District Court Rules Citizen Suit against Mosquito Spraying can continue
under Clean Water Act to resolve factual issues - No Spray Coalition, Inc.
v. City of New York,
2005 WL 1354041 (S.D.N.Y. 2005) - Round III
Round I, Round II
| [1] | United States District Court, S.D. New York
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| [2] | 00Civ.5395(GBD).
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| [3] | 2005.SNY.0000609<http://www.versuslaw.com>
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| [4] | June 7, 2005.
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| [5] | NO SPRAY COALITION, INC., et al., Plaintiffs,
v.
THE CITY OF NEW YORK, et al., Defendants.
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| [6] | The opinion of the court was delivered by: GEORGE DANIELS, District Judge
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| [7] | MEMORANDUM OPINION & ORDER
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| [8] | Plaintiffs bring suit under Section 505(a)(1) of the Clean
Water Act, 33 U.S.C. § 1365(a)(1) alleging that defendants
violated the Act by discharging pollutants into the waters in and
around New York City without a permit. Defendants moved for
summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiffs
cross-moved for summary judgment. For the reasons stated below, both
defendants' and plaintiffs' motions for summary judgment are denied.
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| [9] | INTRODUCTION
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| [10] | West Nile Virus ("West Nile") is a mosquito borne virus that
can cause serious illness and death. In the late 1990s, several
residents of Queens, New York contracted West Nile and fell ill.
Shortly thereafter, cases involving West Nile appeared in each
borough, causing New York City (the "City") to initiate emergency
activities. Specifically, the City, in coordination with the New
York State Department of Health ("DOH"), the New York State
Department of Environmental Conservation ("DEC"), the United
States Environmental Protection Agency ("EPA") and the Federal
Center for Disease Control and Prevention ("CDC"), responded to
the outbreak by instituting a spraying program to combat the
spread of the mosquitoes that carried the virus. The pesticides
were sprayed by helicopter and truck throughout parts of the five boroughs. West Nile has reappeared each summer since 1999, and
each year the City renews its program to combat the mosquitoes.
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| [11] | Plaintiffs, a collection of non-profit organizations and
individuals opposed to the City's spraying program, brought suit
seeking to enjoin the City from conducting its program. In No
Spray Coalition v. The City of New York, 2000 WL 1401458
(S.D.N.Y. Sept. 25, 2000), the District Court denied plaintiffs'
request for a preliminary injunction and dismissed plaintiff's
claims under the Resource Conservation and Recovery Act ("RCRA")
and the State and City Environmental Quality Review Acts
("EQRA"). The court did not rule on plaintiff's claims under the
Clean Water Acts ("CWA" or "the Act"), opting to "leave for
another day the question of whether the spraying of insecticides
directly over the rivers, bays, sound and ocean surrounding New
York City as part of a prevention program would violate the Clean
Water Act." Id. at *4. The Second Circuit affirmed the District
Court's dismissal of plaintiff's RCRA and EQRA claims. See No
Spray Coalition v. The City of New York, 252 F.3d 148 (2d Cir.
2001). The District Court permitted discovery to proceed on
plaintiffs' claims that the City directly applied the
insecticides to protected waters in violation of the CWA.*fn1
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| [12] | Plaintiffs thereafter moved for summary judgment, seeking a
declaration that defendants violated Section 301(a) of the CWA by
discharging pollutants from helicopters and trucks into the
navigable waters of the United States without either a National
Pollution Discharge Elimination System ("NPDES") permit or a
State Pollution Discharge Elimination System ("SPDES") permit. Defendants cross-moved for summary judgment.
The District Court denied plaintiffs' motion and granted
defendants' motion, finding that the CWA did not entitle
plaintiffs to enforce its provisions by citizen suit. The Court
interpreted the Federal Insecticide, Fungicide, and Rodenticide
Act's ("FIFRA") non-allowance of enforcement by citizen suit to
take precedence over CWA's allowance of enforcement by citizen
suit. See No Spray Coalition v. The City of New York, 2002 WL
31682387 (S.D.N.Y. Nov. 26, 2002).
