                                        In the
                       Missouri Court of Appeals
                                Western District
 IN THE MATTER OF: TRENTON                  )
 FARMS RE, LLC                              )
 Permit No. MOGS10500,                      )   WD79527
                                            )
                Appellant,                  )   OPINION FILED:
                                            )   November 22, 2016
 v.                                         )
                                            )
 MISSOURI DEPARTMENT OF                     )
 NATURAL RESOURCES, HICKORY                 )
 NEIGHBORS UNITED, INC.,                    )
                                            )
               Respondent.                  )

                     Appeal from the Clean Water Commission

 Before Division Four: Mark D. Pfeiffer, Chief Judge, Presiding, Karen King Mitchell,
                          Judge and Gary D. Witt, Judge


      Trenton Farms RE, LLC ("Trenton Farms") appeals the decision of the Missouri

Clean Water Commission ("CWC") to deny Trenton Farms' permit application for a swine

concentrated animal feeding operation ("CAFO") to be operated in Grundy County,

Missouri. Trenton Farms raises five points of error on appeal, four alleging that the CWC

erred in its denial because it misinterpreted the permit requirements of 10 CSR 20-
6.010(3)1 causing the regulation to be misapplied and resulting in violations of Trenton

Farms' constitutional rights. Trenton Farms' final point alleges that the CWC erred in

finding that Trenton Farms' application did not adequately prove that the CAFO operation

was protected from a one hundred-year flood as required by 10 CSR 20-8.300(5)(A).2 We

affirm.

                                Factual and Procedural Background

          In Missouri, the Clean Water Act ("CWA") is implemented by two administrative

agencies: the Missouri Department of Natural Resources ("DNR") and the CWC. The

DNR is Missouri's "general environmental agency charged with administering the

programs assigned to the Department relating to environmental control and the

conservation and management of natural resources." Mo. Soybean Ass'n v. Mo. Clean

Water Comm'n, 102 S.W.3d 10, 19 (Mo. banc 2003) (internal quotation omitted). The

CWC is charged by statute with a number of duties and granted numerous powers

including:

          (1) the "general supervision of the administration and enforcement" of the
          Missouri Clean Water Law, sec. 644.026.1(1); (2) developing
          "comprehensive plans and programs for the prevention, control and
          abatement of new or existing pollution of the waters of the state."
          sec.644.026.1(2); (3) identifying waters of the state and prescribing water
          quality standards for them, sec.644.026.1(7); (4) the power to promulgate
          rules and regulations to enforce and implement Missouri's Clean Water Law,
          and the duties imposed on the state by the CWA, sec.644.026.1(8); and (5)
          the power to exercise all incidental powers necessary to carry out the
          purposes of Missouri's Clean Water Law, and to assure that the State of
          Missouri complies with the CWA, sec.644.026.1(16).

          1
          All regulatory references to 10 CSR 20-6 are to the Missouri Code of State Regulations (2014) unless
otherwise indicated.
        2
          All regulatory references to 10 CSR 20-8 are to the Missouri Code of State Regulations (2012) unless
otherwise indicated.

                                                        2
Id. at 19 n.15. The CWC's "domicile" is within the DNR. Section 644.021.1. DNR reviews

all applications for CAFOs and determines eligibility for permits. 10 CSR 20-6.010(2).

Such decisions, however, are reviewed by the CWC and the CWC acts as the final deciding

agency regarding whether an applicant will or will not receive a permit. Section 644.026.1.

        On April 6, 2015, Trenton Farms applied to the DNR3 for a state no-discharge

operating permit for a swine CAFO ("Permit Application"). The Permit Application was

reviewed by DNR employee Greg Caldwell ("Caldwell"). Caldwell determined that the

Permit Application met all statutory and regulatory requirements and, on August 12, 2015,

DNR issued Permit MOGS10500 ("Permit") to Trenton Farms to operate the requested

swine CAFO.

