1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0005p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

L ARRY A SKINS ; V ICKIE A SKINS , Plaintiffs-Appellants ,

v

.

O HIO D EPARTMENT OF A GRICULTURE ; O HIO E NVIRONMENTAL P ROTECTION A GENCY ; U NITED S TATES E NVIRONMENTAL P ROTECTION A GENCY , Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ │ ┘ No. 15-3147

Appeal from the United St ates District Court for the Northern District of Ohio at Toledo. No. 3:14-cv-01699—David A. Katz, District Judge. Argued: October 6, 2015 Decided and Filed: January 6, 2016 Before:COLE, Chief Judge; DAUGHT REY and DONALD, Circuit Judges.

_________________ COUNSEL
ARGUED: Steve J. Edwards, Grove City, Ohio, fo r Appellants. Kelly D. McCloud, OFFICE OF THE OHIO ATTORNEY GENERAL, Colum bus, Ohio, for Ohio Appellees. Peter Krzywicki, UNITED STATES DE PARTMENT OF JUSTICE, Washington, D.C., for Federal Appellee. ON BRIEF: Steve J. Edwards, Grove City, Ohio, for Appellants. Kelly D. McCloud, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Ohio Appellees. Peter Krzywicki, UNITED STATES DEPARTMENT OF JU STICE, Washington, D.C., for Federal Appellee. 

### >No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 2

_________________ OPINION

_________________ COLE, Chief Judge. Plaintiffs -Appellants Larry and Vickie Askins filed a citizen suit alleging that Defendants-Appellees U.S. Environm ental Protection Agency (“U.S. EPA”), Ohio Environmental Protection Agency (“Ohio EPA”), and Ohio Department of Agriculture (“ODA”) (collectively, “Defendants”) violated the Clean Water Act’s agency permitting procedures. The district court held that the Clean Water Act doe s not permit suits against regulators for regulatory functions and dismissed for lack of s ubject-matter jurisdiction. We affirm.

I. BACKGROUND The U.S. EPA, Ohio EPA, and ODA work toge ther to abate pollution in Ohio. Pursuant to federal and state laws, each entity exercises authority over different types of pollution from specific sources. At issue in this case is the authority to control water pollution caused by certain animal feeding operations, which is govern ed by the Clean Water Act, 33 U.S.C. § 1251 et seq.

A. The Clean Water Act The Clean Water Act grants the U.S. EPA expr ess rights and responsib ilities to “restore and maintain the chemical, physical, and biologi cal integrity of the Nation’s waters,” but preserves states’ “primary responsibilities and rights” to abate pollution. 33 U.S.C. § 1251(a)

− (b). The Clean Water Act requires certain animal feeding ope rations to obtain a permit under the national pollutant discharge elimin ation system (“NPDES”) prior to discharging any pollutant into navigable waters. 33 U.S.C. §§ 1311(a), 1342(a). The U.S. EPA may approve a state to administer a state-NP DES program, but the U.S. EPA reta ins authority to supervise it and withdraw approval. 33 U.S.C. § 1342(b)

− (c); 40 C.F.R. § 123.24. Once approved, a state must seek permission from the U.S. EPA before it can transfer all or pa rt of the state-NPDES program to another state agen cy. 40 C.F.R. § 123.62(c).No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 3

