conditions are
necessary to achieve Part 4 water-quality standards or other applicable laws or regulations.
And CAFOs could not ask an administrative law judge or the Environmental Permit
Review Commission to strike the mandatory conditions from the general permit or any
individual permit on this basis.

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49
issued by such an agency can never have the force and effect of law, even if the agency
fully complies with the APA’s rulemaking procedures. Thus, requiring an agency to follow
these procedures would demand significant time and expense with minimal benefit from
the agency’s standpoint: the agency would still have to defend the validity of the statement
in every case, and administrative law judges and courts would be free to not enforce or
apply it. In this scenario, what incentive would agencies have to issue such statements or
policies? They would likely opt not to issue them at all, leaving the regulated public in the
dark about how the agency planned to exercise its enforcement or discretionary power. See
Sunstein, “Practically Binding”: General Policy Statements and Notice-and-Comment
Rulemaking, 68 Admin L Rev 491, 502 (2016) (noting that, if agencies are required to
comply with rulemaking procedures based on practical effect, “they will be encouraged to
do one of two things: (1) maintain silence and hence fail to disclose relevant information
to the public, perhaps by adopting enforcement practices that are never disclosed, or (2)
issue a fuzzy policy statement, full of vagueness and qualifications”). This would
ultimately harm the regulated public, as it would make it harder for them to plan their
affairs accordingly.46
46 See Pacific Gas, 164 US App DC at 379 (“In the absence of such a policy statement, the
Commission could have proceeded on an ad hoc basis and tentatively approved curtailment
plans filed under section 4 of the Act which the Commission found to be just and
reasonable. In following such a course the only difference from the present situation would
be that the Commission would be acting under a secret policy rather than under the
publicized guidelines of Order No. 467.”); Manning, Nonlegislative Rules, 72 Geo Wash
L Rev 893, 914-915 (2004) (“Indeed, nonlegislative rules potentially allow agencies to
supply often far-flung staffs with needed direction and, equally important, to give the
public valuable notice of anticipated policies.”); Asimow, Guidance Documents in the
States: Toward a Safe Harbor, 54 Admin L Rev 631, 632 (2002) (“Guidance documents

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50
Third, Justice V IVIANO says courts that have considered whether general permits
are rules “have had little trouble concluding that general NPDES permits” are legislative
rules, as if this Court’s holding today is some type of aberration. Yet two of the decisions
he cites are merely instances in which a court remarked in passing that NPDES general
permits “are issued pursuant to administrative rulemaking procedures.” See, e.g., Natural
Resources Defense Council v US Environmental Protection Agency, 279 F3d 1180, 1183
(CA 9, 2002); Alaska Community Action on Toxics v Aurora Energy Servs, LLC, 765 F3d
1169, 1172 (CA 9, 2014) (“ ‘[G]eneral permits are considered to be rulemakings . . . .’ ”),
quoting EPA, General Permit Program Guidance (February 1988), p 21, available at
<https://www3.epa.gov/npdes/pubs/owm0465.pdf> (accessed June 6, 2024)
[https://perma.cc/6F66-CNQC]. Neither of these cases considered whether the EPA had
rulemaking authority over the subject matter at issue or whether the general permits
otherwise had the force and effect of law. The passing remarks in these cases appear to
just be an acknowledgment that NPDES general permits are issued after notice-and-
comment proceedings that track notice-and-comment rulemaking requirements under 5
USC 553 of the federal APA. See Perez v Mtg Bankers Ass’n, 575 US 92, 96; 135 S Ct
1199; 191 L Ed 2d 186 (2015) (describing federal APA notice-and-comment rulemaking
procedures). Like EGLE, the EPA may issue NPDES permits only after giving public
notice and an opportunity for public comment. See 33 USC 1342(j) (stating that “[a] copy
of each permit application and each permit issued under [the NPDES permitting program]
of general applicability are enormously important to members of the public who seek to
plan their affairs to stay out of trouble and minimize transaction costs.”).

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51
shall be available to the public”); 33 USC 1342(a)(1) (stating that the public must have an
opportunity for a hearing before a permit application is finally approved).
The other decision he cites is Nat’l Ass’n of Home Builders, which comes a little
closer to the mark but is clearly distinguishable from our case here. See Nat’l Ass’n of
Home Builders v US Army Corps of Engineers, 368 US App DC 23; 417 F3d 1272 (2005).
There, the United States Court of Appeals for the District of Columbia Circuit held that
general permits issued by the Army Corps of Engineers to allow discharge of dredged or
fill material were legislative rules under the federal APA.47 Id. at 35-36. Those general
permits were different from the general permits EGLE issues for CAFOs, however,
because in most instances, the Army Corps of Engineers’ general permits automatically
gave parties the right to discharge dredged or fill material so long as they adhered to the
conditions in the general permit. Id. at 26 (“If the proposed discharge activity is covered
by a general permit, the party may proceed without obtaining an individual permit or, in
some cases, even without giving the Corps notice of the discharge.”), citing 33 CFR
330.1(e)(1) (“In most cases, permittees may proceed with activities authorized by
47 It should also be highlighted that this holding is not unassailable. In fact, the federal
APA seems to explicitly provide that, by definition, a general permit is not a rule. Section
551(6) of the federal APA makes clear that the categories of “rules” and “orders” are
mutually exclusive, defining “order” as “a final disposition . . . of an agency in a matter
other than rule making but including licensing[.]” 5 USC 551(6). The same section says
that the final disposition of an agency in the process of “licensing” is an “order.” Section
551(9) defines “licensing” as including the “agency process respecting the grant, renewal,
denial, revocation, suspension, annulment, withdrawal, limitation, amendment,
modification, or conditioning of a license[.]” 5 USC 551(9). And § 551(8) defines
“license” to “include[] . . . an agency permit . . . .” 5 USC 551(8). Altogether, the federal
APA categorizes a permit as an order, which—by the federal APA’s definition—is not a
rule.

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[nationwide general permits] without notifying the [district engineer].”); New Hanover
Twp v US Army Corps of Engineers, 992 F2d 470, 471 (CA 3, 1993) (noting that a
discharger may “simply operate under the [general] permit without informing the Corps in
advance unless the [general] permit in question requires advance approval from the
Corps”). By granting rights and imposing obligations, then, the general permits at issue in
Nat’l Ass’n of Home Builders had the force and effect of law. As already discussed, general
permits for CAFOs issued by EGLE do not and cannot automatically give CAFOs the right
to discharge in accordance with the discretionary conditions in the general permit. A
CAFO cannot just start discharging in accordance with those conditions. A CAFO must
apply to EGLE for a certificate of coverage under the general permit, and even if the CAFO
agrees to comply with the discretionary conditions in the general permit, EGLE is not
bound to grant the CAFO the certificate of coverage.
IV. CONCLUSION
Having reached the end of a lengthy discussion, we provide a recap of our holding
today. If it is clear the Legislature has not delegated to an agency the power to make rules
with respect to the subject matter a statement or policy of general applicability concerns,
that statement or policy necessarily lacks the force and effect of law and so cannot be
considered a “rule”—either valid or invalid—under the Michigan APA. See Clonlara, 442
Mich at 245-248; MCL 24.207(h) (providing that “[a] form with instructions, an
interpretive statement, a guideline, an informational pamphlet, or other material that in
itself does not have the force and effect of law but is merely explanatory” is not a “rule”).
The statement, therefore, cannot alter rights, impose obligations, or have a present binding

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effect on regulated entities, the agency, or the courts. It can be only (1) a statement
explaining what the agency believes an ambiguous provision of a statute or agency rule
means, i.e., an interpretive statement, or (2) a statement explaining what factors will be
considered and what goals will be pursued when an agency exercises a discretionary power
or conducts an adjudication.
Because it is beyond dispute that EGLE lacks the power to issue rules relating to
NPDES permits issued to CAFOs, neither the general permit nor the discretionary
conditions therein can have the force and effect of law, and so they cannot be “rules” as
defined by the APA. They can be only a statement explaining how EGLE plans to exercise
its discretionary permitting power or a statement explaining what conditions EGLE plans
to prove are necessary to achieve applicable Part 4 water-quality standards or to comply
with other applicable laws and regulations in adjudications involving a CAFO. That means
several things. First, the general permit itself cannot automatically grant anything meeting
the definition of a CAFO the right to discharge under the conditions in the general permit.
Second, during the instant contested case, EGLE must sustain its burden of proving that
the discretionary conditions in the 2020 general permit are in fact necessary to achieve Part
4 water-quality standards or to comply with other applicable laws and regulations. Third,
new CAFOs or CAFOs with expiring permit coverage must be allowed to apply for an
individual permit with different discretionary conditions or no discretionary conditions,
and EGLE must genuinely evaluate whether any discretionary conditions in the general
permit are necessary as applied to that CAFO. If EGLE denies the CAFO’s application
and the CAFO petitions for a contested case or later judicial review, EGLE must sustain
its burden of proving that the discretionary conditions in the general permit are necessary.

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Fourth, when a new CAFO or a CAFO with expiring permit coverage applies for a
certificate of coverage under the general permit, EGLE must genuinely evaluate whether
any discretionary conditions in the general permit are necessary as to the CAFO and must
retain discretion to process the CAFO’s application as an individual permit with different
discretionary conditions or no discretionary conditions. And again, if a CAFO petitions
for a contested case thereafter, EGLE must sustain its burden of proving that the
discretionary conditions in the general permit are necessary.
At bottom, neither the general permit nor the discretionary conditions in it are
“rules” under the APA, and so the Court of Claims correctly concluded that it lacked
subject-matter jurisdiction under MCL 24.264 to hear plaintiffs’ declaratory-judgment
action challenging their validity. We affirm the judgment of the Court of Appeals but
vacate its holding that the discretionary conditions in the general permit are rules. Given
our disposition, we need not address whether a contested-case proceeding under MCL
324.3112(5) and MCL 24.271 to MCL 24.288 is “an exclusive procedure or
remedy . . . provided by a statute governing the agency” under MCL 24.264.
Elizabeth T. Clement
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch (as to Parts I,
II, III(A), III(B), and
III(C)(1))
Kyra H. Bolden

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S T A T E O F M I C H I G A N
SUPREME COURT
MICHIGAN FARM BUREAU, et al.,
Plaintiffs-Appellees/Cross-
Appellants,
v No. 165166
DEPARTMENT OF ENVIRONMENT,
GREAT LAKES, AND ENERGY,
Defendant-Appellant/Cross-
Appellee.
W ELCH , J. (concurring).
I agree with Chief Justice C LEMENT ’s analysis in part and join Parts I, II, III(A),
III(B), and III(C)(1), and I concur in the judgment. Plaintiffs’ declaratory action cannot
move forward. However, I believe it may be unnecessary to decide, at this time, whether
the challenged conditions in the 2020 general permit can be considered “rules” under MCL
24.207 of the Administrative Procedures Act (the APA), MCL 24.201 et seq. Plaintiffs’
lawsuit was filed under MCL 24.264, which authorizes an action for declaratory judgment
challenging “the validity or applicability of a rule” as that term is defined by the APA. But
MCL 24.264 is inapplicable if “an exclusive procedure or remedy is provided by a statute
governing the agency . . . .” The Natural Resources and Environmental Protection Act (the
NREPA), MCL 324.101 et seq., provides exclusive remedies and procedures for disputing
defendant’s exercise of its authority to issue National Pollutant Discharge Elimination
System (NPDES) permits in two ways: (1) a contested case proceeding pursuant to MCL

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324.3112 and MCL 324.3113, and (2) a petition for permit review pursuant to MCL
324.1315 and MCL 324.1317. Thus, whether the permit conditions are rules or not, any
challenge to EGLE’s actions under MCL 24.264 is prohibited given the exclusive remedies
and procedures set forth by the NREPA.1
I. RELEVANT FACTS
Plaintiffs challenge new conditions that defendant Department of Environment,
Great Lakes, and Energy (EGLE) added to the 2020 general permit that is applicable to
concentrated animal feeding operations (CAFOs). These new conditions were adopted
after an extensive period of public participation. CAFOs in Michigan were faced with the
choice of seeking coverage under the 2020 general permit or applying for an individual
permit. Most CAFOs, including those who are parties to this case, sought coverage under
1 Plaintiffs argue that the 2020 general permit conditions are “rules” under MCL 24.207 of
the APA. However, the substance of plaintiffs’ arguments seems to be that the new
conditions either are not supported by the enabling statutes governing EGLE or are
inconsistent with existing promulgated regulations. Under this Court’s precedent, such an
argument is better framed as a claim that the 2020 general permit conditions constitute an
ultra vires action that improperly interprets and applies the NREPA or applicable
regulations. Even if a contested provision is not a rule, the validity of an agency’s
interpretation can still be challenged in a legal proceeding when the interpretation is at
issue. See Clonlara, Inc v State Bd of Ed, 442 Mich 230, 243; 501 NW2d 88 (1993)
(“Clonlara and McConnell contend that the procedures go beyond the scope of the law and
therefore are not interpretive statements under an exception set forth in [MCL 24.207(g),
as amended by 1989 PA 288] of the APA. An interpretive statement that goes beyond the
scope of the law may be challenged when it is in issue in a judicial proceeding. An
interpretation not supported by the enabling act is an invalid interpretation, not a rule.
Otherwise, ‘wrong’ interpretive statements might become rules with the force of law on
the false premise that they were promulgated in accordance with the APA procedures.
‘[B]ecause a reviewing court disagrees with an agency interpretation does not render it
legislative.’ ”), quoting Wayne Twp Metro Sch Dist v Davila, 969 F2d 485, 494 (CA 7,
1992) (second alteration by the Clonlara Court).

