If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

MICHIGAN FARM BUREAU, MICHIGAN MILK 

PRODUCERS ASSOCIATION, MICHIGAN PORK 

PRODUCERS ASSOCIATION, MICHIGAN 

ALLIED POULTRY INDUSTRIES, DAIRY 

FARMERS OF AMERICA, SELECT MILK 

PRODUCERS, INC., MICHIGAN CATTLEMEN’S 

ASSOCIATION, SNIDER FARMS, LLC, doing 

business as AIRPORT VIEW TURKEYS, ALPINE 

PORK, LLC, ATE FARMS, LLC, BEBOW DAIRY 

FARM, INC., doing business as BEBOW DAIRY 

FARM, BENNETT FARMS LIVESTOCK, LLC, 

doing business as BENNET FARMS LIVESTOCK, 

BLEICH DAIRY, BROOK VIEW DAIRY, LLC, 

doing business as BROOK VIEW DAIRY, BURNS 

POULTRY FARMS, INC., CAR-MIN-VU FARMS, 

LLC, doing business as CAR-MIN-VU DAIRY, 

CARY DAIRY FARM, INC., CARY’S PIONEER 

FARM, INC., CENTERWOOD FARMS, LLC, 

CENTRAL MICHIGAN MILK PRODUCERS, 

LLC, doing business as CENTRAL MILK 

PRODUCTION, CLOVER FARMS, doing business 

as CLOVER FAMILY FARMS, CONTRACT 

FINISHERS, INC., COURTER FARMS EAST 

FEEDLOT, LLC, doing business as COURTER 

FARMS EAST, COURTER FARMS WEST 

FEEDLOT, LLC, doing business as COURTER 

FARMS WEST, CROSSROADS DAIRY, LLC, D & 

K FARMS, DEN DULK DAIRY FARM, LLC, 

DEYOUNG PORK, INC., doing business as 

DEYOUNG PORK, INC., PLAINWELL, DOUBLE 

QUAD FARMS, LLC, doing business as DOUBLE 

QUAD FARMS, DUTCH MEADOWS DAIRY, 

LLC, doing business as DUTCH MEADOWS 

DAIRY, DYKHUIS FARMS, INC., doing business 

as BASELINE FARM, EHINGER FARM, 

RIVERBEND FARM, SHAMROCK FARM, and 

VILLAGE CENTRAL SANDY RIDGE, EDGE

FOR PUBLICATION

September 15, 2022

9:10 a.m.
-2-

WOOD DAIRY, LLC, doing business as EDGE 

WOOD DAIRY, FAIRGROVE FARMS, INC., 

doing business as FAIRGROVE FARMS, 

GERNAAT FAMILY FARMS, GW DAIRY, LLC, 

HALBERT DAIRY, LLC, doing business as 

HALBERT DAIRY, DJN CATTLE FARMS, INC., 

doing business as HALLIWILL FARMS, HICKORY 

GABLES, INC., doing business as HICKORY 

GABLES, HIGH LEAN PORK, INC., doing 

business as HIGH LEAN PORK 3, HIGHLAND 

DAIRY, LLC, doing business as HIGHLAND 

DAIRY, GEERLINGS HILLSIDE FARMS, LLC, 

doing business as HILLSIDE FARMS-FENNVILLE, 

HILLSIDE FARMS-OVERISEL, and HILLSIDE 

FARMS-OVERISEL HOG BARNS, HARVEST 

HILL FARM, HASS FEEDLOT, LLC, doing 

business as HASS FEEDLOT HOME FARM and 

HASS FEEDLOT 2, HOLLOO FARMS, LLC, doing 

business as HOLLOO FARMS, HURON PORK, 

LLC, INGLESIDE FARMS, J&J RUSSCHER 

PROPERTIES, LLC, J AND A PORK, LLC, doing 

business as J AND A PORK, JMAX, LLC, doing 

business as JMAX DAIRY, KARNEMAATS, LLC, 

KOBER FARMS, LLC, KY-10 FARMS, LLC, doing 

business as KY-10 FARMS, LAIER FARMS, INC., 

doing business as LAIER FARMS, LUCKY 7 

DAIRY, LLC, LUCKY 7 FARMS, LLC, MYERS 

FARMS, LLC, doing business as MYERS FARMS, 

NEW FLEVO DAIRY, INC., doing business as 

NEW FLEVO DAIRY, NOBIS FARMS, LLC, doing 

business as NOBIS DAIRY FARMS, NVF, INC., 

OOMEN BROTHERS, INC., doing business as 

OOMEN BROTHERS HOGS, PACKARD FARMS, 

LLC, doing business as PACKARD FARMS, 

PAYLA MEADOWS, LLC, PEACEFUL ROAD 

FARM, LLC, doing business as PEACEFUL ROAD 

FARMS, PERFORMANCE FARMS, LLC, PETRO 

FARMS, LLC, POLL FARMS, INC., PRAIRIE 

VIEW DAIRY, LLC, PRECISION PORK FARM, 

INC., doing business as PRECISION PORK FARM, 

PREFERRED HOG FARMS, INC., doing business 

as PREFERRED HOG 146th, THE PRESTON 

FARMS, LLC, doing business as PRESTON HOG 

FARMS, PRIDGEON FARMS, LLC, doing business 

as PRIDGEON FARMS, PSY FARMS, R & R 

PORK, LLC, doing business as R & R PORK, 
-3-

RAPID RIDGE FARMS, LLC, doing business as 

RAPID RIDGE, RED ARROW DAIRY, LLC, doing 

business as RED ARROW DAIRY, RUGGLES 

BEEF FARMS, LLC, doing business as RUGGLES 

BEEF FARMS, S & T BARNS, LLC, doing business 

as S & T BARNS-BOOTH, S & T BARNS-FAWN 

RIVER, S & T BARNS-TSC, and S & T BARNSHAENNI, SAND CREEK DAIRY, LLC, SCENIC 

VIEW DAIRY, LLC, doing business as SCENIC 

VIEW DAIRY, SCHURING SWINE, LLC, doing 

business as SCHURING FARMS, SCOTT 

MCKENZIE FARMS, SELDOM REST HOG 