        Hickory Neighbors United, Inc. ("Hickory Neighbors") filed a Petition for Appeal

of the Permit to the Administrative Hearing Commission ("AHC") on August 28, 2015,

and a subsequent Amended Petition for Appeal ("Amended Petition") on September 22,

2015. Trenton Farms intervened in the AHC action, and the AHC held a hearing on

Hickory Neighbors' Amended Petition on October 23, 2015. The AHC found that DNR

met its burden of showing that the operating permit was issued in accordance with

applicable laws and recommended that the grant of the Permit be upheld ("Recommended

Decision"). The Recommended Decision was transmitted to the CWC on January 4, 2016.

The CWC heard additional oral argument from the parties on February 17, 2016, issuing


        3
          The DNR staff in the Division of Environmental Quality, Water Protection Program, are responsible for
administering the Missouri Clean Water Law, including issuing CAFO permits. 10 CSR 20-1.010(3). The CWC,
which is ultimately charged with conserving Missouri's waterways, maintains oversight over the permits and is the
agency ultimately responsible for the final granting or denying of a CAFO permit. 10 CSR 20-1.020.

                                                        3
its Final Decision on February 24, 2016 ("Final Decision"). The CWC disagreed with the

ultimate findings of the AHC, instead finding that the Permit was not appropriately and

lawfully issued to Trenton Farms because DNR failed to determine that Trenton Farms was

a "continuing authority," as required by 10 CSR 20-6.010(3), and further that DNR failed

to adequately determine that the swine CAFO would be protected in the event of a one

hundred-year flood in accordance with 10 CSR 20-8.300(5)(A). The Final Decision by the

CWC overruled the DNR's grant of the Permit to Trenton Farms. This appeal followed.

                                   Standard of Review

       Section 644.051.6 provides that decisions by the CWC shall be subject to appellate

review pursuant to chapter 536 of the Missouri Administrative Procedure Act. Section

536.140.2 provides that, on review, this Court may determine whether the action of the

agency: (1) violates a constitutional provision; (2) is in excess of statutory authority or

jurisdiction of the agency; (3) is unsupported by competent and substantial evidence upon

the whole record; (4) is unauthorized by law; (5) is made upon unlawful procedure or

without a fair trial; (6) is arbitrary capricious or unreasonable; or (7) involves an abuse of

discretion.

       We give deference to the agency's findings of fact so long as they are supported by

competent and substantial evidence. Bd. of Educ. of City of St. Louis v. Mo. State Bd. of

Educ., 271 S.W.3d 1, 7, 12 (Mo. banc 2008). As to questions of law, this Court conducts

its review de novo. Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423,

428 (Mo. banc 2009); ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp.,

854 S.W.2d 371, 376 (Mo. banc 1993).

                                              4
                                                    Discussion

                                                          I.

         As it is dispositive of this appeal, we will first discuss Trenton Farms' final Point

Relied On. In Point Relied On V, Trenton Farms alleges that the CWC erred in denying

the Permit in that "there was no evidence in the record that the barns were not protected

from inundation by the 100-year flood."4

         The Manure Storage Design Regulations, which apply to this type of CAFO

operation, require that "[m]anure storage structures, confinement buildings, open lots,

composting pads, and other manure storage areas in the production area shall be protected

from inundation or damage due to the one hundred-year flood." 10 CSR 20-8.300(5)(A).

This protection may be accomplished by constructing all listed sites above the one hundred-

year flood plain or by including with the permit application certification from an engineer

that all relevant sites are protected.

