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Peconic Baykeeper, Inc. v. Suffolk County

March 30, 2010

PECONIC BAYKEEPER, INC., KEVIN MCALLISTER, ALFRED CHIOFOLO, PLAINTIFFS-APPELLANTS,
v.
SUFFOLK COUNTY, SUFFOLK COUNTY DEPARTMENT OF PUBLIC WORKS, DIVISION OF VECTOR CONTROL, DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Appeal from a judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge) upholding the defendants' mosquito-control activities as lawful under the Clean Water Act, 33 U.S.C. § 1251, et seq. The judgment of the district court is vacated insofar as it held that the defendants' spraying activities were uniformly in compliance with the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136, et seq.; vacated insofar as it held, in the alternative, that the trucks and helicopters used to spray the pesticides were not "point sources" for the purposes of the CWA; and affirmed insofar as it held that the County's dredging activities did not violate the CWA.

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

Argued: December 15, 2009

Before CABRANES, PARKER, Circuit Judges, AND CASTEL, District Judge.*fn1

Defendants Suffolk County and the Suffolk County Department of Public Works, Division of Vector Control (collectively, the "County") employ various measures to combat the spread of mosquito-borne illnesses, including the use of pesticides intended to kill adult mosquitoes in mid-flight. Plaintiffs Peconic Baykeeper, Inc., Kevin McAllister and Alfred Chiofolo contend that the County has violated the Clean Water Act (the "CWA"), 33 U.S.C. § 1251, et seq., in its application of certain pesticides, and, separately, its dredging of mosquito ditches. Plaintiffs, who commenced this action under the CWA's citizen-suit provision, 33 U.S.C. § 1365(a)(1), sought declaratory and injunctive relief, as well as civil penalties to be paid to the United States Treasury. Following a six-day bench trial, the district court found that the disputed mosquito-control activities were lawful under the CWA. Judgment was entered for the defendants, and plaintiffs now appeal.

For the reasons stated below, we affirm in part on an alternate ground not reached by the district court, vacate the judgment in part, and remand to the district court for further proceedings consistent with this opinion. Background

We begin by surveying the origins of the County's mosquito-control efforts. In 1993, the County found a presence of mosquito-borne disease for the first time in 75 years. There have since been approximately thirty reported cases of mosquito-transmitted illness in the County, four of which resulted in death. West Nile Virus is the County's most common mosquito-borne illness, but there have been instances of malaria transmittal, including the infection of two children in 1999. Officials also feared an outbreak of Eastern Equine Encephalitis, a rare disease with high fatality rates that is known to be carried by mosquitoes in the northeastern United States. The rise in mosquito-borne illnesses prompted the New York State Commissioner of Health to declare a public health threat in Suffolk County in 1994, 1996 and 1999-2006.

Mosquitoes generally breed in stagnant waters, such as marsh areas. The County has employed different tactics to curb the mosquito population. It has used numerous pesticides, including two marketed under the brand names Scourge and Anvil. The County sprayed Scourge and Anvil in ultra-low volume ("ULV") aerosol mists through apparatuses attached to trucks and helicopters. When sprayed in ULV form, Scourge and Anvil create a "fog cloud" that envelops and kills mosquitoes.

The labels for Scourge and Anvil were approved by the Environmental Protection Agency (the "EPA") pursuant to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136, et seq., which is the statutory regime governing the labeling and use of pesticides. Under the heading "Environmental Hazards," Scourge's label states in part:

This pesticide is highly toxic to fish. For terrestrial uses, do not apply directly to water, to areas where surface water is present or to intertidal areas below the mean high water mark. Drift and runoff from treated sites may be hazardous to fish in adjacent waters. Consult your State's Fish and Wildlife Agency before treating such waters.

As to ULV applications, the Scourge label states: "Spray parks, campsites, woodlands, athletic fields, golf courses, swamps, tidal marshes, residential areas and municipalities around the outside of apartment buildings, restaurants, stores and warehouses. Do not spray on cropland, feed or foodstuffs. Avoid direct application over lakes, ponds and streams." As understood by the County, the phrase "[a]void direct application over" when used in reference to ponds and streams requires the County to turn off ULV jets when aircraft fly above bodies of fresh water. The Anvil label contains similar restrictions against applications "directly to water, or to areas where surface water is present or to intertidal areas below the mean high water mark," and also allows spraying in, among other areas, "swamps" and "marshes."

In carrying out its mosquito-control measures, the County is under the oversight of the New York State Department of Environmental Conservation (the "DEC"), an agency with EPA-delegated authority to enforce the CWA in the state. N.Y. Envir. Conserv. L. § 17-0801 (authorizing New York State to issue CWA permits); 33 U.S.C. § 1342(b) (authorizing approved states to issue CWA permits). As part of its CWA enforcement powers, the DEC issues State Pollutant Discharge Elimination System ("SPDES") permits. N.Y. Envir. Conserv. L. § 17-0701. In authorizing the discharge of a pollutant, an SPDES permit is equivalent to a National Pollutant Discharge Elimination System ("NPDES") permit issued by the EPA pursuant to the CWA. See 33 U.S.C. §§ 1311(a), 1342(b).

The DEC reviewed and approved maps delineating the area to be sprayed by the County. The DEC also gave the County guidance as to whether it was required to receive an SPDES permit prior to spraying, or whether the pesticide application was exempt from the CWA's permitting requirement. The DEC advised the County that so long as its spraying complied with the FIFRA label, the CWA did not require issuance of an SPDES permit prior to the application of pesticides. The DEC reached this conclusion as early as 2001, and directed the County accordingly. The EPA later codified the principle that an application of pesticides consistent with FIFRA labeling did not constitute the discharge of a pollutant, and therefore did not violate the CWA, first through an Interim Statement, 68 Fed. Reg. 48,385 (Aug. 13, 2003), and then in a Final Rule, 40 C.F.R. § 122.3(h).

The district court found that the County's application of Scourge and Anvil fully conformed with the FIFRA labeling. It held that FIFRA-compliant spraying activity did not amount to the discharge of a pollutant into navigable waters from a point source, and therefore did not violate the CWA. See 33 U.S.C. ยงยง 1311(a), 1362(12). The district court also held that the spraying activity was consistent with the CWA because the application of pesticides via spray jets ...


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