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| [13] | The Second Circuit vacated the district court's opinion and
judgment. It ruled that a citizen enforcement suit under the CWA,
based on chemicals regulated by FIFRA, could proceed even if the
pesticide application alleged to violate the CWA did not also
constitute a substantial violation of FIFRA. See No Spray
Coalition v. The City of New York, 351 F.3d 602, 604 (2d Cir.
2003). The Second Circuit held that the "CWA authorizes any citizen to bring
suit to enforce its requirements, regardless of whether the alleged
violation of CWA also constitutes a substantial violation of FIFRA." It
remanded the case for further proceedings. The parties now seek to renew
their motions for summary judgment.
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| [14] | The parties disagree on two principle issues. Primarily, they
disagree as to whether the type of conduct allegedly performed by
defendant could constitute a violation of the Clean Water Act.
Second, if the acts alleged can constitute a violation of the
CWA, the parties dispute whether sufficient evidence has been
offered to find, as a matter of law, that defendants in fact did
or did not violate the CWA by conducting its spraying program
without an NPDES permit.
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| [15] | Plaintiffs argue that defendants' actions are covered by the
CWA and that defendants' failure to obtain a permit to spray over
water is a violation of the Act. They present evidence that
defendants sprayed insecticides directly over lakes, streams,
ponds and marshes. That evidence includes: testimony that on one occasion in 1999 and one occasion
in 2000, a helicopter spraying over City Island continued to
spray over a marina; testimony that a helicopter spraying over
Mount Loretto, Staten Island did not turn off its sprayer as it
went over the Loretto pond and wetlands; testimony from an
employee of one of the contractors used for ground spraying that
the spray trucks were tested by turning on the sprayers in the
company's lot which was adjacent to the Bronx River, and that he
had observed the spray mist from his truck spreading out over
various waters as a result of his spraying over land near those
waters; spray maps used by the city to designate areas to be
sprayed which indicate that spraying was to occur over protected
water; interrogatory responses of the New York Police Department
that plaintiffs claim confirmed when sprayers were turned off and
"establish that helicopters made passes over the designated spray
areas with pesticide sprayers turned on"; and evidence of
pesticides found in dead fish in Clove Lake in Staten Island.
Plaintiffs seek a finding that defendants violated the Act based
on the legal argument that a permit was required, and the
proffered evidence that defendants sprayed pesticides directly
over the water. Defendants dispute much of this evidence.
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| [16] | It is undisputed that defendants had neither a NPDES nor SPDES
permit to spray pesticides directly over the water.*fn2 They
argue, however, that the City's spraying program does not constitute the discharge of a pollutant into navigable waters and,
therefore, such a permit under the CWA is not required. Moreover, they
challenge the sufficiency of plaintiffs' evidence, maintaining that the City
adhered to strict guidelines protecting against the direct application of
the insecticides to water. Specifically, defendants point to guidelines that
established 300 feet setbacks from water for aerial spraying, 150 feet
setbacks from tidal water, and 100 feet setbacks from fresh water for
ground spraying.
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| [17] | DISCUSSION
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| [18] | The Clean Water Act is a regulatory statute designed to
"restore and maintain the chemical, physical and biological
integrity of the Nation's waters." 33 U.S.C. § 1251(a). "At the
time of its passage, Congress hoped to eliminate the discharge of
all pollutants into navigable waters by 1985." Hudson River
Fishermen's Assoc. v. City of New York, 751 F.Supp. 1088, 1100
(S.D.N.Y. 1990) (citing 33 U.S.C. § 1251(a)(1)). "Although the
[CWA] contains the lofty goal of eliminating water pollutant
discharges altogether, the regulatory regime it creates requires
principally that discharges be regulated by permit, not
prohibited outright." Catskill Mountains Chapter of Trout
Unlimited, Inc. v. City of New York, 273 F.3d 481, 486 (2d Cir.
