Second Circuit Panel Reviews Legality of Suffolk County Mosquito Control Activities

The 2nd Circuit Court of Appeals in Peconic Baykeeper Inc. v. Suffolk County, __F.3d __, 2010 WL 1192325 (C.A.2, N.Y.) recently ruled on the legality of Suffolk County’s mosquito control activities. The case involved a challenge, brought under the Clean Water Act (CWA) by Peconic Baykeeper, Inc., to various efforts conducted by Suffolk County (Suffolk) to curb the mosquito population, including airborne spraying of two pesticides and the dredging of a network of mosquito ditches which drain marshland surface waters reducing the mosquito the breeding grounds. After a careful examination of the facts and application of federal rules governing these activities, the 2nd Circuit vacated portions of the Eastern District of New York District Court’s ruling on Suffolk’s spraying activities but affirmed the lower court’s approval of Suffolk’s dredging maintenance activities.

The two pesticides used by Suffolk are known as Scourge and Anvil. The labels for these pesticides, which specify the methods and limitations of their application, were approved by the Environmental Protection Agency (EPA) pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (known as FIFRA). Suffolk’s pesticide spraying is overseen by the Department of Environmental Conservation (DEC), acting under EPA-delegated authority to enforce the CWA. Any discharge of a pollutant from a point source into navigable water is prohibited by the CWA unless authorized by a pollutant discharge permit (a federal NPDES permit or a New York SPDES permit). In 2001, the DEC advised Suffolk that it did not need a SPDES permit for its Anvil and Scourge applications so long as it fully complied with the FIFRA labels. In a 2003 Interim Statement and 2005 Final Rule, EPA codified this approach, stating that any application consistent with the FIFRA labeling was not a discharge of a pollutant in violation of the CWA.

After a 6 day bench trial, the District Court found that Suffolk’s pesticide application fully conformed with the FIFRA labeling and, therefore, was not in violation of the CWA. As an alternative basis for upholding Suffolk’s spraying activities, the District Court ruled that Suffolk’s spray applicator jets, attached to trucks and helicopters, were not point source discharges requiring a SPDES permit. As to Suffolk’s mosquito ditch dredging activities, which Peconic Baykeeper had argued resulted in dredged matter being discharged into navigable waters and created new ditches in contravention of the CWA’s “recapture” provisions, the District Court concluded that these ditch maintenance activities did not violate the CWA.

The 2nd Circuit’s analysis of the District Court’s decision included the review of both FIFRA and the CWA, as they relate to Suffolk’s mosquito control airborne spraying activities. The Court examined the EPA’s regulatory authority over both the FIFRA labeling process and the implementation of the CWA. This included a review of the 2003 Interim Statement wherein the EPA declared that the “label-compliant” application of pesticides did not require a pollutant discharge permit. EPA’s 2005 Final Rule formally adopted this interim approach. The Court noted, however, that the Final Rule was challenged in action before the 6th Circuit Court of Appeals. Initially vacated by the 6th Circuit, this mandate was stayed, upon a motion by EPA, until April 9, 2011. Given this stay and EPA’s agreement to address concerns over the rule, the 2nd Circuit found that the application of pesticides consistent with the 2005 Final Rule was still lawful.

Nonetheless, the 2nd Circuit was dissatisfied with the District Court’s evaluation of the evidence at trial and found that it failed to adequately explain why Suffolk’s spraying was actually in compliance with the FIFRA labels. Thus, it vacated that part of the District Court’s judgment relating to the FIFRA-compliant spraying and remanded the matter back for additional fact finding. The 2nd Circuit also strongly disagreed with the District Court’s view that the spray applicators used by Suffolk were not “point sources” subject to CWA control. Examining the CWA’s definition of a point source and interpreting the statutory definition broadly, the 2nd Circuit found that the spray applicators were indeed a point source and, thus, reversed the lower court’s ruling with respect to this issue.

Finally, the 2nd Circuit reviewed the legality of Suffolk’s ditch dredging activities.  First, it found that the District Court appropriately determined that Suffolk’s ditch maintenance activities were exempt from the CWA’s permit requirements. Moreover, the 2nd Circuit ruled that the record below supported the District Court’s finding that the activities did not create new mosquito ditches and, thus, did not fall within the CWA’s recapture provisions. Accordingly, the Court affirmed that portion of the judgment, finding that Suffolk’s dredging activities did not violate the CWA.