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June 7, 2005.

NO SPRAY COALITION, INC., et al., Plaintiffs,
THE CITY OF NEW YORK, et al., Defendants.

The opinion of the court was delivered by: GEORGE DANIELS, District Judge


Plaintiffs bring suit under Section 505(a)(1) of the Clean Water Act, 33 U.S.C. § 1365(a)(1) alleging that defendants violated the Act by discharging pollutants into the waters in and around New York City without a permit. Defendants moved for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiffs cross-moved for summary judgment. For the reasons stated below, both defendants' and plaintiffs' motions for summary judgment are denied.


  West Nile Virus ("West Nile") is a mosquito borne virus that can cause serious illness and death. In the late 1990s, several residents of Queens, New York contracted West Nile and fell ill. Shortly thereafter, cases involving West Nile appeared in each borough, causing New York City (the "City") to initiate emergency activities. Specifically, the City, in coordination with the New York State Department of Health ("DOH"), the New York State Department of Environmental Conservation ("DEC"), the United States Environmental Protection Agency ("EPA") and the Federal Center for Disease Control and Prevention ("CDC"), responded to the outbreak by instituting a spraying program to combat the spread of the mosquitoes that carried the virus. The pesticides were sprayed by helicopter and truck throughout parts of the five boroughs. West Nile has reappeared each summer since 1999, and each year the City renews its program to combat the mosquitoes.

  Plaintiffs, a collection of non-profit organizations and individuals opposed to the City's spraying program, brought suit seeking to enjoin the City from conducting its program. In No Spray Coalition v. The City of New York, 2000 WL 1401458 (S.D.N.Y. Sept. 25, 2000), the District Court denied plaintiffs' request for a preliminary injunction and dismissed plaintiff's claims under the Resource Conservation and Recovery Act ("RCRA") and the State and City Environmental Quality Review Acts ("EQRA"). The court did not rule on plaintiff's claims under the Clean Water Acts ("CWA" or "the Act"), opting to "leave for another day the question of whether the spraying of insecticides directly over the rivers, bays, sound and ocean surrounding New York City as part of a prevention program would violate the Clean Water Act." Id. at *4. The Second Circuit affirmed the District Court's dismissal of plaintiff's RCRA and EQRA claims. See No Spray Coalition v. The City of New York, 252 F.3d 148 (2d Cir. 2001). The District Court permitted discovery to proceed on plaintiffs' claims that the City directly applied the insecticides to protected waters in violation of the CWA.*fn1

  Plaintiffs thereafter moved for summary judgment, seeking a declaration that defendants violated Section 301(a) of the CWA by discharging pollutants from helicopters and trucks into the navigable waters of the United States without either a National Pollution Discharge Elimination System ("NPDES") permit or a State Pollution Discharge Elimination System ("SPDES") permit. Defendants cross-moved for summary judgment. The District Court denied plaintiffs' motion and granted defendants' motion, finding that the CWA did not entitle plaintiffs to enforce its provisions by citizen suit. The Court interpreted the Federal Insecticide, Fungicide, and Rodenticide Act's ("FIFRA") non-allowance of enforcement by citizen suit to take precedence over CWA's allowance of enforcement by citizen suit. See No Spray Coalition v. The City of New York, 2002 WL 31682387 (S.D.N.Y. Nov. 26, 2002).

  The Second Circuit vacated the district court's opinion and judgment. It ruled that a citizen enforcement suit under the CWA, based on chemicals regulated by FIFRA, could proceed even if the pesticide application alleged to violate the CWA did not also constitute a substantial violation of FIFRA. See No Spray Coalition v. The City of New York, 351 F.3d 602, 604 (2d Cir. 2003). The Second Circuit held that the "CWA authorizes any citizen to bring suit to enforce its requirements, regardless of whether the alleged violation of CWA also constitutes a substantial violation of FIFRA." It remanded the case for further proceedings. The parties now seek to renew their motions for summary judgment.