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the 2020 general permit. At the same time, many of these same entities and individuals
commenced a contested case proceeding under MCL 324.3112(5), challenging the validity
and necessity of these new conditions. As noted in the majority opinion, that contested
case proceeding has been stayed pending resolution of this lawsuit.
This lawsuit, commenced under MCL 24.264 in the Court of Claims, was filed by
many of the same individuals and entities who sought coverage under the 2020 general
permit and is separate from the contested case proceeding summarized in the prior
paragraph. Plaintiffs’ theory in this lawsuit is that the new conditions in the 2020 general
permit constitute “rules” of general applicability under MCL 24.207 that needed to be
formally promulgated and that, therefore, they can seek direct judicial review under MCL
24.264 without first exhausting administrative remedies.
The Court of Claims disagreed with plaintiffs, concluding that their failure to
exhaust their administrative remedies deprived the court of subject matter jurisdiction
under MCL 24.301, and the court dismissed their case. The Court of Claims also concluded
that Jones v Dep’t of Corrections, 185 Mich App 134, 138; 460 NW2d 575 (1990),
precluded plaintiffs’ action under MCL 24.264 for reasons aptly described by the majority.
The Court of Appeals, while technically affirming the Court of Claims, agreed with
plaintiffs’ theory that the challenged conditions constituted rules that needed to be
promulgated through the formal rulemaking process and thus noted that a declaratory
action under MCL 24.264 could be refiled after certain pre-suit statutory requirements had
been satisfied. Mich Farm Bureau v Dep’t of Environment, Great Lakes, & Energy, 343
Mich App 293, 296, 314-318; 997 NW2d 467 (2022). The Court of Appeals held that
MCL 24.264 “does not impose further administrative-remedy-exhaustion requirements,”

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id. at 314, beyond the requirement that a party “first request[] the agency for a declaratory
ruling and the agency has denied the request or failed to act upon it expeditiously,” MCL
24.264.
This Court granted leave to appeal and requested briefing on the question decided
by the Court of Appeals, but we also asked whether an exception built into MCL 24.264—
“an exclusive procedure or remedy [that] is provided by a statute governing the agency”—
precluded this case from moving forward. Although the majority does not address this
alternative pathway, I write to explain why I believe it offers an equally satisfactory means
of resolving the present dispute without deciding the “rule” question.
II. EXCLUSIVITY OF A PROCEDURE OR REMEDY
MCL 24.264 provides that:
Unless an exclusive procedure or remedy is provided by a statute
governing the agency, the validity or applicability of a rule, including the
failure of an agency to accurately assess the impact of the rule on businesses,
including small businesses, in its regulatory impact statement, may be
determined in an action for declaratory judgment if the court finds that the
rule or its threatened application interferes with or impairs, or imminently
threatens to interfere with or impair, the legal rights or privileges of the
plaintiff. . . . This section shall not be construed to prohibit the determination
of the validity or applicability of the rule in any other action or proceeding
in which its invalidity or inapplicability is asserted. [Emphasis added.]
The plain language of MCL 24.264 contemplates a difference between an exclusive
remedy or procedure concerning the validity or applicability of a “rule” and the availability
of other remedies or procedures in which the validity or applicability of a “rule” could be
challenged. Whether a statutory remedy or procedure has been made exclusive is a
question of statutory interpretation. A remedy or procedure is most often made exclusive

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through explicit statutory mandate. However, the exclusivity of a statutory remedy or
procedure can also be inferred from the context and purpose of the overall legislative
scheme.
This Court has never interpreted the “exclusive procedure or remedy” language in
MCL 24.264, but the Court of Appeals did in Slis v Michigan, 332 Mich App 312; 956
NW2d 569 (2020). The issue in Slis was whether the plaintiffs could successfully pursue
an action for declaratory judgment under MCL 24.264 to challenge the validity or
applicability of emergency rules prohibiting the sale of flavored nicotine vapor products
that had been promulgated by the Department of Health and Human Services (DHHS)
under MCL 24.248. Id. at 318, 340-342. Slis held that the declaratory action could proceed
because there was “no exclusive procedure or remedy provided in a different statute
governing the DHHS with respect to challenging the validity of a[n] [emergency] rule
promulgated by the DHHS.” Id. at 341. The panel further opined:
We reject any contention that MCL 24.248—the statute authorizing the
promulgation of an emergency rule—provides “an exclusive procedure or
remedy” as that phrase is used in MCL 24.264. The “exclusive procedure or
remedy” language of MCL 24.264 plainly and unambiguously pertains to a
procedure or remedy related to challenging the validity of a rule, not just any
procedure or remedy. Although MCL 24.248 sets forth the exclusive
procedure to promulgate an emergency rule, it has no language with regard
to allowing or disallowing the challenge of an emergency rule. [Id.]
The Court also noted that MCL 24.248 was not a statute specifically governing DHHS; this
also weighed against it providing an exclusive remedy or procedure for purposes of MCL
24.264. Id. at 341-342.
This Court has discussed exclusivity requirements in other contexts. These include
disputes over which court or tribunal has jurisdiction, as well as disputes concerning the

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exclusivity or exhaustion of administrative remedies. In the context of exhaustion of
administrative remedies, the Court has held that “ ‘no one is entitled to judicial relief for a
supposed or threatened injury until the prescribed administrative remedy has been
exhausted.’ ” Holman v Indus Stamping & Mfg Co, 344 Mich 235, 260; 74 NW2d 322
(1955), quoting Myers v Bethlehem Shipbuilding Corp, 303 US 41, 50-51; 58 S Ct 459; 82
L Ed 638 (1938). Administrative law principles also “dictate[] that courts move very
cautiously when called upon to interfere with the assumption of jurisdiction by an
administrative agency.” Judges of 74th Judicial Dist v Bay Co, 385 Mich 710, 727; 190
NW2d 219 (1971). From this, and other considerations, “emanates the doctrine of
exhaustion, by which the courts have declined to act in contravention of administrative
agencies where the remedies available through administrative channels have not been
pursued to completion.” Id. at 728.
Michigan’s general rule of exhausting administrative remedies is premised on the
idea that “where a new right is created or a new duty is imposed by statute, the remedy
provided for enforcement of that right by the statute for its violation and nonperformance
is exclusive.” Pompey v Gen Motors Corp, 385 Mich 537, 552; 189 NW2d 243 (1971).
See also Monroe Beverage Co, Inc v Stroh Brewery Co, 454 Mich 41, 45; 559 NW2d 297
(1997) (making the same point and holding that former MCL 436.30b(28) of the Liquor
Control Act provided the exclusive remedy for a wholesaler against a supplier where there
was no contractual agreement between the two as required by § 30b(28) to authorize a
lawsuit for damages).
Whether a statutory remedy or procedure is exclusive requires consideration of both
statutory text and the context in which a remedy or procedure exists. Sometimes the

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Legislature is clear when providing for exclusive remedies, such as with the Worker’s
Disability Compensation Act, MCL 418.101 et seq. See MCL 418.131(1) (“The right to
the recovery of benefits as provided in this act shall be the employee’s exclusive remedy
against the employer for a personal injury or occupational disease. The only exception to
this exclusive remedy is an intentional tort.”) (emphasis added). There are also some
environmental permitting statutes that use explicit language when describing whether
judicial review is permitted following a contested case proceeding. See MCL
324.5506(14) (stating that following an administrative decision to grant or deny a permit
to operate or install equipment that releases toxic fumes into the air, “[a] petition for
judicial review is the exclusive means of obtaining judicial review of a permit and shall be
filed within 90 days after the final permit action”) (emphasis added). Explicit statutory
language is the simplest way for the Legislature to convey its intent for an exclusive remedy
or procedure.
This Court has also inferred exclusive remedies from less explicit statutory text. For
example, in Pompey, 385 Mich at 552-553, this Court acknowledged that
where a new right is created or a new duty is imposed by statute, the remedy
provided for enforcement of that right by the statute for its violation and
nonperformance is exclusive. Correlatively, a statutory remedy for
enforcement of a common-law right is deemed only cumulative. [Citations
omitted.]
Pompey noted “two important qualifications” to this rule of exclusivity: (1) where the
statutory “remedy is plainly inadequate,” and (2) where “contrary [legislative] intent
clearly appears.” Id. at 553 n 14. As a result, in an action concerning statutory civil rights
claims, the Court rejected an argument that the Michigan Civil Rights Commission had

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exclusive jurisdiction over those claims because “the judicial remedies provision in [Const
1963, art 5, § 29] clearly intended no displacement of judicial remedies . . . .” Pompey,
385 Mich at 559. But statutory remedies enacted for the enforcement of purely statutory
rights are generally considered exclusive so long as the remedy is adequate and the
Legislature has not clearly demonstrated a contrary intention. See id. at 552-553 & n 14;
Int’l Brotherhood of Electrical Workers, Local Union No 58 v McNulty, 214 Mich App
437, 445; 543 NW2d 25 (1995) (“As a general rule, the remedies provided by statute for
violation of a right having no common-law counterpart are exclusive. However, an
exception to this general rule provides that if the statutory remedy is plainly inadequate, a
private cause of action can be inferred.”) (citation omitted). This Court reaffirmed this
principle of exclusivity with exceptions this term. See Stegall v Resource Technology
Corp, ___ Mich ___, ___; ___ NW2d ___ (2024) (Docket No. 165450); slip op at 14
(“Accordingly, we take this opportunity to reaffirm the aforementioned caselaw and hold
that the ‘plainly inadequate’ qualifier is consistent with Michigan jurisprudence and that
courts must therefore conduct an inquiry into the adequacy of the remedy when addressing
whether statutory remedies are exclusive or cumulative. Furthermore, we disavow Lash [v
Traverse City, 479 Mich 180; 735 NW2d 628 (2007),] to the extent that it disavows
Pompey’s adequacy analysis as dictum.”).2
2 For the purpose of resolving the appeal in Stegall, the Court also assumed but did not
decide that both the federal and Michigan Occupational Safety and Health Acts created a
new right or imposed a new duty not previously recognized under the common law while
noting conflicts in existing caselaw on this point. Stegall, ___ Mich at ___ n 5; slip op
at 11 n 5.

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Conversely, in Lamphere Sch v Lamphere Federation of Teachers, 400 Mich 104;
252 NW2d 818 (1977), the Court examined the exclusivity of remedies for an illegal
teachers’ strike as set forth in MCL 423.206, as amended by 1965 PA 379, of the public
employment relations act (PERA), MCL 423.201 et seq. The law provided:
“Notwithstanding the provisions of any other law, any person holding
such a position who, by concerted action with others, and without the lawful
approval of his superior, wilfully [sic] absents himself from his position, or
abstains in whole or in part from the full, faithful and proper performance of
his duties for the purpose of inducing, influencing or coercing a change in
the conditions or compensation, or the rights, privileges or obligations of
employment shall be deemed to be on strike but the person, upon request,
shall be entitled to a determination as to whether he did violate the provisions
of this act.” [The remainder of the provision describes the procedure and
timeline for filing such a request as well as provides the right of judicial
review in circuit court.] [Lamphere Sch, 400 Mich at 112, quoting MCL
423.206, as amended by 1965 PA 379.]
MCL 423.206, as amended by 1965 PA 379, provided detailed procedures for invoking the
statute and explicitly provided for judicial review in the circuit court of a final agency
decision finding a violation of law and imposing discipline. Lamphere Sch, 400 Mich at
112. While the language of Section 6 of PERA (MCL 423.206, as amended by 1965 PA
379), did not explicitly state that PERA was a striking teacher’s exclusive avenue for relief,
the Court held that
when we review the extensive enforcement procedures regarding illegal
teachers’ strikes as outlined in Section 6 of the PERA, we find that the act’s
careful wording does indeed provide for exclusive, after-the-fact statutory
remedies as to both teachers and their federations for participation in such
strikes[.]
* * *
It becomes evident that the full Court [in Rockwell v Crestwood Sch
Dist Bd of Ed, 293 Mich 616; 227 NW2d 736 (1975),] recognized that a
unitary procedure for the discipline of public employees who strike would be

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salutary and was intended by legislative enactment. Although a difference
of interpretation existed in [Rockwell] regarding the priority of two
conflicting statutes, the underlying intention of the Legislature to create
exclusive remedies by statute is made apparent.
Equitable relief, of course, always remains available via injunction.
See the PERA § 16(h) and Holland School District v Holland Education
Association, 380 Mich 314; 157 NW2d 206 (1968). But the foregoing
emphasized language of § 6 of the PERA reflects legislative intent that the
statutorily permitted discipline-discharge should be the unitary and exclusive
remedies available to public employers in dealing with illegal strikes by
public employees in violation of the PERA’s [MCL 423.202, as enacted by
1947 PA 336] strike prohibition. [Lamphere Sch, 400 Mich at 111-112, 113-
114.]
Statutory remedies or procedures for review of administrative decisions have also
been deemed exclusive even when a statute contains arguably permissive statutory
language. Courts have held that the permissive language does not open the door to further
remedies when an explicit pathway for administrative or judicial review has been provided.
For example, the Court of Appeals has long recognized that an administrative complaint
procedure is the exclusive remedy for bringing statutory claims under the wage and fringe
benefits act, MCL 408.471 et seq., even though MCL 408.481(1) states that an “employee
who believes that his or her employer has violated [the] act may file a written complaint
with the department . . . .” (Emphasis added.) See also Cork v Applebee’s of Mich, Inc,
239 Mich App 311, 317-319; 608 NW2d 62 (2000) (holding that the wage and fringe
benefits act “provides the exclusive remedy for that alleged violation” of statutory rights
and that this remedy was cumulative as to the enforcement of common-law rights). The
same conclusion has been reached in the context of contesting adverse zoning decisions.
See Krohn v Saginaw, 175 Mich App 193, 195; 437 NW2d 260 (1989) (holding that an
appeal was the exclusive means of contesting a zoning board decision where former MCL

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125.585(11), as amended by 1986 PA 191, stated that a “person . . . affected by the zoning
ordinance may appeal to the circuit court”) (emphasis added).
III. MICHIGAN’S NPDES PERMITTING PROGRAM
Parts I(A) to I(C) of the majority opinion provide a comprehensive explanation of
the relevant NPDES permit conditions and the individual and general permitting process.
For purposes of my opinion, it is important to recognize that most of the permitting process
for both individual and general NPDES permits, including seeking a certificate of coverage
under a general permit, is governed by promulgated administrative rules. Nobody disputes
this. Nor does anyone dispute that the rights and duties created by the NPDES program
are purely statutory and regulatory in nature.
The new conditions required by the 2020 general permit that are at issue in this case
have not been promulgated as administrative rules at the federal or state level. Plaintiffs
claim that EGLE was required to promulgate them through the rulemaking process. The
exception to the ability to seek a declaratory action under MCL 24.264 is triggered only by
exclusive remedies or procedures found in a “statute governing the agency.” It is therefore
important to consider the NREPA—a key enabling statute for EGLE—and the remedies
and procedures it provides for challenging agency actions and decisions during the NPDES
permitting process.
Under the Clean Water Act, 33 USC 1251 et seq., no person or entity subject to the
act is allowed to discharge pollutants into navigable waters of the United States without
first obtaining a permit authorizing the discharge. Michigan law provides for the same
prohibition at a state level. See MCL 324.3112(1) (“A person shall not discharge any waste