2001). The CWA further establishes a permitting program, the
NPDES, which provides for the issuance of permits that allow the
holder to discharge pollutants at levels below threshold levels
incorporated in the permit. See 33 U.S.C. §§ 1311(a), 1342(a);
see also Catskill Mountains, 273 F.3d at 486. State permit
programs commonly known as SPDES programs, are required to be at
least as restrictive as the EPA's emissions standards. See
33 U.S.C. § 1342; see also Hudson River Fishermen's Assoc.,
751 F.Supp. at 1100. In New York, the NPDES program is
administered by the New York State Department of Conservation
("NYSDEC"). New York's permit program received the approval of the Administrator of the Environmental
Protection Agency in 1973. See id.
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| [19] | The CWA defines "discharge of a pollutant" to include "any
addition of any pollutant to navigable waters from any point
source." 33 U.S.C. § 1362(12). Plaintiffs allege that the
spraying is a discharge; the trucks and helicopters from which
the pesticides are sprayed are point sources; and the pesticides
are pollutants that are discharged into waters of the United
States. See No Spray Coalition, Inc., 2000 WL 1401458, *2.
Defendants claim that, as a matter of law, the spraying technique
they incorporated allowed for atmospheric emissions and not
discharges; the helicopters and trucks used to spray the
insecticides are not point sources under the CWA; the
insecticides used in the spraying program are not pollutants; and
that they did not discharge pesticides over or into waters of the
United States.
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| [20] | A. Discharges vs. Atmospheric Emissions
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| [21] | Defendants argue that "atmospheric emissions of pesticides do
not constitute discharges." Defendants' Memorandum of Law in
Support of Their Motion for Summary Judgment ("Defendant's
Brief") at 2. They contend that the Ultra Low Volume ("ULV")
method of application they incorporated released pesticide into
"the atmosphere as a mist of fine particles, which remain
suspended for several minutes and drift through the air and come
into contact with mosquitoes." Defendants' Statement of Material
Facts pursuant to Rule 56.1 of the Local Rules ("Defendants'
Facts"). Furthermore, they argue that the residual particles of
pesticide that may have reached the water were minute and
therefore, do not constitute a discharge of a pollutant under the
CWA.
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| [22] | Under the CWA, a "discharge of a pollutant" includes "any
addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12).
Thus, in order to determine whether a pollutant was discharged,
there must have been "an addition" of a pollutant. Although the
statute has not defined "addition," the Second Circuit, in
Catskill Mountains, 273 F.3d at 491, adopted the position
proffered by the EPA in National Wildlife Federation v.
Gorsuch, 693 F.2d 156 (D.C. Cir. 1982) that for there to be an
"addition," a "point source must introduce the pollutant into
navigable water from the outside world." Catskill Mountains,
273 F.3d at 491 (citing Gorsuch, 693 F.2d at 165). The Second
Circuit added one caveat, agreeing with the D.C. Circuit's view,
which "provided that [the term] outside world is construed as any
place outside the particular water body to which pollutants are
introduced." Id.
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| [23] | The spraying of pesticides into navigable waters can constitute
"an addition" under the CWA. The definition of an addition is
simple and plain. An addition is "the action or process of adding
something to something else." The New Oxford American
Dictionary, 18 (Elizabeth J. Jewell & Frank Abate eds., 2001).
The amount that is discharged does not affect a finding that an
addition has taken place. Nor does the fact that the pesticide is
initially sprayed into the air as a fine mist, if the mist
descends downward into the water. Moreover, it is would be
unreasonable to distinguish between a sprayer releasing a fine
mist pollutant into the atmosphere over the water and a pipe that
released the same single flow of pollutant directly into water.