  The parties disagree on two principle issues. Primarily, they disagree as to whether the type of conduct allegedly performed by defendant could constitute a violation of the Clean Water Act. Second, if the acts alleged can constitute a violation of the CWA, the parties dispute whether sufficient evidence has been offered to find, as a matter of law, that defendants in fact did or did not violate the CWA by conducting its spraying program without an NPDES permit.

  Plaintiffs argue that defendants' actions are covered by the CWA and that defendants' failure to obtain a permit to spray over water is a violation of the Act. They present evidence that defendants sprayed insecticides directly over lakes, streams, ponds and marshes. That evidence includes: testimony that on one occasion in 1999 and one occasion in 2000, a helicopter spraying over City Island continued to spray over a marina; testimony that a helicopter spraying over Mount Loretto, Staten Island did not turn off its sprayer as it went over the Loretto pond and wetlands; testimony from an employee of one of the contractors used for ground spraying that the spray trucks were tested by turning on the sprayers in the company's lot which was adjacent to the Bronx River, and that he had observed the spray mist from his truck spreading out over various waters as a result of his spraying over land near those waters; spray maps used by the city to designate areas to be sprayed which indicate that spraying was to occur over protected water; interrogatory responses of the New York Police Department that plaintiffs claim confirmed when sprayers were turned off and "establish that helicopters made passes over the designated spray areas with pesticide sprayers turned on"; and evidence of pesticides found in dead fish in Clove Lake in Staten Island. Plaintiffs seek a finding that defendants violated the Act based on the legal argument that a permit was required, and the proffered evidence that defendants sprayed pesticides directly over the water. Defendants dispute much of this evidence.

  It is undisputed that defendants had neither a NPDES nor SPDES permit to spray pesticides directly over the water.*fn2 They argue, however, that the City's spraying program does not constitute the discharge of a pollutant into navigable waters and, therefore, such a permit under the CWA is not required. Moreover, they challenge the sufficiency of plaintiffs' evidence, maintaining that the City adhered to strict guidelines protecting against the direct application of the insecticides to water. Specifically, defendants point to guidelines that established 300 feet setbacks from water for aerial spraying, 150 feet setbacks from tidal water, and 100 feet setbacks from fresh water for ground spraying.


  The Clean Water Act is a regulatory statute designed to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). "At the time of its passage, Congress hoped to eliminate the discharge of all pollutants into navigable waters by 1985." Hudson River Fishermen's Assoc. v. City of New York, 751 F.Supp. 1088, 1100 (S.D.N.Y. 1990) (citing 33 U.S.C. § 1251(a)(1)). "Although the [CWA] contains the lofty goal of eliminating water pollutant discharges altogether, the regulatory regime it creates requires principally that discharges be regulated by permit, not prohibited outright." Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 486 (2d Cir. 2001). The CWA further establishes a permitting program, the NPDES, which provides for the issuance of permits that allow the holder to discharge pollutants at levels below threshold levels incorporated in the permit. See 33 U.S.C. §§ 1311(a), 1342(a); see also Catskill Mountains, 273 F.3d at 486. State permit programs commonly known as SPDES programs, are required to be at least as restrictive as the EPA's emissions standards. See 33 U.S.C. § 1342; see also Hudson River Fishermen's Assoc., 751 F.Supp. at 1100. In New York, the NPDES program is administered by the New York State Department of Conservation ("NYSDEC"). New York's permit program received the approval of the Administrator of the Environmental Protection Agency in 1973. See id.

  The CWA defines "discharge of a pollutant" to include "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). Plaintiffs allege that the spraying is a discharge; the trucks and helicopters from which the pesticides are sprayed are point sources; and the pesticides are pollutants that are discharged into waters of the United States. See No Spray Coalition, Inc., 2000 WL 1401458, *2. Defendants claim that, as a matter of law, the spraying technique they incorporated allowed for atmospheric emissions and not discharges; the helicopters and trucks used to spray the insecticides are not point sources ...

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