         Trenton Farms argues that there was sufficient evidence presented to the CWC to

support a conclusion that the manure management barns of the CAFO were adequately


         4
           We agree with Hickory Neighbors that, as drafted, the Point Relied On incorrectly states the burden of
proof. It was not the burden of Hickory Neighbors or the CWC to show that there was "no evidence" that the barns
were "not protected" but rather the regulations require that a permit applicant and the DNR bear the burden of
affirmatively proving that certain portions of the CAFO facility are protected against a one hundred-year flood. See
10 CSR 20-8.300(5)(A). Despite the wording of the Point Relied On, Trenton Farms is ultimately raising a
challenge to the CWC's finding that the engineer's certificate filed with the Permit Application was insufficient to
meet the burden of Trenton Farms and the DNR in demonstrating that the CAFO operation was adequately
protected. Thus, we need not enter into a detailed discussion of the burden of proof applicable to each of the parties.
          We further note that Hickory Neighbors' Amended Petition challenged the validity of the Permit because
Trenton Farms failed to comply with the requirements of Executive Order 98-03, as opposed to 10 CSR 20-
8.300(5)(A). The AHC's Recommended Decision held that 10 CSR 20-8.300(5)(A) was promulgated for the
purposes of implementing Executive Order 98-03 to CAFOs. As such, the AHC interpreted Hickory Neighbors'
allegation that Trenton Farms failed to meet the requirements of Executive Order 98-03 as an allegation that Trenton
Farms failed to meet the requirements of 10 CSR 20-8.300(5)(A). The CWC appears to have adopted this
interpretation and Trenton Farms does not raise the issue on appeal. Thus, we too review the parties arguments as
they relate to the properly adopted rule 10 CSR 20-8.300(5)(A).

                                                          5
protected from a one hundred-year flood. First, Trenton Farms relies on the testimony of

Caldwell who reviewed the Permit Application on behalf of DNR. Caldwell testified that

Trenton Farms submitted a map with the application showing the flood plain but it was

difficult to determine where the buildings would be placed on that map. He also noted that

the flood boundary map crossed topographical lines, which prevented him from

determining whether the CAFO was located within flood boundary lines based strictly on

the map submitted. As a result, he obtained a FEMA map and a soil data map to determine

that the CAFO was not actually located within the one hundred-year flood plain. He

testified that his determination was based solely on the three additional maps that he

obtained and which were entered into evidence by DNR. Unfortunately, as noted by

Hickory Neighbors, the maps identified and entered into evidence by the DNR and

allegedly relied upon by Caldwell are from counties other than Grundy.5 Ultimately,

although the AHC found that Caldwell was credible, it found that his conclusions merely

went to the issue of flooding of the soil and were not actually dispositive of the issue of

whether the CAFO project was located in a FEMA Zone A floodplain.




        5
           It appears that these maps are wholly unrelated to the Grundy CAFO site and call into question Caldwell's
testimony. When the discrepancy was pointed out to Caldwell he responded that he did not know why the maps
were from different counties and that the "map unit [he] clicked on in there was in Grundy County." It was possible
that map was part of a series that included multiple counties. Caldwell testified that he used topographic lines as
well as the "identify tool" that was part of the map to confirm that it was in Grundy County as well as the map
numbers which corresponded to Grundy County. It is not clear whether Caldwell incorrectly relied on maps from
surrounding counties or the wrong maps were printed and submitted as exhibits. The AHC accepted the map
exhibits as offered subject to objection from Hickory Neighbors noting that "[the Commission's] initial thought is
that he has testified that he relied on those documents and, therefore, for what they are worth," they are admitted.
We find that we need not resolve the discrepancy between the locations of the maps, however, because the AHC
found--and the CWC agreed--that Caldwell's testimony was not dispositive of the ultimate issue of floodplain
location.

                                                         6
        Grundy County Emergency Management Director, Glen Briggs ("Briggs"),

submitted an affidavit in support of Trenton Farms stating that he concluded that the CAFO

building site is not located in the FEMA Zone A floodplain--also known as a one hundred-

year floodplain. The AHC, however, noted that the orientation of the buildings on the map

examined by Briggs did not match the building site plan submitted by Trenton Farms and,

thus, found his conclusions to be irrelevant.

