Summary of a Recent
Judicial Development in
Clean Water Act

Aerial Pesticide Spraying Activity
a Point Source

John D. Mead
National Ag Law Center Graduate Assistant

In an action brought by several environmental groups against the United States Forest Service ("Forest Service") alleging that the Forest Service violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 - 4370f, and the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 - 1387, when it conducted an aerial pesticide spraying program in forest lands located in Washington and Oregon, the United States Court of Appeals for the Ninth Circuit has ruled that the spraying program was a "point source" source of pollution that required the Forest Service to obtain a National Pollution Discharge Elimination System ("NPDES") permit before conducting the spraying program. League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181, 1183-90 (9th Cir. 2002). In addition, the Ninth Circuit enjoined the Forest Service from continuing the spraying program until it completed an Environmental Impact Statement ("EIS") that adequately analyzed mitigation measures regarding potential pesticide drift. Id. at 1191-93.

The League of Wilderness Defenders and seven other environmental groups ("environmental groups") brought an action against Harv Forsgren ("Forsgren") and the Forest Service to challenge the aerial insecticide spraying of over 628,000 acres of forest lands in Washington and Oregon. See id. at 1182. The spraying program was aimed at controlling a predicted outbreak of the Douglas Fir Tussock Moth, a moth that can kill Douglas Fir trees. See id.

The CWA requires government agencies to "obtain an NPDES permit before discharging pollutants from any ‘point source' into navigable waters of the United States." Id. at 1183 (citing 33 U.S.C. § 1323(a)). Point source pollution is differentiated from "‘nonpoint source pollution,' which is regulated in a different way and does not require the type of permit at issue in this litigation." Id. Although nonpoint source pollution is not defined under the CWA, "it is widely understood to be the type of pollution that arises from many dispersed activities over large areas, and is not traceable to any single discrete source." Id. at 1184. The CWA defines "point source" pollution as "‘any discernable, confined and discrete conveyance, including but not limited to any pipe ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft from which pollutants are or may be discharged.'" Id. (quoting 33 U.S.C. § 1362(14)).

The NEPA "requires the preparation of a detailed EIS for all ‘major Federal activities significantly affecting the quality of the human environment.'" Id. at 1191 (quoting 42 U.S.C. § 4332(2)). Federal agencies, such as the Forest Service, that prepare an EIS must "adequately consider a project's potential impacts and the consideration given must amount to a ‘hard look' at the environmental effects." Id. (citation omitted).

The environmental groups argued that the EIS "prepared by the Forest Service was inadequate and that the Forest Service failed to obtain a National Pollution Discharge Elimination System permit," which it claimed was necessary for this type of aerial spraying. Id. at 1183. The district court granted summary judgment in favor of Forsgren and the Forest Service. See id. The environmental groups appealed the district court's decision to the Ninth Circuit. See id. at 1182-1183.

The Ninth Circuit first examined whether the Forest Service was required to obtain an NPDES permit before conducting the aerial spraying. See id. It explained that

[t]he issue before us is whether spraying insecticide from aircraft (as the Forest Service is doing without a permit) is point source pollution or nonpoint source pollution. If the spraying is classified as point source pollution, then the Forest Service must obtain a permit. If the spraying is classified as nonpoint source pollution, then no permit is required.

Id. at 1184.

The environmental groups argued that the Forest Service was required under the CWA to obtain an NPDES permit before it could conduct this type of aerial spraying because the aerial spraying constituted "point source" pollution that was being discharged into navigable waters of the United States. See id. at 1182. The Forest Service argued that the discharge of the insecticide was a "nonpoint source" pollutant and was therefore exempted from the NPDES permit requirement. See id.

The Ninth Circuit rejected the Forest Service's argument, stating that the insecticides at issue are "pollutants" under the CWA, "and Forest Service aircraft spray these insecticides directly into rivers, which are waters covered by the Clean Water Act." Id. It added that "an airplane fitted with tanks and mechanical spraying apparatus is a ‘discrete conveyance.'" Id. Thus, the court determined that because "all of the elements of the definition of point source pollution" were satisfied, the Forest Service was required to obtain an NPDES permit to conduct its aerial spraying operation. Id. at 1185.

The Forest Service also argued that the aerial spraying was a silvicultural pest control activity and that 40 C.F.R. § 122.27 "excludes pollution arising from silvicultural pest control activities from NPDES permit requirements by defining such pollution as nonpoint source." Id. Silviculture is defined as the "care and cultivation of forest trees." Id. n.3. "Silvicultural point source" is defined as

any discernable, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities, which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.

Id. (quoting 40 C.F.R. § 122.27).

       The court rejected this argument as well, noting that the CWA's definition of point source is "clear and unambiguous." Id. The court stated that the definition of point source "clearly encompasses an aircraft equipped with tanks spraying pesticide from mechanical sprayers directly over covered waters." Id. (citing Chevron, U.S.A. v. Natural Resources Defense Council, 567 U.S.837, 842-43 (1984) (stating that "‘[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.'")).

The court also stated that 40 C.F.R. § 122.27 "excludes from the definition of point source only those silvicultural pest control activities from which there is natural runoff, rather than all silvicultural pest control activities." Id. (emphasis supplied). The court explained that it viewed the phrase "‘from which there is natural runoff,'" to modify the silvicultural activities excluded from the definition of "silvicultural point source" listed in § 122.27. Id. It also explained that "[t]herefore, silvicultural pest control from which there is natural runoff would be an example of a ‘nonpoint source silvicultural' activity not included in the term ‘point source.'" Id. (emphasis supplied). The court concluded that "[s]imply put, the regulation excludes nonpoint source silvicultural activities from NPDES permit requirements, whereas the spraying involved here is not a nonpoint source activity at all." Id.

