Supreme Court Requires Water Permit for Aerial Spraying

Supreme Court Requires Water Permit for Aerial Spraying

by Barbara Gray (Kanatiiosh)

On October 6, 2003 , the U.S. Supreme Court set an important precedence for environmental protection. The Court upheld the 9^th Circuit Court of Appeals’ ruling in, League of Wilderness Defenders vs. U.S. Forest Service, that aerial spraying constitutes a point source of pollution under the Clean Water Act; and, therefore, requires a National Pollution Discharge Elimination System Permit (NPDES). In defining aerial spraying as “point source” pollution, the Court has provided us with an additional tool to protect water and the rest of the Natural World from the negative impacts of pesticide usage.

In the 1970’s, moths defoliated over 700,000 acres of forest in Oregon , Washington , and Idaho . Research by the Forest Service predicted that a similar outbreak would occur in 2000-2002. As a result, the Forest Service designed an annual chemical pesticide program that would aerially spray over 628,000 acres of national forest lands located in Washington and Oregon . Although moth outbreaks are a natural occurrence serving the function of thinning forests and creating openings in the stands, the forest service concluded that an outbreak would cause “unacceptable levels of damage in scenic areas, critical habitat areas, and areas where the Forest Service has invested in improvements such as seed orchards.”

However, environmentalists felt that the potential harm of aerial spraying on the Natural World, in particular harm to the animals, birds, reptiles, plants, and water quality, outweighed the economic and scenic benefits that were driving the Forest Service to use chemical Pesticides. Aerial spraying may drift outside of the target areas and can kill beneficial insects such as butterflies. In addition, spraying over water ways may kill stoneflies and other aquatic insects that provide food for fish.

The League of Wilderness and seven other environmental organizations filed suit in District Court challenging the U.S Forest Service’s annual aerial pesticide spraying program. They asserted that the Forest Service needed a NPDES permit and that their Environmental Impact Statement was inadequate. The Forest Service, on the other hand, argued that aerial spraying classified under the Clean Water Act as a “nonpoint source” solution; therefore, a NPDES permit was not required.

Under the Clean Water Act, 33 U.S.C. §§1251-1387, “point source” and “nonpoint source” pollution is regulated in different ways. State and federal agencies must seek a NPDES permit prior to discharging pollutants from any “point source” into navigable waters of the United States . “Nonpoint sources” of pollution do not trigger a NPDES permit. “Nonpoint sources” are not defined in the statute; however, it is commonly understood to refer to pollutions arising from numerous and diffuse places that can not be traced to a single source, which makes permitting infeasible such as agricultural and urban run-off.

The Forest Service argued that there is an exception, in the statute, for silvicultural (care and cultivation of trees) pest control activities. However, the 9^th Circuit Court of Appeals held that the statute is “clear and unambiguous” in that it defines a point source as being “any discernable, confined and discrete conveyance, including but not limited to any . . . vessel,” 33 U.S.C. § 1362(14), clearly encompasses an aircraft equipped with tanks spraying pesticide from mechanical sprayers directly over covered waters.”

The Court held that the “aerial spraying of pesticide being conducted by the Forest Service is point source pollution and requires an NPDES permit.” In addition, the Forest Service did not adequately address pesticide drift into non-wilderness areas so the Environmental Impact Statement was inadequate to protect these areas. Thus, the Forest Service must obtain a NPDES permit for the aerial spraying and submit a supplemental Environmental Impact Statement.

Paper, agricultural, pesticide, and airplane and helicopter-spraying companies are peeved by the ruling because it threatens and puts a rein on what before had been an unregulated practice. This ruling has struck fear in the pockets of the American Forest and Paper Association and a coalition of pesticide, helicopter-spraying companies, and agricultural companies.

To read a copy the Court of Appeals case click on the following:

http://www.pestlaw.com/x/courts/wilderness20021104.html

If you have any questions, concerns, or comments, please contact Kanatiiosh

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