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or waste effluent into the waters of this state unless the person is in possession of a valid
permit from [EGLE].”). The federal government has delegated to Michigan the power to
exercise NPDES permitting authority that would normally be exercised by the
Environmental Protection Agency, and Michigan has delegated that authority to EGLE.
See 33 USC 1342; MCL 324.3101 et seq.; Sierra Club Mackinac Chapter v Dep’t of
Environmental Quality, 277 Mich App 531, 535-536; 747 NW2d 321 (2008). In Michigan,
the NPDES permitting program is governed by Part 31 of the NREPA, MCL 324.3101 et
seq. As the majority acknowledges, much of the agency’s NPDES permitting program was
created by promulgated administrative rules—EGLE’s Part 21 rules—but the entire
program is subject to and derived from Part 31 of the NREPA. See Mich Admin Code, R
323.2101 et seq.
The NPDES permitting program covers CAFOs because such operations are a point
source of water pollution. As the majority explains, NPDES permits must include
conditions designed to restrict the quantity or condition of pollutants that are discharged
while keeping in mind target water quality standards. See, e.g., 33 USC 1342(a)(2).
Moreover, as the majority and dissent both acknowledge, the conditions at issue here are
technically a part of the “comprehensive nutrient management plan” (CNMP) that is
required by both state and federal regulations for CAFOs, and the CNMP is incorporated
as part of an NPDES permit obtained by a CAFO. See Sierra Club Mackinac Chapter, 277
Mich App at 552-553; Mich Admin Code, R 323.2196(1)(b); 40 CFR 122.42(e) (2023).
Some mandatory conditions or practices that must be included in all NPDES permits issued
to CAFOs were promulgated by the federal government, see 40 CFR 122.41 (2023); 40
CFR 122.42(e) (2023); 40 CFR 412.4(c) (2023). The federal requirements were then

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incorporated by reference into Michigan’s regulations through Mich Admin Code, R
323.2189(2)(m). In 2006, EGLE also promulgated certain practices and conditions that
exceed the federal requirements. See Mich Admin Code, R 323.2196(5).3
The Clean Water Act also requires public notice and an opportunity for a hearing
before an NPDES permit is issued. See Sierra Club Mackinac Chapter, 277 Mich App at
553-554. The permitting process that EGLE has established through its promulgated rules
reflects this and requires a period of public notice, comment, and agency review, as well
as an opportunity to request a public hearing, on an NPDES permit—whether general or
individual—before it is issued. See Mich Admin Code, R 323.2117; R 323.2118; R
323.2119; R 323.2191(2); R 323.2130(1) and (2).
For both general and individual NPDES permits, EGLE is required to make a final
determination as to whether to issue a permit or, for CAFOs seeking coverage under a
3 Both federal and state law also require EGLE to impose stricter conditions or practices
than what is provided for by formal regulations and rules if necessary to achieve applicable
water quality standards. See 40 CFR 122.44(d)(1); Mich Admin Code, R 323.2189(2)(h);
MCL 324.3113(2); MCL 324.3106. But as of December 31, 2006, the Legislature had
rescinded the agency’s rulemaking authority under Part 31 of the NREPA “except for rules
authorized under [MCL 324.3112(6)]” and “as may be necessary to comply with the federal
water pollution control act, 33 USC 1251 to 1387.” MCL 324.3103(2) and (3). Neither of
these provisions grants EGLE authority to promulgate rules regulating CAFOs under Part
31 of the NREPA. The rulemaking authority related to MCL 324.3112(6) concerns
oceangoing vessels engaging in port operations in Michigan that are required to obtain a
permit under Part 31 of the NREPA to prevent discharge of aquatic nuisance species. When
the Legislature amended MCL 324.3103(2) in 2004 PA 91 to say, “notwithstanding any
rule-promulgation authority that is provided in [Part 31], . . . [EGLE] shall not promulgate
any additional rules under this part after December 31, 2006,” it negated EGLE’s
rulemaking authority under MCL 324.3103(3) after December 31, 2006. The Legislature
has introduced bills that, if adopted, would repeal much of MCL 324.3103(2) and fully
restore EGLE’s rulemaking authority under Part 31 of the NREPA. See, e.g., 2023 SB
663; 2024 HB 5614.

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general permit, a certification of coverage. Mich Admin Code, R 323.2133(1) and (2);
Mich Admin Code, R 323.2191(2). For a permit to discharge waste under MCL
324.3112(1), EGLE must “condition the continued validity of a permit upon the permittee’s
meeting the effluent requirements that [EGLE] considers necessary to prevent unlawful
pollution by the dates that [EGLE] considers to be reasonable and necessary and to ensure
compliance with applicable federal law.” MCL 324.3112(3). For a permit regarding new
or increased use of waters for waste or sewage disposal under MCL 324.3113, EGLE is
required to “condition the permit upon such restrictions as [EGLE] considers necessary to
adequately guard against unlawful uses of the waters of the state as are set forth in [MCL
324.3109].” MCL 324.3113(2).
A person dissatisfied with a final agency decision to issue or deny a permit4 has the
right to petition EGLE to challenge the decision in a contested case hearing conducted
4 MCL 324.1301(g) states that for purposes of MCL 324.1313 to MCL 324.1317—the
provisions in Part 31 of the NREPA concerning contested case proceedings and review by
the environmental permit review commission—the term “permit” means
any permit or operating license that meets both of the following conditions:
(i) The applicant for the permit or operating license is not this state or
a political subdivision of this state.
(ii) The permit or operating license is issued by the department of
environmental quality under this act or the rules promulgated under this act.

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pursuant to the APA. See MCL 324.3112(5);5 MCL 324.3113(3).6 “In a contested case
regarding a permit, an administrative law judge shall preside, make the final decision, and
issue the final decision and order for the department.” MCL 324.1317(1). Administrative
rules remove any doubt that proceedings regarding a CAFO applicant’s request for
coverage under a general permit or an assertion that coverage under an individual permit
is more appropriate must occur after the issuance of the general permit. But the decision
to allow or deny coverage under the general permit itself is subject to a contested case
review process in accordance with MCL 324.3113.7 See Mich Admin Code, R
5 “A person who is aggrieved by an order of abatement of [EGLE] or by the reissuance,
modification, suspension, or revocation of an existing permit of [EGLE] executed pursuant
to this section may file a sworn petition with [EGLE] setting forth the grounds and reasons
for the complaint and requesting a contested case hearing on the matter pursuant to the
[APA], MCL 24.201 to 24.328. A petition filed more than 60 days after action on the order
or permit may be rejected by [EGLE] as being untimely.” MCL 324.3112(5) (emphasis
added).
6 “If the permit or denial of a new or increased use is not acceptable to the permittee, the
applicant, or any other person, the permittee, the applicant, or other person may file a
sworn petition with [EGLE] setting forth the grounds and reasons for the complaint and
asking for a contested case hearing on the matter pursuant to the [APA], MCL 24.201 to
24.328. A petition filed more than 60 days after action on the permit application may be
rejected by [EGLE] as being untimely.” MCL 324.3113(3) (emphasis added).
7 Additionally, the 2020 general permit states the following on page two:
CONTESTED CASE INFORMATION
Any person who is aggrieved by this permit may file a sworn
petition with the Michigan Administrative Hearing System within the
Michigan Department of Licensing and Regulatory Affairs, c/o the
Michigan Department of Environment, Great Lakes, and Energy, setting
forth the conditions of the permit which are being challenged and
specifying the grounds for the challenge. The Department of Licensing
and Regulatory Affairs may reject any petition filed more than 60 days
after issuance as being untimely. [EGLE, National Pollutant Discharge
Elimination System Wastewater Discharge General Permit: Concentrated

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323.2192(c).8 At all relevant times, the statutes also provided that the results of a contested
case proceeding could be reviewed and modified by Michigan’s environmental permit
review commission and were also subject to judicial review, regardless of whether the
commission is petitioned to intervene. See MCL 324.1317(4) and (7);9 MCL 324.3112(5);
MCL 324.3113(3).
The Legislature has granted parties like CAFOs an entirely separate right to seek
review by the environmental permit review commission10 “before the permit has been
approved or denied.” MCL 324.1315(1). Such proceedings are separate and distinct from
Animal Feeding Operations, Permit No. MIG010000 (issued March 27,
2020), p 2, available at <https://www.michigan.gov/-
/media/Project/Websites/egle/Documents/Programs/WRD/CAFO/MIG010000
-General-Permit-2025.pdf?rev=a4d602d0165c41e096854abe036058f9>
(accessed June 6, 2024) [https://perma.cc/6YEW-WSX6].]
8 “[EGLE] shall promptly report to [EGLE] each person having a discharge for which
coverage by general permit has been initiated pursuant to the provisions of subdivision (b)
of this rule. A person who is aggrieved by the coverage may file a sworn petition for a
contested case hearing on the matter with [EGLE] in accordance with the provisions of
section 3113 of part 31 of the act. A petition that is filed more than 60 days after coverage
by the general permit is reported to [EGLE] may be rejected by [EGLE] as being untimely.”
Mich Admin Code, R 323.2192(c).
9 “An environmental permit panel may adopt, remand, modify, or reverse, in whole or in
part, a final decision and order described in [MCL 324.1317(1)]. The panel shall issue an
opinion that becomes the final decision of [EGLE] and is subject to judicial review as
provided under the [APA], MCL 24.201 to 24.328, and other applicable law.” MCL
324.1317(4). Additionally, “[i]f no party timely appeals a final decision and order
described in [MCL 324.1317(1)] to an environmental permit panel, the final decision and
order is the final agency action for purposes of any applicable judicial review.” MCL
324.1317(7).
10 The Legislature has introduced bills that, if adopted, would amend the NREPA and repeal
the section that created the environmental permit review commission and the
environmental science advisory board. See 2023 SB 393; 2023 SB 394.

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the contested case proceedings following a final permitting decision, as I have previously
described. The director of EGLE has the discretion to attempt to resolve such petitions
directly through negotiation, MCL 324.1315(1), but if this does not occur, the matter must
be submitted to the environmental permit review commission to make a formal
recommendation to the director of whether to approve or deny the permit, MCL
324.1315(1), (2), and (4) to (6). Although the director’s decision on a recommendation
from the commission is not immediately reviewable, it “may be included in an appeal to a
final permit action.” MCL 324.1315(6). If the director’s decision is not appealed to the
environmental permit review commission, EGLE’s decision “regarding the approval or
denial of a permit is [a] final permit action for purposes of any judicial review or other
review allowed under” the NREPA, MCL 24.201 to MCL 24.328 (the second and third
chapters of the APA), and MCL 600.631 (appeals of agency decisions to a circuit court).
MCL 324.1315(6).
IV. APPLICATION
The preceding discussion demonstrates that the Legislature has adopted by statute
extensive and exclusive procedures and remedies for parties interested in challenging
EGLE’s exercise of NPDES permitting authority at every step of the process. As
previously noted, it is undisputed that the rights, duties, and obligations associated with the
NPDES program are purely statutory and regulatory in nature. There is no indication in
Part 31 of the NREPA that the Legislature intended these extensive procedures to exempt
the agency’s NPDES permitting program or allow for direct litigation against EGLE for
exercising its permitting power as a bypass to the administrative review process.

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18
Accordingly, the presumption under Michigan law is that the statutory processes and
procedures acknowledged by the NREPA are exclusive as to the enforcement of purely
statutory and regulatory rights. See Stegall, ___ Mich at ___; slip op at 11-14; Pompey,
385 Mich at 553; Monroe Beverage Co, 454 Mich at 45; Lamphere Sch, 400 Mich at 111-
112, 113-114. And, consistent with this, EGLE has adopted administrative rules for
contested case proceedings specific to the NPDES general permitting program. See Mich
Admin Code, R 323.2192(c), citing MCL 324.3113.
CAFOs have multiple avenues to challenge an EGLE decision to deny or approve
coverage under a general permit beyond the initial notice-and-comment-like proceedings
that are mandated before a general permit is issued.11 They can use the contested case
proceeding process. See MCL 324.3112; MCL 324.3113. Or they can seek an additional
internal review of a decision by the environmental permit review commission. MCL
324.1317. The outcomes of both avenues are subject to judicial review. See MCL
324.3112(5); MCL 324.3113(3); MCL 324.1315(6); MCL 324.1317(4) and (7). And both
avenues provide the exclusive remedy for NPDES general permit applicants, just as they
do for those seeking individual NPDES permits.
While Part 31 of the NREPA does not explicitly refer to remedies or procedures as
exclusive when discussing review through the contested case process or review by the
environmental permit review commission, as noted earlier, this is not dispositive. A
statutory remedy or process can still be exclusive even if the statute fails to explicitly state
that it is the only avenue for relief. See MCL 324.3112(5); MCL 324.3113(3); MCL
11 EGLE has imposed on itself a fixed five-year term for general permits. See Mich Admin
Code, R 323.2150.

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19
324.1315(1); MCL 324.1317. Each of these statutes uses terminology such as “may seek
review,” and this makes sense given the context. Each of these provisions states that a
permit applicant or aggrieved party has the right or option to seek review of an
administrative decision through the agency and then later in court. It would make little
sense for such a statute to say that a permit applicant or aggrieved party “shall seek review”
because that would imply that the party is obligated to file the petition or appeal.
As in Pompey, determining whether the statutory remedies or procedures laid out
by Part 31 of the NREPA are exclusive requires a more nuanced and contextual approach.
In the zoning context, it is well accepted that if local zoning ordinances provide an
administrative method to seek review of an adverse decision, then that method must be
used. See Cummins v Robinson Twp, 283 Mich App 677, 690-691; 770 NW2d 421 (2009);
Carleton Sportsman’s Club v Exeter Twp, 217 Mich App 195, 200; 550 NW2d 867 (1996).
Zoning statutes that say a person “may” appeal an adverse zoning decision to the circuit
court have consistently been read as making such an appeal the exclusive mechanism for
bringing the dispute before the judiciary. See Polkton Charter Twp v Pellegrom, 265 Mich
App 88, 99-100; 693 NW2d 170 (2005) (discussing former MCL 125.293a(1), as enacted
by 1978 PA 637, which stated that “a person having an interest affected by the zoning
ordinance may appeal to the circuit court”); Krohn, 175 Mich App at 195. This requirement
has generally been referred to as part of the requirement to exhaust administrative
remedies.12 See Cummins, 283 Mich App at 691; see also Cork, 239 Mich App at 317-319
12 Notably, the current Michigan Zoning Enabling Act, MCL 125.3101 et seq., also uses
permissive language when describing the ability to appeal a zoning board of appeals
decision to the circuit court, even though that is the exclusive means (with some exceptions
for constitutional claims and legislative rezoning decisions) of seeking review of a zoning

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20
(holding that the wage and fringe benefits act provides the exclusive process even though
MCL 408.481(1) states that the employee “may file” a complaint with the agency).
When the relevant aspects of Part 31 of the NREPA are read in a holistic and
contextual manner, it is clear that the Legislature intended all challenges to EGLE’s
exercise of NPDES permitting authority to be funneled through one of its established
administrative pathways before the right to seek judicial review ripens.13
These pre-judicial review pathways include seeking review before an environmental
permit review commission and seeking review by an administrative law judge in a
contested case. In each of these administrative proceedings, the permittee can argue that
aspects of the 2020 general permit are inapplicable or legally invalid for various reasons.
This would include arguments that the newly imposed conditions on the 2020 general
permit exceed EGLE’s statutory or regulatory authority absent new formal rulemaking or
that they are inconsistent with the NREPA or existing regulations. This is unlike the
statutory scheme at issue in Stegall, ___ Mich at ___; slip op at 16-18, where the
Legislature delegated to the agency significant discretion to decide whether to process a
complaint that had been filed with the agency. That discretion was relevant to this Court’s
board of appeals decision. See MCL 125.3605 (“The decision of the zoning board of
appeals shall be final. A party aggrieved by the decision may appeal to the circuit
court . . . .”); MCL 125.3606(1) (“Any party aggrieved by a decision of the zoning board
of appeals may appeal to the circuit court . . . .”).
13 As already noted, the exclusivity of the process or right is often determined from the
context in which the process or right is described in the relevant statute. See South
Dearborn Environmental Improvement Ass’n, Inc v Dep’t of Environmental Quality, 502
Mich 349, 367-368; 917 NW2d 603 (2018) (“[W]e do not read statutory language in
isolation and must construe its meaning in light of the context of its use.”).

