Baykeeper, Suffolk County both claim victory in legal battle over mosquito control

BARBARAELLEN KOCH PHOTO | Executive director of the Baykeeper Association Kevin McAllister.

Just who won a six-year legal battle over the safety of Suffolk County’s mosquito control program depends on who you ask.

Peconic Baykeeper Kevin McAllister says a recent agreement to settle a lawsuit his organization filed against the county means it will adopt safer environmental practices.

But a county official says any changes it is making have nothing to do with the lawsuit.

“He lost,” assistant county attorney Chris Jeffreys said of the court case.

“The county vector control program has been affirmed by every court that’s looked at it,” he said. Peconic Baykeeper merely agreed to what the county was already doing and that led to the settlement, he asserted.

The settlement was approved by the district U.S. Court of Appeals last month.

The Peconic Baykeeper organization, in court papers filed in 2004, challenged the county’s practice of spraying pesticides to control mosquitoes on the grounds that it pollutes surface waters. It also challenged the practice of digging mosquito ditches to make wetlands less suitable for mosquito breeding.

Peconic Baykeeper maintained that both practices were harmful to the environment and required a federal Clean Water Act permit.

“It’s been a lengthy process, and by virtue of this litigation, the county had to move in a different direction,” Mr. McAllister said. “We’re in a better place now.”

Peconic Baykeeper, he added, also was one of several environmental groups that, in a separate lawsuit in 2007, successfully sued the federal Environmental Protection Agency over its policy of giving Clean Water Act exemptions to municipalities to allow pesticide applications.

Mr. McAllister said the county has promised that it will obtain federal Clean Water Act permits, which are administered by the state Department of Environmental Conservation, when it seeks to spray with pesticides.

“We were able to prove that the spraying operations are a point-source discharge,” Mr. McAllister said.

In March, the U.S. Court of Appeals — upholding the Baykeeper organization’s arguments — overturned a lower court ruling that found that the trucks and helicopters the county uses to spray pesticides did not constitute “point sources” of pollution, as defined in the Clean Water Act.

The Court of Appeals also ruled that the dredging of ditches did not violate the Clean Water Act.

“Basically, the series of lawsuits we filed ultimately brought us to where we are today,” Mr. McAllister maintained. “If it weren’t for the litigation, we wouldn’t be there.”

Mr. Jeffreys disagreed. “The county’s vector control program was changed by a long-term vector control plan that the county Legislature passed in 2007,” he said. “His lawsuit was incidental in that time period and had nothing to do with the way the county does its vector control.”

Mr. Jeffreys said there was no “detente,” as Mr. McAllister claims in a press release.

Mr. Jeffreys said Clean Water Act permits won’t be issued for pesticide spraying until April 2011 at the earliest.

“This is because there was a lawsuit in Ohio that put into place the practice of issuing Clean Water Act permits for municipalities,” Mr. Jeffreys said. “But the federal Environmental Protection Agency doesn’t have them online yet. They’re not ready to go until April of 2011 at the earliest.”

Mr. McAllister said the county has promised to maintain a 100-foot setback from surface waters while spraying in order to avoid discharging pesticides into the water.

“We have evidence that their pesticides were getting into the water,” Mr. McAllister said. “This won’t restrict them from spraying, but it will put restrictions on them that will require a more cautious approach.”

It’s not that simple, said Mr. Jeffreys. “Around freshwater wetlands, in our permit applications, there is a setback around where we spray, to the extent that DEC allows it,” he said. “We don’t control that setback, we request that DEC put it into our permits, but they can strike that language out if for some reason DEC believes that we should spray closer to the edge of the water. It’s strictly a DEC determination.”

On the issue of digging ditches in wetlands, Mr. McAllister agreed his side did not win any concessions on that point in the settlement, but that the county had agreed after the suit was filed in 2004 to stop the practice anyway.

Mr. Jeffreys said the county hasn’t dug new ditches in years, but still maintains 660 miles of existing ditches, some of which were dug 75 years ago. He said no new ones have been dug since at least 1984 and maybe well before that, but that the county’s aerial photos don’t go back that far.

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