FARM, LLC, doing business as SELDOM REST 

HOG FARM, SIDE STREET PORK, LLC, doing 

business as SIDE STREET PORK, SKINNER 

FARMS, LLC, doing business as SKINNER 

FARMS, STEENBLIK DAIRY, INC., STEWART 

FARMS, LLC, doing business as STEWART 

FARMS, STOREY FARMS, LLC, STOUGHTON 

CREEK FARMS, LLC, doing business as 

STOUGHTON CREEK FARMS, SWISSLANE 

DAIRY FARMS, INC., doing business as 

SWISSLANE FARMS, TERREHAVEN FARMS, 

INC., doing business as TERREHAVEN FARMS, 

VALLEY VIEW PORK, LLC, doing business as 

VALLEY VIEW PORK, VAN OEFFELEN FARM 

SERVICES, VANDERPLOEG HOLSTEINS, LLC, 

doing business as VANDERPLOEG HOLSTEINS, 

VDS FARMS, LLC, doing business as VDS 

FARMS-FULTON and VDS FARMS-S AVENUE, 

VELD FARMS, LLC, doing business as VELD 

FARMS, WALNUTDALE FARMS, INC., doing 

business as WALNUTDALE FARMS DORR TWP, 

WIL-LE-FARMS, INC., doing business as WIL-LE 

FARMS, WILLOW CREEK FARMS, WILLOW 

POINT DAIRY, LLC, doing business as WILLOW 

POINT DAIRY, WILSON CENTENNIAL FARM, 

LLC, BAKERLADS FARM, DEER CREEK 

POULTRY FARM, HARTLAND FARMS, INC., 

doing business as HARTLAND FARMS, HUDSON 

DAIRY, LLC, doing business as HUDSON DAIRY, 

MAYFLOWER DAIRY, LLC, MEADOW ROCK, 

LLC, doing business as MEADOW ROCK DAIRY, 

MEDINA DAIRY, LLC, doing business as 

MEDINA DAIRY, NOBEL FAMILY DAIRY, LLC, 

OTTAWA TURKEY FARM, doing business as 
-4-

OTTAWA TURKEY FARM 112TH, and

CROCKERY CREEK TURKEY FARMS, LLC, 

doing business as CROCKERY CREEK - 80TH,

Plaintiffs-Appellants,

v No. 356088

Court of Claims

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY,

LC No. 20-000148-MZ

Defendant-Appellee.

Before: GADOLA, P.J., and SERVITTO and REDFORD, JJ.

REDFORD, J.

Plaintiffs appeal as of right the Court of Claims opinion and order granting defendant,

Michigan Department of Environment, Great Lakes, and Energy’s (EGLE), motion for summary 

disposition and dismissal of plaintiffs’ case for lack of jurisdiction because plaintiffs failed to 

follow the available administrative process to its completion. For the reasons stated in this opinion, 

we conclude the trial court achieved the correct result, albeit for different reasons, and we therefore 

affirm the order which granted EGLE’s motion for summary disposition and dismissal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are several farmers associations and numerous livestock farms. The farms are 

regulated as concentrated animal feeding operations (CAFOs) under the federal Clean Water Act, 

33 USC 1251 et seq. and state law pursuant to Part 31 (Water Resources Protection), MCL 

324.3101 et seq., of the Natural Resources and Environmental Protection Act (NREPA), MCL 

324.101 et seq. CAFOs are lots or facilities where animals are confined and fed or maintained for 

45 days or more in any 12-month period, 40 CFR 122.23(b)(1), which are regulated as point 

sources from which pollutants are or may be discharged. 33 USC 1362(14). Discharges from 

point sources are permissible pursuant to permits under the National Pollutant Discharge 

Elimination System (NPDES). 33 USC 1311(a); 33 USC 1342(a)(1). Michigan administers the 

NPDES within this state pursuant to the Clean Water Act and NREPA. With few exceptions, 

persons who discharge waste into the surface or groundwaters, or on the ground of this state, as a 

point source discharge, must apply for and obtain from EGLE a valid permit. Mich Admin Code 

R 323.2106; R 323.2109.1

 

1

“ ‘Discharge’ means any direct or indirect discharge of any waste, waste effluent, wastewater, 

pollutant, or any combination thereof into any of the waters of the state or upon the ground.” Mich 

Admin Code, R 323.2102(n).
-5-

Mich Admin Code, R 323.2191(1), authorizes EGLE to issue a general permit if it 

determines that “certain discharges are appropriately and adequately controlled by a general 

permit.” EGLE’s issuance of general permits is subject to conditions set forth in the

