     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                             August 20, 2020

                               2020COA127

No. 19CA0990, Peabody Sage v Colo Dept of Pub Health —
Administrative Law — Final Agency Action; Public Health &
Environment — Colorado Water Quality Control Act

     A division of the court of appeals considers whether a “Final

Agency Order” issued by the Executive Director of the Colorado

Department of Public Health and Environment (the Department)

was the last step in the adjudicatory process, rendering the

groundwater-discharge permit of appellant, Peabody Sage Creek

Mining, LLC (Peabody), final. The division concludes that the order

was a final agency action; therefore, the time to seek judicial review

of the action was governed by the Water Quality Control Act (the

Act), §§ 25-8-403, -404, C.R.S. 2019, rather than the State

Administrative Procedure Act, § 24-4-106(4), C.R.S. 2019. Because

the Act required Peabody to seek judicial review within thirty days
of the Department’s final order, and Peabody sought review thirty-

five days later, the division affirms the trial court’s dismissal of

Peabody’s complaint seeking judicial review of the final agency

action. However, the division remands for the trial court to correct

its judgment to a dismissal without prejudice.
COLORADO COURT OF APPEALS                                       2020COA127


Court of Appeals No. 19CA0990
Routt County District Court No. 19CV30029
Honorable Shelley A. Hill, Judge


Peabody Sage Creek Mining, LLC, a Colorado limited liability company,

Plaintiff-Appellant,

v.

Colorado Department of Public Health and Environment, Water Quality Control
Division; and Jill Hunsaker Ryan, in her official capacity as Executive Director
of the Colorado Department of Public Health and Environment,

Defendants-Appellees.


            JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                  Division VII
                            Opinion by JUDGE FOX
                       Brown and Rothenberg*, JJ., concur

                          Announced August 20, 2020


Bryan Cave Leighton Paisner LLP, Alan J. Gilbert, Stephen D. Rynerson,
Denver, Colorado, for Plaintiff-Appellant

Philip J. Weiser, Attorney General, Carrie Noteboom, First Assistant Attorney
General, Matthew B. Miller, Assistant Attorney General, Denver, Colorado, for
Defendants-Appellees


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    In this appeal, we conclude that the “Final Agency Order”

 issued by the Executive Director of the Colorado Department of

 Public Health and Environment (the Department) was the last step

 in the adjudicatory process making the groundwater-discharge

 permit of appellant Peabody Sage Creek Mining, LLC (Peabody),

 final. Therefore, the time to seek judicial review of the final

 administrative action is governed by the operative provisions of the

 Water Quality Control Act (the Act), §§ 25-8-403, -404, C.R.S. 2019,

 rather than the State Administrative Procedure Act (APA), § 24-4-

 106(4), C.R.S. 2019. Because the Act required Peabody to seek

 judicial review within thirty days of the Department’s final order,

 but Peabody sought review thirty-five days later, we affirm the trial

 court’s dismissal of Peabody’s complaint seeking judicial review of a

 final agency action. However, we reverse in part and remand for the

 trial court to correct its judgment to a dismissal without prejudice.

                  I.    Facts and Procedural History

¶2    Peabody owns an inactive mine in Hayden, Colorado. In

 November 2015, the Colorado Water Quality Control Division (the

 water division), an entity within the Department, renewed and




                                    1
 reissued a permit (the 2015 Permit) authorizing Peabody to

 discharge water from that mine.

¶3    Dissatisfied with certain terms of the 2015 Permit, Peabody

 sought reconsideration of the permit. The water division granted

 that request, and the Department, through its Executive Director,

 referred the matter to an administrative law judge (ALJ).

¶4    The ALJ conducted the hearing and issued an order entitled

 “Initial Decision” that modified the 2015 Permit to include terms

 mostly favorable to Peabody. The Initial Decision included a notice

 to the parties of their right to appeal by filing exceptions with the

 Department.

¶5    Both parties filed exceptions. The Executive Director then

 heard the administrative appeal and reversed the ALJ’s Initial

 Decision in an order entitled “Final Agency Order.” That order

 concludes with the statement, “the 2015 Permit shall go into effect

 immediately.”

¶6    Thirty-five days later, Peabody filed a complaint in the Routt

 County District Court for judicial review of a final agency action.