B. Ohio’s NPDES Program In 1974, the U.S. EPA approved the Ohio EPA to administer the state-NPDES program. In 2001, the Ohio legislature authorized ODA to su bmit an application to the U.S. EPA to take over the part of the state-NPDES program that regulates animal feedi ng operations. S.B. 141, 2000 Leg., 123rd Gen. Assemb. (Ohio 2001) (codifiedat Ohio Rev. Code § 903.08(A) (eff. Mar. 15, 2001)). The legislation also amended Ohio’s NPDES laws to reflect the transfer, which were to go into effect after ODA recei ved the U.S. EPA’s approval. ODA submitted its application to the U.S. EPA in 2006. After a series of amendm ents to the federal an d Ohio NPDES laws, ODA submitted its revised application to the U.S. EPA on July 8, 2015, while this appeal was pending. C. Litigation Commences The Askinses allege that the Ohio EPA transferred its authority to administer part of the state-NPDES program to ODA when the legisl ation became effective in 2001. In August 2014, after several administrative appeals challenging specific NPDES permits to animal feeding operations, the Askinses filed suit in the Northern District of Ohio under the Clean Water Act’s citizen-suit provision. They a lleged that the following conduct violated the Clean Water Act: (1) the Ohio EPA failed to inform the U.S. EPA thatit transferred authority over part of the stateNPDES Program to ODA until five years after it had done so; (2) ODA administered part of the state-NPDES Program without approval from the U.S. EPA; (3) the U.S. EPA permitted Ohio EPA to transfer part of the state-NPDES program without its approval; and (4) the U.S. EPA allowed ODA to administer part of the stat e-NPDES program without its approval.
The district court dismissed all of the claims, holding that the Askinses failed to establish a private cause of action under the Clean Water Act, that the U.S. EPA did not fail to perform a non-discretionary duty under the Clean Water Act, and that Defendants did not violate the Clean Water Act. See Askins v. Ohio Dep’t of Agriculture , No. 14-CV-1699 (N.D. Ohio Jan. 27, 2015). The Askinses appealed, arguing that if the Clea n Water Act does not permit this suit, “a state agency can run amok and not one citizen in Ohio can stop the resulting chaos.”No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 4

II. ANALYSIS

A. Standard of Review When a trial court’s ruling on jurisdiction is based in part on the resolution of factual disputes, a reviewing court must accept the dist rict court’s factual findings, unless they are clearly erroneous, and review the district co urt’s application of the law to the facts de novo

. RMI Titanium Co. v. Westinghouse Elec. Corp. , 78 F.3d 1125, 1135 (6th Cir. 1996). However, it is not necessary for us to reach th e factual disputes and merits of the Askinses’ claims, as the district court did. A ccordingly, we review de novo the district court’s dismissal under Fed. R. Civ. P. 12(b)(1) for lack of subj ect-matter jurisdiction and construe the facts in a light most favorable to the Askinses. See id. at 1134