        The final source of evidence that the CAFO was adequately protected from a one

hundred-year flood came from the certification of the Permit Application. As part of the

application, Todd Van Maanen ("Van Maanen"), a Missouri licensed civil engineer,

certified that, to the best of his knowledge, information and belief, "the manure

management and containment system is designed in general conformance with applicable

laws, codes, and regulations as of the date of signing." The AHC found that Caldwell and

DNR were entitled to rely on this certification to find that the CAFO complied with 10

CSR 20-8.300(5)(A) and ultimately found this certification was sufficient evidence for

DNR to conclude that Trenton Farms complied with the regulation.

        The CWC agreed with the AHC's findings as to the testimony of Caldwell and

Briggs6 but disagreed as to the AHC's conclusions regarding the engineer's certification.

While the AHC interpreted the certification to mean that Van Maanen certified the CAFO

buildings were protected from inundation or damage due to a one hundred-year flood, the



        6
          The CWC also agreed with the AHC's finding that the testimony of Hickory Neighbors' engineer, Kathy
Martin, did not conclusively establish that the proposed CAFO buildings were located in the one hundred-year
floodplain. Since the CWC ultimately found that Trenton Farms had no evidence to show compliance with 10 CSR
20-8.300(5)(A), and it bore the burden of showing compliance, we need not discuss Martin's testimony.

                                                      7
CWC found that his certification did not go nearly so far. The CWC found that the

engineer's certification and seal were attached only to the documents titled "Gestation

Facility Manure Productions & Storage Calculations, Farrowing Facility Manure

Production & Storage Calculations, and Gilt Development Facility Manure Production &

Storage Calculations." Thus, the engineer's certification could only be interpreted to state

that Van Maanen certified that the Production and Storage Calculations of the manure

management and containment system complied with the applicable laws, codes and

regulations. There was no evidence to suggest that Van Maanen intended to certify the

compliance of all CAFO buildings and operations location as to the one hundred-year

floodplain.

       Further, as Hickory Neighbors notes in its brief, the certification only states that the

certification applies to "the manure management and containment system." 10 CSR 20-

8.300(5)(A) requires evidence that the manure storage structures be protected, but also that

there be protection for "confinement buildings, open lots, composting pads, and other

manure storage areas in the production area." Even were we not mandated to give

deference to the CWC's findings of fact regarding the breadth of the certification, we note

that there is no evidence in the Petition Application to support a finding that Trenton Farms

complied with the flood protection for these other areas or, in the alternative, evidence that

this particular swine CAFO did not include such other areas and thus no certification of

protection was needed. Trenton Farms repeatedly argues that there is nothing in the record

that would indicate that the certification did not apply to the design of the entire facility,

thus the CWC was erroneous in deciding that it did not meet the requirements of 10 CSR

                                              8
20-8.300(5)(A). This argument ignores the plain language of the engineer's certification,

which states it only applies to the "manure management and containment system," making

no mention of the other sites required to be protected under the regulation. Without some

evidence or testimony that these other sites were similarly protected or not part of the

CAFO, the CWC, as the finder of fact, was free to find the engineer's certification did not

fully comply with the regulations.

       We give deference to the CWC's findings of fact and will overturn their judgment

only if it is unsupported by competent and substantial evidence; is arbitrary, capricious,

unreasonable, or involves an abuse of discretion; or the decision is unauthorized by law.

M.A.H. v. Mo. Dept. of Soc. Servs., 447 S.W.3d 694, 697 (Mo. App. E.D. 2014). It was

not unreasonable for the CWC to make the same findings as the AHC that the testimony

presented regarding the floodplain was insufficient to establish that the CAFO would be

adequately protected. The maps relied on by Caldwell were suspect because they were

identified as representing other irrelevant counties, and the map relied on by Briggs had

the buildings oriented differently than the site plan submitted by Trenton Farms. Further,

although Trenton Farms interprets the engineer's certification by Van Maanen differently,

the CWC's interpretation was not arbitrary, capricious or unreasonable. The clear language

of the certification states that "manure management and containment system" conforms to

applicable laws, codes and regulations, but makes no mention of the other areas and

structures listed in 10 CSR 20-8.300(5)(A). It was also reasonable for the CWC to question

why the certification was only attached to the manure containment calculations and not the

