ELR Citation: ELR 20098
No(s). 09-0097 (2d Cir. Mar 30, 2010)

The Second Circuit affirmed in part and vacated in part a lower court decision that found a county’s mosquito-control activities lawful under the CWA. Although the record indicates the county’s application of pesticides was, in the main, consistent with the EPA-approved FIFRA label, it also reveals instances where it may have been contrary to the relevant FIFRA labeling. Because the lower court did not explain the basis for its conclusion that all spraying was in compliance with the FIFRA label, the judgment of the lower court is vacated and the case remanded for further fact finding. In addition, the lower court erred when it concluded that the pesticides were not discharged from a point source. The spray apparatus was the source of the discharge and, as such, the pesticides were discharged from the source and not from the air. Further, because the CWA establishes a permit exemption for the maintenance of drainage ditches and the ditches had as their purpose the draining of surface waters, the county’s maintenance activities are exempt from the CWA’s permit requirements. The record also supports the conclusion that the county’s activities do not fall within the CWA’s recapture provision.