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21
decision in Stegall holding that the statutory remedies were inadequate and thus
nonexclusive. Id. Part 31 of the NREPA also grants EGLE no discretion to refuse to
process and adjudicate a timely petition for a contested case or petition for review by the
environmental permit review commission concerning the agency’s NPDES permitting
authority. The outcomes of such administrative proceedings are then subject to judicial
review as to whether EGLE exceeded its statutory and regulatory authority.
It would be illogical for the Legislature to create under Part 31 such a comprehensive
process of administrative review that follows a period of public notice and opportunity for
a hearing before a general NPDES permit can even be adopted if regulated entities were
not required to use the administrative process. Moreover, EGLE has presented compelling
arguments that it would be difficult to determine whether EGLE has, in fact, exceeded its
legal authority absent the fact-intensive process provided for in a contested case. Because
EGLE has express legal authority to impose conditions in NPDES permits necessary to
achieve water quality standards, regardless of whether those conditions exceed existing
regulations, each dispute is fact-specific. See 33 USC 1311(b)(1)(C); 40 CFR 122.44
(2023); MCL 324.3112(3); MCL 324.3113(2). See also MCL 324.1307(5) (“Approval of
an application for a permit may be granted with conditions or modifications necessary to
achieve compliance with the part or parts of this act under which the permit is issued.”).
As this Court concluded in Lamphere Sch, 400 Mich at 112, it is clear to me that the
Legislature intended a contested case proceeding under MCL 324.3112 and MCL 324.3113
and petition for permit review under MCL 324.1315 and MCL 324.1317 to be the exclusive
procedures or remedies for challenging EGLE’s exercise of permitting authority under Part
31 of the NREPA. It is undisputed that the NREPA is a statute governing EGLE, and Part

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22
31 is the source of EGLE’s permitting authority under the NPDES program. Accordingly,
even if I were to agree with Justice V IVIANO that the challenged conditions of the 2020
NPDES permit were “rules” for purposes of the APA, I would conclude that these statutory
procedures and remedies represent the “exclusive procedure or remedy . . . provided by a
statute governing the agency” for challenging the “validity or applicability” of those
conditions. MCL 24.264; see Slis, 332 Mich App at 341 (holding that a remedy or
procedure must allow for a challenge to the validity or applicability of a “rule” to invoke
the exception to MCL 24.264’s applicability).14
14 While not necessary to the resolution of this case, I note a significant point of potential
confusion contained within the APA. The APA definition of a “rule,” MCL 24.207, does
not expressly exclude things or actions that constitute a “license” or “licensing,” MCL
24.205(a) and (b), under the APA. A “license” is “the whole or part of an agency permit,
certificate, approval, . . . or similar form of permission required by law.” MCL 24.205(a)
(emphasis added). “ ‘Licensing’ includes agency activity involving the grant, denial,
renewal, suspension, . . . or amendment of a license.” MCL 24.205(b). The APA provides
that “[w]hen licensing is required to be preceded by notice and an opportunity for hearing,
the provisions of [the APA] governing a contested case apply.” MCL 24.291(1). Once a
party has “exhausted all administrative remedies available within an agency, and is
aggrieved by a final decision or order in a contested case, . . . the decision or order is
subject to direct review by the courts as provided by law.” MCL 24.301. Thus, the APA
explicitly provides for contested case review of administrative decisions as to licenses and
licensing. But the APA does not explicitly prohibit parties from filing an action under
MCL 24.264 to argue that a licensing decision constitutes improper rulemaking. This is a
potential source of confusion that the Legislature might wish to address.
Take, for example, the facts of this case. The NPDES permitting process, as set
forth in Part 31 of the NREPA and EGLE’s Part 21 rules, includes a requirement of notice
and an opportunity for a hearing. An NPDES permit therefore seems to fit the definition
of a license, and the process of issuing a permit or certificate of coverage would thus be
licensing. Under MCL 24.291(1), one could easily assume that only the APA’s contested
case provision is applicable to the dispute because it involves a license and the licensing
process. But as this litigation demonstrates, it is far from clear to litigants and the judiciary
whether a challenge to a license or licensing process that allegedly crosses into the realm
of rulemaking requires a different pathway under MCL 24.264.

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23
V. CONCLUSION
I agree with the majority that under Clonlara, Inc v State Bd of Ed, 442 Mich 230,
243, 245-248; 501 NW2d 88 (1993), the challenged conditions in the 2020 general permit
cannot be considered “rules” because in 2020 EGLE lacked delegated rulemaking authority
as to its NPDES program for CAFOs and thus the conditions, on their own, cannot have
the force and effect of law. However, I would have preferred to avoid resolving this
question until the now-stayed administrative proceedings concerning the same legal
controversy had concluded. Instead, I believe the preferrable resolution would have been
to recognize that the Legislature created a comprehensive and exclusive system of
procedures and remedies for challenging EGLE’s exercise of permitting authority under
Part 31 of the NREPA. Because declaratory actions under MCL 24.264 are precluded if
there is an exclusive remedy provided by a statute that governs EGLE, I would hold that
this alone precluded plaintiffs’ current action.
Elizabeth M. Welch

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S T A T E O F M I C H I G A N
SUPREME COURT
MICHIGAN FARM BUREAU, et al.,
Plaintiffs-Appellees/Cross-
Appellants,
v No. 165166
DEPARTMENT OF ENVIRONMENT,
GREAT LAKES, AND ENERGY,
Defendant-Appellant/Cross-
Appellee.
V IVIANO , J. (dissenting).
The majority incorrectly holds that the conditions in the 2020 National Pollutant
Discharge Elimination System general permit (2020 GP)1 governing discharges from
concentrated animal feeding operations (CAFOs) issued by the Michigan Department of
Environment, Great Lakes, and Energy (EGLE) are not “rules” that must be promulgated
in conformity with the Administrative Procedures Act (the APA), MCL 24.201 et seq., and
that since they are not rules, plaintiffs cannot challenge the validity of the general permit
1 Michigan Department of Environment, Great Lakes, and Energy, National
Pollutant Discharge Elimination System Wastewater Discharge General Permit:
Concentrated Animal Feeding Operations, Permit No. MIG010000 (issued
March 27, 2020), p 1, available at <https://www.michigan.gov/-
/media/Project/Websites/egle/Documents/Programs/WRD/CAFO/MIG010000-General-
Permit-2025.pdf?rev=a4d602d0165c41e096854abe036058f9> (accessed June 6, 2024)
[https://perma.cc/6YEW-WSX6].

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2
conditions in a declaratory-judgment action under MCL 24.264. I disagree with both
conclusions and respectfully dissent for the reasons set forth in this opinion.
I. BACKGROUND
Under the federal Clean Water Act (the CWA), 33 USC 1251 et seq., a CAFO may
not discharge any pollutants into navigable waters unless it has obtained a permit from
EGLE.2 Those permits are governed by Part 31 of the Natural Resources and
Environmental Protection Act (NREPA), MCL 324.101 et seq. EGLE’s authority to
promulgate rules under Part 31 of NREPA was circumscribed by 2004 PA 91. See MCL
324.3103(2) (“[N]otwithstanding any rule-promulgation authority that is provided in this
part, except for rules authorized under [MCL 324.3112(6)], the department shall not
promulgate any additional rules under this part after December 31, 2006.”).3 Perhaps in
anticipation of the rule moratorium, in 2005, EGLE’s predecessor promulgated a rule
2 As the majority notes, the Environmental Protection Agency (EPA) has approved EGLE
as a permitting authority for purposes of issuing permits under § 402 of the Clean Water
Act, 33 USC 1342, which are the permits at issue in this case. These permits are also
known as National Pollutant Discharge Elimination System or NPDES permits. See Nat’l
Mining Ass’n v McCarthy, 411 US App DC 52, 56; 758 F3d 243 (2014).
3 The majority concludes that, because of this provision, EGLE does not have authority to
“make rules concerning NPDES permits issued to CAFOs.” Ante at 30 (opinion of the
Court). I clarify that, while the majority notes that EGLE concedes it does not have such
authority, ante at 30 (opinion of the Court), plaintiffs argue that EGLE does have that
authority. I take no position on that disputed issue because, as explained below, it is not
necessary to resolve this case. See note 21 of this opinion and surrounding text. Rather, I
note this statutory history simply for context. I also note that bills have recently been
introduced in the Legislature to repeal this provision in MCL 324.3103(2). See, e.g., 2023
SB 663; 2024 HB 5614. But no legislation has been enacted. Yet the majority opinion
now provides the agency wide flexibility to impose new mandates through general permits
under the guise of purportedly nonbinding requirements.

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3
setting forth detailed requirements that a CAFO must satisfy to be eligible for coverage
under a CAFO NPDES permit. See Mich Admin Code, R 323.2196(5).
As the Court of Appeals observed, in prior permitting cycles, the general permits
governing CAFOs contained the conditions specified in the rule and “permitted what the
rule permits.” Mich Farm Bureau v Dep’t of Environment, Great Lakes, & Energy, 343
Mich App 293, 312; 997 NW2d 467 (2022). But in 2020, EGLE took a different tack and
“included discretionary conditions in addition to or more stringent than the mandatory
conditions.” Ante at 15 (opinion of the Court). Indeed, as the Court of Appeals observed
after examining the 2020 general permit conditions:
Close analysis of the new conditions indicates that they go beyond the scope
of the promulgated rule, Mich Admin Code, R 323.2196. That which
formerly was authorized by the promulgated rule and permitted under the
2010 and 2015 general permits is now barred by unpromulgated general-
permit conditions. Accordingly, the new conditions expand the regulatory
restrictions generally applicable to CAFOs that implement and apply the
CWA and NREPA. [Mich Farm Bureau, 343 Mich App at 313.]
This notion—i.e., that the 2020 general permit conditions prohibit certain activities that
were previously allowed—does not appear to be in serious dispute. Indeed, the majority
mints two new phrases to distinguish between permit conditions that are required by EGLE
or federal regulations, coined “mandatory conditions,” and those that are more stringent
than and merely authorized by such regulations, coined “discretionary conditions.” See
ante at 8 (opinion of the Court).4 EGLE argues that the additional and more stringent
4 By using these rhetorical devices to describe certain conditions in the 2020 GP, the
majority implicitly suggests that “discretionary conditions” do not impose any obligation
on CAFOs and therefore are not rules because they do not have the force and effect of law.
But the majority’s framing of those conditions conflates whether EGLE has discretion to
create those conditions with whether CAFOs have discretion to comply with those

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4
conditions are necessary to comply with federal law.5 Of course, compliance with federal
mandates does not control whether the agency was required to go through basic APA
rulemaking procedures to impose new regulatory requirements under state law.
conditions when applying for coverage to discharge under the 2020 GP. To be clear, if an
applicant does not demonstrate compliance with the terms of the 2020 GP, including any
so-called “discretionary conditions,” then EGLE may deny coverage under the 2020 GP.
See Mich Admin Code, R 323.2192(b) (“Upon the receipt of an application for coverage
under an existing general permit, the department shall determine if the discharge meets the
criteria for coverage under the general permit. The issuance of a notice of coverage by
the department which states that the discharge meets the criteria initiates coverage by the
general permit.”) (emphasis added). Thus, it bears emphasizing that, despite the majority’s
framing of these conditions, the majority does not say that EGLE has authority to impose
these “discretionary conditions” through the 2020 GP or any other “rule.” In fact, it holds
just the opposite. See ante at 30 (opinion of the Court) (“EGLE, therefore, clearly has no
power to make rules concerning NPDES permits issued to CAFOs.”); ante at 31 (opinion
of the Court) (“[N]either the general permit nor the discretionary conditions in it can have
the force and effect of law . . . .”). With that understanding, the majority’s observation that
EGLE can “issue a general permit with discretionary conditions in addition to or more
stringent than the mandatory conditions,” ante at 32 (opinion of the Court), means that
EGLE can impose those conditions in a certificate of coverage, but not as a binding rule
that applies generally to anyone who applies for coverage under the 2020 GP. I have
serious doubts about that conclusion as well, for the reasons explained on page 25 of this
opinion.
5 When a state has been delegated authority to administer the NPDES permitting program
within its jurisdiction, as Michigan has been, federal law requires the state’s NPDES
permits to include additional or more-stringent requirements if they are necessary to,
among other things, “[a]chieve water quality standards established under section 303 of the
CWA . . . .” 40 CFR 122.44(d)(1) (2023); see also 33 USC 1342(b) and (c)(1). If Michigan
fails to do so, and does not take sufficient corrective action, the federal government “shall
withdraw approval of [the NPDES] program.” 33 USC 1342(c)(3). Thus, while EGLE is
correct that there is a federal requirement to impose—in certain circumstances—more-
stringent conditions in certain permits, that is a duty the state imposed on itself when it
decided to administer its own NPDES permitting program.

