Citations
- 585 F. Supp. 2d 377
Full opinion text
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
Under the provisions of the Clean Water Act, it is unlawful to discharge “pollutants” in the waters of the United States without an appropriate permit. As stated by the Second Circuit in No Spray Coalition, Inc., et al v. City of New York, et al., 351 F.3d 602, 604 (2d Cir.2003): “The Clean Water Act is a regulatory statute designed to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The statute prohibits “discharge” of “any pollutant” into “navigable waters” without a permit issued by the United States Environmental Protection Agency (“USEPA” and “EPA”) under the National Pollution Discharge Elimination System (“NPDES”) or under a federally approved state permit system. See 33 U.S.C. §§ 1311(a), 1342. New York State created the “State Pollutant Discharge Elimination System” (“SPDES”), in compliance with the Clean Water Act. See N.Y.Envir.Conserv.Law § 17-0801 (McKinney 2006).
The Clean Water Act contains a “citizen suit” provision providing that any “person or persons having an interest which is or may be adversely affected” may sue to enforce any limitation in a Clean Water Act permit. 33 U.S.C. §§ 1365(a)(g); Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 701, 145 L.Ed.2d 610 (2000). This is such a citizen suit.
Further, the Clean Water Act contains two permitting provisions that form the basis of the plaintiffs’ claims: (1) Section 402 relates to the “discharge of a pollutant,” and (2) Section 404 relates to the discharge of “dredged or fil material.” See 33 U.S.C. §§ 1342 and 1344.
I. PRIOR PROCEEDINGS
This action was commenced against Suffolk County and Vector Control, a division of the Suffolk County Department of Public Works, by the filing of a complaint on November 8, 2004. As stated in the Introduction, “this action is a citizen suit” brought under Section 505(a)(1) of the Clean Water Act, 33 U.S.C. § 1365(a)(1) seeking civil penalties payable to the United States Treasury, injunctive relief, declaratory relief and costs including reasonable attorneys’ fees. The complaint consists of three cause of action. The First Claim for Relief alleges violation of the Clean Water Act by “Discharging Dredged Spoils and other Materials Without a Clean Water Act Section 404 Permit.” The Second Claim For Relief alleges violations of the Clean Water Act by “Discharging Pollutants from Ditches and Culverts Without a Clean Water Act Section 402 Permit.” The Third Claim For Relief alleges violations of the Clean Water Act by “Spraying Pesticides into Waters of the United States Without a Clean Water Act Section 402 Permit.”
In response to the plaintiffs motion for partial summary judgment and the defendants cross-motion for summary judgment dismissing the complaint, the Court rendered a decision on March 12, 2007. In the decision, the Court found that multiple material issues of fact exist which precludes summary judgment by either party. Accordingly, both motions for summary judgment were denied.
II. THE TRIAL
In this case several unfamiliar terms were discussed, which require definition. For example, a larvicide is defined as an agent for killing larval pests. Larva is the immature, wingless and often wormlike feeding forms that hatches from the eggs of many insects. An adulticide is an insecticide used to kill adult insects as opposed to a larvicide.
The plaintiff Alfred Chiofolo is a semiretired bayman. He has clammed, fished and did crabbing on the south shore of Long Island for more than forty years. He testified that after Suffolk County sprayed over wetlands with pesticides, he saw “dead crabs all over” and also saw toad fish and other fish dead in the crab pots. His “catch” decreased about ten percent per year from 2000 and this affected him economically. Chiofolo saw unmarked helicopters every year, with Suffolk County trucks servicing them. He also saw crabs asleep in the mud and a dredge scooped them up. In 2005 he had chest surgery and other health problems and cannot work. Chiofolo would like to see the spraying stop and would want the County to use another method of mosquito control.
On cross-examination, Chiofolo testified that in his day, he was a very active crab fisherman. In 2001, he caught more than 100,000 pounds of crabs. In calendar year 2004, he caught more than 50,000 pounds of crabs. He became ill in 2005 and could no longer work as a fisherman. While he saw helicopters spraying in the Mastic area, he could not tell if they were spraying pesticides. In fact, he didn’t know what was being sprayed. Also he did not test any of the dead crabs or the water they were in, nor was he aware of any such test results. Chiofolo was familiar with this type of litigation, because he was involved in four prior lawsuits brought by Peconic Baykeeper. In addition, although Chiofolo testified at a hearing before the Suffolk County Legislature opposing the County Vector Control Program, he is aware of no studies finding that Vector Control has any negative impact on crabs, humans or the water; and, he has no knowledge of any documentation to support his “damage to crabs” theory.
