United States Second Circuit

In an action claiming that a county violated the Clean Water Act (CWA) in its application of certain anti-mosquito pesticides, and, separately, its dredging of mosquito ditches, judgment for defendant is affirmed in part where: 1) because the CWA established 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 were exempt from the CWA's permit requirements; and 2) the record supported the conclusion that the county's activities did not bring an area of the navigable waters into a use to which it was not previously subject, and thus did not fall within the CWA's recapture provision. However, the judgment is vacated in part where: 1) the district court acknowledged the existence of evidence that the county may have sprayed above various creeks, but did not adequately explain the basis for its finding that the county fully complied with the pesticides' label instructions; and 2) the district court's conclusion that the pesticides were not discharged from a point source was in error.

Appellate Information

• Decided 03/30/2010
• Published 03/30/2010

Judges

• CASTEL, District Judge:, Before:  CABRANES, PARKER, Circuit Judges, and CASTEL, District Judge.

Court

• United States Second Circuit

Counsel

• For Appellant:
  
• Daniel E. Estrin, Pace Environmental Litigation Clinic, Inc., White Plains, N.Y. (Matthew R. Atkinson, Atkinson & Heffron LLP, of counsel), for Plaintiffs-Appellants.


• For Appellees:
  
• Christopher A. Jeffreys, Assistant Suffolk County Attorney (Christine Malfi, Suffolk County Attorney, on the brief) Suffolk County Attorney's Office, Hauppage, NY, for Defendants-Appellees.