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5
II. THE 2020 GP FITS THE DEFINITION OF A “RULE” UNDER THE APA
As noted at the outset, whether plaintiff can challenge the validity of the general
permit conditions in a declaratory action under MCL 24.264 depends on whether those
conditions are properly considered “rules” under the APA. I now turn to that inquiry.
The APA broadly defines “rule” to mean “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.” MCL 24.207. The majority opinion adopts a
four-element test for determining whether an agency action is a “rule,” as follows:
(1) it is an agency regulation, statement, standard, policy, ruling, or
instruction; (2) it is of general applicability; (3) it implements or applies law
enforced or administered by the agency, or it prescribes the organization,
procedure, or practice of the agency; and (4) it, in itself, has the force and
effect of law. [Ante at 27 (opinion of the Court).] [6]
The majority finds that the first three elements are easily satisfied in this case, and I
agree—so there is little reason to discuss them further. The majority next concludes—
6 The first three elements come from the definition of “rule,” but the fourth is derived from
one of the exclusions. See MCL 24.207(h). Although it might seem odd to engraft
language onto a statutory definition in this fashion, and although EGLE did not raise this
argument in its briefs, I agree that the binding nature of the agency action is an important
consideration in determining whether an agency action is a rule. See, e.g., Catawba Co v
Environmental Protection Agency, 387 US App DC 20, 33; 571 F3d 20 (2009) (“[W]hether
an agency action is the type of action that must undergo notice and comment depends on
‘whether the agency action binds private parties or the agency itself with the “force of
law,” ’—that is, whether ‘a document expresses a change in substantive law or policy (that
is not an interpretation) which the agency intends to make binding, or administers with
binding effect.’ ”) (citations omitted).

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6
erroneously in my view—that the general permit conditions do not have the force or effect
of law.7 Although it can sometimes be difficult to determine whether an agency action
meets the definition of a “rule” under the APA, see Nat’l Leased Housing Ass’n v United
States, 105 F3d 1423, 1433 (CA Fed, 1997), it is not difficult in this case. Applying the
7 It is noteworthy that the majority implicitly rejects EGLE’s proffered description of its
action as a “license” under the Michigan APA, even though the majority makes passing
reference to the definition of “license” under the federal APA. See ante at 51 n 47 (opinion
of the Court). The majority also—rightly in my view—ignores EGLE’s meritless argument
that the general permit conditions are excluded from the definition of a rule under MCL
24.207(j) as “[a] decision by an agency to exercise or not to exercise a permissive statutory
power, although private rights or interests are affected.” See American Federation of State,
Co & Muni Employees v Dep’t of Mental Health, 452 Mich 1, 12; 550 NW2d 190 (1996)
(“The error in this reasoning is that while the department has discretion regarding whether
to contract for the provision of statutorily mandated services, once it chooses to do so, it
cannot abdicate its responsibilities under the Mental Health Code and the APA and set the
standards and policies that regulate the provision of such services without complying with
the APA’s procedural requirements.”). Despite rejecting EGLE’s arguments, the majority
undertakes its own novel analysis to agree with EGLE that the 2020 GP is not a rule.
The majority declines to decide whether the trial court erred by relying on Jones v
Dep’t of Corrections, 185 Mich App 134, 137-138; 460 NW2d 575 (1990). See ante at 31
n 30 (opinion of the Court). While I agree that resolution of that issue is not strictly
necessary given the majority’s conclusion that Clonlara alone controls the issue whether
the 2020 GP is a rule under the APA, I question whether Jones was correctly decided.
There, the Court of Appeals held that MCL 24.264 applies only to rules processed in
compliance with the APA’s rulemaking procedures. Jones, 185 Mich App at 137-138. But
nothing in the APA’s definition of “rule” provides that only agency actions processed in
compliance with the APA’s rulemaking procedures may be considered rules. See MCL
24.207. And if MCL 24.264 referred only to rules processed in compliance with the APA’s
rulemaking procedures, it would follow that a litigant could challenge only the substantive
validity of a rule under MCL 24.264. Yet the word “validity” as used in the context of the
APA clearly refers to more than just substantive validity—it includes procedural validity
as well. After all, MCL 24.243(1) states that “a rule is not valid unless it is processed in
compliance with [MCL 24.266], if applicable, [MCL 24.242], and in substantial
compliance with [MCL 24.241(2), (3), (4), and (5)].” (Emphasis added.) See also Slis v
Michigan, 332 Mich App 312, 340; 956 NW2d 569 (2020) (noting that MCL 24.264 allows
a petitioner to challenge either the procedural or substantive validity of a rule).

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7
factors that courts have identified to assist in determining whether an agency action has
binding effect yields a clear answer: the 2020 GP is a rule.
A. THE AGENCY’S CHARACTERIZATION OF THE ACTION
This Court has explained that, when distinguishing between “rules” and
“interpretative statements,” “[t]he crucial question is whether the agency intends to
exercise delegated power to make rules having force of law, and the intent usually can best
be found in what the agency says at the time of issuing the rules.” Mich Farm Bureau v
Bureau of Workmen’s Compensation, Dep’t of Labor, 408 Mich 141, 150; 289 NW2d 699
(1980) (quotation marks and citation omitted). Similarly, the United States Court of
Appeals for the DC Circuit has explained that “the agency’s characterization of the
[document]” is an important factor. See Nat’l Mining Ass’n v McCarthy, 411 US App DC
52, 61; 758 F3d 243 (2014).8
This factor weighs heavily in favor of finding that the 2020 GP is a rule. To begin
with, the 2020 GP is written in express terms of mandatory directives and prohibitions.
The directives include, among other things, monitoring requirements, waste storage
requirements, inspection requirements, and reporting requirements. And the 2020 GP
8 The majority opinion relies, in part, on Nat’l Mining Ass’n and describes it as “holding
that an agency statement explaining how an agency will exercise its broad permitting
discretion under some statute or rule is a general statement of policy under the federal APA
and not a rule with the force of law.” Ante at 34 (opinion of the Court). But the court
immediately followed that part of its discussion by observing that “those general
descriptions do not describe tidy categories and are often of little help in particular cases.”
Nat’l Mining Ass’n, 411 US App DC at 61 (emphasis added). It continued, “So in
distinguishing legislative rules from general statements of policy, our cases have focused
on several factors,” id., including those discussed at some length in this opinion (and
entirely neglected by the majority opinion).

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8
prohibits CAFOs from land-applying manure for three months of the year, 2020 GP,
§ I.B.3.f.3, and from selling or transferring manure to another entity for those same three
months, 2020 GP, § I.C.8. In addition, any farm field with soil-test phosphorus above a
certain threshold cannot receive manure. See 2020 GP, § I.B.3.c.1.a. Finally, the 2020 GP
starkly provides:
All discharges authorized herein shall be consistent with the terms and
conditions of this permit. . . .
It is the duty of the permittee to comply with all the terms and
conditions of this permit. Any noncompliance with the Effluent Limitations,
Special Conditions, or terms of this permit constitutes a violation of the
NREPA and/or the Federal Act and constitutes grounds for enforcement
action; for permit or Certificate of Coverage (COC) termination, revocation
and reissuance, or modification; or denial of an application for permit or
COC renewal. [2020 GP, § II.D.1 (emphasis added).]
The 2020 GP does not contain any disclaimers stating that these conditions are not legally
binding.9 Instead, it “reads like a ukase[;] [i]t commands, it requires, it orders, it dictates.”
Appalachian Power Co v Environmental Protection Agency, 341 US App DC 46, 54; 208
F3d 1015 (2000); see also Iowa League of Cities v Environmental Protection Agency, 711
F3d 844, 864 (CA 8, 2013) (“ ‘[T]he mandatory language of a document alone can be
9 The majority disagrees with my conclusion on this point, see ante at 42 n 41 (opinion of
the Court), based on a section of the 2020 GP that states “[a]ny person who is aggrieved
by this permit may file a sworn petition with [EGLE], setting forth the conditions of the
permit which are being challenged and specifying the grounds for the challenge,” 2020 GP,
p 2 (emphasis added). But the majority fails to explain how anyone can be aggrieved by
something that is not final and has no legal effect. Thus, I fail to see how the 2020 GP’s
reference to contested case proceedings qualifies as a disclaimer of the 2020 GP’s binding
language. See also notes 26 and 27 of this opinion and the surrounding text.

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9
sufficient to render it binding . . . .’ ”), quoting Gen Electric Co v Environmental
Protection Agency, 351 US App DC 291, 297; 290 F3d 377 (2002).
The difference between the language in the 2020 GP and the language in agency
actions or documents that courts have found not to be a rule under the APA is instructive.
For example, in Nat’l Mining Ass’n, the document included “caveats,” including that the
document “does not impose legally binding requirements,” that “[ran] throughout the
document, and more to the point, the document [was] devoid of relevant commands.” Id.
at 61, 62 (quotation marks and citation omitted).
More generally, it is notable that EGLE did not label the 2020 GP and has not
described it as guidance, tentative, or otherwise nonbinding.10 Indeed, EGLE has not even
10 Of course, even if EGLE had labeled the document as nonbinding, it is well established
that when an agency action provides directives, the label that the agency assigns to the
action “is not determinative of whether it is a rule or a guideline under the APA.” American
Federation of State, Co & Muni Employees v Dep’t of Mental Health, 452 Mich 1, 9; 550
NW2d 190 (1996) (AFSCME). This qualification is critical given the incentive within
agencies to misapply labels and avoid the often-intensive public scrutiny involved in APA
procedures. See Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and
the Like—Should Federal Agencies Use Them to Bind the Public?, 41 Duke L J 1311,
1363-1364 (1992) (“General knowledge of normal bureaucratic behavior permits us to
postulate a basic general proposition about how nonlegislative guidance documents are
administered by the agencies’ own staffs, especially in the field: Staff members acting upon
matters to which the guidance documents pertain will routinely and indeed automatically
apply those documents, rather than considering their policy afresh before deciding whether
to apply them. Staffers generally will not feel free to question the stated policies, and will
not in practice do so. Staff members, including the most conscientious, have every
incentive to act in this fashion.”). Indeed, this Court has described the APA and its
rulemaking procedures as “essential to the preservation of a democratic society” and as “a
bulwark of liberty by ensuring that the law is promulgated by persons accountable directly
to the people.” AFSCME, 452 Mich at 14 (quotation marks and citation omitted). See also
Azar v Allina Health Servs, 587 US 566, 575; 139 S Ct 1804; 204 L Ed 2d 139 (2019)
(“Agencies have never been able to avoid notice and comment simply by mislabeling their
substantive pronouncements. On the contrary, courts have long looked to the contents of

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10
expressly argued during this litigation that the 2020 GP is not binding. This factor weighs
heavily in favor of finding that the 2020 GP is a rule under the APA.
B. THE LEGAL EFFECT OF THE AGENCY ACTION
This Court has also made clear that in determining whether an agency action is a
rule, we must focus our inquiry “on the ‘actual action undertaken by the directive, to see
whether the policy being implemented has the effect of being a rule.’ ” Detroit Base
Coalition for Human Rights of Handicapped v Dep’t of Social Servs, 431 Mich 172, 188;
428 NW2d 335 (1988), quoting Schinzel v Dep’t of Corrections, 124 Mich App 217, 219;
333 NW2d 519 (1983). And the effect of an agency action is particularly relevant “where
the agency establishes policies and procedures under a broad grant of authority to
administer a program.” Faircloth v Family Independence Agency, 232 Mich App 391, 404;
591 NW2d 314 (1998), citing American Federation of State, Co & Muni Employees v Dep’t
of Mental Health, 452 Mich 1, 9; 550 NW2d 190 (1996) (AFSCME). See also Nat’l Mining
Ass’n, 411 US App DC at 61 (holding that the “most important factor concerns the actual
legal effect (or lack thereof) of the agency action in question on regulated entities”). This
factor, too, weighs in favor of finding that the 2020 GP is a rule.
In addition to the commandments and directives that pervade the 2020 GP itself,
EGLE’s own regulations also treat the terms of the 2020 GP as having legal effect. EGLE
has broad and express authority to regulate the discharge of waste and other pollutants into
waters of this state. See MCL 324.3103(1) (general powers); MCL 324.3106 (“The
the agency’s action, not the agency’s self-serving label, when deciding whether [the federal
APA procedures] apply.”).

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11
department shall establish pollution standards for lakes, rivers, streams, and other waters
of the state in relation to the public use to which they are or may be put, as it considers
necessary.”). Every CAFO is required to obtain a permit from EGLE before discharging
any waste to waters of the state. See MCL 324.3112(1); see also Mich Admin Code, R
323.2106(1); R 323.2196(1).11 Implementing that authority, Mich Admin Code, R
323.2192 governs “application requirements for coverage under general permits” that
“shall be complied with[.]” Subsection (b) provides:
Upon the receipt of an application for coverage under an existing
general permit, the department shall determine if the discharge meets the
criteria for coverage under the general permit. The issuance of a notice of
coverage by the department which states that the discharge meets the criteria
initiates coverage by the general permit. [Mich Admin Code, R 323.2192(b)
(emphasis added).]
In other words, the 2020 GP sets the standards by which every CAFO applying for coverage
under the general permit will be judged. See ante at 12 (opinion of the Court) (“If EGLE
decides the applicant ‘meets the criteria for coverage under the general permit,’ EGLE
issues a certificate of coverage and the point source may discharge pollutants in accordance
with the mandatory and discretionary conditions in the general permit.”), quoting Mich
Admin Code, R 323.2192(b). Indeed, EGLE’s regulations define “general permit” as “a
national permit issued authorizing a category of similar discharges.” Mich Admin Code,
11 Failure to obtain or, once coverage under the 2020 GP is obtained, comply with a permit
could lead to serious civil fines and criminal liability. See MCL 324.3114 (authorizing
criminal complaints); MCL 324.3115 (authorizing a civil fine of up to $25,000 per day, per
violation).

