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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 

_________________ 

LARRY ASKINS; VICKIE ASKINS, 

Plaintiffs-Appellants, 

v. 

OHIO DEPARTMENT OF AGRICULTURE; OHIO 

ENVIRONMENTAL PROTECTION AGENCY; UNITED 

STATES ENVIRONMENTAL PROTECTION AGENCY, 

Defendants-Appellees. 

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No. 15-3147 

Appeal from the United States 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; DAUGHTREY and DONALD, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: 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 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 JUSTICE, 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. Environmental 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 does not permit suits against regulators for regulatory 

functions and dismissed for lack of subject-matter jurisdiction. We affirm. 

I. BACKGROUND

The U.S. EPA, Ohio EPA, and ODA work together 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 governed 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 express rights and responsibilities to “restore 

and maintain the chemical, physical, and biological 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 operations to obtain a 

permit under the national pollutant discharge elimination 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-NPDES program, but the U.S. EPA retains 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 part of the state-NPDES 

program to another state agency. 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 submit an application to the U.S. EPA to take 

over the part of the state-NPDES program that regulates animal feeding operations. S.B. 141, 

2000 Leg., 123rd Gen. Assemb. (Ohio 2001) (codified at 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 received the U.S. EPA’s approval. ODA submitted its application to 

the U.S. EPA in 2006. After a series of amendments to the federal and 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 legislation 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 alleged that the following conduct violated the Clean Water Act: 

(1) the Ohio EPA failed to inform the U.S. EPA that it 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 state-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 Clean 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 district court’s factual findings, unless they are 

clearly erroneous, and review the district court’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 the factual disputes and merits of the Askinses’ claims, as the 

district court did. Accordingly, we review de novo the district court’s dismissal under Fed. R. 

Civ. P. 12(b)(1) for lack of subject-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 any 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 thereof issued under [the NPDES 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 guidelines that govern monitoring, 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 that requires a state to notify the U.S. EPA if it 

intends to transfer authority over part of the state-NPDES program to a different agency. 

40 C.F.R. § 123.62(c) (“notification requirement”). The new agency may 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 requirement 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) violation of the notification 

requirement is not actionable in a citizen suit; (2) the notification requirement is not a 

“condition” of a permit; and (3) there is no private cause of action against regulators for violating 

procedural regulations. Each of these reasons deprives us of jurisdiction over the Askinses’ first 

and second claims. 

1. Violation of the notification requirement 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-NPDES program is a violation of a permit. However, a state is not 

required to comply with the notification requirement 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 [defining 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 Water 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 [associated] items not mentioned were excluded by 

deliberate choice, not inadvertence” and “reading 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 pursuant to § 1314, which is not 

enumerated as requiring compliance for purposes of the citizen-suit provision. See 33 U.S.C. 

§ 1342(k); 40 C.F.R. § 123.62(c) (enacting the notification 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 violating 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 programs. 33 U.S.C. § 1342(a)(2)–(3). The Askinses 

allege that the notification requirement, enacted under 33 U.S.C. § 1314(i)(2), is a “condition” of 
No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 6 

a permit. However, this interpretation requires us to ignore language in the statute and accept an 

internal contradiction. 

First, the Askinses’ argument ignores some of the words in the statute, which is contrary 

to the canons of statuary construction. See Bennett v. Spear, 520 U.S. 154, 173 (1997) (“It is the 

cardinal principle of statutory construction that it is our duty to give effect, if possible, to every 

clause and word of a statute rather than to emasculate an entire section.” (citations omitted)). 

For example, the U.S. EPA is required to enact 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 NPDES provision references § 1314(i)(2) as a timing

mechanism, triggering when states may begin applying to administer 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 distinguish 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 restrictions, 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 telling 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 “Permit 
No. 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 notification 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 another, 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 state may terminate a permit 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 provision, 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 prescribe the notification requirement as a 

“condition” of a permit. 

3. There is no private cause 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 Act, similar cases, and legislative history. 

In Decker v. Northwest Environmental Defense Center, citizens invoked the Clean Water 

Act’s citizen-suit provision against the state of Oregon, among other defendants, as a polluter—

not a regulator. 133 S. Ct. 1326, 1333 (2013). Indeed, 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 were named as a defendant in Ecological Rights Foundation. In 

dicta, the Ninth Circuit stated “the Clean Water Act allows citizen suits based on violations of 

any conditions of a NPDES permit, even those which 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 extent this suggests a citizen may sue 

for procedural violations under § 1318, it is not persuasive because the Clean Water Act does not 

require compliance with § 1318, or other procedural 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) (“Compliance with a permit . . . shall be deemed 

compliance, for purposes of [a citizen suit], 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 discusses 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 pollution 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 citizen 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, rather 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 limited venue to “action[s] respecting 

a violation by a discharge source of an effluent standard or limitation . . . 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 enforcers of the Clean Water Act: “[t]he [Senate] 

Committee [on Public Works] intends 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. Hamilton 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 supplement rather than to supplant 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 reading of the citizen-suit provision would grant 

citizens greater enforcement authority than the U.S. EPA. 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 entitled before the U.S. EPA can proceed against it, § 1342(c)(3). 

Further, in a citizen suit, the district court may enter an order to enforce the effluent standard or 

limitation violated and award civil penalties and costs. See 33 U.S.C. § 1365(a), (d). However, 

the U.S. EPA cannot obtain these remedies against 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 enforcement authority against a state 

than the U.S. EPA. 

Other cases construing nearly identical environmental citizen-suit provisions have 

reached a similar conclusion—that a regulator’s failure 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 permit suits against regulators because of the citizen 

suit’s potential penalties, shortened notice periods, different language referring to polluters 

versus deficient regulators, and relationship to the agency-enforcement provisions. 681 F.3d 

342, 348–50 (6th Cir. 2012). In reaching that conclusion, 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 first prong of the citizen-suit provision would render superfluous 

the other prong, which permitted suits against the 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 provides 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 agency-enforcement provision distinguishes a “permit violation” 

from a state’s failure to properly 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 follow regulatory procedures are described as “not administering 

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 superfluous the second prong, § 1365(a)(2), which permits suits against 

the U.S. EPA only for non-discretionary regulatory failures. 

Accordingly, the Clean Water Act does not permit citizen suits against regulators, who 

are not polluters, for procedural violations. 

* * * 

Because violation of the notification requirement 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 procedural violations, 

this court lacks jurisdiction over the Askinses’ first and second claims against the Ohio EPA and 

ODA. 

C. Claims Against the U.S. EPA 

In their third and fourth claims, the Askinses 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 construed). Here, the Askinses allege the U.S. EPA 

was required to “conduct a hearing whenever a State is not administering a program in 

accordance with [NPDES program rules 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 properly a state-NPDES program: 

Whenever [the U.S. EPA] determines after 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 program. [The U.S. EPA] shall not withdraw approval 
No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 11 

of any such program unless [it] shall first 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-NPDES program, nor was it required to. Because the 

Askinses have not identified any non-discretionary duty the U.S. EPA failed to perform, there is 

no cause of action under the Clean Water Act. Accordingly, we lack jurisdiction over the 

Askinses’ third and fourth claims 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 violated the Clean Water Act.