Administrative Code. Mich Admin Code, R 323.2192(2). Such permits have a fixed term of not 

more than five years but reissuance is permitted. Mich Admin Code, R 323.2150. CAFOs are 

point sources that require permits for discharges related to “all animals in confinement at the 

operation and all production area waste and CAFO process wastewater generated by those animals 

or the production of those animals, regardless of the type of animal.” Mich Admin Code, R

323.2196(1)(a). CAFOs must apply for coverage under a general permit. Mich Admin Code R 

323.2192(a). After receipt of an application, EGLE must determine whether the applicant meets 

the criteria for coverage under the general permit, and if so it issues a “notice of coverage.” Mich 

Admin Code R 323.2192(b). Anyone “aggrieved by the coverage may file a sworn petition for a 

contested case hearing on the matter” with EGLE pursuant to the Administrative Procedures Act, 

MCL 24.201 et seq. MCL 324.3113(3); Mich Admin Code R 323.2192(c). A party may also 

challenge the validity or applicability of a rule by seeking a declaratory ruling under MCL 24.264.

The NPDES Wastewater Discharge General Permit issued by EGLE on March 27, 2020

(the 2020 general permit), gave rise to plaintiffs’ dispute. Plaintiffs first petitioned for a contested 

case hearing under Mich Admin Code R 323.2192(c)2to appeal the 2020 general permit and the 

legality of certain new conditions imposed by the permit. Plaintiffs objected to EGLE’s reduction 

of the limit on the amount of phosphorus that may be applied to land and the reduction of such 

limits for farms located within a Total Maximum Daily Load (TMDL) watershed. Plaintiffs also 

objected to the requirement that farms avoid applying waste within 100 feet of any surface water, 

open tile line intake structures, sinkholes, agriculture wellheads, or roadside ditches that are 

conduits to surface waters of the state. Plaintiffs further objected to EGLE’s presumptive threemonth ban on applying waste on land during winter months January through March and its ban on 

transferring waste to other entities that apply waste to land during those months.

Plaintiffs alleged that the added conditions banned the application of beneficial manure to 

fields and arbitrarily limited the amount of phosphorous in soil on which CAFO waste may be 

applied. Plaintiffs also took exception to EGLE’s mandate that CAFOs and any farms that receive 

manure from CAFOs install permanent 35-foot vegetated buffer strips and prevent application of 

manure within 100 feet of every surface water, tile line intake, drain, and roadside ditch located 

on any land to which their manure is applied because doing so would severely limit land use for 

crop farming. Plaintiffs alleged that the added conditions exceeded EGLE’s statutory authority 

and were contrary to state and federal law regulating CAFOs, lacked factual justification under the 

standard for setting conditions under Part 31 of NREPA, were arbitrary and capricious, and 

unconstitutional. Plaintiffs sought to have each of the challenged conditions struck from the 2020 

general permit.

 

2 As a result, EGLE did not issue any certificates of coverage under the 2020 general permit, and 

CAFOs that applied for such coverage had to comply with previous general permit certificates of 

coverage or individual permits.
-6-

Before a contested case hearing could be held, however, plaintiffs filed the present 

complaint for declaratory and injunctive relief in the Court of Claims, with the 2020 general permit 

the focus of the complaint. Plaintiffs made allegations similar to their contested case petition but

asked the court to declare: (1) the conditions invalid because of EGLE’s failure to follow the 

procedures required under the Administrative Procedures Act (APA), MCL 24.201 et seq., to 

promulgate the conditions as rules; (2) the conditions are substantively invalid rules because they 

were arbitrary and capricious, beyond EGLE’s regulatory authority, and/or contrary to the intent 

of Part 31 of NREPA; (3) EGLE’s incorporation of the conditions into the 2020 general permit a 

violation of plaintiffs’ constitutionally guaranteed procedural and substantive due-process rights; 

(4) EGLE’s adoption of such rules constituted a violation of the constitution’s Separation of 

Powers Clause, and/or that any statutory authority relied on by EGLE for such adoption violated

the constitutional nondelegation doctrine; (5) EGLE’s assertion of control over non-CAFOs went

beyond its statutory authority and that its standard for determining such authority was 

unconstitutionally void for vagueness; and (6) that the mandate to install 35-foot permanent 

vegetated buffer strips and requirement to have 100-foot setbacks converted cropland acreage to 

nonfarmable land, an unconstitutional taking without just compensation in violation of US Const, 

Am V, and Mich Const 1963, Art X, § 2.