 Peabody invoked jurisdiction under APA section 24-4-106(4), which

 provides that “any person adversely affected or aggrieved by any


                                    2
 agency action may commence an action for judicial review in the

 district court within thirty-five days after such agency action

 becomes effective.” (Emphasis added.) It conceded that venue was

 governed by section 25-8-404.

¶7    The water division responded with a C.R.C.P. 12(b)(1) motion

 to dismiss the complaint for lack of subject matter jurisdiction. It

 contended that section 25-8-404(3) of the Act applied, which

 provides that “[a]ny proceeding for judicial review of any final rule,

 order, or determination of the commission or division shall be filed

 within thirty days after said rule, order, or determination has

 become final.” (Emphasis added.) The court reasoned that

 although the Final Agency Order was authored by the Executive

 Director, the order was essentially an act of “the division” within the

 meaning of the Act.

¶8    Deeming the Final Agency Order to be an act of “the division,”

 the district court concluded that the Act provided the exclusive

 means for judicial review. It accordingly dismissed, with prejudice,

 Peabody’s complaint as untimely. Peabody appeals.

                       II.   Final Agency Action

                         A. Standard of Review


                                    3
¶9     Where, as here, there are no disputed issues of material fact,

  we review de novo a C.R.C.P. 12(b)(1) motion to dismiss for lack of

  subject matter jurisdiction. Tulips Invs., LLC v. State ex rel. Suthers,

  2015 CO 1, ¶ 11. A court’s jurisdiction to review an agency action

  is a question of statutory interpretation that we also review de novo.

  Doe 1 v. Colo. Dep’t of Pub. Health & Env’t, 2019 CO 92, ¶ 15.

¶ 10   In construing a statute, our primary purpose is to ascertain

  and give effect to the intent of the General Assembly. Assoc. Gov’ts

  of Nw. Colo. v. Colo. Pub. Utils. Comm’n, 2012 CO 28, ¶ 11. We look

  first to the language of the statute, giving words and phrases their

  plain and ordinary meaning. Chittenden v. Colo. Bd. of Soc. Work

  Examr’s, 2012 COA 150, ¶ 11. In doing so, we consider the statute

  as a whole and construe it in a manner that gives consistent,

  harmonious, and sensible effect to all its parts. Id. at ¶ 12.

¶ 11   If the statute is unambiguous, our inquiry ends. Id. at ¶ 13.

  But if the statute is ambiguous, we turn to other tools of statutory

  construction to discern the General Assembly’s intent, including

  legislative history, statements of legislative purpose, the statute’s

  relationship to other statutory provisions, and policy

  considerations. Id.


                                     4
                        B. Regulatory Framework

               1. The Colorado Water Quality Control Act

¶ 12   The Act empowers the Department, headed by the Executive

  Director, to adopt and enforce regulations to prevent, abate, and

  control water pollution in Colorado. §§ 25-1.5-203, 25-8-102(1),

  25-8-301(1), C.R.S. 2019. It also mandates that “[n]o person shall

  discharge any pollutant into any state water from a point source

  without first having obtained a permit from the division for such

  discharge.” § 25-8-501(1), C.R.S. 2019.

¶ 13   In furtherance of that objective, the Act creates a water quality

  control commission within the Department and tasks it with

  promulgating (among other rules) water quality standards and

  permit regulations. § 25-8-201 to -202, C.R.S. 2019. It also gives

  the Department’s enforcement responsibilities to the Division of

  Administration, an entity within the Department that is further

  divided into various subdivisions, including the water division.

  § 25-8-301(2) (“[I]n furtherance” of the Department’s responsibility

  to enforce the regulations adopted by the commission, “the

  executive director shall maintain within the division [of

  administration] a separate water quality control agency.”); § 25-8-


                                    5
  302(1), C.R.S. 2019 (tasking “[t]he division” with administering the

  permit system).

¶ 14   As noted, and as relevant to the challenge before us, section

  25-8-404 provides as follows:

             (2) Any proceeding for judicial review of any
             final order or determination of the commission
             or division shall be filed in the district court for
             the district in which the pollution source
             affected is located.