− 35 ; Jones v. City of Lakeland, Tenn. , 224 F.3d 518, 520 (6th Cir. 2000). B. Claims Against the Ohio EPA and ODA
In their first and second claims, the Askinses allege that the Ohio EPA and ODA violated the Clean Water Act. The Clean Water Act permits citizen suits “against a ny person (including . . . any other governmental . . . agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of an effluent standard or limitation,” relevantly defined here as “a permit or condition thereo f issued under [the NPDE S program].” 33 U.S.C. § 1365(a)(1), (f)(6). States may request permission from the U.S. EPA to administer a state-NPDES program after the U.S. EPA promulgates certain gui delines that govern m onitoring, reporting, enforcement, funding, personnel, and manpower. See 33 U.S.C. §§ 1342(b), 1314(i)(2). Under this authority, the U.S. EPA enacted a regulation th at requires a state to no tify the U.S. EPA if it intends to transfer authority over part of th e state-NPDES program to a different agency. 40 C.F.R. § 123.62(c) (“notification requirement”) . The new agency ma y not administer any part of the state-NPDES program without the U.S. EPA’s prior approval. Id . The Askinses argue that compliance with this notification requ irement is “part of every NPDES permit issued by Ohio.” Therefore, they argue, Ohio EPA and ODA are in violation of “a condition” of every NPDES permit issued because they failed to obtain the U.S. EPA’s approval prior to the transfer.No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 5
As explained more fully below, this argument fails because (1) viola tion of the notification requirement is not actionable in a citizen su it; (2) the notification requirement is not a “condition” of a permit; and (3) ther e is no private cause of action against regulators for violating procedural regulations. Each of these reasons de prives us of jurisdicti on over the Askinses’ first and second claims. 1. Violation of the notification requireme nt is not actionable in a citizen suit The Askinses allege that Ohio EPA and ODA’s failure to notify the U.S. EPA prior to transferring part of the state-NP DES program is a violation of a pe rmit. However, a state is not required to comply with the notification requiremen t to avoid a citizen suit : “[c]ompliance with a permit issued pursuant to [the NPDES program] shall be deemed compliance, for purposes of [citizen suits], with §§ 1311, 1312, 1316, 1317, and 1343 [d efining water standards].” 33 U.S.C. § 1342(k). Therefore, it is axiomatic that violation of a provision other than §§ 1311, 1312, 1316, 1317, or 1343 cannot invoke the Clean Wa ter Act’s citizen-suit provision. See id. ; City of Cleveland v. Ohio , 508 F.3d 827, 847 (6th Cir. 2007) (the canon expressio unius est exclusio alterius “justif[ies] the inference that [associat ed] items not mentioned were excluded by deliberate choice, not inadvertence” and “r eading the regulation expansively would impermissibly create de facto a new regulation under the guise of interpreting a regulation.” (citations and internal quotation marks omitted)). The notification requirement at issue here was enacted pursu ant to § 1314, which is not enumerated as requiring compliance for pur poses of the citizen-suit provision. See 33 U.S.C. § 1342(k); 40 C.F.R. § 123.62(c) (enacting the no tification requirement, which the Askinses argue was pursuant to 33 U.S.C. § 1314(i)(2)). Accordingly, the Clean Water Act does not permit a citizen suit for vi olating that regulation. 2. The notification requirement is not a “condition” of a permit The Clean Water Act requires the U.S. EPA to prescribe “conditions” for permits that will also be applicable to state permit program s. 33 U.S.C. § 1342(a)(2)–(3). The Askinses allege that the notification requirement, enacte d under 33 U.S.C. § 1314(i)(2), is a “condition” ofNo. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 6
a permit. However, this interp retation requires us to ignore langua ge in the statute and accept an internal contradiction. First, the Askinses’ argument ignores some of the words in the statut e, which is contrary to the canons of stat uary construction. See Bennett v. Spear, 520 U.S. 154, 173 (1997) (“It is the cardinal principle of statutory cons truction that it is our duty to gi ve effect, if possible, to every clause and word of a statute rather than to emas culate an entire section.” (citations omitted)). For example, the U.S. EPA is required to enac t conditions that “assure compliance with the requirements of paragraph (1),” which permits the U.S. EPA to issue a NPDES permit “upon condition that such discharge will meet . . . all applicable requirements under §§ 1311, 1312, 1316, 1317, 1318, and 1343.” 33 U.S.C. §1342(a)(1)

− (2). Section 1314 is not enumerated as requiring “conditions.” Further, the NPDE S provision references § 1314(i)(2) as a timing mechanism, triggering when states may begin applying to ad minister a state-NPDES program, rather than a substantive requirement, as the Askinses argue. See 33 U.S.C. § 1342(b) (“At any time after the promulgation of the guidelines required by [§ 1314(i)(2)] . . . each State desiring to administer its own permit program . . . may submit to the [U.S. EPA an application].” (emphasis added)). Second, the Askinses’ argument fails to di stinguish between the Clean Water Act’s separate requirements for NPDES programs versus NPDES permits . References to § 1314 in the NPDES provision refer to the U.S. EPA’s approval of a “state permit program, ” not the state’s approval of individual permits

. See 33 U.S.C. § 1342(c)(1)

− (2). The notification requirement, 40 C.F.R. §123.62(c), falls under regulations entitled “ Program Approval, Revision, and Withdrawal,” 40 C.F.R. Pt. 123, Subpt. D, §§ 123.61

