In mosquito fight, scrutiny for aquatic pesticides

While Suffolk's mosquito control operation won a federal court victory last month, the county may soon face tighter controls on the chemicals it sprays on or near water.

Due to a separate ruling by the U.S. Court of Appeals for the Sixth Circuit, by this time next year Suffolk and Nassau will be among an estimated 365,000 pesticide applicators nationwide who must obtain a special permit before their trucks and helicopters spray aquatic pesticides.

Previously, the Environmental Protection Agency had said no permit was required, so long as instructions on the label were followed. That standard spurred lawsuits by conservation groups and lobstermen who feared the chemicals would damage marine life.

Environmental advocates hope that the new permit will impose conditions on the use of aquatic pesticides - for example, during an outbreak of mosquito-borne disease.

"After the West Nile scare in the late '90s and early 2000s, an industry grew up around pesticide spraying and mosquito control," said attorney Daniel Estrin, who represented Peconic Baykeeper, a Quogue advocacy group, in two federal lawsuits over the issue. "We want everyone to understand that this is poison and should not be sprayed willy-nilly into the environment."

Conservation groups have long held that chemicals such as Scourge and Anvil - which kill adult mosquitoes - should be considered pollutants under the Clean Water Act when applied over or near water. But mosquito control agencies have said additional regulations would impose an undue burden on efforts to protect public health.

In 2004, Peconic Baykeeper filed a lawsuit against Suffolk that said the county violated the Clean Water Act by spraying pesticides and dumping dredge spoils from mosquito ditch maintenance without a permit. A district court judge ruled against the group in 2008.

The Second Circuit Court of Appeals upheld part of that decision on March 30, saying that ditch maintenance did not constitute a violation of the Clean Water Act. But the ruling questioned whether Suffolk always complied with pesticide label directions and returned the case to district court "for further fact-finding."

Suffolk County Executive Steve Levy said in a statement the decision "reaffirms our view that we could be both aggressive and environmentally sensitive in addressing the mosquito problem."

But Estrin said the decision in the Suffolk case was disappointing but left room to hold the county accountable if it is found to have not followed directions on the pesticide label.

Even as that case made its way through the courts, a separate lawsuit also involving Peconic Baykeeper would wind up having a larger impact.

In 2006, the EPA issued a rule that no permit was needed to apply pesticides in, over or near water. It codified the agency's earlier position that such pesticides were not pollutants when applied in compliance with label requirements.

Agricultural interests said the rule was too restrictive, and environmental groups felt it didn't go far enough. Both camps petitioned the agency in 2007 to review the rule; Peconic Baykeeper was among them.

The case ended up in Sixth Circuit Court of Appeals. The court ruled last year that the EPA had to vacate the regulation because such pesticides qualified as pollutants under the Clean Water Act.

The new permit will be required by next April. "There is going to be more compliance required," said Christopher Jeffreys, an assistant attorney for Suffolk County. "But for calendar year 2010 it doesn't change anything."