New York Law Journal
June 13, 2005

By Mark Hamblett

A FEDERAL JUDGE has refused to dismiss a lawsuit claiming that New York city violated the federal Clean Water Act when it sprayed to prevent West Nile Virus.

Southern District Judge George B. Daniels said it would be up to a jury to decide whether the city violated the act by spraying over water from a helicopter in 1999 and 2000.

The decision in No Spray Coalition, Inc. v. The City of New York, 00 Civ. 5395, also denied the summary judgment motion brought by the coalition, which has challenged the city's spraying program on several fronts since it began confronting West Nile in the late 1990s.

The city acted after some residents of Queens, followed by residents of other boroughs, became ill from the mosquito-born virus. The city began spraying by helicopter and truck in 1999 and has continued spraying each year with the reappearance of the virus.

Opponents of the program sued in 2000, but their claims under the Resource Conservation and Recovery Act and the state and city Environmental Quality Review Acts were dismissed.

But the district court refused to rule on claims brought under the Clean Water Act, leaving "for another day the question of whether spraying insecticides directly over rivers, bays, sound and ocean surrounding New York City as part of a prevention program would violate the Clean Water

Act."

Nonetheless, discovery was allowed to proceed on the Clean Water Act claim, which alleged the city violated §301(a) by discharging pollutants into navigable waters without either a National Pollution Discharge Elimination System (NPDES) permit or a State Pollution Discharge Elimination System

(SPDES) permit.

After discovery, the District Court granted summary judgment for the city, saying the Clean Water Act does not allow citizens to enforce its provisions by brining suit. The U.S. Court of Appeals for the Second Circuit reversed and the case was sent to Judge Daniels for renewal of the motions for summary judgment.

Judge Daniels said the two sides disagreed over whether the city's actions could constitute and Clean Water Act violation. And even if its actions could amount to a violation, he said, the two sides disagree over whether there has been sufficient evidence for a finding, as a matter of law, that the city "did or did not violate" the act "by conducting its spraying without an NPDES permit."

Among the evidence presented by the plaintiffs, Judge Daniels said, was that the city sprayed "directly over lakes, streams, ponds and marshes," including a helicopter spraying over a marina at City Island in both 1999 and 2000 and another helicopter spraying over Mount Loretto Pond and adjacent wetlands on Staten Island. Other allegations include the Bronx River and Staten Island's Clove Lake.

The city answered that the program does not involve the direct discharge of a pollutant into navigable waters and that it followed strict guidelines protecting against the direct application of insecticides into water. The guidelines contain setbacks of varying distances from bodies of water, such as aerial spraying no closer than 300 feet from water.

The city also argued that some of the alleged spraying involved no more than "atmospheric emissions" of pesticides that "do not constitute discharges" and that residual particles of pesticide that may have reached the water did not amount to a discharge of a pollutant in violation of the Clean Water Act.

But Judge Daniels said the definitions of an "addition" of a pollutant to water is "simple and plain."

"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 toward water," he said. "Moreover, it would be unreasonable to distinguish between a sprayed 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."

The reason, he said, was that violators of the act would be able to escape the consequences by simply attaching an "airborne mist blower or hydraulic sprayer to their pipe to discharge a pollutant over the water in order to escape liability or regulation."

And Judge Daniels termed "faulty" the city's argument that its compliance with the Federal Insecticide, Fungicide, and Rodenticide Act freed it from having to obtain an NPDES permit.

"The City did not have permission to spray pesticides directly over or into the water under any state or federal law," he said. "If the City did discard the pesticides over the water, it did so in contravention" of the Clean Water Act.

Because disputed issues of material fact exist over whether the city actually discharged a pollutant, he denied the motion for summary judgment.

Karl Coplan of the Pace Environmental Litigation Clinic, representing the No Spray Coalition, said the decision "will clearly affect the scope of the spraying they are allowed to do."

Christopher King, senior counsel in the Corporation Counsel's environmental law division, represented the city.

- Mark Hamblett can be reached at mhamblett@alm.com