Spraying Case: Limited Help for Agriculture

Mosquito case could have Clean Water Act implications.

Spraying activities are again in the news. On March 30, 2010, the United States Court of Appeals for the Second Circuit sitting in New York issued an opinion involving Peconic Baykeeper, Inc. v. Suffolk County Department of Public Works.

The appeals court was confronted with spraying activities around water by Suffolk County on the eastern end of Long Island, and whether these activities when occurring near or over water violate the Clean Water Act (CWA). This is important for agriculture!

Suffolk County, NY undertakes a number of measures to eliminate mosquito-borne illnesses and uses the pesticides Scourge and Anvil to kill adult mosquitoes in mid-flight. A six day trial was held in U.S. District Court regarding Suffolk County's mosquito control spraying activities. The district court approved the county's spraying activities to kill mosquitoes. This decision was appealed to the appeals court.

The county discovered mosquito-transmitted illnesses in 1993. Since then four people have died in Suffolk County as a result of West Nile Virus. Suffolk County has also experienced children being infected by malaria. County officials feared an outbreak of Eastern Equine Encephalitis, which is rare but has high fatality rates. (DDT took care of these problems in the past until EPA forced it off the market.)

Enter the Plaintiffs, represented by the Pace Environmental Litigation Clinic, Inc. (Waterkeepers and Robert Kennedy Junior's counsel).

They are concerned that the spraying of Scourge and Anvil in aerosol mists using "ultra-low volumes (ULV)" through nozzles attached to trucks and helicopters may get into waters of the state and violate the Clean Water Act while killing mosquitoes.

The Second Circuit appeals court reviewed the U.S. District Court decision and reversed the District Court's judgment that Suffolk County's spraying activities were "uniformly" in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). It also reversed the District Court's determination that the trucks and helicopters were not "point sources" under the CWA. They are.

The Court of Appeals reviewed the lawfulness of Suffolk County's spraying. It also reviewed EPA's regulatory attempts starting in 2003, which tried to provide guidance on FIFRA compliance and CWA permitting regarding spraying pesticides near or over waters of the state or the United States.

EPA's interim statement, which allowed pesticides to be deposited in waters without a CWA permit, were incorporated in 2005 into an EPA Final Rule which again declared that if the application of pesticides is consistent with all of FIFRA's lable requirements, then a CWA permit is not required. This was good for farmers!

Good timing
Timing is very important here. Less than two months after the New York U.S. District Court entered its judgment, the 6th Circuit U.S. Court of Appeals in Cincinnati, Ohio reversed EPA's Final Rule. This case, National Cotton Council v EPA, found that application of pesticides "above" or "near" waterways which leaves "excess" or "residual" pesticides deposited near navigable waters is a chemical waste and therefore regulated by the CWA.

After the ruling in National Cotton Council, EPA requested the 6th Circuit Court not to reverse EPA's Final Rule and the Court stayed its decision until April 9, 2011. (For lawyers reading this, a mandate was not issued.)

The 2nd Circuit Court is very specific in stating that spraying that occurs prior to the expiration of the 6th Circuit's Stay of Mandate is consistent with EPA's Final Rule which stays in effect until April 9, 2011. All the Court is doing here is maintaining the status quo until EPA establishes a new permitting process.  

The 2nd Circuit stated "We express no views on the reasoning of National Cotton Council." Some articles on the Peconic case see this as helpful. I do not. All the 2nd Circuit is saying is EPA's old rule stays in effect until April 9, 2011 -nothing more.  To suggest there is a conflict between the decisions of the 2nd and 6th Circuits does not seem to be obvious.

The 2nd Circuit sent the case back to the U.S. District Court because the record was not clear that all of the spraying activity conducted by Suffolk County was in compliance with the labeling on Anvil and Scourge.

The Scourge label very clearly states "avoid direct application over lakes, ponds and streams." For ultra-low volume mist, the label states the pesticide may be applied to "parks, camp sites, wood lands,…swamps, tidal marshes, residential areas and municipalities…" The District Court found that Suffolk County conformed with the FIFRA labeling and held that the county's spraying "…did not amount to a discharge of a pollutant into navigable waters from a point source, and therefore did not violate the Clean Water Act."

The 2nd Circuit Court of Appeals did not agree with the U.S. District Court. It said that the record indicated "…instances of aerial spraying over creeks." It further said such spraying may have been contrary to the relevant FIFRA labeling of Scourge and Anvil which respectively forbid "direct application over lakes, ponds and streams" or any other area where surface water is present. The Court of Appeals quite correctly said that the District Court did not provide a justification for the finding that Suffolk County fully complied with the Scourge and Anvil label requirements.

When you look at the facts of the Peconic case, it becomes clear that the 2nd Circuit Court of Appeals is adhering to the ruling of the 6th Circuit and allowing EPA's Final Rule to remain in effect until April 9, 2011.  Nothing more, nothing less!

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