             (3) Any proceeding for judicial review of any
             final rule, order, or determination of the
             commission or division shall be filed within
             thirty days after said rule, order, or
             determination has become final. . . .
             Quasi-judicial determinations shall become
             final upon issuance of such determinations to
             those parties to the proceedings. The period
             for filing the action for judicial review shall be
             stayed while any application for a hearing,
             rehearing, or reconsideration is pending
             pursuant to section 25-8-403, and the period
             during which any such application is pending
             shall extend the time for filing a proceeding for
             judicial review an equal length of time.

  See also Dep’t of Pub. Health & Env’t Reg. 61.7, 5 Code Colo. Regs.

  1002-61. Section 25-8-403, the reconsideration provision, states as

  follows:

             During the time permitted for seeking judicial
             review of any final order or determination of
             the commission or division, any party directly


                                      6
            affected by such order or determination may
            apply to the commission or division, as
            appropriate, for a hearing or rehearing with
            respect to, or reconsideration of, such order or
            determination. . . . If the application for a
            hearing, rehearing, or reconsideration is
            granted, the order or determination to which
            such application pertains shall not be
            considered final for purposes of judicial review,
            and the commission or the division may affirm,
            reverse, or modify, in whole or in part, the
            pertinent order or determination; thereafter
            such order or determination shall be final and
            not subject to stay or reconsideration under
            this section.

¶ 15   The Act expressly incorporates APA procedures into the

  permitting process. § 25-8-401(1), C.R.S. 2019 (Hearings “shall be

  held pursuant to and in conformity with” the APA.); Parrish v. Water

  Quality Control Div., 934 P.2d 913, 914 (Colo. App. 1997);1 Dep’t of

  Pub. Health & Env’t Reg. 21.4, 5 Code Colo. Regs. 1002-21;2 Dep’t

  of Pub. Health & Env’t Reg. 61.7(b), 5 Code Colo. Regs. 1002-61.

               2. The State Administrative Procedure Act


  1 In addition, because the Department, Executive Director, the
  division of administration, and the water division are agencies
  having statewide territorial jurisdiction, the APA and the Act govern
  their actions. § 24-4-107, C.R.S. 2019; Roosevelt Tunnel, LLC v.
  Norton, 89 P.3d 427, 430 (Colo. App. 2003).
  2 This regulation, which outlines the applicable adjudication

  procedures, was added as part of the agency’s rulemaking process
  and has been amended from time to time between 2007 and 2015.

                                    7
¶ 16     Regarding judicial review, APA section 24-4-106(4) provides

  that

              any person adversely affected or aggrieved by
              any agency action may commence an action
              for judicial review in the district court within
              thirty-five days after such agency action
              becomes effective . . . . A proceeding for such
              review may be brought against the agency by
              its official title, individuals who comprise the
              agency, or any person representing the agency
              or acting on its behalf in the matter sought to
              be reviewed. . . . The residence of a state
              agency for the purposes of this subsection (4)
              shall be deemed to be the city and county of
              Denver. . . .

¶ 17     The APA operates as a gap filler where an organic statute like

  the Act is silent on a matter of procedure. Marks v. Gessler, 2013

  COA 115, ¶ 29. But, by its own terms, the APA is inapplicable to an

  agency action if it is inconsistent with the organic statute

  authorizing that action. § 24-4-107, C.R.S. 2019. While the “APA

  and statutes specific to that agency should be read together and

  harmonized to the extent possible[,] if a provision of the APA and

  the agency’s statute conflict, the agency-specific provision controls.”

  V Bar Ranch LLC v. Cotten, 233 P.3d 1200, 1205 (Colo. 2010).

                               C. Discussion




                                     8
¶ 18   The parties dispute which timeline — the Act’s thirty-day

  deadline or the APA’s thirty-five-day deadline — applies to

  Peabody’s challenge to the Final Agency Order. More specifically,

  they disagree on whether the Final Agency Order was a “final order

  or determination of the . . . division” within the meaning of section

  25-8-404(3) of the Act. As we explain below, we conclude that the

  culmination of the administrative appeals process was the

  Department’s January 17, 2019, Final Agency Order and that order

  triggered the Act’s thirty-day judicial review deadline.

                    1. Review of “Final Agency Action”

¶ 19   Only a “final” agency action is subject to judicial review. § 24-

  4-106(2); Doe 1, ¶ 38. We must therefore decide whether the Final

  Agency Order, as a “final order or determination of the . . . division,”

  constitutes “final” agency action here.

