The United States District Court for the Northern District of Ohio recently dismissed a lawsuit filed by two northwest Ohio residents who claimed that the Ohio Department of Agriculture (ODA) was impermissibly issuing National Pollutant Discharge Elimination System (NPDES) permits to concentrated animal feeding operations (CAFOs) without authorization from U.S. EPA. In Askins v. ODA, the plaintiffs argued that Ohio EPA unlawfully delegated a portion of its NPDES permitting authority to ODA by allowing an ODA-approved manure management plan to satisfy a condition for obtaining an NPDES permit from Ohio EPA. The court concluded that the plaintiffs’ assertions were “completely devoid of merit,” explaining that any manure management plan submitted in connection with an NPDES permit application is independently reviewed by Ohio EPA and approved only if the plan satisfies requirements set forth in the Clean Water Act (CWA). The court’s decision comes in the wake of its denial of the plaintiffs’ motion for a preliminary injunction on similar grounds.

Livestock Permitting in Ohio

There are two separate permitting regimes for livestock operations in Ohio. The first is the state-based program for concentrated animal feeding facilities (CAFFs), which has been run by ODA since 2002 when the program was transferred from Ohio EPA. Any person seeking to build and operate a CAFF must obtain a permit to install (PTI) and permit to operate (PTO) from ODA. The PTI regulates the design, construction and modification of manure storage or treatment facilities to ensure manure and agricultural wastes are properly collected and stored to prevent discharges. The purpose of a PTO is to ensure that CAFFs have developed best management practices in the areas of manure management, insect and rodent control, animal mortality and emergency response. ODA-approved plans covering each of these areas are included in a PTO. The PTI and PTO were created under Ohio law and are not components of the federal permitting program discussed below, nor are they subject to the CWA’s requirements.

The second livestock permitting program in Ohio is the NPDES permitting program for CAFOs. Ohio EPA is responsible for issuing and enforcing NPDES permits to Ohio CAFOs. Any CAFO that discharges to “waters of the United States” must obtain a NPDES permit. CAFOs operating under an NPDES permit must, among other things, conduct inspections, perform monitoring, keep records, develop and implement a manure management plan, and submit an annual report to Ohio EPA. The NPDES permitting program for CAFOs is governed by federal law; it was created under and must be administered in accordance with the CWA.

In 2006, ODA submitted a request to U.S. EPA to become the NPDES permitting authority for Ohio CAFOs so their regulation would be centralized under the ODA. In 2008, U.S. EPA issued a preliminary approval of ODA’s request, contingent upon the adoption of certain changes in Ohio law. From 2008 to 2013, ODA proposed several revisions to various Ohio laws to address U.S. EPA’s concerns and to ensure compliance with the federal discharge regulations for CAFOs. However, ODA has not yet submitted an updated request to U.S. EPA for review and approval. Therefore, Ohio EPA continues to issue NPDES permits to CAFOs, since U.S. EPA has not yet approved the transfer of that authority to ODA.

Askins

On August 4, 2014, Larry and Vickie Askins filed suit against ODA, Ohio EPA and U.S. EPA pursuant to the CWA’s citizen suit provision, claiming the defendants were violating the CWA by allowing ODA to issue NPDES permits without obtaining U.S. EPA’s permission. The Askins’s allegations stemmed from the manure management plans required for both the state and federal permitting programs. Persons seeking both an Ohio PTO and a federal NPDES permit can submit the same manure management plan to ODA and Ohio EPA. The manure management plan standards for both permitting programs are the same, because ODA copied U.S. EPA’s requirements when it developed Ohio’s standards. Thus, it is possible (indeed, highly likely) that a manure management plan approved by ODA in connection with a PTO application will also be approved by Ohio EPA in connection with an NPDES application. According to the plaintiffs, by allowing a manure management plan approved by ODA to satisfy a prerequisite for obtaining an NPDES permit, Ohio EPA unlawfully delegated a portion of its NPDES permitting authority to ODA. The court rejected the argument, explaining:

Even though a permit applicant may submit to the Ohio EPA a manure management plan which was developed to satisfy Ohio’s permit to operate requirements, the plan is still reviewed by the Ohio EPA and will only be allowed to be used in the discharge elimination permit application if the plan satisfies federal regulations and the Clean Water Act. The incorporation simply results in a permit applicant [being excused] from … submit[ting] two separate manure management plans.

The court further stated that “[b]ecause the Ohio EPA is required to conduct an independent and meaningful review of all manure management plans for discharge elimination permit applications, no transfer of authority has been made to the Ohio Department of Agriculture….”

Future Implications

Going forward, an applicant seeking to obtain a CAFF permit from ODA and an NPDES permit from Ohio EPA can continue to submit the same manure management plan to both agencies, as both are required to conduct separate, independent reviews of the plan to ensure it satisfies applicable requirements. ODA will continue to serve as the exclusive permitting authority for CAFF PTIs and PTOs, and Ohio EPA will still have exclusive authority over the NPDES permitting program for CAFOs. At this time, it is unclear if/when ODA will submit an updated request to U.S. EPA for permission to take over the CAFO NPDES permitting program.

Read the full text of the Askins opinion.