− 64. (emphasis added). On the other hand, provisions referencing the permit itself identify discharge restricti ons, none of which appear in § 1314, which is at issue here. See, e.g., 33 U.S.C. § 1342(a)(1), (b)(1 )(A), (b)(2). Indeed, the thirteen uses of the word “condition” in the NPDES provision relate to the permit itself, not the NPDES program as a whole. See 33 U.S.C. § 1342(a)(1)–(3) and (5), (b)(1)(C)(i ) and (iii), (b)(8), (d)(2), (h). More tell ing of this distinction, the U.S. EPA enacted regulations entitled “Permit Conditions,” which refer to the terms of the permit itself, rather than the program that administers them. Compare 40 C.F.R. Pt. 122, Subpt. C, §§ 122.41–50 (entitled “PermitNo. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 7
Conditions”), with Pt. 123, Subpt. D, §§ 123.61

− 64 (entitled “Program Approval, Revision, and Withdrawal”). Third, the Askinses’ broad reading of the no tification requirement as a “condition” of a permit contradicts NPDES requirements. For example, state and federal permit “conditions” must be the same, see 33 U.S.C. § 1342(a)(3), but the U.S. EPA would not seek to transfer a state-NPDES program from one state agency to anot her, nor could it seek transfer approval from itself. Also, a state-NPDES program is required to have the authority to terminate the permits it issues for cause for violating a “condition” of the permit, 33 U.S.C. § 1342(b)(1)(C)(i), which, under the Askinses’ reading, would mean a stat e may terminate a perm it for cause for its own violation of permitting regulations. Finally, a condition is “[s]omething demanded or required as a prerequisite to the granting or performance of something else; a prov ision, a stipulation.” OED Online “condition, n.” (Oxford Univ. Press 2015). However, the U.S. EPA does not demand any prerequisites from the state for each individual permit the state issues, it only demands conditions for approving the entire state program

. See 33 U.S.C. § 1342. Accordingly, the Clean Water Act does not pr escribe the notification requirement as a “condition” of a permit. 3. There is no private caus e of action against regulators for violating procedural regulations The Askinses argue that a citizen may sue a regulator for failing to follow purely procedural regulations. However, the cases they cite do not support their argument, which is also refuted by other provisions in the Clean Water Ac t, similar cases, and legislative history.

In Decker v. Northwest Environmental Defense Center , citizens invoked the Clean Water Act’s citizen-suit provision against the stat e of Oregon, among other defendants, as a polluter