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12
R 323.2103(a) (emphasis added).12 Thus, the legal effect of the 2020 GP is clear—it sets
the standards that determine whether a CAFO can obtain coverage under the general
permit.
As the majority recounts, in AFSCME, the Department of Mental Health issued
guidelines that listed what terms and conditions every contract with a private group home
operator had to include. See AFSCME, 452 Mich at 6-8. The purported guidelines were
held to be “rules” under the APA, in part because “many of the provisions in this standard
form contract, and the changes to those provisions, go to the heart of the department’s
statutory mandate.” Id. at 7-8. And in Delta Co v Dep’t of Natural Resources, 118 Mich
App 458, 468; 325 NW2d 455 (1982), the Court of Appeals held that “the license was
conditioned on compliance with 31 stipulations which were departmental guidelines and
internal policies. Clearly, then, these guidelines were binding. Therefore, they effectively
were rules under the guise of guidelines and policies.” See also Nat’l Mining Ass’n, 411
US App DC at 60-61 (“An agency action that sets forth legally binding requirements for a
private party to obtain a permit or license is a legislative rule.”).
The same is true here—under EGLE’s rules, the 2020 GP provides the terms and
conditions that every applicant for coverage under the general permit must include. See
Mich Admin Code, R 323.2192(b).13 And those authorizations for coverage go to the very
12 As the majority notes, the issuance of the 2020 GP itself does not directly authorize any
CAFO to discharge. See ante at 12 (opinion of the Court) (“When a general permit is
finalized, the category of point sources the permit covers does not automatically have
coverage.”). Rather, the 2020 GP sets the standards to determine whether a CAFO can
receive authorization through an application for coverage.
13 The fact that additional conditions, or variations to the conditions identified in the 2020
GP, might be imposed by part of a CAFO’s “comprehensive nutrient management plan”

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13
(CNMP) when a CAFO applies for coverage under the 2020 GP does not change the fact
that the blanket terms of the 2020 GP at least set the standard against which the CNMPs
will be judged. See Appalachian Power, 341 US App DC at 53 (“EPA may think that
because the Guidance, in all its particulars, is subject to change, it is not binding and
therefore not final action. There are suggestions in its brief to this effect. But all laws are
subject to change. Even that most enduring of documents, the Constitution of the United
States, may be amended from time to time. The fact that a law may be altered in the future
has nothing to do with whether it is subject to judicial review at the moment.”) (citation
omitted). Indeed, plaintiffs argue that nothing in a CNMP will change the three
prohibitions with which they are most concerned, and EGLE did not refute that position in
its briefs.
Moreover, while the majority touts individual permits as a viable alternative to
applying for coverage under the 2020 GP, that does not change the practical or legal reality
for anyone, like plaintiffs, seeking coverage under a general permit. See Gen Electric Co,
351 US App DC at 298 (“[E]ven though the Guidance Document gives applicants the
option of calculating risk in either of two ways (assuming both are practical) it still requires
them to conform to one or the other, that is, not to submit an application based upon a third
way. And if an applicant does choose to calculate cancer and non-cancer risks separately,
then it must consider the non-cancer risks specified in the Guidance Document. To the
applicant reading the Guidance Document the message is clear: in reviewing applications
the Agency will not be open to considering approaches other than those prescribed in the
Document.”). And the agency retains ultimate authority to deny a request for an individual
permit whenever the agency believes, in its view, that the general permit “is more
appropriate.” Mich Admin Code, R 323.2191(5). The available rules or statutes neither
provide material limits on the agency’s authority to mandate general permits nor do they
establish any right, standard, or expectation that a regulated party can obtain an individual
permit with reduced regulatory burdens as an alternative. Therefore, it is unsurprising that
in plaintiffs’ verified complaint they contend that, because EGLE “requires the vast
majority of CAFOs to obtain coverage under its CAFO General Permit, the agency has
broadly applied these mandates to the industry” and that the “challenged standards and
mandates [in the 2020 GP] force Michigan’s largest farms to incur substantial costs and
threaten the viability and continued operations of some farms.” See also AFSCME, 452
Mich at 11 (describing the “choice” of entering into a negotiated contract with the state as
“ludicrous” because “ ‘choosing’ not to contract [with the state]” is “choos[ing] to go out
of business”).

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14
heart of the NPDES permitting program. See MCL 324.3112(1) (“A person shall not
discharge any waste or waste effluent into the waters of this state unless the person is in
possession of a valid permit from the department.”).
The majority’s attempt to distinguish AFSCME and Delta Co is wholly
unpersuasive. The majority distinguishes these cases by saying: “In contrast to AFSCME
and Delta Co, here, there is nothing in the record to suggest that EGLE treats the general
permit and conditions as though they restrict its permitting discretion.” Ante at 43 n 42
(opinion of the Court). Frankly, I am dumbfounded by this assertion. EGLE’s own
regulation clearly states that, “[u]pon the receipt of an application for coverage under an
existing general permit, the department shall determine if the discharge meets the criteria
for coverage under the general permit.” Mich Admin Code, R 323.2192(b) (emphasis
added).14 And, as to the creation of the general permit itself, Mich Admin Code, R
14 The majority attempts to explain its logic by citing this same provision, emphasizing
different words, and concluding that “criteria for coverage” does not control whether a
CAFO will receive coverage under the 2020 GP. See ante at 45-46 (opinion of the Court).
But then the majority inexplicably relies on the very legal effect that I have identified in
this section to support that conclusion. See ante at 45 (opinion of the Court) (“[EGLE] has
discretion to deny an application for a certificate of coverage when EGLE determines that
the discretionary conditions are inappropriate as applied to the applicant.”), citing Mich
Admin Code, R 323.2192(b) (emphasis added). Thus, the majority appears to agree that
these conditions can be relied upon to deny coverage under the 2020 GP, giving them
obvious legal effect.
The majority even acknowledges that a CAFO seeking coverage under the 2020 GP
“might have to show how it plans to comply with any discretionary conditions . . . .” Ante
at 45 (opinion of the Court). The clearest example of this is one of the new “discretionary
conditions” that plaintiffs challenge here, which requires all CAFOs to have a 35-foot-wide
vegetated buffer between their point of discharge and any surface water. Without that
buffer, EGLE can simply deny the CAFO’s application for coverage under the 2020 GP.
See Mich Admin Code, R 323.2192(b); Mich Admin Code, R 323.2191(1).

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15
323.2191(1) provides that, “[u]pon a determination by the department that certain
discharges are appropriately and adequately controlled by a general permit, the department
may issue a general permit to cover a category of discharge.” (Emphasis added.) Thus,
the clear legal effect of the 2020 GP is that it sets the standards that EGLE applies when
determining whether an application for coverage is approved. If there is nothing in the
record to suggest that the 2020 GP restricts EGLE’s permitting discretion, that is only
because the parties already operate with that obvious understanding.15
Additionally, the federal courts of appeal have recognized the principle that, when
regulated entities have “ ‘reasonably [been] led to believe that failure to conform will bring
adverse consequences,’ [that effect] tends to make the document binding as a practical
matter” and therefore a “rule” under the APA. Iowa League of Cities, 711 F3d at 864,
quoting Gen Electric Co, 351 US App DC at 297 (first alteration by the Iowa League of
Cities court). The language in the 2020 GP can lead to no other conclusion than that it has
the force and effect of law—it indisputably sets forth the position it plans to follow in
deciding whether to issue authorizations for coverage under the 2020 GP. See Appalachian
Power, 341 US App DC at 53 (“[W]hatever EPA may think of its Guidance generally, the
elements of the Guidance petitioners challenge consist of the agency’s settled position, a
position it plans to follow in reviewing State-issued permits, a position it will insist State
15 The majority’s other attempt to distinguish AFSCME is based solely on the majority’s
conclusion that, under Clonlara, Inc v State Bd of Ed, 442 Mich 230; 501 NW2d 88 (1993),
the 2020 GP is not a rule because EGLE does not have authority to promulgate rules
concerning NPDES permits for CAFOs. See ante at 30-31, 42 n 42 (opinion of the Court).
But as explained below, Clonlara is not controlling. See note 21 of this opinion and the
surrounding text.

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16
and local authorities comply with in setting the terms and conditions of permits issued to
petitioners, a position EPA officials in the field are bound to apply.”). Moreover, once a
CAFO obtains coverage under the 2020 GP, failure to comply with the conditions carries
fines and penalties under MCL 324.3115, which strongly suggests that the 2020 GP is a
rule. See Mann Constr, Inc v United States, 27 F4th 1138, 1144 (CA 6, 2022) (“[The
agency action] creates new substantive duties, the violations of which prompt exposure to
financial penalties and criminal sanctions. Those are hallmarks of a legislative . . . rule.”).
This factor, too, shows that the 2020 GP conditions are rules under the APA.
C. THE AGENCY ACTION IS INCONSISTENT WITH EXISTING RULES
It is well established that “[a] policy directive cannot be considered an ‘interpretive
statement’ of a rule if it is in fact inconsistent with the rule or contains provisions which
go beyond the scope of the rule.” Jordan v Dep’t of Corrections, 165 Mich App 20, 27;
418 NW2d 914 (1987). See also Coalition for Human Rights, 431 Mich at 189 (“The new
procedures are not merely mechanical details for the conduct of hearings, but, rather,
represent substantial changes in the detailed requirements for the conduct of fair hearings
to determine claimants’ rights under the Social Welfare Act and applicable federal law.”);
Thompson v Dep’t of Corrections, 143 Mich App 29, 32; 371 NW2d 472 (1985) (“Of
course, the directive could not be considered an ‘interpretive statement’ if it were
inconsistent with the rules or contained provisions which went beyond the scope of the
rules.”) (citation omitted); Schinzel, 124 Mich App at 221 (“[T]he defendants’ policy
directive equating postage stamps, the importation, exportation, or possession of which is
clearly not prohibited by law, with contraband cannot be deemed an interpretative

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17
statement of what ‘contraband’ means; it changes that term’s very definition.”); Gen
Electric Co, 351 US App DC at 296-297 (“ ‘If a document expresses a change in
substantive law or policy (that is not an interpretation) which the agency intends to make
binding, or administers with binding effect, the agency may not rely upon the statutory
exemption for policy statements, but must observe the APA’s legislative rulemaking
procedures.’ ”), quoting Anthony, Interpretive Rules, Policy Statements, Guidances,
Manuals, and the Like—Should Federal Agencies Use Them to Bind the Public?, 41 Duke
L J 1311, 1355 (1992).
Here, as noted above, it appears uncontested that the 2020 GP has conditions that
are inconsistent with the existing rule for CAFO general permits, Mich Admin Code, R
323.2196, and contains provisions that go well beyond the scope of that rule. See ante at
8 (opinion of the Court) (referring to such provisions as “discretionary conditions”).
Indeed, as noted, plaintiffs have alleged that the new mandates imposed by EGLE will
force regulated farms “to incur substantial costs and threaten the viability and continued
operations of some farms.” Because the 2020 GP makes substantial changes in the detailed
requirements for coverage stated under the existing regulation, it is properly considered a
rule.
D. THE AGENCY ACTION DOES NOT MERELY EXPLAIN WHAT THE STATUTE
MEANS
When considering MCL 24.207(h), which the majority incorporates into its
definition of a “rule” under the APA, courts in this state have distinguished between a
“rule” and something that is “merely explanatory.” See, e.g., Faircloth, 232 Mich App at
404 (“The policies are not interpretive statements because they do not merely interpret or

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18
explain the statute or rules from which the agency derives its authority. Rather, they
establish the substantive standards implementing the program.”).16 The “explanation”
must be geared toward uncertain statutory language, where the implementing agency alerts
the public to what it believes the statute means, i.e., the interpretation “reminds affected
parties of existing duties” rather than “creat[ing] new law, rights or duties.” Tenn Hosp
Ass’n v Azar, 908 F3d 1029, 1042 (CA 6, 2018) (quotation marks and citation omitted;
emphasis added). See Clonlara, Inc v State Bd of Ed, 442 Mich 230, 240-241; 501 NW2d
88 (1993) (“[I]nterpretive rules . . . state the interpretation of ambiguous or doubtful
statutory language which will be followed by the agency unless and until the statute is
otherwise authoritatively interpreted by the courts.”) (quotation marks and citation omitted;
alteration in original); id. at 243-244 (“Interpretive rules are statements as to what the
agency thinks a statute or regulation means; they are statements issued to advise the public
of the agency’s construction of the law it administers.”) (quotation marks and citation
omitted).17
16 See also Clonlara, 442 Mich at 259 (RILEY , J., concurring in part and dissenting in part)
(“When an agency ‘does not merely interpret, but sets forth onto new substantive ground
through rules that it will make binding, the agency must observe the legislative processes
laid down by’ the Legislature.”), quoting Interpretive Rules, 41 Duke L J at 1314.
17 While Clonlara used the phrase “interpretive rules,” this Court has explained elsewhere
that, “while under the Federal [APA] a rule can be legislative or interpretative, under the
Michigan [APA] an ‘interpretive statement’ is not, by definition, a rule at all.” Mich Farm
Bureau, 408 Mich at 148. Thus, when Clonlara spoke of “interpretive rules,” it was talking
about “interpretive statements” in Michigan parlance, which are not “rules” at all. See id.
at 149 (“[A]n analysis of the difference between ‘legislative’ and ‘interpretative’ rules
under the Federal [APA] . . . is relevant to our analysis of the difference between ‘rules’
and ‘interpretive statements’ under our state [APA.]”).

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19
Here, by contrast, the 2020 GP is not “merely explanatory” and did not interpret any
existing statutory or regulatory language; it instead created new “substantive standards
implementing the [NPDES] program.” See Faircloth, 232 Mich App at 404. The 2020
GP conditions represent a quasi-legislative decision that sets quantitative standards for a
category of dischargers. Indeed, the majority agrees: “[G]eneral permit and discretionary
conditions are not EGLE’s attempt to discern the meaning of an ambiguous provision of
Part 31 of the NREPA or one of EGLE’s rules . . . .” Ante at 39 (opinion of the Court).18
Like the other factors, this one also weighs in favor of finding that the 2020 GP is a rule
because it does not merely explain EGLE’s interpretation of uncertain statutory language.
E. OTHER JURISDICTIONS CONSIDER GENERAL PERMITS TO BE RULES
Not surprisingly, courts that have addressed this question have had little trouble
concluding that general NPDES permits are “rules” under the federal APA. As one court
explained:
Each [nationwide general permit] easily fits within the APA’s
definition of “rule.” This is so because each [nationwide general permit],
which authorizes a permittee to discharge . . . , is a legal prescription of
general and prospective applicability which the Corps has issued to
implement the permitting authority the Congress entrusted to it in section 404
of the CWA. As such, each [nationwide general permit] constitutes a rule:
An “agency statement of general or particular applicability and future effect
designed to implement, interpret, or prescribe law or policy.” [Nat’l Ass’n
of Home Builders v US Army Corps of Engineers, 368 US App DC 23, 35-
36; 417 F3d 1272 (2005) (citations omitted).]
18 The majority makes this observation after having erroneously concluded that the 2020
GP is not a rule under the APA, so the majority apparently finds EGLE’s policymaking on
this point irrelevant.