EGLE moved for summary disposition under MCR 2.116(C)(4) (lack of subject-matter 

jurisdiction) and (C)(8) (failure to state a claim) on the ground that plaintiffs failed to exhaust 

available administrative remedies such that the Court of Claims lacked jurisdiction. EGLE 

asserted that the court would not have jurisdiction until EGLE made a final decision at the 

conclusion of the contested case proceeding, and only then would plaintiffs have exhausted all 

administrative remedies available to them rendering EGLE’s final decision subject to judicial 

review pursuant to Const 1963, art 6, § 28 and MCL 24.301-MCL 24.306. Plaintiffs opposed 

EGLE’s motion on the grounds that their complaint challenged “rules” that were not promulgated 

under the APA, and sought a declaratory judgment to determine the procedural validity of the 

“rules” under MCL 24.264 and MCR 2.605, which gave the Court of Claimsjurisdiction. Plaintiffs 

maintained that exhaustion was unnecessary because plaintiffs challenged EGLE’s authority to 

include the new conditions in the general permit, involving legal issues that did not require factual 

development and exempted the issues from the exhaustion requirement. Plaintiffs also argued that,

if Part 31 is construed to grant EGLE authority to control farming practices, it would violate the 

Separation of Powers Clause. Plaintiffs argued that neither MCL 324.3103(1) nor MCL 324.3106 

allowed EGLE to make general policy determinations that go “beyond existing state or federal 

regulations.” EGLE replied that plaintiffs had to exhaust their administrative remedies before 

bringing this action and that they brought this case under MCL 24.264 and MCR 2.605, which 

apply to challenges to “rules.” EGLE also argued that MCL 24.264 expressly required the 

exhaustion of administrative remedies before judicial review, and that the requirement in MCR 

2.605 for an “actual controversy” could not be met because EGLE had not yet issued a ruling after 

a contested case hearing. EGLE conceded that no law specifically directed it to include specific 

conditions in CAFO permits but asserted that defending plaintiffs’ separation of powers and 

nondelegation doctrine claim required fact-driven analysis and explanation of the standards and 

permit conditions it developed to fulfill its obligations under MCL 324.3101 et seq., which requires

it to develop permit conditions to assure compliance with state and federal standards, all of which 

were better suited to an administrative proceeding.
-7-

The Court of Claims concluded that it lacked subject-matter jurisdiction “[b]ecause 

plaintiffs did not follow the available administrative process to its completion.” The court 

observed that plaintiffs had not exhausted their administrative remedies and their contested case 

remained pending, and consequently the court lacked jurisdiction requiring dismissal. The court 

disagreed with plaintiffs’ contention that MCL 24.264 gave the court jurisdiction to determine the 

validity of the conditions by issuing a declaratory judgment because the 2020 general permit’s 

conditions were not formally promulgated rules under the APA’s procedures and “plaintiffs may 

not simply characterize the 2020 CAFO General Permit’s requirements as ‘rules’ and thereby 

invoke MCL 24.264.”

The court noted that MCR 2.605(A)(1) applies in a “case of actual controversy.” The court 

held that no actual controversy existed for purposes of the court rule because the available 

administrative process had not yet run its course. Respecting plaintiffs’ contention that their 

challenge to EGLE’s authority to act made exhaustion unnecessary, the court found that the dispute 

did not implicate defendant’s authority to regulate plaintiffs and did not excuse plaintiffs’ failure 

to exhaust available administrative remedies. The court explained that plaintiffs’ complaint raised 

factual issues that necessitated examination during the administrative process of the necessity and 

efficacy of certain matters within the permit which constituted fact intensive issues requiring 

development of a record that would enable comparing the statutory goals to the permitting 

conditions to determine whether the permitting conditions further those goals. The court 

concluded that development of a factual record is best suited for the administrative process. The 

court acknowledged that the assertion of constitutional questions can excuse a failure to exhaust 

available administrative remedies, but noted that “merely characterizing an issue by using 

constitutional terms does not excuse the exhaustion requirement, particularly where there remain 

factual issues for the agency to resolve.” The court held that

the presence of the factual issues noted above convinces the Court that the presence 

of plaintiffs’ constitutional claims does not excuse exhaustion. In addition, it must 

be remembered that plaintiffs are alleging that they suffered constitutional 

violations as part of the permitting process. This permitting process has not yet run 

its course, meaning that the errors that have allegedly occurred have not been 

submitted to defendant for correction. Again, “[i]t is presumed that an 

administrative agency will correct its errors”—if any—“if given a chance to do so.”

The court concluded that plaintiffs failed to exhaust administrative remedies and their contested 

case remained pending such that the court lacked jurisdiction requiring dismissal. This appeal 

followed.

II. STANDARDS OF REVIEW

A motion for summary disposition under MCR 2.116(C)(4) tests the trial court’s subjectmatter jurisdiction. We review de novo a trial court’s decision on a motion for summary 

disposition under MCR 2.116(C)(4). Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 

631 NW2d 733 (2001). To the extent that resolution of this issue involves statutory interpretation, 

we review de novo whether the trial court properly interpreted and applied the relevant statutes. 

Makowski v Governor, 317 Mich App 434, 441; 894 NW2d 753 (2016). The primary goal of 

judicial interpretation is to ascertain and give effect to the Legislature’s intent. Mich Ed Ass’n v 
-8-

Secretary of State (On Rehearing), 489 Mich 194, 217; 801 NW2d 35 (2011). We review de novo 

a court’s interpretation of court rules under the same principles that govern the construction of 

statutes. Dawley v Hall, 501 Mich 166, 169; 905 NW2d 863 (2018). Questions of law are 

reviewed de novo. Christenson v Secretary of State, 336 Mich App 411, 417; 970 NW2d 417

(2021).

