CWA Citizen Suits Not the Right Fit for Certain Agency Permitting Procedures


Citizens Suits have played an important role in the enforcement of both the Clean Water Act (CWA) and the Clean Air Act (CAA), and all permittees of wastewater discharge permits and air quality permits should be aware of the significance of these Congressionally-approved remedies. While they have broad application to many routine industrial discharges, there also are limited conditions placed on their use. For instance, the CWA Citizen Suit provision, 33 U.S.C. § 1365, requires plaintiffs to provide the alleged violator 60 days’ notice before filing a lawsuit. In addition, the text of the provision of the CWA limits its application to violations of “effluent standards or limitations,” which the CWA also carefully defines by reference to Sections 1311, 1312, 1316. 1317, 1341, and 1342 of the CWA. If the subject matter of the alleged violation is not covered by these provisions, the case will usually be dismissed.

Recently, the U.S. Court of Appeals for the Sixth Circuit, in Askins v. Ohio Department of Agriculture, et al., affirmed the lower court’s dismissal of a CWA Citizen Suit filed against the Ohio Department of Agriculture, the Ohio EPA and the U.S. EPA alleging that these agencies violated the CWA’s agency permitting procedures when the Ohio EPA delegated administration of the concentrated animal feeding operations (CAFOs) permitting process to the Ohio Department of Agriculture. The Court of Appeals expressed the view that the Citizen Suits are limited in scope because they principally serve as an adjunct to the plenary authority of federal and state regulatory agencies. In addition, the Court of Appeals ruled that EPA did not have a non-discretionary duty to conduct a hearing into complaints as to the administration of the program in Ohio.

Plaintiffs’ claims arose in connection with water pollution generated by large animal feeding operations in Ohio. EPA authorized the Ohio EPA to administer the state National Pollutant Discharge Elimination System (NPDES) permitting program, and the CAFO-permitting programs were later delegated to the Ohio Department of Agriculture without obtaining EPA’s contemporaneous authorization.

The plaintiffs filed administrative appeals with regard to some CAFO permits, and then filed this federal lawsuit complaining that the lack of approval of the Ohio EPA’s delegation to the Ohio Department of Agriculture violated the CWA, justifying the filing of the lawsuit under the Citizen Suit provisions of the CWA. The district court dismissed these claims on the basis that the plaintiffs failed to establish that they were authorized to file this private cause of action, and on the ground that the plaintiffs failed to allege that EPA had violated a non-discretionary duty in its administration of the Ohio state program.

The Court of Appeals affirmed the district court’s holding that none of these alleged procedural violations of Section 1314 of the CWA were actionable as a Citizen Suit because they were not specified by the Congress as sections of the CWA subject to the precise formulation of the Citizen Suit provisions.