Violators of the CWA would then need only to attach an airborne
mist blower or hydraulic sprayer to their pipe to discharge a
pollutant over the water in order to escape liability or
regulation. The spraying of pesticides over navigable water,
therefore, can constitute an addition of a pollutant into
navigable water.*fn3 B. Point Source
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| [24] | Section 502(14) defines "point source" as "any discernible,
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." 33 U.S.C. § 1362(14). In
determining what can constitute a point source, courts have
loosely interpreted this definition. See Hudson River
Fishermen's Association, 751 F.Supp. at 1101, n. 26 (citing
Weinberger v. Romero-Barcelo, 456 U.S. 305, 307-08,
102 S.C. 1798, 1800-01, 72 L.Ed.2d 91 (1982), wherein the Supreme Court
upheld the district court's finding that airplanes accidentally
or deliberately dropping bombs into the sea, as well as ships
firing at marine targets, are point sources within the meaning of
the CWA); see also Dague v. City of Burlington,
935 F.2d 1343, 1354 (2d Cir. 1991) (finding that "[t]he definition of a
point source is to be broadly interpreted").
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| [25] | Defendants contend that the helicopters and trucks used by the
City to conduct its spraying program are not point sources
because the City "had the purpose of spraying pesticide into the
air, and not the purpose or obvious effect of systematically
conveying pesticide into water." Defendants' Memorandum of Law in
Support of their Motion for Summary Judgment at 24. Defendants
have pointed to no case law, however, to support their claim that
the definition of a point source includes an element of intent.
Indeed, the Ninth Circuit's decision in League of Wilderness
Defenders v. Forsgren, 309 F.3d 1181, 1185 (9th Cir. 2002),
although not controlling in this Circuit, lends support to a
finding that helicopters and trucks, if used in the manner alleged, can constitute point sources under the statutory
definition. In Forsgren, the Ninth Circuit found that "an
airplane fitted with tanks and mechanical spraying apparatus is a
discrete conveyance" and held that it could constitute a point
source under the CWA. Forsgren, 309 F.3d at 1185 (finding it
"clear and unambiguous" that "the statutory definition of point
source . . . clearly encompasses an aircraft equipped with tanks
spraying pesticide from mechanical sprayers directly over covered
waters").
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| [26] | Moreover, in Catskill Mountains, 273 F.3d at 493, the Second
Circuit found that in determining whether something is a point
source, it is enough that it conveys the pollutants from their
original source to the navigable water. Id. (citing United
States v. Plaza Health Labs., Inc., 3 F.3d 643, 646 (2d Cir.
1993). If the helicopters and trucks used by the City conveyed
pollutants from their original source to the navigable water,
they can most certainly constitute point sources under the CWA.
See No Spray Coalition, 2000 WL 1401458 at *3 (holding, in
dicta, that "the trucks and helicopters used to spray
insecticides may be point sources").
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| [27] | C. Pollutants
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| [28] | The parties' main dispute centers on the definition of a
`pollutant.' The CWA defines pollutant to mean
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| [29] | dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials,
heat, wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal, and
agricultural waste discharged into water[,]
33 U.S.C. § 1362(6) (emphasis added). The legislative history of
the CWA indicates that the term "pollutant" should also be
interpreted broadly. See S.Rep. No. 92-414 at 76 (1972),
reprinted in 1972 U.S.C.C.A.N. 3668, 3742. However, the term
`chemical waste,' which the parties contend is at issue here, is
not defined by the CWA and has not been defined by caselaw. Plaintiff contends that the pesticides in question are `chemical
waste' and are therefore `pollutants' under the CWA. Defendants
contend that pesticides being properly used for their intended
purpose are not chemical waste, and therefore not
pollutants.*fn4
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| [30] | Defendants further proffer that compliance with FIFRA, upon
this factual record, dismisses the need for a requirement to
obtain a NPDES permit under the CWA. "FIFRA compliance is not
dispositive of Clean Water Act compliance, but it is highly
relevant and, in certain circumstances, FIFRA compliance means
Clean Water Act compliance." Transcript at 15. However, such an
argument is dependent upon strict compliance with FIFRA. The City
has not and cannot argue that it had permission to spray
pesticides directly into or over the water. Under the New York
State permit the City obtained, the City was required to observe
specific setbacks from navigable waters when spraying. The heart
of the dispute therefore still involves two issues: a factual
determination as to whether the City did, in fact, spray
pesticides in or over the water; and a legal determination
whether this direct spraying, accidental or intentional, de
minimus or not, constitutes the discharge of a pollutant under
the CWA. A review of the factual record, the relevant caselaw and
guidance memorandum issued by the EPA supports the conclusion
that if the City in fact directly sprayed pesticides into the
water, it was required to obtain an NPDES permit to do so. Having
no permit under such circumstances, spraying pesticides into the
water would be a violation of the CWA.