III. ANALYSIS

A. WATER RESOURCES PROTECTION

EGLE’s authority to issue permits derives from state law, but exists in relation to the federal 

Clean Water Act (CWA), 33 USC 1251 et seq. Relevant to this case, the CWA requires that all 

point source discharges to regulated waters must have an NPDES permit. The CWA includes 

CAFOs in its definition of the term “point source” “from which pollutants are or may be 

discharged.” 33 US 1362(14.) “Michigan promulgated its own administrative rules specific to the 

NPDES for CAFOs[.]” Sierra Club Mackinac Chapter v Dep’t of Environmental Quality, 277 

Mich App 531, 536; 747 NW2d 321 (2008). Mich Admin R 323.2196(1)(b) provides that “[a]ll 

CAFO owners or operators shall apply either for an individual NPDES permit, or a certificate of 

coverage under an NPDES general permit unless the owner or operator has received a 

determination from the department made after providing notice and opportunity for public 

comment, that the CAFO has ‘no potential to discharge’ . . . .” See also Sierra Club, 277 Mich 

App at 536-537.

B. THE 2020 GENERAL PERMIT

Mich Admin Code, R 323.2191(1), authorizes EGLE to issue a general permit if it 

determines that “certain discharges are appropriately and adequately controlled by a general 

permit[.]” Under Mich Admin Code, R 323.2137, a permit issued by EGLE “shall contain terms 

and conditions deemed necessary by the department to ensure compliance with effluent standards 

and limitations” and may feature stringent limitations it deems necessary to meet applicable water 

quality standards.3 A person who seeks to be covered by a general permit must apply for coverage 

under the permit. Mich Admin Code, R 323.2192(a). After EGLE receives an application for 

coverage under an existing general permit, it shall determine if the discharge meets the criteria for

coverage under the general permit. Mich Admin Code, R 323.2192(b). A person is not covered 

under a general permit until after EGLE issues a notice of coverage stating that the discharge meets 

the criteria for coverage. Id.

C. RESOLUTION OF DISPUTES REGARDING PERMITS

Plaintiffs argue that the court erred by ruling that it lacked jurisdiction because they 

contend that MCL 24.264 grants the court jurisdiction over declaratory judgment actions. We 

 

3 Other Part 21 rules permit EGLE to impose requirements under the terms and conditions of a 

state or national permit to achieve water quality compliance. See generally Mich Admin Code, 

Rules 323.2138; 323.2139; 323.2142; 323.2145; 323.2146; and 323.2149.
-9-

agree with this, however, plaintiffs in this matter failed to fulfill MCL 24.264’s presuit requirement 

to first seek a declaratory ruling before commencing an action for declaratory judgment, which 

deprived the court of jurisdiction and required dismissal.

A person who is aggrieved by the coverage under a general permit may file a sworn petition 

for a contested case hearing on the matter with EGLE as provided under MCL 324.3113(3) and 

MCL 24.201 to MCL 24.328.

4

 An interested person may also seek a declaratory ruling as to the 

applicability of a rule to an actual state of facts under MCL 24.263. The validity or applicability 

of a rule may be challenged by seeking a court’s declaratory judgment under MCL 24.264 which

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.

MCL 24.264 reveals a general legislative intent to provide an avenue for a party to challenge an 

agency rule. Slis v State, 332 Mich App 312, 342; 956 NW2d 569 (2020).

In this case, plaintiffs filed a declaratory judgment action under MCL 24.264 regarding the 

validity of the new conditions imposed in the 2020 general permit on the ground that EGLE failed 

to follow the procedures to promulgate rules as required under the APA. Plaintiffs essentially 

contend that EGLE circumvented the rulemaking procedures by incorporating the new conditions 

in the 2020 general permit. EGLE moved for summary disposition on the ground that the Court 

of Claims lacked subject-matter jurisdiction because plaintiffs failed to exhaust their 

administrative remedies.

 

4 See also Mich Admin Code, R 323.2192(c) which provides in relevant part that 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 MCL 324.3113.
-10-

The Court of Claims relied on Jones v Dep’t of Corrections, 185 Mich App 134, 460 NW2d 

575 (1990)5for the proposition that only rules that have been formally promulgated as “rules”

under the APA may be subject to a challenge under MCL 24.264. The court held that MCL 24.264 

did not apply in this case because the conditions in the 2020 general permit were not formally

promulgated as rules under the APA. We conclude that MCL 24.264 applied in this case.

In Jones, a case involving policy directives, institutional procedures, and employee 

guidelines of the Michigan Department of Corrections and the Michigan Civil Service 

Commission, the plaintiff requested a declaratory ruling from the defendants as to whether the 

directives, procedures, and guidelines were promulgated as rules pursuant to § 33 of the APA, 

MCL 24.233, and, if not, whether his discharge pursuant to unpromulgated rules deprived him of 

due process of law. Id. at 135-136. The defendants failed to respond to the plaintiff’s request for 

a declaratory ruling and the plaintiff commenced the action for declaratory judgment under MCL 

24.264. Id. at 136. The defendants moved for summary disposition and admitted that the 

directives, procedures, and guidelines were not promulgated as rules pursuant to § 33 of the APA. 

The defendants, however, contended that the circuit court lacked subject-matter jurisdiction 

because the plaintiff failed to exhaust his administrative remedies. The defendants also contended 

that the plaintiff was foreclosed from pursuing relief in the form of a declaratory judgment pursuant 

to MCL 24.264 because the plaintiff did not challenge the applicability of the directives, 

procedures, and guidelines. Id. The circuit court agreed with the defendants’ rationale and granted 

the defendants’ motion for summary disposition under MCR 2.116(C)(4) and (8). Id.