Permit Application as a whole, if it was indeed intended to apply to the entire Permit--

                                            9
including areas beyond the manure containment system. Under section 327.411.1, the

professional seal only applies to "all documents sealed by the licensee." Given that the

seal was only affixed to a certain subset of documents, it is reasonable for the fact finder

to believe it was not intended to provide a certification to the entire permit. Further,

subsection 3 of 327.411 states that a professional licensee may affix his seal "specifying

the particular technical submissions, or portions thereof, intended to be authenticated by

the seal, and disclaiming any responsibility for all other technical submissions relating to

or intended to be used for any part or part of the [project]." In this case, the seal specifically

stated it applied to the "manure management and containment center." While it did not

expressly disclaim the rest of the Permit Application, it was reasonable for the CWC to

interpret this language as an intent by the engineer to limit his certification pursuant to

section 327.411.3. How to interpret the certification was soundly within the CWC's

discretion. Under these circumstances, this Court cannot overturn the factual determination

of the CWC.

       Because we find that the CWC did not err in determining that Trenton Farms' Permit

Application failed to adequately establish that it was in compliance with 10 CSR 20-

8.300(5)(A), whether the CWC properly interpreted the requirements for being a

"continuing authority" is immaterial. However, because the record indicates that Trenton

Farms may still retain the right to seek a CAFO permit from the DNR, we briefly address

the issues raised in the first four points of Trenton Farms' brief.




                                               10
                                            II.

       Trenton Farms' first four points on appeal challenge the finding by the CWC that

Trenton Farms did not present evidence in its Permit Application that it was a "continuing

authority" as required by 10 CSR 20-6.010(3). It argues that this finding was arbitrary,

capricious, unreasonable, and an abuse of discretion; was contrary to the law; was

constitutionally invalid because it was void for vagueness as applied to Trenton Farms; and

was constitutionally invalid because it violated Trenton Farms' right to due process.

       "Administrative rules and regulations are interpreted under the same principles of

construction as statutes." McGough v. Dir. of Revenue, 462 S.W.3d 459, 462 (Mo. App.

E.D. 2015). Statutory interpretation is a matter of law which this Court reviews de novo.

Albanna, 293 S.W.3d at 428.

       Section 10 CSR 20-6.010(3) provides:

       All applicants for construction permits or operating permits shall show, as
       part of their application, that a permanent organization exists which will
       serve as the continuing authority for the operation, maintenance, and
       modernization of the facility for which the application is made. Construction
       and first-time operating permits shall not be issued unless the applicant
       provides such proof to the department and the continuing authority has
       submitted a statement indicating acceptance of the facility.

"Continuing authority" is not a defined term in the regulations. See 10 CSR 20-2.010. Nor

does it appear that the term has ever been interpreted by a Missouri court. In the absence

of a given definition in a regulation, the word or term will be given its plain and ordinary

meaning as derived from a dictionary. Teague v. Mo. Gaming Comm'n, 127 S.W.3d 679,

686 (Mo. App. W.D. 2003). "The interpretation and construction of a statute by an agency

charged with its administration is entitled to great weight." Beverly Enters.-Mo. Inc. v.

                                            11
Dept. of Soc. Servs., Div. of Med. Servs., 349 S.W.3d 337, 352 (Mo. App. W.D. 2008).

"However, it is inappropriate to defer to an agency's interpretation of its own regulation

that in any way expanded upon, narrowed, or was otherwise inconsistent with the plain and

ordinary meaning of the words used in the regulation." Id. Regulations should be

interpreted reasonably, and absurd interpretations should not be adopted. Dep't of Soc.

Servs. v. Senior Citizens Nursing Home Dist. of Ray Cty., 224 S.W.3d 1, 9 (Mo. App. W.D.

2007).

         The testimony regarding this Permit revealed that, historically, DNR interpreted the

regulations to require only a showing that an entity was a permanent organization to satisfy

the "continuing authority" requirements. Financial information has never been required.