The co-plaintiff, Kevin McAllister, has been the President, CEO and Chief Financial Officer of Peconic Baykeeper, Inc. (“PBK”) from 2004. He first formed this organization in June, 2001. The mission of PBK is to protect and improve the south shore bays and advance conservation issues. PBK owns 280 acres of bay bottom, under the water in the Great Peconic Bay near Southampton; in part to be used for oyster cultivation and to raise shellfish.
As a person who employed crabbing and shell fishing for recreational purposes, he saw the impact of ditches and pesticides as a threat to aquatic life. McAllister discussed a New York State decision by Justice Paul J. Baisley, Jr. which found in favor of PBK.
McAllister investigated the so-called mosquito ditches himself. On March 31, 2004, he took several samples from a ditch located along the western flank of the Terrell River County Park, on the border of Center Moriches and East Moriches, near the waterfront on Moriches Bay. The samples were to ascertain if there was a conveyance of pollutants from the mosquito ditches to Moriches Bay. The results were all negative for pesticides and other compounds except for elevated levels of “total and fecal coliform bacteria”. He explained that fecal coliform bacteria exists in the intestinal tract of warm-blooded animals and indicates the presence of “other pathogens that form public health threats.”
McAllister returned to this same location some ten months later, in 2005, to take additional samples. The results were elevated samples of bacteria and showed that water was flowing from the ditch to the bay. The lab that did this testing in 2005 was the Eco-Test Laboratories.
On cross-examination, McAllister revealed that PBK had initiated two prior suits against Suffolk County in 2002 and 2003. In fact, he challenged the County on four prior occasions. These cases involved the same plaintiffs and the same attorneys. He conceded that Vector Control by.Suffolk County suppresses mosquito propagation for health reasons:
Q You don’t dispute, sir, that the Suffolk County Division of Vector Control suppresses mosquitos and their propagation for health reasons?
A Correct.
Q So, there is a health overlying purpose for the county’s vector control program; is that correct?
A Not entirely.
Q But that is one of the reasons, correct?
A Yes.
Q And isn’t it true, sir, that one of the means that the Division of Vector Control utilizes to suppress mosquitos is by channeling and draining water in swampy areas to minimize mosquito breeding areas?
A Yes.
Tr. at 78-79.
McAllister previously testified before the Suffolk County Legislature that the application of pesticides from the Vector Control Program caused lobsters to die. However, on January 30, 2001, before the Legislature, he conceded that his statement as to the lobsters dying because of the Vector Control Program was “speculative.” (Tr. at 87).
In addition, McAllister testified many times before the Suffolk County Legislature Health Committee—always in opposition to the Vector Control Program. He testified that his lab reports confirmed that the fish kill at Priest’s Pond on August 12, 2001 showed a high level of pyrethroid pesticides. However, in fact, he conceded that the state lab report was not conclusive and that is the same lab report he is relying on in this case. Also, in his testimony before the County Legislature he indicated that he wanted the County to do away with the mosquito ditches, even though it would take nearly seventy years for a mosquito ditch to fill in.
Also, since December 2004, he was aware that the New York State Department of Environmental Control (“DEC”) had personal involvement in any Vector Control Project that requires maintenance of any mosquito ditch within Suffolk County. In addition, referring to his co-plaintiff Alfred Chiofolo, he considered his testimony concerning the decrease in crab population in Moriches Bay to be “merely speculative and anecdotal information.” (Tr. at 90).