In addressing the plaintiff’s contention that he was denied due process of law when 

discharged for violating directives, procedures, and guidelines, that were not promulgated as rules, 

the Jones court concluded that they could not be challenged under MCL 24.264 because they were 

not rules. The court further held that plaintiff failed to exhaust all available administrative 

remedies, precluding judicial review because he had available two additional levels of 

administrative relief. Id. at 137-138. We do not find the reasoning in Jones persuasive or 

applicable in this case.

Under the APA, the term “rule” is defined as follows:

“Rule” means 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.]

Among other things, 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.” MCL 

24.207(j). The APA contains standards for rulemaking. See MCL 24.231 through MCL 24.266. 

 

5 Cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1), but they 

may be considered as persuasive authority. Aroma Wines & Equip, Inc v Columbian Dist Servs, 

Inc, 303 Mich App 441, 453 n 4; 844 NW2d 727 (2013). This Court decided Jones during May 

1990. Therefore, it is not binding precedent.
-11-

To adopt a rule, an agency must fulfill among other things the APA’s procedural requirements set 

forth in MCL 24.241, MCL 24.242, MCL 24.245, MCL 24.246, subject to the environmental rules 

review committee’s oversight of all of EGLE’s rulemaking under MCL 24.265 and MCL 24.266. 

“ ‘Processing of a rule’ means the action required or authorized by this act regarding a rule that is 

to be promulgated, including the rule’s adoption, and ending with the rule’s promulgation.” MCL 

24.205(j). “ ‘Promulgation of a rule’ means that step in the processing of a rule consisting of the 

filing of the rule with the secretary of state.” MCL 24.205(k). A “ guideline” by contrast “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.” MCL 

24.203(7). Under MCL 24.226, an agency may not adopt a guideline in lieu of a rule.

Numerous administrative rules have been promulgated respecting water resource 

protection and water discharge permits pursuant to NREPA, MCL 324.3103, and MCL 324.3106. 

Relevant to this case, Mich Admin Code R 323.2196 governs CAFO permits and defines the scope 

of regulation specifying how and to what extent CAFOs and recipients handle, use, apply, dispose, 

and transport CAFO production area waste and CAFO process wastewater. Mich Admin Code R 

323.2196(5) provides in relevant part:

CAFO NPDES permits shall include all of the following:

(a) A requirement to develop and implement a comprehensive nutrient 

management plan (CNMP). The CNMP shall be approved by a certified CNMP 

provider. At a minimum, a CNMP shall include best management practices and 

procedures necessary to implement applicable effluent limitations and technical 

standards established by the department including all of the following:

* * *

(viii) Conduct a field-by-field assessment of land application areas and 

address the form, source, amount, timing, rate, and method of application of 

nutrients to demonstrate that land application of production area waste or CAFO 

process wastewater is in accordance with field-specific nutrient management 

practices that ensures proper agricultural utilization of the nutrients in the 

production area waste or CAFO process wastewater. The assessment shall take into 

account field-specific conditions including locations of tile outlets, tile risers, and 

tile depth before land application to determine suitability of land application and to 

prevent discharge of any potential polluting material.

(ix) Ensure proper land application by complying with all of the following 

conditions:

(A) Production area waste and CAFO process wastewater shall not be landapplied on ground that is flooded, saturated with water, frozen, or snow-covered 

where the production area waste and CAFO process wastewater may enter waters 

of the state.

(B) Production area waste and CAFO process wastewater shall not be 

applied to frozen or snow-covered ground unless it is subsurface injected and there 
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is substantial soil coverage of the applied production area waste and CAFO process 

wastewater, or it is surface-applied and incorporated within 24 hours.

(C) Production area waste and CAFO process wastewater may be surfaceapplied to frozen or snow-covered ground and not incorporated within 24 hours 

only if there is a field-by-field demonstration in the CNMP showing that such land 

application will not result in a situation where production area waste and CAFO 

process wastewater may enter waters of the state.

(D) Production area waste and CAFO process wastewater shall not be 

applied when precipitation exceeding 1⁄2 inch is forecast within 24 hours or if 

precipitation is forecast that may cause the production area waste and CAFO 

process wastewater to enter waters of the state.

(E) On ground that is not frozen or snow-covered, production area waste 

and CAFO process wastewater, if not subsurface-injected, shall be incorporated 

into the soil within 24 hours of application except on no-till fields.

* * *

(x)(c) A prohibition on dry weather discharges from the CAFO except in 

accordance with 40 C.F.R. §412.31(a)(2) (2003) or 40 C.F.R. §412.46(d) (2003).

(d) Storm water discharges from land areas under the control of a CAFO 

where production area waste or CAFO process wastewater has been applied in 

compliance with field-specific nutrient management practices developed in 

accordance with R 323.2196(5)(a), and such discharges do not cause or contribute 

to a violation of water quality standards, are in compliance with this rule, provided 

such discharges are authorized by an NPDES permit.

(e) Unless the department determines otherwise, in cases where production 

area waste or CAFO process wastewater is sold, given away, or otherwise 

transferred to other persons (recipient) and the land application of that production 

area waste or CAFO process wastewater is not under the operational control of the 

CAFO owner or operator that generates the production area waste or CAFO process 

wastewater (generator), a manifest shall be used to track the transfer and use of the 

production area waste or CAFO process wastewater.