— not a regulator. 133 S. Ct. 1326, 1333 (2013). I ndeed, there was no mention of the state of Oregon as a regulator. See generally, id . Likewise, polluters, not regulators, were sued in Ecological Rights Foundation v. Pacific Lumber Co. Ecological Rights , 230 F.3d 1141 (9th Cir. 2000). Notably, no regulators we re named as a defendant in Ecological Rights Foundation . In dicta, the Ninth Circuit stated “the Clean Water Act allows citi zen suits based on violations of any conditions of a NPDES permit, even those wh ich are purely procedural ,” citing the citizen-No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 8
suit provision and 33 U.S.C. § 1318. Id. at 1151. To the ex tent this suggests a citizen may sue for procedural violations under § 1318, it is not persuasive becau se the Clean Water Act does not require compliance with § 1318, or other proced ural provisions, to avoid a citizen suit. See 33 U.S.C. § 1365(f) (permitting citizens to sue for violations of §§ 1311, 1312, 1316, 1317, 1341, 1342, 1345(d)); 33 U.S.C. § 1342(k) (“Complianc e with a permit . . . shall be deemed compliance, for purposes of [a citizen su it], with §§ 1311, 1312, 1316, 1317, and 1343.”). In any event, the Askinses allege a violation of § 1314, which discusses procedural regulations for states, not § 1318, which discusse s procedural regulations for owners of pollutant sources. At best, Decker and Ecological Rights Foundation suggest that a citizen may sue for procedural violations only if the violations result in water polluti on without a NPDES permit. Here, the Askinses do not allege that the Ohio EPA or ODA themselves polluted the water. We must respect the limited nature of ci tizen suits under the Clean Water Act. If Congress intended the citizen suit to be all encompassing, it would have permitted suit for all violations of the Clean Water Act, rath er than specifying limited circumstances. See 33 U.S.C. § 1365(a)(1)(A) (permitting a citizen suit against persons “alleged to be in violation of an effluent standard or limitation”); see also Bennett, 520 U.S. at 173 (requiring courts to “give effect . . . to every clause and word of a statute”); City of Cleveland , 508 F.3d at 847 ( expressio unius est exclusio alterius ). Congress also would not have lim ited venue to “action[s] respecting a violation by a discharge source of an effluent standard or limita tion . . . in the judicial district in which such source is located.” 33 U.S.C. § 1365(c)(1) (emphasis added). Instead, the U.S. EPA and states were meant to be the primary enfo rcers of the Clean Water Act: “[t]he [Senate] Committee [on Public Works] inte nds the great volume of enforcement actions [to] be brought by the State.” Gwaltney of Smithfield v. Chesapeake Bay Found. , 484 U.S. 49, 60 (1987) (quoting S. Rep. No. 92-414, p. 64 (1971)); see also Sierra Club v. Ha milton Cty. Bd. of Cty. Comm’rs , 504 F.3d 634, 637, 642, n.5 (6th Cir. 2007) ; 33 U.S.C. §§ 1251, 1319. The citizen suit serves only as a backup, “permitting citizens to abate pollution when the government cannot or will not command compliance.” Gwaltney , 484 U.S. at 62 (emphasis added) (citing legislative history). Citizen suits are “meant to supplemen t rather than to suppl ant governmental action [therefore] citizen suits must fulfill several procedural prerequisites.” Hamilton Cty. Bd. of Cty. Comm’rs , 504 F.3d at 637 (quoting Gwaltney , 484 U.S. at 60).No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 9
Paradoxically, the Askinses’ expansive readi ng of the citizen-suit provision would grant citizens greater enforcement authority than the U.S. EP A. For example, the sixty-days’ notice period required for a citizen suit, 33 U.S.C. § 1365(b), is shorter than the ninety-days’ cure period to which a state is enti tled before the U.S. EPA can pr oceed against it, § 1342(c)(3). Further, in a citizen suit, the dist rict court may enter an order to enforce the effluent standard or limitation violated and award ci vil penalties and costs. See 33 U.S.C. § 1365(a), (d). However, the U.S. EPA cannot obtain these remedies agai nst a state, and is limited to withdrawing approval of the state-NPDES program. See 33 U.S.C. § 1342(c)(3); 40 C.F.R. § 123.63. Congress did not intend to give citizens greater and faster enfor cement authority against a state than the U.S. EPA. Other cases construing nearly identical environmental citizen-s uit provisions have reached a similar conclusion—that a regulator’s fa ilure to follow procedural regulations is not grounds for a citizen suit. For example, in Sierra Club v. Korleski , we held that the Clean Air Act’s identical citizen-suit provision did not perm it suits against regulators because of the citizen suit’s potential pena lties, shortened notice periods, differe nt language referring to polluters versus deficient regulators, an d relationship to the agency-enf orcement provisions. 681 F.3d 342, 348–50 (6th Cir. 2012). In reaching that c onclusion, we adopted the Supreme Court’s reasoning in Bennett v. Spear , construing an almost identical citizen-suit provision in the Endangered Species Act. 520 U.S. at 173. The Court in Bennett also found that citizen suits for regulatory functions under the fi rst prong of the citi zen-suit provision woul d render superfluous the other prong, which permitted suits against th e federal government as a regulator only for failing to perform non-discretionary regulatory acts or duties. Id