On August 12, 2001, McAllister received a call to investigate a fish kill in Priests Pond in Flanders. He stated that testing by the lab revealed high levels of pesticides called pyrethroid, resmethrin and piperonyl butoxide (“PBO”). He packed dead fish and shrimp in ice and took them to a lab in Holbrook for a pesticide analysis. However, he did not ask the lab to investigate whether dissolved oxygen in very hot weather, at that time, was the reason the fish and shrimp died, even though this was the most common reasons for fish to die in a very hot period. Further, the director of the laboratory testified that he could not state with certainty that Scourge was the cause of the fish kill or shrimp kill. (Tr. at 108). In addition, for some reason, McAllister didn’t request that the lab render a report as to the dead grass shrimp. Further, McAllister conceded that the dead juvenile flounders tested positive for DDT which was a pesticide banned for Suffolk County in the late 1960s and banned nationally in the 1970s; that DDT was fatal to animals, depending on its concentration; and there was no reason to believe that the County applied DDT. (Tr. at 115).
The plaintiffs’ complaint alleges that the County of Suffolk violated the Clean Water Act by failing to have a New York State DEC permit referred to as a SPDES permit for some of the pesticides spraying activities. However, significantly, McAllister testified that the USEPA has, in the State of New York, delegated authority to issue any SPDES permit to the New York State DEC. McAllister testified that he was not aware that two representatives of the New York DEC, Vincent Palmer and John Pavacic both advised the County of Suffolk that a SPDES permit is not needed for its Vector Control activities.
With respect to the “fecal coliform bacteria” McAllister found in the mosquito ditches, he testified that this was a product of “animal poop” found in the wild area in the marshlands. Obviously, there are no rest areas for the animals to relieve themselves; and so all through the year there was a natural process of animals excreting feces. According to McAllister, the fecal coliform bacteria would disperse naturally if there were no ditches and the flowing water could transport this material.
McAllister testified that he is opposed to only one particular larvieide called Altosid, which is methoprene, which, he says is deployed by helicopters over salt marshes. These Altosid products have to be applied in water or to areas that will become flooded and will work when the water reaches the product. Also, he stated that in the “bona fide presence of West Nile Virus, then we support surgical applications of pesticide to protect human health.” However, PBK is opposed to “nuisance control, basically making peoples lives more comfortable in their backyards.” (Tr. at 128).
Finally, McAllister commented on one of the key issues in this case; namely whether the County had permits to conduct its Vector Control activities, as follows:
Q Sir, are you aware that the issue in this case concerns whether the county had appropriate permits to conduct its vector control activities concerning the applications of larvicides and adulticides? Are you aware of that?
A Yes.
Q So you are also aware, sir, that your objection to methoprene as a larvicide really has no involvement in this case if there was a permit issued for the use of methoprene?
* * * *
THE WITNESS: Methoprene is not germane to this case.
BY MR. JEFFREYS:
Q Are you aware that the county had permits for its use of methoprene in its vector control program?
A Presumably so, yes.
Tr. at 134-135.
Dominick Ninivaggi is the supervisor of the Division of Vector Control in the Suffolk County Department of Public Works. As such, he is a key witness and was on the stand for several days. Formerly, he worked for the Army Corps of Engineers and as an oceanographer responsible for evaluating wetlands and dredging projects. In 1976 he started working for the New York State DEC and was responsible for managing 2,000 acres of tidal wetland properties. In his present position, he has overall oversight of the Vector Control mosquito control program engaged in aerial and truck spraying. He put the program together. He makes the decisions about where to apply adulticides. In the Vector Control program from 1999 to the present the adulticides he used included Scourge and Anvil. The label for Scourge states that this pesticide is highly toxic to fish and is for terrestrial uses; do not apply directly to water and drifts and runoff from treated sites may be hazardous to fish in adjacent water. It also says to avoid direct application to lakes, ponds and streams. The label for Anvil, which is also applied by truck and helicopter states: “For terrestrial uses, do not apply directly to water or to areas where surface water is present.”
Suffolk County does not own any helicopters and uses a contractor, North Fork Helicopter for pesticide application services. Vector Control prepares the maps indicating the area to be treated. Ninivaggi goes on pre-treatment helicopter trips to survey the spraying areas and designates the boundaries of the areas to be sprayed. Counsel for the plaintiffs reviewed a number of photographs and exhibits with Ninivaggi showing where the spraying zones were located, including areas known as Unchaehogue Creek and Johns Neck Creek. Ninivaggi also pointed out that there were exclusion zones “for label compliance or at the request of the national park service.” (Tr. at 348).