The rule also specifies in detail that the permit must set forth all of the things the CAFO owner or 

operator shall do respecting preparation of a manifest for tracking CAFO production area waste 

and CAFO process wastewater, and its transport to recipients including its final destination, and 

restricts the sale or transfer of such if recipients have improperly applied, used, or disposed of 

such. Mich Admin Code R 323.2196(5)(a)(x)(e) and (f).

The 2010 general permit and the 2015 general permit governing CAFOs set forth 

conditions as specified in Mich Admin Code R 323.2196(5)(a)(ix)(A)-(E) and permitted what the 
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rule permits.

6

 In the 2020 general permit, however, EGLE incorporated additional conditions,

including in its prohibitions section, Part I, Section B(3)(f)(3), prohibiting application of CAFO 

waste during January through March unless certain conditions are met; Part I, Section B(3)(f)(4) 

prohibiting transfer of CAFO waste to a recipient for land application during January through 

March, and incorporated conditions regarding methods of application during January through 

March, Part I, Section B(3)(g). The previous permits specified setback conditions prohibiting 

application within 100 feet of ditches that are conduits to surface waters, but permitted substitution

of 35-foot vegetated buffers for such 100-foot setback areas.

7

In the 2020 general permit, EGLE 

changed those provisions to prohibit application of CAFO waste within 100 feet of surface water, 

open tile line intake structures, sinkholes, agricultural wellheads, and roadside ditches that are 

conduits to surface waters. Part I, Section B(3)(h)(1)(a). The new conditions do not permit 

substitution of vegetated buffers, but mandate installation of 35-foot-wide permanent vegetated 

buffers along any surface water, open tile line intake structures, sinkholes, agricultural wellheads, 

and roadside ditches that are conduits to surface waters. Part I, Section B(3)(h)(1)(b).

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. As such the new conditions expand the regulatory 

restrictions generally applicable to CAFOs that implement and apply the CWA and NREPA. The 

new conditions set rigid standards with which CAFOs and CAFO waste recipients must comply. 

The new conditions are not merely guidelines but have the force and effect of “rules” not formally 

promulgated. The record indicates that EGLE chose not to follow the applicable APA procedures 

to adopt a new rule or amend the existing rule pertaining to CAFO permits. Instead, it essentially 

created an agency regulation, standards, and instructions of general applicability that implements 

or applies law enforced or administered by the agency.

The issue in this case is not whether EGLE has authority to create or amend rules with 

provisions like the new conditions, but whether it has and may circumvent the rule promulgation 

procedure and expand the scope of generally applicable regulatory standards and restrictions by 

requiring compliance with conditions without promulgation of them as rules. We conclude that 

an affected party may challenge the validity and applicability of conditions imposed by EGLE as 

permit conditions as in this case when such conditions prohibit what the existing rule permits. An 

interested person seeking to challenge the validity or applicability of such conditions may do so 

under MCL 24.264.

Under MCL 24.264, however, 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.” (Emphasis added.) The plain 

language of MCL 24.264 does not impose further administrative remedy exhaustion requirements. 

To be clear, the statute does not require persons seeking to challenge the validity or applicability 

 

6 See 2010 general permit Part I, Section A(7)(e), (f) and 2015 general permit Part I, Section 

B(3)(e), (f).

7 See 2010 general permit Part I, Section A(7)(g) and 2015 general permit Part I, Section B(3)(g).
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of a rule to challenge EGLE action in a contested case under MCL 24.271, by petitioning for a 

contested case hearing, or under MCL 24.263 by seeking a declaratory ruling as to the applicability 

to an actual state of facts. But the Legislature made clear that the prerequisite to commencing an 

action for a declaratory judgment under MCL 24.264 is a request for a declaratory ruling from the 

agency. The statute makes clear this must first be done or the court lacks jurisdiction to hear the 

case.

In this case, the record indicates that plaintiffs never first requested a declaratory ruling 

from EGLE. Accordingly, plaintiffs failed to meet the statutory prerequisite for filing and 

commencing a declaratory judgment action. Consequently, plaintiffs’ action for declaratory 

judgment could not be commenced and the Court of Claims lacked jurisdiction, which required 

dismissal. The trial court concluded that it lacked jurisdiction and dismissed the case because 

plaintiffs had not exhausted all administrative remedies available related to their contested case. 

While this was factually correct and the trial court reached the correct result, the trial court’s legal 

reasoning was erroneous. Accordingly, we affirm the trial court’s dismissal of the case because it 

reached the right result, albeit for the wrong reason. See Gleason v Dep’t of Transp, 256 Mich 

App 1, 3; 662 NW2d 822 (2003).

Plaintiffs argue that a footnote in Mich Farm Bureau, 292 Mich App 106, makes 

compliance with MCL 24.264’s presuit requirement unnecessary. We disagree.