. For similar reasons, the Clean Water Act does not permit citizen suits against regulators. As discussed above, the citizen-suit provision provi des greater penalties and faster enforcement than the agency-enforcement provisions. Compare 33 U.S.C. § 1365(a), (b), (d), with § 1342(c)(3). In addition, the ag ency-enforcement provision disti nguishes a “permit violation” from a state’s failure to prope rly regulate the state- NPDES program. For example, the Clean Water Act uses the term “violate” or “violation” to refer to polluters who do not comply with a discharge limitation. See 33 U.S.C. §§ 1365(a), 1342(h), 1342(k), 1319(a)(1), 1319(a)(3).No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 10
However, regulators who fail to fo llow regulatory procedures are de scribed as “notadministering a program . . . in accordance with requirements, ” 33 U.S.C. § 1342(c)(3), or failing to “enforce such permit conditions or limitations effectively,” § 1319(a)(2). Finally, the ability to sue regulators for regulatory failures under the first prong of the citizen-suit provision, 33 U.S.C. § 1365(a)(1), would render s uperfluous the second prong, § 1365(a )(2), which permits suits against the U.S. EPA only for non-discreti onary regulatory failures. Accordingly, the Clean Water Act does not pe rmit citizen suits against regulators, who are not polluters, for procedural violations.

* * * Because violation of the notification requireme nt is not actionable in a citizen suit, the Clean Water Act does not prescribe the notification requirement as a “condition” of a permit, and the Clean Water Act does not permit citizen suits against regulators for pr ocedural violations, this court lacks jurisdiction over the Askinses’ fi rst and second claims against the Ohio EPA and ODA. C. Claims Against the U.S. EPA
In their third and fourth claims, the Askins es allege the U.S. EPA violated the Clean Water Act. The Clean Water Act permits suits against the U.S. EPA as a regulator only if it fails to perform a non-discretionary duty. 33 U.S.C. § 1365(a)(2); see also Dep’t of Energy v. Ohio , 503 U.S. 607, 615 (1992) (reciting that any waiver of the United States’s sovereign immunity must be unequivocal and must be narrowly construe d). Here, the Askinses allege the U.S. EPA was required to “conduct a hear ing whenever a State is not administering a program in accordance with [NPDES program rule s under] 33 U.S.C. § 1342(b).” However, the Clean Water Act does not require the U.S. EPA to conduct a hearing if a state fails to administer pr operly a state-NPDES program: Whenever [the U.S. EPA] determines af ter public hearing that a State is not administering a [state-NPDES] program approved . . . in accordance with requirements of this section, [after notice and time to cure, the U.S. EPA] shall withdraw approval of such pr ogram. [The U.S. EPA] shall not withdraw approvalNo. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 11
of any such program unless [it] shall fi rst have notified the State, and made public, in writing, the reasons for such withdrawal. 33 U.S.C. § 1342(c)(3). While the Clean Water Act does require the U.S. EPA to withdraw approval of a state-NPDES program after a hearing, notice, and time to cure, it does not require the U.S. EPA to hold a hearing in the first place. See id. Accordingly, the non-discretionary action does not kick in until after the hearing, but the hearing itself is discretionary. See id. Here, the U.S. EPA did not hold a hearing regarding whether Ohio EPA or ODA were not meeting the requirements of the state-NPDE S program, nor was it required to. Because the Askinses have not identified any non-discretionary duty the U.S. EP A failed to perform, there is no cause of action under the Cl ean Water Act. Accordingly, we lack jurisdiction over the Askinses’ third and fourth clai ms against the U.S. EPA.

III. CONCLUSION For the foregoing reasons, we affirm the district court’s dismissal for lack of subjectmatter jurisdiction. Because the Clean Water Act prohibits this suit, we need not address the merits of the Askinses’ claims, i.e. , whether Defendants actually vi olated the Clean Water Act.