The Forest Service also argued that it was not required to obtain an NPDES permit because "two one-paragraph letters written by the EPA (in response to Forest Service requests) and a brief passage in an EPA guidance document . . . [indicated] that no NPDES permit was required for this aerial spraying project." Id. at 1188-1189. The Ninth Circuit rejected this argument. See id.

The court explained that "[t]he weight accorded documents of this type when advanced for the purpose of statutory interpretation ‘will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'" Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). It also explained that in Christensen v. Harris County, 529 U.S. 576 (2000), the Supreme Court stated that "‘interpretations contained in formats such as opinion letters are ‘entitled to respect' under our decision [in Skidmore], but only to the extent those interpretations have the ‘power to persuade.''" Id. (quoting Christensen, 529 U.S. at 587).

The court disregarded the two one-paragraph letters, stating that "[t]hey provide no analysis and do not even mention the regulation that the Forest Service relies on." Id. at 1189. The court also disregarded the EPA guidance document because that document, "dated March 29, 2002, is not a guidance document for silvicultural activities. Rather its subject line states that it concerns an exemption from the Clean Water Act for ‘Return Flows from Irrigated Agriculture.'" Id. The court stated that "[u]nlike the balance of the document, which carefully analyzes the statutory exemption for agricultural return flows . . . there is no analysis of the purported exclusion for silvicultural pest control. Indeed, the guidance document provides a good example of persuasive analysis under the Skidmore test with respect to agricultural return flows." Id. The court added that "[t]he fact that such analysis is entirely lacking with respect to silvicultural pest control activities is glaring in its omission." Id. Thus, the court determined that the two EPA letters and the EPA guidance document were not persuasive. See id.

The court also rejected the Forest Service's argument that "the EPA has authority to ‘refine' the definitions of point source and nonpoint source pollution in a way that contravenes the clear intent of Congress as expressed in the statute." Id. at 1190. The court explained that the EPA did have "some power to define point source and nonpoint source pollution where there is room for reasonable interpretation of a statutory definition." Id. (emphasis supplied). The court concluded that "the EPA may not exempt from NPDES permit requirements that which clearly meets the statutory definition of a point source by ‘defining' it as a non-point source . . . . We hold that the aerial spraying at issue here is a point source and that the Forest Service must obtain an NPDES permit before it resumes spraying." Id.

Next, the Ninth Circuit examined whether the EIS that was prepared by the Forest Service satisfied the requirements of the NEPA. See id. at 1191. The environmental groups argued that although the EIS prepared by the Forest Service adequately identified and analyzed the potential impacts for the area targeted for spraying, "the Forest Service failed to consider the impacts of the inevitable drift of pesticide into areas outside the target spray area." Id.

The EIS adopted mitigation measures that were intended to prevent harm to moths and butterflies in wilderness areas next to the target spray area. See id. These measures included "providing a one-mile buffer zone adjacent to wilderness areas, where no spraying will occur, and use of only the less hazardous type of pesticide where there is a chance it might drift into wilderness areas." Id. However, the EIS did not address these mitigation measures with respect to pesticide drift into adjacent areas that are not designated wilderness areas. See id. The environmental groups asserted that the application of a one-mile buffer zone "adjacent to wilderness areas proves that it is needed to prevent drift; the fact that it is not considered or adopted for non-wilderness areas shows that drift into these areas simply was not considered." Id.

The Forest Service asserted that its EIS analysis concerning the impact of spraying inside the target area was sufficient to comply with the NEPA. See id. It relied on language contained in the project guidelines that provided that "if wind will cause drift into non-target areas, spraying will be stopped or operations moved to areas with more favorable conditions . . . [and] [s]praying will be suspended when weather conditions could cause drift into no-spray areas." Id. at 1191-92.

The court noted, however, that the Washington Department of Fish and Wildlife raised concerns about the failure of the EIS to consider the effects of pesticide drift on non-target species. See id. at 1192. Further, the EIS recommended that spraying activities be stopped when wind speeds reached eight miles per hour, whereas the Department of Agriculture recommended that spray activities cease when wind speeds reached five miles per hour. See id.

The court determined that the Forest Service's EIS documentation did not amount to a "reasonably complete discussion of possible mitigation measures," because there did not appear to be any consideration as to how far pesticide might drift or in what direction it might drift. Id. The court stated that there was no analysis or rationale provided by the Forest Service to support the higher wind speed of eight miles per hour in the EIS as opposed to the Department of Agriculture's recommendation of five miles per hour. See id. The court concluded that the EIS failed to adequately analyze the issue of pesticide drift, stating that the EIS "simply [did not] measure up to the requirements in this Circuit for a ‘hard look'" and did not discuss the "mitigation measures in significant detail to ensure that environmental consequences have been fairly evaluated. We therefore hold that the EIS did not adequately analyze the issue of pesticide drift." Id. at 1192.

The court reversed and remanded the matter to the district court with instructions to enjoin further spraying until the Forest Service obtained the requisite NPDES permit and adequately analyzed the issue of pesticide drift in a supplement to the EIS. See id.

The case was decided on November 4, 2002; this summary was posted March 2003