In Mich Farm Bureau, the plaintiffs had formally requested from the DEQ8a declaratory 

ruling under MCL 24.263,

9

that an administrative rule requiring CAFOs to apply for and obtain 

NPDES permits did not apply to CAFOs that had not had, and did not propose to have, an actual 

discharge of pollutants. Id. at 117-118. The DEQ granted the plaintiffs’ request and issued a 

ruling. Id. at 118. Later, the plaintiffs commenced an action by filing a complaint for declaratory 

relief in the circuit court. Id. at 116. In its motion for summary disposition, the DEQ contended 

that, rather than commencing the declaratory judgment action in circuit court, the APA required 

the plaintiffs to seek judicial review of the DEQ’s declaratory ruling pursuant to MCL 24.263. Id. 

at 118. The circuit court determined that the plaintiffs’ request to the DEQ had, in reality, been a 

challenge to the validity of the rule rather than a request for a ruling on the applicability of the rule 

 

8 EGLE was formerly known as the Department of Environmental Quality (DEQ).

9 MCL 24.263 provides: 

On request of an interested person, an agency may issue a declaratory ruling 

as to the applicability to an actual state of facts of a statute administered by the 

agency or of a rule or order of the agency. An agency shall prescribe by rule the 

form for such a request and procedure for its submission, consideration and 

disposition. A declaratory ruling is binding on the agency and the person requesting 

it unless it is altered or set aside by any court. An agency may not retroactively 

change a declaratory ruling, but nothing in this subsection prevents an agency from 

prospectively changing a declaratory ruling. A declaratory ruling is subject to 

judicial review in the same manner as an agency final decision or order in a 

contested case.
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to “an actual state of facts” within the meaning of MCL 24.263. Id. The circuit court observed 

that the plaintiffs’ request for a declaratory ruling had raised only a question of law with no need 

for factual development, and that no statutory authority permitted the DEQ to make rulings or 

pronouncements concerning the “substantive validity” of its own rule. The circuit court concluded 

that the proper mechanism for challenging the substantive validity of the rule was an action for 

declaratory relief in the circuit court under MCL 24.264, and denied the DEQ’s motion for 

summary disposition. Id. at 119.10

Plaintiffs in this appeal rely on the following footnote in Mich Farm Bureau:

We perceive no error in the circuit court’s ruling on this matter. As the 

circuit court properly concluded, plaintiffs did not truly request “a declaratory 

ruling as to the applicability to an actual state of facts of a . . . rule . . . of the 

agency” within the meaning of MCL 24.263. Instead, and more accurately, what 

plaintiffs actually requested was a simple declaration that Rule 2196 was invalid. 

As Dean LeDuc has explained in his treatise on Michigan administrative law, MCL 

§ 24.263 “empowers an agency to issue a declaratory ruling only as to the 

applicability of a rule, not as to its validity.” LeDuc, Michigan Administrative Law 

(2001), § 8:13, p 576 (emphasis added). “The reason for this is obvious, an agency 

is unlikely to find its own rules invalid and those rules are presumed to be valid 

anyway. Courts will ultimately determine the validity of a rule.” Id. Because 

plaintiffs sought to challenge the validity of Rule 2196 rather than its applicability 

to a particular state of facts, they were not required to ask the DEQ for a declaratory 

ruling under MCL § 24.263 in the first instance, and were instead entitled to directly 

commence this declaratory judgment action in the circuit court pursuant to MCL 

24.264. Nor did the exhaustion requirement of MCL 24.264 apply to plaintiffs 

given that they sought to challenge the validity of Rule 2196 rather than its 

applicability. See LeDuc, § 8:13, p 577. “The exhaustion requirement of [MCL 

24.264] (requiring resort first to the submission of a [request for a] declaratory 

ruling) applies only when a plaintiff wishes to challenge the applicability of a rule 

to an actual state of facts.” Id. [Id. at 119 n 7.]

The footnote cites statements from a treatise that neither has precedential value nor reflects

the primacy of Michigan law regarding statutory interpretation, which requires courts to enforce 

the unambiguous legislative intent as expressed in the plain language of a statute. MCL 24.264’s 

prerequisite to commencing a declaratory judgment action cannot be ignored even if an agency is 

unlikely to find its own rules invalid. The footnote is dicta, and therefore, not binding precedent, 

because it was “unnecessary to determine the case at hand . . . .” People v Peltola, 489 Mich 174, 

190 n 32; 803 NW2d 140 (2011). Moreover, Mich Farm Bureau is distinguishable from the case 

 

10 The plaintiffs thereafter moved for summary disposition, arguing in part that the administrative 

rule at issue, Mich Admin Code, R 323.2196, was an invalid regulation and that the promulgation 

of the rule exceeded the scope of the DEQ’s statutory rulemaking authority under Part 31 of the 

NREPA and that the rule was arbitrary, capricious, and inconsistent with the intent of the 

Legislature. Id. at 120.
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at bar because in that case, the plaintiff had sought a declaratory ruling under MCL 24.263, and 

received such a ruling from the agency before filing suit. Further, in Mich Farm Bureau this Court

considered the substantive validity of a rule actually promulgated by the agency. Mich Farm 

Bureau and its footnote in particular is not dispositive in this case.

We hold that the Court of Claims achieved the right result albeit for the wrong reason. This

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. 

Because this ruling is dispositive, we decline to address the other issues raised by plaintiffs on 

appeal. This ruling is without prejudice to plaintiffs’ ability to seek a declaratory ruling from the 

agency under MCL 24.264.

Affirmed.

/s/ James Robert Redford 

/s/ Michael F. Gadola 

/s/ Deborah A. Servitto