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Askins v. Ohio Department of Agriculture

ELR Citation: 46 ELR 20010
Nos. 15-3147, (6th Cir., 01/06/2016)

The Sixth Circuit dismissed individuals' CWA citizen suit against the Ohio Department of Agriculture (ODA) for issuing NPDES permits for animal feeding operations without first obtaining approval from EPA. States must notify EPA if they intend to transfer authority over part of the EPA-approved state NPDES program to a different state agency. EPA authorized the Ohio environmental agency's authority to issue NPDES permits in 1974. In 2001, the Ohio legislature authorized ODA to submit an application to EPA to take over the part of the state NPDES program that regulates animal feeding operations. ODA submitted its application to EPA in 2006. After a series of amendments to the federal and Ohio NPDES laws, ODA submitted its revised application to EPA on July 8, 2015, while this appeal was pending. In this case, the individuals argued that ODA and the Ohio EPA are in violation of "a condition" of every NPDES permit issued because they failed to obtain EPA's approval prior to the transfer of the NPDES permitting authority. But because violation of the notification requirement is not actionable in a citizen suit, the CWA does not prescribe the notification requirement as a "condition" of a permit, and the CWA does not permit citizen suits against regulators for procedural violations, the court lacks jurisdiction over the individuals' claims against the Ohio EPA and ODA. The court also lacked jurisdiction over the individuals' claims against EPA because they failed to identify any non-discretionary duty the U.S. EPA failed to perform.