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March 13, 2001


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.


1. Motion to ...

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