Summary of a Recent
Judicial Development in
Clean Water Act

County's Insecticide Spraying and Maintenance of Mosquito
Grid Ditch System in Compliance with CWA Provisions

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Peconic Baykeeper, Inc. v. Suffolk County, 585 F. Supp. 2d. 377, 2008 WL 4916389 (E.D.N.Y. 2008), the United States District Court for the Eastern District of New York ruled in favor of defendant county and the vector control division of county's public works department. Plaintiffs brought a citizen suit against county alleging it had violated and continued to violate the Clean Water Act by discharging dredged spoils without a permit, discharging pollutants without a permit, and spraying pesticides into waters of the United States without a permit. The court held that the insecticides were not pollutants under the Clean Water Act, the vehicles used to spray insecticide were not point sources, and the county's maintenance of the ditch system was exempt from the Clean Water Act's pollution discharge provisions.

Background

On November 8, 2004, plaintiffs (an environmental group and two individual plaintiffs) filed a complaint against Suffolk County and Vector Control, a division of the county's public works department. Id. at *1. Plaintiffs brought the instant action pursuant to the citizen suit provision of the Clean Water Act (CWA), 33 U.S.C. § 1365(a)(1), alleging three causes of action: (1) the county had discharged and continued to discharge dredged spoils and other material without a CWA § 404 permit; (2) the county had discharged and continued to discharge pollutants from ditches and culverts without a CWA § 402 permit; and (3) the county had sprayed and continued to spray pesticides into waters of the United States without a CWA § 402 permit. Id. Plaintiffs motioned for partial summary judgment. Id. Defendant responded in kind with a cross-motion for summary judgment, seeking dismissal of the complaint. Id. The court discovered multiple material issues of fact on both sides, so the court dismissed both motions for summary judgment. Id.

Arguments

Plaintiffs offered three principle arguments. First, plaintiffs alleged that defendants discharged adulticides (pollutants) from helicopters and trucks (point sources) into Suffolk County water bodies (waters of the United States) without a CWA permit. Id. at *36. Second, plaintiffs alleged that the county used machines and hand tools (point sources) to discharge dredge material into wetlands (discharge of a pollutant) located in the Peconic and South Shore estuary systems (waters of the United States) without a CWA permit. Id. Finally, plaintiffs alleged that defendants discharged fecal coliform bacteria into waters of the United States in violation of the CWA. Id. at *37.

Analysis and Holdings

In addressing plaintiffs' adulticide contention, the court held that defendant was not required by the CWA to obtain a National Pollutant Discharge Elimination System (NPDES) permit. Id. In its reasoning, the court concluded, "pesticides that are applied to water for a beneficial purpose and in compliance with [the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)], and that produce no residue or unintended effects, are not chemical wastes, and thus are not pollutants regulated by the CWA." Id. Additionally, the court held that the trucks and helicopters were used to spray pesticides into the air, and not to add pesticides to the water. Id. at *46. Therefore, the vehicles did not fit within the CWA's definition of a point source. Id.

The court then addressed plaintiffs' dredging contention. Id. at *47. After examining the evidence, the court noted that plaintiffs relied exclusively on the testimony of one expert witness to support their contention. Id. at *48. Defendants refuted the expert's testimony and the court failed to give the testimony credence. Id. The court held that any removal of accumulated silt and foliage in the preexisting ditch system was not prohibited and did not require a permit, 33 U.S.C. § 1344(f)(1). Id. The holding was based upon whether the evidence showed that defendants' efforts were geared toward maintaining the ditch system or improving it. Id. at *50. The court found the facts to show that defendants were maintaining the system, which did not require a CWA § 404 permit. Id.

Finally, plaintiffs conceded that fecal coliform bacteria were a natural component of animal feces, rather than a chemical. Id. In addition, plaintiffs failed to show a point source from which the bacteria was discharged into waters of the United States, or that the presence of the bacteria was "elevated due to the presence of the ditches or the maintenance work in support of the ditch grid network." Id. at *55.

The case was decided on November 17, 2008.