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| [31] | On June 11, 2003, the EPA released its "Interim Statement and
Guidance on Application of Pesticides to Waters of the United
States in Compliance with FIFRA" ("Interim Guidance").*fn5 The Interim Guidance outlined the EPA's position as to the
definition of `chemical waste.'
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| [32] | EPA does not believe that pesticides applied
consistent with FIFRA are "chemical wastes." The term
"waste" ordinarily means that which is eliminated or
discarded as no longer useful or required after the
completion of a process". . . . Pesticides applied
consistent with FIFRA are not such wastes; on the
contrary, they are EPA-evaluated products designed,
purchased and applied to perform their intended
purpose of controlling target organisms in the
environment.
Id. (internal citations and quotations omitted). The Interim
Guidance distinguishes between pesticides applied and used in
accordance with their government approval, i.e., in compliance
with FIFRA, which are not chemical wastes and therefore do not
require an NPDES permit, and the discharge of pesticide residues
after they have been used, which are considered chemical waste
and therefore require a permit.*fn6 The City relies on the Interim Guidance for the proposition
that their spraying of pesticides in the instant manner was done
in compliance with FIFRA and therefore does not require an NPDES
permit. This argument, however, is faulty for two reasons. First,
the factual record does not support a finding, as a matter of
law, that the City complied with the FIFRA labeling requirements
of the specific pesticides in question. The FIFRA labels on the
Fyfanon ULV states "[t]his product is toxic to fish. Keep out of
lakes, streams, ponds, tidal marshes and estuaries." Plaintiffs'
Motion for Summary Judgment, Exhibit 52. The Anvil 10+10 ULV
label states "[f]or terrestrial uses, do not apply directly to
water, or to areas where surface water is present or to
intertidal areas below the mean high water mark." Id., Exhibit
54. Lastly, the Scourge label reads "[t]his product is toxic to
fish and birds. For terrestrial uses, do not apply directly to
water, or to areas where surface water is present or to
intertidal areas below the mean high water mark." Id., Exhibit
56. Furthermore, the Interim Guidance is limited to two sets of
circumstances that are not present here: (1) FIFRA approved
application of pesticides directly to waters of the United
States in order to control pests; (2) FIFRA approved application
of pesticides to control pests that are present over waters of
the United States that results in a portion of the pesticides being deposited into waters of the
United States.
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| [33] | The City does not argue that it sprayed directly over the water
to control mosquitos present there. Indeed, by the City's own
admission, they were required to adhere to strict New York State
guidelines in applying these pesticides. The New York State
Environmental Conservation Law Article 24 permit from the DEC,
which the City applied for and received in 2001, 2002, and 2003,
specifically mandated that the City observe 100 feet setbacks
from fresh water bodies during ground applications and 300 feet
setbacks from such areas when sprayed by aircraft. Declaration of
Gregory Carmichael at 4, ¶ 12. The circumstances covered by the
Interim Guidance, therefore, do not apply to the City's spraying.
The City not only disputes that it sprayed pesticides over the
water, its state regulated authorization to spray clearly
prohibited such spraying of pesticides over the water. Therefore,
any argument that compliance with FIFRA dispenses with any
requirement to obtain a NPDES permit under the CWA is unavailing
to defendants in support of their summary judgment motion. It is
factually disputed whether the City sprayed in or over water, and
such spraying would not be consistent with, or in compliance
with, its FIFRA permit to spray over land.
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| [34] | The Interim Guidance's definition of waste as "that which is
eliminated or discarded as no longer useful or required after the
completion of a process" provides a useful starting point in
analyzing whether the pesticides used by the city are `chemical
wastes.' Interim Guidance (citing The New Oxford American
Dictionary 1905 (Elizabeth J. Jewell & Frank Abate eds., 2001)).
