Peconic Baykeeper views ruling as victory

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A decision two weeks ago by a federal appeals court is seen by the Peconic Baykeeper organization as a victory that strengthens its lawsuit against Suffolk County, charging that it violated the Clean Water Act in its anti-mosquito or vector control program. The lawsuit was dismissed by a federal judge and the organization is appealing the decision.

U.S. District Court Judge Arthur Spatt in a decision on November 17 ruled that discharges of pesticides designed to kill adult mosquitoes—thus called adulticides—into surface water did not violate the federal law. “Any discharge of adulticides into the waters of the United States by [the Suffolk County Division of] Vector Control trucks, airplanes or helicopter is not a violation of the Clean Water Act,” the judge found.

But on January 7, the U.S. Court of Appeals for the Sixth Circuit ruled in another case, in which the Peconic Baykeeper was a party, that all applications of pesticides to, over and around waterways need to comply with the National Pollutant Discharge Elimination System, as specified in the Clean Water Act. To receive a permit under the system, a governmental agency or private entity must apply to regulatory agencies that will determine the impacts on fish and wildlife and monitor how much pesticide is discharged and its cumulative impacts.

“We’re thrilled by the court’s decision—particularly in providing clarity on the aerial applications of pesticides over estuarine waters for mosquito control,” said Peconic Baykeeper Kevin McAllister last week. “It’s well recognized that many pesticides can pose a significant threat to aquatic life. Ensuring that the required discharge permits have been obtained provides for greater protection of our water resources.”

Matthew Atkinson, general counsel for the Quogue-based Peconic Baykeeper, said that “this is one of a number of recent decisions that have struck EPA rules that relax protections necessary for human and environmental health. While a robust regulatory structure may impose some burdens, the court’s ruling … takes the discretion to apply poisons to our waters out of the hands of pesticide applicators and into the hands of professionals with public oversight.”

The case on which the Court of Appeals ruled involved a challenge to an EPA rule that exempted certain pesticide applications from the permit requirements of the Clean Water Act. The Court of Appeals for the Sixth Circuit covers Kentucky, Michigan, Ohio and Tennessee.

Plaintiffs, in addition to the Peconic Baykeeper, were the National Center for Conservation Science and Policy; Saint John’s Organic Farm; Oregon Wild; Californians for Alternatives to Toxics; California Sportfishing Protection Alliance; Waterkeeper Alliance; Environment Maine; Toxics Action Center; and Soundkeeper. They were represented by the Western Environmental Law Center; National Environmental Law Center; Pace Environmental Litigation Clinic; Columbia Environmental Law Clinic; and Waterkeeper Alliance.

In the local case, Judge Spatt ruled that Suffolk County complied with the law by getting permits from the Army Corps of Engineers to spray pesticides to kill mosquitoes and “no additional permits” were required.

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