¶ 20   Neither the Act nor the APA defines the term “final,” but

  generally a final agency action “must ‘(1) mark the consummation of

  the agency’s decision-making process and not be merely tentative or

  interlocutory in nature, and (2) constitute an action by which rights




                                     9
  or obligations have been determined or from which legal

  consequences will flow.’”3 Doe 1, ¶ 38 (quoting Chittenden, ¶ 26).

¶ 21   The Act’s permitting process begins when a party files an

  application for a new or renewal permit with “the division.” § 25-8-

  502(2), C.R.S. 2019. Peabody applied for a renewal permit and the

  water division granted that application and issued the 2015 Permit.

  At this point, the 2015 Permit was a “final order or determination of

  the . . . division.” § 25-8-404(2).

¶ 22   But Peabody chose to invoke section 25-8-403, the

  reconsideration provision, and demanded a hearing from the water

  division. The water division granted that request, at which point

  the 2015 Permit was no longer final. § 25-8-403. The Department,

  on the water division’s behalf, transferred the matter to the Office of

  Administrative Courts so that an ALJ outside of the Department



  3The operative rules clearly contemplate that the conclusion of the
  administrative appeals process constitutes “Final Agency Action”
  subject to judicial review. See Dep’t of Pub. Health & Env’t Reg.
  21.4(K), 5 Code Colo. Regs. 1002-21 (titled “Final Agency Action”
  and describing the process that was followed in this case). If
  Peabody had not availed itself of the reconsideration process, the
  water division’s decision on permitting would have then been final.
  See § 25-8-404(3), C.R.S. 2019; see also Colo. Water Quality Control
  Comm’n v. Town of Frederick, 641 P.2d 958, 965 (Colo. 1982).

                                        10
  could conduct the hearing. § 25-8-401(4); see also § 24-30-1001,

  C.R.S. 2019; Butz v. Economou, 438 U.S. 478, 513-14 (1978) (In an

  agency adjudication the hearing examiner must exercise

  “independent judgment on the evidence before him, free from

  pressures by the parties or other officials within the agency.”);

  Edwin L. Felter, Jr., The Hidden Executive Branch Judiciary:

  Colorado’s Central Panel Experience – Lessons for the Feds, 19 Colo.

  Law. 1307, 1312 (July 1990) (describing Colorado’s central panel

  structure, which gives ALJs independence from the agencies they

  serve, and observing that state “legislatures are beginning to find

  that the central panel is the best answer to providing dignified,

  impartial, and cost-effective administrative adjudications”).

¶ 23   While the Act does not explain the water division’s role in the

  reconsideration after this point, see § 25-8-401, the water division’s

  regulations and the APA’s procedures help to fill in that gap, Marks,

  ¶ 29. Pursuant to APA section 24-4-105, C.R.S. 2019, and

  consistent with the Department’s Regulation 21.4, an ALJ

  conducted a hearing and issued an Initial Decision on September

  17, 2017, before returning the matter to the Department. § 24-4-

  105(14); Weld Air & Water v. Colo. Oil & Gas Conservation Comm’n,


                                    11
  2019 COA 86, ¶ 34 (after enacting regulations, the agency is bound

  by them); Dep’t of Pub. Health & Env’t Reg. 21.4(K)(3), 5 Code Colo.

  Regs. 1002-21 (noting that, absent “an appeal to the agency by

  filing exceptions within thirty days after service of the initial

  decision of the hearing officer upon the parties, unless extended by

  the agency, or a review upon motion of the agency within thirty

  days after service of the initial decision of a hearing officer, every

  such initial decision of a hearing officer shall thereupon become the

  decision of the agency”). The ALJ’s Initial Decision clearly notified

  the parties that if no exceptions were filed within thirty days, that

  decision would be final: “This decision is final unless exceptions are

  filed within thirty (30) days from the date of this notice, pursuant to

  § 24-4-105(14)(a)(III). Exceptions must be filed with the Colorado

  Department of Public Health and Environment. . . . Failure to file

  exceptions as prescribed herein shall result in a waiver of judicial

  review.”