This definition finds support in the Second Circuit's decision
that affirmed the Court's earlier decision in this case. In
affirming the District Court's dismissal of plaintiffs' claims
under the RCRA, the Second Circuit found that
[t]he district court did not abuse its discretion in
denying injunctive relief. Plaintiffs argue that once pesticides are sprayed onto or into
the air, land, and waters of New York City, they
become discarded solid wastes within the meaning of
RCRA § 1004(27). But we have indicated that material
is not discarded until after it has served its
intended purpose. We therefore agree with the
district court that the pesticides are not being
discarded when sprayed into the air with the design
of effecting their intended purpose: reaching and
killing mosquitos and their larvae.
No Spray, 252 F.3d at 150 (internal citations and quotations
omitted). Under this definition, spraying pesticide over land to
kill mosquitos in compliance with its FIFRA permit is not the
discharge of a pollutant. However, pesticides sprayed by the City
over water can be considered `chemical waste' if they were either
eliminated or discarded while no longer serving its useful and
authorized purpose of killing mosquitos over land. Under such
circumstances, if FIFRA does not authorize the spraying of
pesticide over water, then authorization under the CWA is
required in order to do so.
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| [35] | The two sets of circumstances offered by the EPA support this
definition. Quite simply, if the City followed the FIFRA labels
on the pesticides that warned against direct spraying over the
water, the City would not have sprayed directly over the water,
and therefore would not require a NPDES permit under the CWA. In
order for a pesticide to be considered a `chemical waste,' it
must no longer serve its purpose when discharged, and is
therefore eliminated as no longer useful or required. Viewed in
this manner, the pesticides used by the City in their spraying
program cannot be considered `chemical waste' if they were
serving their purpose and were being sprayed over land to reach
and kill mosquitos and their larvae. However, if plaintiffs are
correct, and it is factually determined that the City is also
further discarding unused pesticides over and into navigable
waters, the City can be found to have violated the CWA by
conducting its spraying program without the required NPDES
permit. The City did not have permission to spray pesticides
directly over or into the water under any state or federal law.
If the City did discard the pesticides over water, it did so in contravention of
the CWA. Such activity would constitute a discharge of a
pollutant into navigable waters from a point source, and cannot
be done without a NPDES permit.
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| [36] | CONCLUSION
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| [37] | Disputed issues of material fact exist as to whether defendants
discharged a pollutant from a point source into navigable waters
without a permit.*fn7 Both plaintiffs' and defendants'
motions for summary judgment are therefore denied.
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| [38] | SO ORDERED.
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| | Opinion Footnotes | | |
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| [39] | *fn1 In No Spray Coalition v. The City of New York, 2000 WL
1401458, the District Court addressed the issue of whether
incidental drift of a pesticide into navigable waters
constituted a violation under the CWA, finding that "[i]t would
be stretching the language of the statute well beyond the intent
of Congress to hold that the de minimus incidental drift over
navigable waters of a pesticide is a discharge from a point
source into those waters." Id. at *3.
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| [40] | *fn2 In 2000, the DEC stated that the City's request to apply
pesticides in areas adjacent to wetlands was exempt from State
Environmental Conservation Law Article 24 and 25. Declaration of
James R. Miller at 5, ¶ 13. In 2001, 2002 and 2003, the
Department of Health and Mental Hygiene of the City of New York
("DOH") applied for and obtained a New York State Environmental
Conservation Law Article 24 permit from the DEC, covering spray
activities in regulated fresh water wetlands and adjacent areas
and all surface water bodies. Pursuant to the permit, the City
claims that it observed 100 foot setbacks from fresh water bodies
during ground applications and 300 foot setbacks from such areas
when sprayed by aircraft. Declaration of Gregory Carmichael at 4,
¶ 12. This state permit has no relation to the federal permitting
program and no argument has been made that the state permits
exempted defendants from any federal requirements.
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| [41] | *fn3 In the United States' Brief as Amicus Curiae in Altman v.
