The opinion of the court was delivered by: Edmund F. Maxwell, Magistrate Judge
By order of the Hon. John T. Elfvin dated September 10, 1998 (Docket
#7) and with the consent of the parties, this matter was referred to the
undersigned for disposition of all matters including the entry of
judgment pursuant to 28 U.S.C. § 636(c). It is presently before the
court on the defendant's motion to dismiss the
complaint or, in the alternative, for summary judgment (Docket #8).
Plaintiffs, residents of the Town of Amherst, New York, commenced this
citizen suit with the filing of a complaint on April 8, 1998 (Docket
#1). In it, they allege that the defendant is in violation of the Clean
Water Act, 33 U.S.C. § 1251, et seq., for its application of
pesticides for mosquito control in wetland areas without a permit issued
pursuant to the National Pollutant Discharge Elimination System ("NPDES")
or the State Pollution Discharge Elimination System ("SPDES"),
33 U.S.C. § 1342. See Complaint, ¶¶ 19-26. Specifically, the
plaintiffs allege that Town's mosquito control program consists of two
components — first, the placement of larvacide briquets, which
activity is not a subject of this action, and second, the spray
application of insecticide at various locations within the Town of
Amherst. Complaint, ¶¶ 9-11. The plaintiffs allege that the spray
equipment used is a "point source" for purposes of the Clean Water Act,
and that the spraying occurs over federal wetlands which constitute
navigable waters of the United States. Complaint, ¶¶ 17-21. As such,
plaintiffs allege that a NPDES or SPDES permit is required pursuant to the
Clean Water Act. 33 U.S.C. § 1342.
In its answer, the defendant denied the allegations of the complaint,
and stated that the pesticides used in its mosquito control program do
not constitute "pollutants" as defined in the Clean Water Act. Answer
(Docket #5), ¶ 33. It denied that it discharged pesticides into the
navigable waters of the United States, and stated that the mosquito
control program presents "no actual or potential threat to public health
or welfare or to the environment. . . ." Answer, ¶¶ 31, 36.
On August 8, 2000, the defendant filed this Motion to Dismiss or, in
the Alternative, for Summary Judgment (Docket #8) on the ground that the
complaint fails to state a claim against the Town of Amherst upon which
relief may be granted. It is the defendant's position that no permit is
required under the Clean Water Act, and that it possesses the necessary
permit for the mosquito spraying program from the New York State
Department of Environmental Conservation ("DEC").
In support of the motion, defendant submitted the permit for the Town's
mosquito spraying program issued by the DEC. The permit authorizes an
annual application of pesticides to control "nuisance and vector
mosquitoes" in certain New York State regulated wetlands. The pesticides
include methoprene, resmethrin, permethrin and malathion. See Affidavit
of Phillip A. Thielman, filed August 8, 2000 (Docket #10), at Exhibit A.
Additionally, the Town submitted a letter from the Army Corps of
Engineers in which Philip D. Frapwell, Chief of Monitoring and
Enforcement, stated that the Corps, which regulates the discharge of
dredged or fill material into the waters of the United States, including
wetlands, does not consider the application of pesticides a discharge of
dredged or fill material and thus does not require a permit from the
Corps. Thielman Affidavit, Exhibit B. The Town also submitted
correspondence between it and the Environmental Protection Agency ("EPA")
in which Kathleen C. Callahan, Regional Director of Environmental
Planning and Protection, stated that the EPA has "no specific policy
under the NPDES program on the spraying of pesticides to control
mosquitos where the pesticide is discharged directly to waters of the
United States." Thielman Affidavit, Exhibit D. Additionally, Ms. Callahan
stated that the EPA Region 2 "has not issued NPDES permits for such
activities in the past, nor has Region
2 sought to compel New York to do so." Thielman Affidavit, Exhibit D.
Finally, Ms. Callahan stated that the EPA "defer[s] to the State to make
the determination of whether a permit should be required for such
activities." Additionally, Deputy Town Attorney E. Thomas Jones averred
that he spoke with Regional Water Engineer Richard Swiniuch of the DEC
regarding the permit requirements for the Town of Amherst mosquito
spraying program. Mr. Swiniuch stated that the DEC has never issued a
separate permit under the NPDES, and that any such permit would be
unnecessary and duplicative of the permit already issued to the Town of
Amherst by the DEC. Affidavit of E. Thomas Jones, filed August 8, 2000
(Docket #9).
The plaintiffs filed their response to the Motion on September 8, 2000
(Docket ## 13, 14). In their Memorandum of Law, plaintiffs contend that
the defendant's annual mosquito control program, by which it administers
insecticides on federally controlled wetlands, is in violation of the
Clean Water Act. They insist that defendant does not have the proper
permit for this activity under NPDES/SPDES. Finally, plaintiffs contend
that summary judgment should not be granted as discovery is ongoing.
Oral argument was heard on September 14, 2000. At that time, the court
allowed additional submissions. On September 29, 2000, the defendant
filed an additional Attorney's Affidavit and a Memorandum of Law in which
it reiterated its position that the Town of Amherst is not required to
obtain a permit, other than the permit it already possesses from the
DEC, for the administration of its mosquito control program. Affidavit of
Phillip A. Thielman, filed September 29, 2000 (Docket #16). The defendant
also submitted a Declaratory Ruling of the Commissioner of the DEC in a
matter involving the application of pesticides in streams near Cayuga and
Seneca Lakes to control the population of lamprey eels. In Matter of
Booth, Declaratory Ruling 24-07 (N.Y. Dep't of Environmental
Conservation, September 23, 1983), the Commissioner determined that a
SPDES permit was not required for such activity.
On September 29, 2000, the plaintiffs also filed a Supplemental
Memorandum of Law and an Attorney's Affirmation in opposition to the
motion. They continued to argue that a NPDES/SPDES permit is required for
the discharge of pesticides into wetlands. Additionally, they argue that
the motion for summary judgment is not supported by admissible evidence
as the letters and affidavits offered in support of the motion contain
inadmissible hearsay.
For the reasons that follow, the Motion to Dismiss or for Summary
Judgment is GRANTED.