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20
See also Alaska Community Action on Toxics v Aurora Energy Servs, LLC, 765 F3d 1169,
1172 (CA 9, 2014) (“ ‘[G]eneral permits are considered to be rulemakings . . . .’ ”), quoting
EPA, General Permit Program Guidance (February 1988), p 21, available at
<https://www3.epa.gov/npdes/pubs/owm0465.pdf> (accessed June 6, 2024)
[https://perma.cc/6F66-CNQC].
The majority dismisses Alaska Community Action as simply “an acknowledgment
that NPDES general permits are issued after notice-and-comment proceedings that track
notice-and-comment rulemaking requirements under 5 USC 553 of the federal APA.” Ante
at 50 (opinion of the Court). To be sure, that is one part of the court’s discussion. See
Alaska Community Action, 765 F3d at 1172 (noting that “general permits ‘are issued
pursuant to administrative rulemaking procedures’ ”), quoting Natural Resources Defense
Council v US Environmental Protection Agency, 279 F3d 1180, 1183 (CA 9, 2002)
(NRDC). But that is clearly not all that Alaska Community Action said. Rather, as quoted
above, it says that general permits are rulemakings, i.e., they are rules. Indeed, the very
page of the EPA Guidance document that Alaska Community Action quoted states, “Since
general permits are considered to be rulemakings, EPA’s issuance and promulgation
activities must be conducted in accordance with the Administrative Procedure Act (APA)
(5 U.S.C. 551, et seq.).” General Permit Program Guidance, p 21 (emphasis added). That
directly refutes the majority’s speculation. Finally, Alaska Community Action expressly
recognized the binding nature of the general permit upon issuance. See Alaska Community
Action, 765 F3d at 1171 (“Once a general permit has been issued, an entity seeking
coverage generally must submit a ‘notice of intent’ to discharge pursuant to the permit.”),

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21
citing 40 CFR 122.28(b)(2) (emphasis added).19 NRDC did the same. See NRDC, 279 F3d
at 1183. Thus, when read in context, those cases clearly considered an NPDES general
permit to be a “rule” with binding effect upon issuance, not simply a nonbinding agency
action that happened to go through procedures tracking the federal APA rulemaking
requirements.
The majority’s attempt to distinguish Home Builders is also meritless. The majority
points out that the general permits at issue in that case allowed some people to discharge
without first applying for coverage. See ante at 51 (opinion of the Court). Because the
2020 GP does not do the same thing, the majority concludes that it lacks the force and
effect of law. But that conclusion rests on the flawed and unsupported proposition that the
only way an agency action can have legal effect is to authorize a discharge. The majority
simply ignores that the issuance of the 2020 GP carries a significant legal effect by setting
the standards for what is necessary to obtain a certificate of coverage. Indeed, under the
majority’s reasoning, the general permits at issue in Home Builders would be “rules” for
individuals that may discharge without first applying for coverage but would not be “rules”
for anyone that must apply. I disagree with such a convoluted and unsupported
interpretation of what constitutes a rule.20 Moreover, that interpretation is refuted by clear
logic:
19 I note that this reflects similar provisions in EGLE’s own regulations. See Mich Admin
Code, R 323.2192(b); Mich Admin Code, R 323.2191(1).
20 Taken to its logical conclusion, the majority’s position suggests that even if an agency
has rulemaking authority and, in compliance with the APA, promulgates rules that establish
specific criteria necessary to obtain coverage, not even those rules would have the force
and effect of law because they do not, in themselves, authorize any discharge. See ante at
52 (opinion of the Court) (“A CAFO cannot just start discharging in accordance with those

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22
An agency action that sets forth legally binding requirements for a private
party to obtain a permit or license is a legislative rule. (As to interpretive
rules, an agency action that merely interprets a prior statute or regulation,
and does not itself purport to impose new obligations or prohibitions or
requirements on regulated parties, is an interpretive rule.) [Nat’l Mining
Ass’n, 411 US App DC at 60-61 (emphasis added).]
The 2020 GP is a rule because it imposes new legal obligations for any CAFO seeking
coverage under the 2020 GP.
⁂
In sum, nothing in the 2020 GP states that it is intended as guidance, an interpretive
statement, or some other unspecified nonbinding action. Instead, the 2020 GP commands,
requires, orders, and dictates what a CAFO must do to obtain coverage under it. See
Appalachian Power, 341 US App DC at 54. EGLE’s own regulations and historical
practice treat the conditions as mandatory, denying coverage for applicants who do not
meet them. The 2020 GP materially alters, rather than merely explains, existing regulatory
standards governing CAFOs’ discharging activities. If “rules is rules, no matter their
gloss,” Nat’l Ass’n of Home Builders, 368 US App DC at 36 (quotation marks and citation
omitted), then surely the 2020 GP—which lacks even the veneer of a nonbinding agency
action—should be deemed a rule.
III. THE MAJORITY ERRS BY CHARACTERIZING THE 2020 GP AS A POLICY
EGLE HOPES TO PROVE IS NECESSARY IN CONTESTED CASES
Rather than apply the widely recognized factors that courts use to determine whether
an agency action is a “rule” under the APA, the majority charts its own course, leaving
conditions. A CAFO must apply to EGLE for a certificate of coverage under the general
permit, and even if the CAFO agrees to comply with the discretionary conditions in the
general permit, EGLE is not bound to grant the CAFO the certificate of coverage.”).

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23
confusion in its wake. First, the majority expands this Court’s holding in Clonlara. Unlike
the nonpublic school act at issue in that case, see Clonlara, 442 Mich at 237, Part 31 of
NREPA clearly gives EGLE some rulemaking authority. See MCL 324.3103(2)
(“However, notwithstanding any rule-promulgation authority that is provided in this part,
except for rules authorized under section 3112(6), the department shall not promulgate any
additional rules under this part after December 31, 2006.”) (emphasis added). So it is not
as if EGLE has no rulemaking authority under Part 31 of NREPA, such that it could never
issue a statement or policy of general applicability that has the force and effect of law.
Clonlara, therefore, is not controlling.21
Yet the majority expands Clonlara by bringing a merits question into the threshold
jurisdictional issue of whether the action is a rule under the APA. Whether the 2020 GP
conditions are within the scope of EGLE’s Part 31 rulemaking power is a question on the
merits—i.e., whether the 2020 GP conditions are substantively valid rules. See Ins Institute
21 This analysis is not affected by the majority’s conclusion that EGLE does not have
specific authority to make rules concerning NPDES permits issued to CAFOs. That is
because the majority’s conclusion does not change the fact that EGLE has at least some
rulemaking authority under Part 31 of NREPA. Indeed, the authorities upon which the
majority relies to argue that Clonlara applies here do not support the majority’s approach.
Mich Farm Bureau observed that “[w]hen an agency has no delegated power to make law
through rulemaking, the rules it issues are necessarily interpretative” and that “what is
essential to a valid Federal ‘legislative rule’ or Michigan ‘rule’ is: a reasonable exercise of
legislatively delegated power, pursuant to proper procedure.” Mich Farm Bureau, 408
Mich at 149, 150 (quotation marks and citation omitted; emphasis added). The agency in
Nat’l Park Hospitality Ass’n v Dep’t of Interior, 538 US 803; 123 S Ct 2026; 155 L Ed 2d
1017 (2003), had no authority to implement the underlying statute. See id. at 809 (“[The
agency] is not empowered to administer the [statute].”). Conversely, the agency in
Batterton v Marshall, 208 US App DC 321; 648 F2d 694 (1980), was found to have
precisely the type of rulemaking authority required, id. at 332, so the court was not
presented with the question of whether any other rulemaking authority would suffice.

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24
of Mich v Comm’r of Office of Fin & Ins Servs, 486 Mich 370, 385; 785 NW2d 67 (2010)
(holding that when an agency is empowered to make rules, courts use a three-part test to
determine the substantive validity of the rule: “(1) whether the rule is within the matter
covered by the enabling statute; (2) if so, whether it complies with the underlying
legislative intent; and (3) if it meets the first two requirements, when [sic] it is neither
arbitrary nor capricious”) (quotation marks and citation omitted, emphasis added, and
alteration by the Ins Institute of Mich Court); Slis v Michigan, 332 Mich App 312, 340; 956
NW2d 569 (2020) (noting that “[a]n agency rule is substantively invalid when the subject
matter of the rule falls outside of or goes beyond the parameters of the enabling statute”);
see also MCL 24.232(7) (“A rule must not exceed the rule-making delegation contained in
the statute authorizing the rule-making.”).
The majority reframes and generalizes Clonlara by noting that the agency in
Clonlara had some rulemaking authority, which the majority believes is analogous to this
case and EGLE. See ante at 30 (opinion of the Court). But, as the majority recognizes,
Clonlara merely noted that the agency had rulemaking authority under the School Code,
MCL 380.1 et seq., as enacted by 1976 PA 451, while the policy at issue related to the
nonpublic school act, MCL 388.551 et seq., as enacted by 1921 PA 302, and the agency
“ ‘[was] not authorized, explicitly or implicitly, to promulgate rules relating to the
nonpublic school act.’ ” Ante at 32, quoting Clonlara, 442 Mich at 248. Indeed, Clonlara
did not meaningfully discuss the School Code—the statute that provided the agency some
rulemaking authority—until it addressed the merits of whether a separate agency policy
was a valid interpretation of the School Code. See generally Clonlara, 442 Mich at 248-

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25
252. The bottom line is that the majority opinion expands the holding of Clonlara without
meaningful support.
Thus, properly understood and without the majority’s expansion of Clonlara, the
threshold question of whether an agency action is a “rule” is controlled by Clonlara only
when the agency has no rulemaking authority under the statute at issue. If the agency does
not, then no action taken by that agency can be a “rule” under the APA. However, where
the agency does have some rulemaking authority under the statute at issue, Clonlara does
not apply. In that situation, the court must ask whether the agency action fits the definition
of a rule. And, if so, then the merits question becomes whether that action is supported by
the agency’s rulemaking authority such that it is a valid rule. This case passes the threshold
test for whether EGLE has any rulemaking authority under Clonlara, and for the reasons
explained above, the 2020 GP is a rule. The majority’s conflation of those two inquiries is
no reason to expand Clonlara, especially given Justice R ILEY ’s powerful dissent in that
case.22
22 Justice RILEY provided an extensive analysis rebutting the majority’s position in
Clonlara and explained further that
[t]he majority incorrectly dismisses the real-world possibility that an agency
without statutory authorization to promulgate rules may still attempt to issue
a rule with the force of law without conforming to the APA. The majority
permits the APA to be easily circumvented by an agency that enacts policies
that are in effect binding and later claim that because it was not vested with
rule-making power, its policy was valid as a proper interpretation of the law
or, at most, a misinterpretation of the law. Meanwhile, the lives of thousands,
if not millions, of citizens would have been dictated by purported nonrules
promulgated by agencies without public participation and in contradiction to
the will of the Legislature. Such unauthorized lawmaking not only violates
the APA, but threatens the principles of republican government. [Clonlara,
442 Mich at 260-261 (RILEY , J., concurring in part and dissenting in part).

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26
In any event, to the extent Clonlara is binding, I note that the majority only follows
half of the opinion. After Clonlara held that the agency action in that case was not a rule,
it specifically addressed whether the procedures specified in the agency action were “valid
interpretations of the law.” Clonlara, 442 Mich at 248. Ultimately, the Court held that
parts of the procedures were valid, while others were not. Id. at 252. The majority fails to
undertake the same type of analysis here or even remand this case for the trial court to do
so. I note that, because it is undisputed that the terms of the 2020 GP go beyond what is
currently required in any state or federal law, it appears to be invalid. See id. (“There is
thus no requirement that public schools be in session 180 days. As a result, the board
By expanding Clonlara here, the majority appears dismissive of these very serious
concerns. To put a finer point on it, by the majority’s logic, any agency that acts outside
of its rulemaking authority would be immune from challenge under MCL 24.264, which is
limited to causes of action regarding “rules.” Thus, agencies will be free to issue
documents and take actions that look like a rule, sound like a rule, and have the practical
effect of a rule without public input and without court oversight under the APA. Despite
the warning provided by Justice R ILEY and despite EGLE’s clear attempt to avoid the APA
in this case, the majority dismisses these concerns as unfounded alarmism. See ante at 47
(opinion of the Court). But Justice RILEY and I are not alone in expressing these concerns.
See note 10 of this opinion; see also Interpretive Rules, 41 Duke L J at 1317 (“Doubtless
more costly yet is the tendency to overregulate that is nurtured when the practice of making
binding law by guidances, manuals, and memoranda is tolerated. If such nonlegislative
actions can visit upon the public the same practical effects as legislative actions do, but are
far easier to accomplish, agency heads (or, more frequently, subordinate officials) will be
enticed into using them. Where an agency can nonlegislatively impose standards and
obligations that as a practical matter are mandatory, it eases its work greatly in several
undesirable ways.”). Particularly when considering an approval that is required for a
regulated entity to lawfully operate, the majority opinion provides little solace in
suggesting that the regulated community can simply wait until an agency attempts to
enforce policies that are purportedly not rules and then challenge the policies in an
adjudicatory hearing.

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27
cannot base the 180-day school year requirement for home schools on an analogy to or
comparability of public school requirements.”).
Then, instead of confining itself to the arguments raised by the parties, the majority
plucks a label to describe the 2020 GP that no party has used—from a case that no party
has cited. The majority adopts the description in Pacific Gas & Electric Co v Fed Power
Comm, 164 US App DC 371; 506 F2d 33 (1974), of the nonbinding policy guidance given
by the agency in that case and describes the 2020 GP as a “statement[] announcing a policy
[EGLE] plans to establish in future adjudications . . . .” Ante at 36 (opinion of the Court).
The majority also relies on Kent Co Aeronautics Bd v Dep’t of State Police, 239 Mich App
563; 609 NW2d 593 (2000), when describing the 2020 GP as merely “explaining how
[EGLE] plans to exercise a discretionary power . . . .” Ante at 34 (opinion of the Court).23
But EGLE has never described the 2020 GP conditions in that way and did not even cite
Pacific Gas in its briefs or rely on Kent Co for that proposition.24 As a result, the majority’s
suppositions about EGLE’s unexpressed intentions, while creative, are utterly
unfounded.25 I also note that, because the majority grounds its holding that the 2020 GP is
23 As noted above, the majority rightly ignores EGLE’s meritless argument regarding the
exception under MCL 24.207(j) to the definition of “rule” for an agency’s decision “to
exercise or not to exercise a permissive statutory power . . . .” See AFSCME, 452 Mich at
12.
24 Although EGLE cited Kent Co in its brief, it did so only for the unremarkable proposition
that statutes should be read according to their plain meaning.
25 There is reason to doubt whether the specific agency action at issue here—EGLE’s
issuance of the 2020 GP—is even subject to contested case proceedings. Relying on MCL
324.3113(3), the majority summarily finds that it is subject to those proceedings. See ante
at 10 (opinion of the Court). But the whole of MCL 324.3113 is specific to applications
for a “new or increased use of waters,” which does not seem to include the issuance (or

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28
not a rule on the Clonlara decision, Part III(C) of the majority opinion is not binding on
that issue because it merely explains the effect of that holding.
Further, in trying to analogize the 2020 GP to an interpretive statement, see ante at
35-36 (opinion of the Court), the majority mischaracterizes the analysis and holding of
Pacific Gas. The majority suggests that Pacific Gas turned on the mere opportunity for
customers of a natural gas company to prove that, despite the agency’s statement
announcing which curtailment plans would be given priority, the company’s curtailment
plan was not reasonable under the circumstances. See ante at 36-37 (opinion of the Court).
But Pacific Gas considered much more than that, most notably the language of the agency’s
statement itself. Indeed, the court extensively quoted the statement’s repeated, explicit
references to the fact that the statement did not provide a binding rule before an opportunity
for a hearing. See Pacific Gas, 164 US App DC at 378-379.
reissuance) of the general permit for CAFOs here. Indeed, EGLE argues that the Court of
Appeals erred by citing MCL 324.3113(3) as the basis for any contested case proceedings
at this stage of the permitting process. EGLE instead argues that the 2020 GP is a “permit”
that is subject to contested case proceedings under a different statute, MCL 324.3112(5).
But there is reason to doubt that conclusion as well. MCL 324.3112 governs
“application[s] for a permit,” and each of its provisions appears specific to either an
individual permit or application for coverage under a general permit, not the issuance of a
general permit itself. The same is true of MCL 324.1301(g), which defines “permit” for
purposes of various types of review under MCL 24.288 of the APA. If the 2020 GP is not
subject to contested case proceedings, then there are two material consequences. First, that
would severely undermine the majority’s assertion that the 2020 GP is merely “announcing
a policy the agency plans to establish in future adjudications . . . .” Ante at 36 (opinion of
the Court). And because the majority’s conclusion that the 2020 GP is not binding turns
on that point, it would undermine the majority’s holding that the 2020 GP is not a rule.
Second, it would mean that the contested case is not an available, much less “exclusive,”
procedure or remedy for purposes of MCL 24.264. Without such an exclusive remedy,
plaintiffs would be able to proceed with their challenge to the 2020 GP in this case. As
noted below, I would remand for the Court of Appeals to consider these issues further.

