ON THE DOCKET
Peconic Baykeeper, Inc. v. Suffolk County
The Federal lawsuit commenced by Peconic Baykeeper in 2004 to reform mosquito control practices has recently concluded in a settlement with Suffolk County and has resulted in positive environmental policy changes. The six-year long challenge charged that Suffolk County had violated the Federal Clean Water Act (CWA) by filling wetlands with dredge spoil; discharging pollutants conveyed through mosquito ditches and discharging restricted pesticides into surface waters. The legal action was preceded by nearly 4 years of advocacy and litigation under N.Y. State environmental law by Peconic Baykeeper to persuade Suffolk County to adopt methods of mosquito control that are health based, scientifically-justified, and not destructive to the environment. Unfortunately, the administration remained unresponsive, forcing the Baykeeper to pursue legal means.
Over the course of more than 80 years, government sponsored mosquito control programs have created and maintained an extensive network of ditches throughout nearly all of Long Island’s tidal wetlands. Locally, Suffolk County maintained 660 miles of ditches in approximately 17,000 acres of tidal wetlands as part of its program. It was previously thought that ditching helped to reduce mosquito breeding. However, it is now widely accepted that mosquito ditches serve no legitimate mosquito control function and are destructive to wetland values and functions. In particular, the ditches diminish the marsh’s biofiltration capacity by acting as conduits for nutrients, pathogens and other contaminants that degrade water quality in our bays. After we brought this suit, Suffolk County Executive Steve Levy courageously and publicly abandoned this discredited practice despite opposition within county bureaucracy.
Initially, the suit was dismissed in U.S. District Court in November 2008 by Judge Arthur Spatt who adopted the reasoning maintained by the U.S. Environmental Protection Agency’s (EPA) rule that exempted certain pesticide applications from the permitting requirements of the CWA. The ditching prong of the suit was dismissed on the grounds that maintenance of mosquito control ditches fell into the CWA permitting exemption for the maintenance of “drainage ditches.” In a separate lawsuit, Peconic Baykeeper joined with other environmental organizations in challenging the legality of EPA’s CWA pesticide exemptions. The EPA exemption rule was struck down by U.S. Court of Appeals for the Sixth Circuit in January of 2009 - an outcome that paves the way for more accountability and oversight for virtually all pesticide applications into and around waterways by requiring water quality protection to be a paramount concern. The decision also vindicated the Baykeeper’s action to impose strict regulatory review of Suffolk County’s use of restrictive pesticides over open waters, so an appeal was filed to reverse Judge Spatt’s decision.
In March of 2010, the U.S. Court of Appeals for the Second Circuit overruled the District Court in part and remanded for further proceedings. The court clearly recognized that spraying pesticides from trucks and aircraft over water are point-source discharges that now require permitting under the CWA, but upheld, without analysis, the county’s position that ditching in wetlands does not violate the CWA.
The Court of Appeals essentially found that the controversy was settled – that future pesticide applications at issue would be regulated as we claimed they should be and that the ditching had stopped. The court did not deem it equitable to penalize the county if it complied with applicable laws and the EPA rule, even though that rule had been subsequently found illegal. Although this ruling left other issues to be decided as to past conduct by the county, we agreed that the main controversies had been settled. Rather than continue the litigation, and being largely in agreement as to the key issues, Peconic Baykeeper and Suffolk County opted to settle. The principle terms for terminating the litigation include compliance with pending CWA permits and instituting a 100-foot setback from open water when adulticides are being sprayed unless public health officials determine disease prevention requires a waiver of the setback requirement. This preventative measure will help to ensure that toxic pesticides do not enter the water threatening fish and other aquatic organisms.
This hard-earned outcome is very positive for our bays and tidal wetlands, but Peconic Baykeeper recognizes that continued vigilance is essential to safeguarding the ecological health of our estuaries. Suffolk County is presently considering what wetland manipulations for mosquito control are consistent with overall wetland health, but has agreed that wetland health must come first. The county’s analysis must be driven by verifiable science. It should be a lesson that all the historic destruction of our wetlands by ditching and filling was driven by junk science, greed, and as a job creation project during the Great Depression. Certain bureaucratic interests within the county continue to advocate dredging and filling activities in tidal wetlands under the guise of marsh restoration and pesticide reduction. This threat just won’t go away. Neither will we!
The Bay Guardian, Summer 2008
Judge Spatt 108 page decision
Judge Spatt second decision
2005 State of the county address