¶ 24   The parties filed timely exceptions to that decision with the

  Department. § 24-4-105(14)(b), (c). The Executive Director

  reviewed the ALJ’s Initial Decision, modified the ALJ’s factual

  findings, reversed in part his legal conclusions, and ordered that


                                     12
  the 2015 Permit be effective immediately. § 24-4-105(15), (16);

  Dep’t of Pub. Health & Env’t Reg. 21.4(K), 5 Code Colo. Regs.

  1002-21 (“Final Agency Action”).

¶ 25   That decision, titled Final Agency Order and dated January

  17, 2019, was the last action taken in the administrative

  proceedings before Peabody filed its complaint. Because Peabody’s

  complaint recognizes this as the final agency action it seeks to have

  reviewed, there is no credible dispute that the Final Agency Order

  marked the end of the agency process.

¶ 26   The legal effect of the Final Agency Order was to conclude the

  permitting process, to make the 2015 Permit’s terms and conditions

  final for purposes of judicial review, and to begin the thirty-day

  period to seek judicial review. § 25-8-403; § 25-8-404(3) (requiring

  judicial review “within thirty days after said rule, order, or

  determination has become final”) (emphasis added); Dep’t of Pub.

  Health & Env’t Reg. 21.4(K), 5 Code Colo. Regs. 1002-21.

  2. The Water Division’s Absence from the Final Administrative Step
        Does Not Change Finality For Purposes of Judicial Review

¶ 27   Peabody first argues that the Department’s action is not an

  undertaking of the water division because the Act defines “division”



                                     13
  to mean “the division of administration of the department of public

  health and environment.” § 25-8-103(4), C.R.S. 2019. Likewise, it

  defines “[e]xecutive director” to mean “the executive director of the

  department of public health and environment.” § 25-8-103(7). But

  both definitions are qualified by the phrase “unless the context

  otherwise requires.” § 25-8-103. And here context and the

  Department’s rules require otherwise. The Department, consistent

  with the Act, the APA, and its own rules, acted for the water division

  in the final step of the administrative appeal of the challenged

  discharge permit. See § 24-4-105; § 25-8-403; § 25-8-404(3); Dep’t

  of Pub. Health & Env’t Reg. 21.4(K), 5 Code Colo. Regs. 1002-21.

¶ 28   Peabody next argues that the APA differentiates between the

  division of administration and the Executive Director. See § 24-4-

  102(3), C.R.S. 2019 (“‘Agency’ means any . . . department,

  institution, division, or officer of the state.”). It then reasons that

  because the plain language of section 25-8-404 applies only to acts

  of “the division” — i.e., the division of administration and the water

  division — the Act’s judicial review provision is inapplicable to final

  agency actions taken by the Executive Director. The water division,

  however, points out that only “the division” can reconsider a permit


                                     14
  under the Act. § 25-8-403. It then reasons, “given that the Final

  Agency Order issued to Peabody was the culmination of an

  administrative appeal process requested and authorized under

  [section 25-8-403], it was clearly an order ‘of the division.’” We

  agree with the water division.

¶ 29   Like other state and federal agencies, the Department has

  created a structure that allows an official who did not participate in

  the original decision, here the permit renewal approval, to perform

  the administrative review function.4 See Dep’t of Pub. Health &

  Env’t Reg. 21.4, 5 Code Colo. Regs. 1002-21. It would be



  4 Here, the Department referred the matter for a hearing before an
  ALJ within the Office of Administrative Courts (OAC), § 24-30-1001,
  C.R.S. 2019, but it could have designated “an employee of the
  Department of Public Health and Environment or a member of, or
  the Administrator of, the Commission” so long as the person
  engaged in conducting a hearing or participating in a decision or an
  initial decision is not “responsible to or subject to the supervision or
  direction of any officer, employee, or agent engaged in the
  performance of investigatory or prosecuting functions for the
  agency.” Dep’t of Pub. Health & Env’t Reg. 21.4(I)(1), 5 Code Colo.
  Regs. 1002-21. The regulations also expressly prohibit ex parte
  contacts with the decision-maker while an adjudicatory proceeding
  is pending. Dep’t of Pub. Health & Env’t Reg. 21.4(J)(13), 5 Code
  Colo. Regs. 1002-21. Merely because some other agency (here,
  OAC) participated in the process does not mean that the final
  agency action is not an act of “the division” for judicial review
  purposes.