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29
Here, in contrast, the 2020 GP speaks exclusively in terms of immediate, mandatory
obligations such as the one requiring that “[a]ll discharges authorized herein shall be
consistent with the terms and conditions of this permit.” See generally Part II of this
opinion. And, unlike in Pacific Gas, EGLE has promulgated regulations that require each
applicant seeking coverage under the 2020 GP to first demonstrate compliance with its
terms and conditions. See Mich Admin Code, R 323.2192(b) (“Upon the receipt of an
application for coverage under an existing general permit, the department shall determine
if the discharge meets the criteria for coverage under the general permit.”). The 2020 GP
even provided a specific effective date upon which the 2020 GP would govern applications
for coverage. The 2020 GP is not remotely similar to the agency statement at issue in
Pacific Gas. Thus, Pacific Gas does not support the majority’s creation of a blanket,
extratextual exception to the definition of a “rule” under the APA.
Further, in Pacific Gas, the agency guidance specifically contemplated that the
guidance was “intended only to state initial guidelines as a means of facilitating curtailment
planning and the adjudication of curtailment cases.” Pacific Gas, 164 US App DC at 378
(quotation marks and citation omitted; emphasis added). The 2020 GP says nothing of the
sort. While it does refer to an opportunity for a hearing, it does so in terms that suggest the
general permit is final upon issuance. See 2020 GP, p 1 (“After notice and opportunity for
a hearing, this permit may be modified, suspended, or revoked in whole or in part during
its term in accordance with applicable laws and rules.”) (emphasis added); id. at 2 (“Any
person who is aggrieved by this permit may file a sworn petition with [EGLE], setting forth
the conditions of the permit which are being challenged and specifying the grounds for the

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30
challenge.”) (emphasis added).26 Thus, rather than suggest that the permit conditions are
nonfinal or that EGLE merely hopes to prove they are necessary during a subsequent
hearing, the 2020 GP’s express language indicates that the conditions are binding and that
CAFOs must comply with those terms when applying for coverage.27 This case is
distinguishable from Pacific Gas and, instead, is analogous to cases that have found an
agency action to be a “rule” under the APA when the regulated entities have “ ‘reasonably
[been] led to believe that failure to conform will bring adverse consequences . . . .’ ” Iowa
League of Cities, 711 F3d at 864, quoting Gen Electric Co, 351 US App DC at 297
(alteration by the Iowa League of Cities court).28
26 Indeed, in its recitation of facts, the majority recounts that “EGLE issued the final 2020
general permit on March 27, 2020, with an effective date of April 1, 2020.” Ante at 16
(opinion of the Court) (emphasis added).
27 Additionally, to the extent the 2020 GP is subject to contested case proceedings, the
relevant statute provides that only “[a] person who is aggrieved by . . . the reissuance[ or]
modification . . . of an existing permit” may request a contested case hearing. See MCL
324.3112(5) (emphasis added). A person cannot be aggrieved by an agency action unless
it is final and has binding effect on the person. See Attorney General v Bd of State
Canvassers, 500 Mich 907, 908 n 6 (2016) (Z AHRA and V IVIANO , JJ., concurring)
(explaining that, to be “aggrieved,” “a party must demonstrate that it has been harmed in
some fashion”). Thus, the majority’s argument that the 2020 GP is not final (and therefore
not a binding rule) because it is subject to a contested case proceeding is inherently
inconsistent with the underlying statute.
28 Not only do EGLE’s regulations expressly require applicants to demonstrate compliance
with the terms of the 2020 GP to obtain coverage under the general permit, but the practical
reality is that it is infeasible for EGLE to provide an individual permit to each CAFO and
that coverage under the 2020 GP is preferred by EGLE and plaintiffs alike. See Ohio
Valley Environmental Coalition v Horinko, 279 F Supp 2d 732, 758 (SD W Va, 2003)
(“The benefit of the general permit process for individual dischargers is that approval is
substantially quicker and less expensive than applying for an individual NPDES permit.”).

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31
The majority’s treatment of Kent Co is also unfaithful to the actual holding in that
case.29 The majority cherry-picks the Court’s observation that the site-selection criteria
provided by the agency in that case “simply advise[d] a local governmental unit, by way
of explanation, what will constitute an equivalent site for construction of a communications
tower.” Kent Co, 239 Mich App at 583. But the majority fails to properly acknowledge
that Kent Co turned more fundamentally on the Court’s conclusion that the site criteria
were “simply an intergovernmental communication that does not affect the rights of the
public” and therefore were excluded from the definition of “rule” under MCL 24.207(g).
Id.30 The same cannot be said here—the 2020 GP speaks to the regulated entities, like
plaintiffs, and establishes what they must do to obtain coverage under the 2020 GP. Kent
Co is simply inapposite, which is likely why EGLE did not rely on it or even make the
arguments upon which the majority bases its conclusion.31
29 Similarly, the majority’s attempt to analogize Nat’l Mining Ass’n, see ante at 34 (opinion
of the Court), is not persuasive because that case is easily distinguishable. See Part II(A)
and Part II(B) of this opinion.
30 The majority’s attempt to refute my analysis falls utterly flat. Indeed, it confirms my
analysis by explaining that “it is difficult to imagine an instance when an agency statement
would fall under the [MCL 24.207](g) exception [regarding an agency action that is merely
an intergovernmental communication] but not the [MCL 24.207](h) exception [regarding
agency actions that are merely explanatory and do not have the force and effect of law].”
Ante at 35 n 32 (opinion of the Court). In other words, the site criteria’s status as an
intergovernmental communication drove the panel’s analysis in Kent Co. The 2020 GP,
of course, is not merely an intergovernmental communication. Rather, it sets the standards
that private entities must satisfy to obtain a certificate of coverage. Thus, even to the extent
the majority is correct that Kent Co turned on a conclusion that the site criteria did not have
the force and effect of law, the 2020 GP in this case is distinguishable for the reasons
discussed above. See generally Part II of this opinion.
31 As noted above, the majority rejected the specific arguments that EGLE presented.

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32
Perhaps more fundamental—and more troubling—than the majority’s
mischaracterization of those cases is the majority’s misunderstanding of the NPDES
permitting process. Specifically, despite producing a 54-page opinion, the majority refuses
to acknowledge the simple fact that the 2020 GP sets the standards for whether a CAFO’s
application for coverage will be approved. EGLE’s own regulations could not be clearer:
“Upon the receipt of an application for coverage under an existing general permit, the
department shall determine if the discharge meets the criteria for coverage under the
general permit.” Mich Admin Code, R 323.2192(b) (emphasis added). While the majority
is correct that “it is the certificate of coverage—not the general permit itself—that grants
the rights and imposes obligations on the CAFO,” ante at 38 (opinion of the Court), that
simply ignores the regulatory directive that the 2020 GP controls whether EGLE will grant
a certificate of coverage in the first place. The fact that site-specific factors for an applicant
might lead to denial without modification does not change that directive. Similarly, the
fact that an operator may be able to obtain an individual permit does nothing to change
whether they receive approval for what they applied for—coverage under the 2020 GP.
Apparently, the majority believes that nothing short of an all-encompassing directive,
without any room for variation, is a rule under the APA.32
32 The majority’s hypothetical about a world where CAFOs are required to apply for an
individual permit and EGLE “circulated a letter to all CAFOs explaining that it tentatively
planned to tell its permit writers to include [certain] conditions,” ante at 38 (opinion of the
Court), is completely inapposite. The 2020 GP does not merely explain what EGLE
“tentatively planned” to require an applicant to demonstrate in order to obtain coverage
under the 2020 GP. The 2020 GP itself, EGLE’s own regulations, and EGLE’s historical
practice of reviewing applications for compliance with the 2020 GP clearly demonstrate
that there is nothing tentative about the terms and conditions in that document. They
determine whether a CAFO will receive a certificate of coverage. The majority suggests

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33
⁂
The confusion and contradictions in the new legal regime created by the majority
opinion will have to be sorted out in this case and others for years to come. For example,
the majority holds that EGLE cannot rely on the 2020 GP when reviewing applications for
coverage. See ante at 40 (opinion of the Court) (“EGLE cannot act as though the general
permit or the discretionary conditions constrain its permitting discretion in individual cases
involving CAFOs.”). Thus, it would appear that EGLE must create a full record specific
to each CAFO that applies for coverage under the 2020 GP or any future general permit.33
In addition, the majority opinion does not address whether EGLE may impose additional
or different requirements than those included in Mich Admin Code, R 323.2196, even if
EGLE can otherwise justify the nonbinding requirements currently in the 2020 GP.
that I am merely concerned about the practical effect that the 2020 GP has on CAFOs. See
ante at 46 (opinion of the Court). While that is certainly part of my concern, my opinion
is based primarily on the legal effects that flow from Mich Admin Code, R 323.2192(b)
and Mich Admin Code, R 323.2191(1), which clearly impose a legal requirement for any
CAFO seeking coverage under the 2020 GP to demonstrate compliance with the terms and
conditions contained therein before EGLE will approve coverage.
33 The majority disagrees that its opinion carries such a requirement. See ante at 40 n 38
(opinion of the Court). This disagreement is confusing for multiple reasons. First, it
suggests that EGLE is not required to create a full record when deciding whether a
particular CAFO is approved for coverage under a general permit. But a full record is
fundamental to such adjudicative actions. Second, the majority says in no uncertain terms
that “EGLE must genuinely evaluate whether the discretionary conditions are necessary as
applied to that particular CAFO.” Ante at 40 (opinion of the Court). That sure sounds like
EGLE must explain the basis for its decision to approve or deny a certificate of coverage
based on a full record. Finally, the majority explains that it holds only “that, when a CAFO
applies for a certificate of coverage and agrees to comply with the discretionary conditions
in the general permit, EGLE cannot act as though the CAFO is automatically entitled to a
certificate of coverage.” Ante at 40 n 38 (opinion of the Court). But that does not mean
EGLE’s decision need not be based on a full record.

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34
Finally, EGLE apparently cannot rely on any decision from a CAFO’s contested
case hearing to determine whether the conditions in that CAFO’s certificate of coverage
are appropriate for the next applicant. See ante at 40 (opinion of the Court) (“[W]hen a
CAFO applies for a certificate of coverage under the general permit, EGLE must retain
discretion to decide whether the discretionary conditions in the general permit are
necessary as applied to the particular CAFO. And again, EGLE must genuinely evaluate
whether the discretionary conditions are necessary as applied to that particular CAFO.”).
Thus, in effect, all permit applications will be treated as applications for an individual
permit, spelling the end of EGLE’s general permitting program. This outcome does not
appear to be one that was even contemplated by EGLE or the regulated parties.
Given that historically over 92% of CAFOs have been covered by a general permit,
the majority’s erroneous decision will surely be to the financial detriment of CAFOs across
the state, which will now be required to engage in an uncertain, laborious, and litigious
individual permitting process. Indeed, the majority opinion sentences CAFOs (which
cannot operate without a permit) to perpetual permitting litigation—including the litigation
that will be necessary to parse the majority’s convoluted and confusing opinion.
IV. CONCLUSION
Under NREPA, the APA, and our caselaw interpreting those statutes, it is clear that
the 2020 GP is a “rule” that may be challenged in a pre-enforcement declaratory-judgment
action under MCL 24.264. The majority’s attempt to label it as something else is

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35
unfounded and not persuasive. Therefore, I respectfully dissent and would instead affirm
the Court of Appeals’ principal holding that the 2020 GP is a rule.34
David F. Viviano
Brian K. Zahra
34 However, I would vacate the portion of the Court of Appeals opinion affirming the
dismissal of plaintiffs’ action on the ground that “[t]his case could not be commenced in
the trial court because plaintiffs failed to first seek a declaratory ruling from EGLE before
filing their declaratory-judgment action, as required by MCL 24.264.” Mich Farm Bureau,
343 Mich App at 318. Plaintiffs indicate in their cross-appeal that they already requested
a declaratory ruling from EGLE, and the agency denied their request. Therefore, plaintiffs
have cured this defect by exhausting their administrative remedies, and the issue now
appears to be moot. See League of Women Voters of Mich v Secretary of State, 506 Mich
561, 580; 957 NW2d 731 (2020) (holding, in part, that “a moot case is one which seeks to
get a . . . judgment upon some matter which, when rendered, for any reason, cannot have
any practical legal effect upon a then existing controversy”) (quotation marks and citation
omitted). Given my conclusion that the 2020 GP is a rule under the APA, I would remand
this case to the Court of Appeals to determine (1) whether EGLE adequately preserved its
argument that plaintiffs cannot challenge the validity of the 2020 GP under MCL 24.264
because “an exclusive procedure or remedy is provided by a statute governing the agency”;
and (2) if so, whether plaintiffs’ suit is barred under that provision.

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