This was true for both new permits and permit renewals. At the Permit hearing before the

AHC, Caldwell testified as follows:

         [Trenton Farms]. Mr. Caldwell, let's talk about the application and the
         Department's interpretation of the continuing authority regulations and
         whether or not the finances of each applicant for a permit are relevant. I
         believe it's your testimony that the Department does not look at the financial
         wherewithal of any applicants?

         [Caldwell]. No.

         Q. So all industrial applicants that submit applications for construction
         permits or operating permits, the Department has never looked at the
         financial wherewithal or investigated it or asked them to submit any
         information concerning their finances to the Department of Natural
         Resources.

         A. Not that I'm aware of.

         Q. And they never asked any Concentrated Animal Feeding Operation or
         CAFO to submit any of their balance sheets or other financial information to
         qualify as a continuing authority?

                                              12
         A. Not that I'm aware of.

         Q. Even if they did, there are no regulations in the Missouri Clean Water
         Commission regulations that would instruct you or any other person at the
         Department of Natural Resources how to evaluate any financial information
         that's been submitted?

         A. No.

         Q. And would it be fair to say that any permit that comes up for reissuance
         after a five-year permit has expired and somebody has to apply to renew a
         permit, the Department has never asked any industrial or CAFO for any
         financial information when they renew a permit?

         A. No.

Given its historical application, interpreting "continuing authority" to require financial

disclosures was arbitrary as applied to Trenton Farms. CWC cannot change interpretations

of "continuing authority" without some notice or other action. See section 536.010(4).7

There is no evidence to suggest that this was an erroneous interpretation on behalf of the

DNR or a particular employee of the DNR. To the contrary, recent discussion of changes

to the regulations reveals a continued acceptance by the DNR and, therefore, the CWC that

financial documents are not required submissions to prove "continuing authority." On

September 15, 2016, DNR issued an Order of Rulemaking for 10 CSR 20-6.300 on behalf

of the CWC and DNR which included comments to the rulemaking. Comment four stated:

         Mr. Stephen Jeffery proposed additional language to 10 CSR 20-6.300(3)(E)
         that reads, "Balance sheet and income statement for the applicant prepared

         7
           The required filings to prove "continuing authority" may not rise to the level of a rule under section
536.010(6), because there is no evidence that the interpretation was a printed or published. All evidence, however,
indicates that prior to the Final Judgment in this case, all permit seekers attempting to prove they were a "continuing
authority" only needed to show proof that they were a permanent entity. The CWC cannot abandon this
interpretation and require substantially more and different documentation of Trenton Farms without going through
proper procedures to amend its rules. Section 536.021.

                                                          13
      by a certified public accountant showing the applicant has sufficient assets
      to serve as a continuing authority in accordance with 10 CSR 20-6.010(3)."
      This would require that any applicant for a CAFO operating permit submit a
      balance sheet and an income statement prepared by a certified public
      accountant as part of its application package. The purpose of requiring these
      commonly utilized financial documents is for the applicant to provide
      "proof" that it is financial viable to operate, maintain, and modernize its
      proposed CAFO facility, as required by the continuing authority rule, 10 CSR
      20-6.010(3).

Orders of Rulemaking from Department of Natural Resources, 2016 MO REG TEXT 418316

(NS) (Sept. 15, 2016). In response, the DNR stated:

      No changes were made as a result of this comment. Continuing authority
      requirements are contained in 10 CSR 20-6.010. Discussion of any proposed
      revisions to continuing authority requirements would need to be addressed
      during stakeholder meeting(s) for the revision of that regulation.