Ninivaggi testified that the helicopters typically fly approximately 150 feet above ground level when they delivered the pesticide. The mosquitos can range from ground level to the height of the forest canopy and sometimes slightly above that level. As to the aircraft, they attempt to cover a 300 foot swath. However, when the spray cloud is released from the aircraft the size of the swath varies. Also, starting in 1999, Vector Control used three trucks to apply Scourge. Most of the applications were done by truck. Ninivaggi also related that the areas in central, northern and western parts of Suffolk county rarely have mosquitos. In terms of number of mosquitos, the biggest problem is along the south shore of Long Island, particularly in the Mastic-Shirley area, which is heavily populated and “has massive numbers of mosquitos.” (Tr. at 394). Vector Control had a number of truck applications in that area during the summer in addition to helicopter applications.
Vector Control issues annual reports as to its activities. These reports are voluminous. The report for the year 2001 is some 3,750 pages.
As to the “ditching” control measures, Ninivaggi referred to the construction of new ditches in the wetland. Most of the ditches were constructed in the 1930s by hand, and generally were two feet wide and about two feet deep in a parallel grid pattern out into the marshes. The purpose of the ditches originally was to reduce mosquito production both by draining off surface water and by introducing fish into the areas where mosquitos would breed. These small native fish such as killies, are very efficient predators and would eat the mosquito larvae. In addition, Vector Control does maintenance of the ditches by hand. Defendants’ Exhibit G13 is a map, prepared by Vector Control, containing small red triangles, which represent breeding sites of mosquitos. Of course, not all breeding sites are on the map.
Ninivaggi testified that in or about February 28, 2000, a notice of violation was issued in the William Floyd Estate project, involving an error on the part of the crew in clearing some existing ditches and the construction of new mosquito ditching. On September 26, 2001, another notice of violation was issued from NYDEC to Vector Control with regard to a spray event in Flanders which occurred on August 7, 2001. The notice of violation charged that a swath of pesticide extended into and over the surface waters, which were located within 41 feet of the road. After receiving the notice of violation, Ninivaggi visited the area.
In evidence is a “State of the County” address by Suffolk County Executive Steve Levy on January 24, 2005, in which he announced that machine ditching helped to destroy many of the wetlands, and, in 2005 there will be no machine ditching in any wetlands in Suffolk County.
It was also revealed that Suffolk County did not receive a State Pollution Discharge Elimination System (SPDES) permit between 1999 and 2005. Nor did the County obtain an Army Corps of Engineers Section 404 permit. However, the work done at the William Floyd Estate was a wetlands restoration project done pursuant to an individual permit from the New York State DEC and subject to an Army Corps of Engineers Nationwide Permit for wetlands restoration. (See Plaintiffs’ Exh. 82A).
In a lengthy cross-examination by defense counsel, Ninivaggi testified in detail with regard to twenty-five permits received by Vector Control. During his testimony, a series of permits were introduced in evidence. These permits are listed in the following manner:
(1) July 6, 2004—DEC Permit No. 1-4700-00007-00024
Description of Authorized Activity: General Permit for the following activities:
1) Repair and/or in kind, in place replacement of existing culverts, tide gates, tide boxes and other water control structures. 2) In kind, in place repair or reconstruction of mosquito control ditches (up to a total of 400,000 feeVyear to within 6 inches of their original depth and width).
This permit does not authorize any new ditches or water control structures. Prior to the start of any specific project, the County will submit site specific project information to NYSDEC for review and approval. No application of pesticides is included in this project. (Defendants’ Exh. F2).
(2) DEC Permit June 17, 2000 to October 15, 2010 No. 1-4700-00007/00007
Description of Authorized Activity:
Apply the following larvicides: Altosid Liquid Larvicide EPA Reg# 2724-392, Altosid Liquid Concentrate EPA # 2724-446, Altosid pellets EPA # 2724-448-64833, Altosid XR Briquets EPA #2724-421, Altosid XR-G EPA # 2724-451, Vectobac CG EPA #275-70, Vectobac 12AS EPA # 275-102, Bti Briquets EPA # 6218-4:7, Vectolex CG EPA # 275-77, and Vectolex WDG EPA # 275-135, throughout Suffolk County in and adjacent to NYSDEC regulated freshwater wetlands, for the purpose of mosquito abatement.
