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Colorado Stormwater Council v. Water Quality Control Division.

2023 COA 11. No. 21CA1781. Colorado Department of Public Health and Environment—Permits—State Administrative Procedure Act—Judicial Review—Exhaustion of Administrative Remedies.

February 2, 2023

The Colorado Stormwater Council (Council) is a nonprofit organization of public entities with storm drainage systems that comprise “non-standard MS4s,” which are municipal separate storm sewer systems. The Colorado Department of Public Health and Environment, through its Water Quality Control Division (Division), administers permits for non-standard MS4s as part of the Colorado Discharge Permit System. In April 2021, the Division issued its final general renewal permit for non-standard MS4s (permit), governing the discharge of pollutants in stormwater from non-standard MS4s. The permit included notification that impacted entities could request an adjudicatory hearing within 30 days and that failure to do so would constitute consent to those conditions. Rather than request an adjudicatory hearing, the Council filed a complaint for judicial review in district court along with a petition for stay. The district court dismissed the complaint for lack of subject matter jurisdiction, finding that the general assembly had created an administrative appeal process for general permits issued by the Division and that the Council was required to pursue that remedy before seeking judicial review. The court then denied the Council’s petition for stay of the permit as moot. The permit went into effect November 1, 2021.

On appeal, the Council contended that the district court erred by dismissing its complaint for lack of subject matter jurisdiction. It maintained that it was not required to request a hearing under CRS § 24-4-105 of the Colorado Administrative Procedure Act (APA) because under APA § 25-8-403, a request for a hearing or reconsideration is not required before seeking judicial review. Section 25-8-403 generally governs hearing, rehearing, and reconsideration requests for final decisions of the Division. However, CRS § 25-8-503.5 governs the type of general permit the Division issued to the Council and requires the party appealing that type of permit to first request and have an adjudicatory hearing under the APA as a prerequisite to seeking judicial review under § 25-8-404. Here, the Council did not request an adjudicatory hearing or establish in the district court or on appeal that an exception to the exhaustion of administrative remedies requirement applies. Accordingly, the district court properly dismissed the Council’s complaint for lack of subject matter jurisdiction.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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