                                    15
inconsistent with the Department’s own regulations for the ALJ to

return his Initial Decision to the water division — rather than the

Department — when the water division issued the permit renewal

Peabody challenged. Review of the ALJ decision and the water

division’s decision by another arm of the Department, here its

Executive Director, makes sense because she did not personally

participate in renewing the permit and setting the permit’s

conditions. As such, she provided the best opportunity for a fresh

look at the ALJ’s findings of fact and conclusions of law.5



5 Review by another arm of the agency also fulfills the “separation of
functions” principle. That principle holds that agency staff
members who have prepared or presented evidence or argument on
behalf of or against a party to an administrative proceeding should
not participate in the decision. See Michael Asimow, When the
Curtain Falls: Separation of Functions in the Federal Administrative
Agencies, 81 Colum. L. Rev. 759 (1981). This principle is now
embodied in the Federal Administrative Procedure Act, 5 U.S.C.
§ 554(d) (2018), and recognized in some state statutes or
regulations. See Dep’t of Pub. Health & Env’t Reg. 21.4(I), (J), 5
Code Colo. Regs. 1002-21; see also Roosevelt Tunnel, LLC, 89 P.3d
at 429 (relying in part on federal cases in interpreting “final agency
action” under the APA); Andrews v. D.C. Police & Firefighters Ret. &
Relief Bd., 991 A.2d 763, 769 n.11 (D.C. 2010) (noting that because
the District of Columbia’s administrative procedures act is “closely
analogous to the requirements of the Federal Administrative
Procedure Act,” we “look to case law interpreting the federal APA for
guidance” in interpreting it); see 5 U.S.C. § 557(d) (2018)
(discussing ex parte contacts).

                                  16
¶ 30   Relatedly, Peabody also contends that because the Act’s

  reconsideration clause applies only to reconsideration by “the

  division,” the Final Agency Order resulted from an “additional,”

  “separate,” and “distinct” appeal authorized by section 24-4-105(15)

  of the APA. We disagree.

¶ 31   The reconsideration clause is the exclusive means to secure

  administrative review of a final permit. § 25-8-403; Assoc. Gov’ts of

  Nw. Colo., ¶ 8 (“Where a statute provides a right of review of an

  administrative decision, the statute is the exclusive means to secure

  review.”). To the extent that Peabody reads the APA to create an

  “additional” avenue to seek judicial review separate from section 25-

  8-403, that construction conflicts with the Act and must be

  rejected. § 24-4-107; Marks, ¶ 29. Peabody cites no legislative

  history, statutory provision, or case law supporting the proposition

  that a party may seek reconsideration of a permit under any other

  provision of the Act except the reconsideration clause (section 25-8-

  403). We are not willing to read into the statute what is not there.

  See Chittenden, ¶ 20.

¶ 32   We also reject Peabody’s suggestion that because the

  Executive Director authored the Final Agency Order, the


                                    17
  reconsideration process was not accomplished by the water

  division.

¶ 33   Using the APA as a gap filler, the water division’s

  reconsideration process must proceed as follows: An ALJ or hearing

  officer must conduct a hearing and issue an “initial decision.” § 24-

  4-105(14)(a). “‘Initial decision’ means a decision by a hearing officer

  or [ALJ] which will become the action of the agency unless reviewed

  by the agency.” § 24-4-102(6) (emphasis added). The parties must

  then submit the “initial decision” for review by “the agency” to

  preserve their right to judicial review. § 24-4-105(14)(b), (c). “The

  agency” may then modify the ALJ’s factual findings and legal

  conclusions, remand for further proceedings, or affirm, reverse, or

  modify the order. § 24-4-105(15)(b).

¶ 34   Certainly, the identity of the agency reviewing the permit has

  legal significance. Not every state agency has the authority to

  review a permit issued by the water division. What person or

  subdivision within the Department conducts the review

  contemplated by section 24-4-105(15) depends on the Department’s

  authority. As to permits for the discharge of contaminants into

  water, the Department has broad authority as the government


                                    18
  agency charged with responsibility to administer and enforce water

  quality control programs in Colorado, including the discharge

  permitting program, § 25-8-301(1); to issue regulations, §§ 25-8-

  102(1), 25-1.5-203; and to manage its duties relative to preventing,

  abating, and controlling water pollution, §§ 25-8-102(3), 25-8-

  202(1)(d), 25-8-503, C.R.S. 2019; see also § 25-6.5-102, C.R.S.