Id. Had a requirement for such balance sheets or financial information already existed in

10 CSR 20-6.010(3), one would have expected the DNR to acknowledge such. Instead,

the DNR recognized that this would be a revision to the existing requirements, requiring

time for comment and revision of that particular regulation. While it appears that these

comments were made by the DNR, they were done on behalf of the CWC, just as the DNR

has been responsible for the interpretation of the submission requirements of 10 CSR 20-

6.010(3) on behalf of the CWC. Hickory Neighbors asks us to give deference to the CWC's

new interpretation of the filing requirements to prove "continuing authority," arguing that

the prior interpretation was given by DNR not CWC. This, however, ignores the actual

agency structure of DNR and CWC, in which DNR has been given the authority by CWC

to both review and issue permits and promulgate rules and regulations governing permits,

both on behalf of the CWC. See Mo. Soybean Ass'n, 102 S.W.3d at 19. The CWC


                                            14
maintains oversight of these functions but it cannot choose to allow rules and regulations

to be promulgated, issued, and implemented for extended periods of time until the CWC

chooses to arbitrarily overturn the DNR's interpretation with no warning to the public or

DNR and DNR agents, which the CWC has tasked with reviewing permits. Further, it

would be disingenuous to then publish the original interpretation of the regulation even

after it supposedly decided on a new and expanded interpretation.

       Further, to interpret the statute to require a permit applicant to submit the financial

records of the "continuing authority" entity reads an additional requirement into the

regulation that is not currently present. As written, 10 CSR 20-6.010(3) requires that a

permit application "show, as part of their application, that a permanent organization exists

which will serve as the continuing authority for the operation, maintenance, and

modernization of the facility for which the application is made." (emphasis added). "For"

has a number of accepted definitions but it is generally a function word used to indicate

actions such as "preparation toward;" "in order to be, become or serve as;" "in order to

bring about or further;" "with the purpose or object of;" "prerequisite to." WEBSTER'S

THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 886 (1993). In this case, it merely

identifies the purpose that the continuing authority will serve. While having positive

financials may ultimately be required to fulfil that function, evidence of such is not required

to identify the entity which will serve the function--which is all the regulation requires.

Hickory Neighbors and the CWC's interpretation asks this Court to transform "for" into

"and" to require not only the identification of the "continuing authority" entity but also

evidence that such entity also has the current financial ability to fulfill its future purpose.

                                              15
The CWC did not have the authority to simply reinterpret 10 CSR 20-6.010(3) in a way

that would effectively drastically modify its terms. See Matteson v. Dir. of Revenue, 909

S.W.2d 356, 360 (Mo. banc 1995). An agency cannot change the plain meaning of a term

used simply because it does not reflect the intent of the regulation. See Stiers v. Dir. of

Revenue, 477 S.W.3d 611, 615-16 (Mo. banc 2016) (giving plain meaning to the word

"and" despite agency's claim that doing so did not reflect the intent behind the regulation).

If an agency desires such a change, it must be done through amending the regulation. Id.

at 616.

          Because we find that CWC's interpretation of "continuing authority" is arbitrary and

contrary to the plain and ordinary meaning of the regulation, we need not enter into a

review of Trenton Farms' constitutional challenges to CWC's interpretation to finally

decide this point.

          As noted above, however, because Trenton Farms failed to adequately demonstrate

that the entire swine CAFO operation was protected from a one hundred-year flood, as

required by 10 CSR 20-8.300(5)(A), the CWC did not err in denying Trenton Farms' Permit

Application.

                               Motion for Attorneys' Fees on Appeal

          Pursuant to Local Rule XXIX, Trenton Farms filed with this Court a Motion for

Attorney's Fees and Expenses on appeal. We elected to take the motion with the case. The

motion requested that, in the event Trenton Farms prevailed on appeal, this Court award

Trenton Farms reasonable attorneys' fees and expenses. Given this Court's affirmance of

the Final Decision, Trenton Farms' Motion for Attorney's Fees and Expenses is denied.

                                               16
                                         Conclusion

      We find that the CWC did not err in finding that Trenton Farms' Permit Application

did not meet the requirements of 10 CSR 20-8.300(5)(A) and, therefore, Trenton Farms

was not entitled to receive a permit for its purposed swine CAFO. We affirm.




                                        __________________________________
                                        Gary D. Witt, Judge

All concur




                                          17