Town of Amherst, 47 Fed.App. 62, 2002 WL 31132139 (2d Cir. 2002)
("Altman Amicus Brief"), the U.S. Department of Justice's
Environment & Natural Resources Division took the position that
the use of mist blowers and hydraulic sprayers to spray
pesticides in, on, or over waters of the United States
constitutes the addition of pesticides to waters of the United
States. Id. at 7.
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| [42] | *fn4 The City has used three insecticides: malathion (known in
the industry as Fyfanon); resmethrin (Scourge); and sumithrin
(Anvil).
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| [43] | *fn5 The Interim Guidance was issued to address the Second
Circuit decision in Altman, 47 Fed.Appx. 62, where the Second
Circuit discussed whether FIFRA compliance meant compliance under
the CWA. Upon review of the District Court's dismissal of
plaintiff's claims, the Second Circuit found that fact issues
remained as to whether the pesticides were properly used and
whether they were "pollutants" under the CWA. The Court did not
take a position on the issue of whether FIFRA compliance equates
to CWA compliance, but rather sought from the EPA "a clear
interpretation of current law — among other things, whether
properly used pesticides released into or over waters of the
United States can trigger the requirement for NPDES permits." The
Second Circuit further posited that "[p]articipation by the EPA
in this litigation in any way that permits articulation of the
EPA's interpretation of the law in this situation would be of
great assistance to the courts." Id.
The Interim Guidance also seeks to address the Ninth Circuit's
findings in Headwaters, Inc. v. Talent Irrigation District,
243 F.3d 526 (9th Cir. 2001) where the court held that the
registration and labeling of pesticides under FIFRA does not
preclude the need for a permit under the CWA. "The label's
general rules for applying the herbicide must be observed under
FIFRA, but where the herbicide will enter waters of the United
States, FIFRA provides no method for analyzing the local impact
and regulating the discharge from a particular point source. The
NPDES permit requirement under the CWA thus provides the local
monitoring that FIFRA does not." Id. The court highlighted that
"FIFRA registration is a cost-benefit analysis that no
unreasonable risk exists to man or the environment taking into
account the economic, social, and environmental costs and
benefits of the use of any pesticide," Id. at 532 (citing Save
Our Ecosystems, 747 F.2d 1240, 1248 (9th Cir. 1984), while "the
granting of a NPDES permit under the CWA is not based on a
cost-benefit analysis, but rather on a determination that the
discharge of a pollutant satisfies the EPA's effluent
limitations, imposed to protect water quality." Id. (citing
33 U.S.C. § 1342(a)).
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| [44] | *fn6 Although the Interim Guidance was not subject to the
procedures of notice and comment rulemaking that warrant
deference pursuant to Chevron, U.S.A. v. Natural Resources
Defense Council, 467 U.S. 837, 104 S.Ct. 2778 (1984)
(recognizing that considerable weight should be accorded to an
executive department's construction of a statutory scheme it is
entrusted to administer and that the principle of deference
should be applied to administrative interpretations), the Interim
Guidance is to be afforded consideration as reasonable and
persuasive. "The 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." League of Wilderness
Defenders, 309 F.3d at 1189 (citing Skidmore v. Swift & Co.,
323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The Supreme
Court reaffirmed the holding in Skidmore, finding that
"interpretations contained in formats such as opinion letters are
`entitled to respect' under our decision [in Skidmore], but
only to the extent that those interpretations have the `power to
persuade.'" Christensen v. Harris County, 529 U.S. 576, 587,
120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).
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| [45] | *fn7 The parties do not dispute whether the waters where the
pesticides were allegedly deposited were navigable waters under
the CWA. The Second Circuit has construed "navigable waters" to
include non-navigable tributaries of navigable waterways,
including small streams. See No Spray Coalition v. The City of
New York, 351 F.3d at 604. Furthermore, "[i]n issuing permits,
EPA and state governments either may establish national or
statewide caps for cumulative discharge of specific pollutants
from all regulated sources, or may proceed on a case-by-case
basis, taking into account the ecological conditions of
particular waterways." Id.
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