Parrish v. Water Quality Control Division of the Colorado Department of Public Health & the Environment

934 P.2d 913, 1997 Colo. App. LEXIS 47, 1997 WL 70705
CourtColorado Court of Appeals
DecidedFebruary 20, 1997
DocketNo. 95CA1567
StatusPublished
Cited by1 cases

This text of 934 P.2d 913 (Parrish v. Water Quality Control Division of the Colorado Department of Public Health & the Environment) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Parrish v. Water Quality Control Division of the Colorado Department of Public Health & the Environment, 934 P.2d 913, 1997 Colo. App. LEXIS 47, 1997 WL 70705 (Colo. Ct. App. 1997).

Opinion

[914]*914Opinion by

Judge PLANK.

Plaintiff, Karl M. Parrish, appeals the dismissal of his complaint for judicial review of the agency action in which defendant the Water Quality Control Division of the Colorado Department of Public Health (Division) granted a wastewater discharge permit to defendant Aspcol Corporation (Aspcol). We affirm.

Aspcol sought approval from the Division to expand the wastewater treatment system for a 55,000 square-foot house it owns in Aspen, Colorado. The Division conditioned its approval of Aspcol’s proposed system on the issuance of a wastewater discharge permit.

Pursuant to regulations, the division solicited public comments on Aspeol’s draft permit. Plaintiff, who owns land adjacent to Aspeol’s property, objected to the issuance of the permit as well as to its conditions.

On February 16, 1995, the Division issued a permit to Aspcol and sent notice to all parties. The Division sent a letter to plaintiff notifying him that Aspcol’s permit had been authorized. That permit contained an “effective” date of March 18,1995.

On March 17, 1995, plaintiff filed with the Division a “Motion to Reconsider or Alternatively for an Adjudicatory Hearing.” That motion was denied ten days later, on March 27,1995.

On April 26, 1995, plaintiff filed in the district court a “Complaint for Judicial Review.” Contending that plaintiff had not timely filed his complaint, both defendants filed motions to dismiss.

On July 27,1995, the district court ordered the case dismissed with prejudice for lack of subject matter jurisdiction. The district court held that the thirty-day review period began when the permit was issued on February 16, 1995, that the review period was extended during the ten days in which the motion for reconsideration was pending, and that the time for seeking judicial review thus had expired on March 28,1995.

On appeal, plaintiff contends that the district court’s interpretation of applicable law resulted in his complaint being improperly dismissed for lack of jurisdiction. We disagree.

I.

Plaintiff first argues that the Water Quality Control Act (WQCA), § 25-8-101, et seq., C.R.S. (1989 Repl.Vol. 11A) the Colorado Administrative Procedure Act (APA), § 24-4-101, et seq., C.R.S. (1988 Repl.Vol. 10A), applicable regulations, and case law all mandate that the period in which to seek judicial review of the Division’s action commenced on the date the permit became “effective” rather than on the date it was issued. We are not persuaded.

A. Colorado Administrative Procedure Act

The APA 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 days after such agency action becomes effective. Section 24-4-106(4), C.R.S. (1988 Repl.Vol. 10A).

According to the APA, an agency decision is effective “on the date mailed or such later date as is stated in the decision.” Section 24-4-105(16)(a), C.R.S. (1996 Cum.Supp.). However, a final determination by the Division is subject to judicial review in accordance with the provisions of both the APA and the WQCA, § 25-8^04, C.R.S. (1989 Repl.Vol. 11A), and the APA is inapplicable to the extent that an agency’s organic statute is inconsistent with it. Section 24-4-107, C.R.S. (1988 Repl.Vol. 10A). See Home Builders Ass’n v. Public Utilities Commission, 720 P.2d 552 (Colo.1986).

To determine the commencement of the period in which to seek judicial review in this case, the general provisions of the APA cannot be reconciled with the more specific provisions of the WQCA. Thus, the WQCA prevails over the APA. See State, Department of Revenue v. Borquez, 751 P.2d 639 (Colo.1988).

B. Water Quality Control Act

Judicial review provisions of the WQCA provide that:

[915]*915Any 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....

Section 25-8-404(3), C.R.S. (1989 Repl.Vol. 11A).

Failure to file a complaint for judicial review of agency action within thirty days of the Division’s action constitutes a jurisdictional defect that requires dismissal. Colorado Water Quality Control Commission v. Town of Frederick, 641 P.2d 958 (Colo.1982).

Section 25-8-404(3), further provides that: Quasi judicial determinations shall become final upon issuance of such determinations to those parties to the proceedings.

Here, Aspcol could not use the permit until its “effective” date of March 18, 1995. Pursuant to the WQCA, however, we agree with the district court that the Division’s determination to grant the permit became final when it was issued and notice was sent to all parties in the proceedings on February 16, 1995. See Colorado Water Quality Control Commission v. Town of Frederick, supra (former version of WQCA provides that an order is final when the agency order is served upon the party affected).

C. Code of Colorado Regulations

Applicable water quality control regulations provide that, once the Division issues a “final permit determination,” any affected person can request an adjudicatory hearing by the Division within 30 days of such issuance. Water Quality Control Commission Regulation No. 6.8.0, 5 Code Colo. Reg. 1002-2.

The judicial review period is temporarily tolled while the Division deliberates on whether to grant or deny a motion for an adjudicatory hearing. If the motion is denied, the original determination is considered the final determination for purposes of judicial review. Water Quality Control Commission Regulation No. 2.1.14A(3), 5 Code Colo. Reg. 1002-1. See also § 25-8-403; Colorado Water Quality Control Commission v. Town of Frederick, supra.

Water quality control regulations further provide that:

Any permit issued shall become effective and final thirty (30) days after the permit is issued by the division, or on such later date as specified by the Division_ Until the permit becomes effective, operation per the conditions of the issued permit is unauthorized. ,

Water Quality Control Commission Regulation No. 6.7.0.(4), 5 Code Colo. Reg. 1002-2.

This language, which is almost identical to that contained in the APA, defines the date when the permit became effective and final for use. Pursuant to this regulation, the permit became effective and final for Aspeol’s use on March 18, 1995. Contrary to plaintiffs assertion, however, the regulation does not define the date the permit became final for purposes of judicial review.

An agency’s interpretation of its organic statute should be granted significant weight. See Richmond Petroleum, Inc. v. Oil & Gas Conservation Commission,

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