  2019; Weld Air & Water, ¶ 34; Dep’t of Pub. Health & Env’t Reg.

  21.4(K), 5 Code Colo. Regs. 1002-21. That the Department may

  delegate some of its authority to the water division (or even to the

  commission, which is not at issue in this appeal) does not mean it

  is no longer the agency granted the authority in the first instance.

¶ 35   The APA’s adjudication procedures do not conflict with the

  reality that agencies — like the Department here — often conduct

  their business through subdivisions. In addition to empowering the

  Department with enforcing water quality control regulations, § 25-

  8-301(1), the Act empowers it to “maintain” the water division

  within the division of administration, § 25-8-301(2), and to

  implement rules to carry out its duties, §§ 25-6.5-102; 25-8-102,

  25-8-202. It follows that under a regulatory scheme like that

  contained in the Act and its implementing regulations, the


                                    19
  Department carries out its enforcement responsibilities through the

  acts of its subdivisions.

¶ 36   The parties appear to agree that the Executive Director had

  some authority to review the permit, so whether she could

  permissibly act as “the agency” for purposes of section 24-4-105(15)

  and Dep’t of Pub. Health & Env’t Reg. 21.4, 5 Code Colo. Regs.

  1002-21, is not seriously disputed. Her participation in the water

  division’s reconsideration process was necessary and proper. It

  makes sense that a supervising agency, acting through its

  Executive Director, needs authority to review an action taken by its

  subdivision before that subdivision’s action becomes final. See

  Hawes v. Colo. Div. of Ins., 65 P.3d 1008, 1016 (Colo. 2003)

  (“[A]gencies possess implied and incidental powers filling the

  interstices between express powers to effectuate their mandates.

  Thus, the lawful delegation of power to an administrative agency

  carries with it the authority to do whatever is reasonable to fulfill its

  duties.”).

¶ 37   The significance of the Executive Director’s identity apart from

  the water division was that, consistent with Dep’t of Pub. Health &

  Env’t Reg. 21.4, 5 Code Colo. Regs. 1002-21, and APA section 24-4-


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  105(15), she was acting as “the agency” in concluding the water

  division’s administrative reconsideration process for the 2015

  Permit. Because that administrative reconsideration process was

  the last step in the permitting process, the Final Agency Order was

  final for purposes of judicial review. § 25-8-403; Dep’t of Pub.

  Health & Env’t Reg. 21.4(K), 5 Code Colo. Regs. 1002-21. At that

  point, the order was subject to judicial review within thirty days or

  not at all. § 25-8-404(3).

¶ 38   Because Peabody filed its complaint thirty-five days after the

  Department’s final order issued, the district court lacked subject

  matter jurisdiction and properly dismissed it as untimely. C.R.C.P.

  12(b)(1); Colo. Water Quality Control Comm’n v. Town of Frederick,

  641 P.2d 958, 965 (Colo. 1982).

                     III.   Dismissal With Prejudice

¶ 39   Although we affirm the district court’s judgment of dismissal,

  the parties agree that the dismissal “with prejudice” was error and

  request that we remand with directions to dismiss the action

  “without prejudice.”

¶ 40   “A dismissal under C.R.C.P. 12(b)(1) is not an adjudication on

  the merits, but rather is the result of a court lacking the power to


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  hear the claims asserted.” Grant Bros. Ranch, LLC v. Antero Res.

  Piceance Corp., 2016 COA 178, ¶ 35. Because the dismissal here

  was pursuant to Rule 12(b)(1), the dismissal we affirm is necessarily

  without prejudice, which the district court shall correct upon

  remand.

                            IV.   Conclusion

¶ 41   The district court’s order dismissing Peabody’s complaint

  under C.R.C.P. 12(b)(1) is affirmed insofar as it concluded that the

  complaint was untimely. But we reverse the with prejudice portion

  of the dismissal and remand with directions to dismiss the action

  without prejudice.

       JUDGE BROWN and JUDGE ROTHENBERG concur.




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