(Defendants’ Exh. EF).
The Court notes that this permit authorizes the application of a number of larvicides “throughout Suffolk County in and adjacent to NYDEC regulated freshwater wetlands, for the purpose of mosquito abatement.” Also the Altosid referenced in the permit is methoprene.
(3) DEC Permit—for April 20, 2003 Permit No. 1-4724-00985-00001
The authorized activity is the removal and replacement of a drainage culvert pipe in a freshwater wetland.
Ninivaggi explained that this type of structure allows the proper flow of water; which prevents the mosquitos from breeding in that water. The free flow of water also allows fish and the wildlife in, which reduces the mosquito larvae and, again reduces the need to spray.
(Defendants’ Exh. El).
(4) DEC Permit—July 8, 2003 to July 8, 2004 Permit No. 73-06256/00001
The authorized activity is to replace a collapsed culvert under Old Country Road in Eastport. This was part of the water management plan to prevent mosquito infestations.
(Defendants’ Exh. EO).
(5) DEC Permit—November 25, 2003 to November 25, 2004 Permit No. 730-00743-00003
The authorized activity is to replace and reroute a drainage pipe system at the North Fork Preserve and install two “clean out structures.”
(Defendants’ Exh. ESI).
The Court notes that all of these plans and ventures were approved by the New York State DEC and all the work was performed in accordance to the plans approved by DEC.
(6) The prior permit, Defendants’ Exhibit ESI was extended by an “Amendment to Permit” dated April 7, 200k- The expiration date was extended from November 25, 2004 to November 25, 2005.
(Defendants’ Exh. ES2).
(7) DEC Permit—July 15, 200k to September 30, 2005. Permit No. 1-k700-00007100037
This permit involved the prior Gilgo trial site and the Mastic/Shirley Airspray Trial Sites. The location of the project is as follows:
In the vicinity of the eastern end of the Jones Beach barrier island in the area of Gilgo Beach, Gilgo State Park, Oak Beach and Captree Island in the Town of Babylon and in the hamlets of Mastic and Shirley, generally in an area south of Montauk Highway from the Carmans River to the William Floyd Estate, Town of Brookhaven, Suffolk County, New York.
These areas are outlined on the maps entitled Gilgo Trial Site and Mastic/Shirley Airspray Trial as well as in the 7/1/04 document entitled “Assessment of the Potential Effects of Mosquito Spraying on Local Organisms—Caging Study—Saltwater Assessment” and all of which are stamped NYSDEC-approved on 7/15/04.
In lay terms, this permit authorized the application of adulticides in wetland areas in a situation where emergency authorization was not appropriate or necessary to study the effects of pesticides on marine organisms and conduct a “caged fish study” as follows:
Project Description: Application of mosquito adulticide and larvicide to assess potential effects on local organisms as part of the Suffolk County Vector Control and Wetlands Management Long Term Plan and GEIS. All work shall be in accordance with attached NYSDECstamped approved plans date-stamped 7/15/04. (The Department has determined that No Permit is Necessary for this project pursuant to the Tidal Wetlands Land Use Regulations.)
Annexed to this permit were maps showing areas to be sprayed by helicopters including lands owned by the State of New York, all approved by the DEC. (Defendants’ Exh. FB).
(8) Article 15 Permit from NYDEC “To Use An Aquatic Pesticide”. The date of treatment from May 7, 200k through October 1, 200k- Permit No. 03050kBC05.
The waters to be tested included large areas on the South Shore of Long Island and included “Primary Mosquito Breeding Sites”. The authorized chemicals was Zoe-con Altosid, with 2.1% methoprene.
An Article 15 permit permits use of an aquatic pesticide that is intended to target a problem organism that lives in the water; namely, in this situation, a larval mosquito. (Defendants’ Exh. ET).
(9) DEC Permit to use an Aquatic Pesticide—May 7, 200k through October 1, 200k Permit No. 02U03BC11
The target species to be controlled is mosquito larvae. This permit authorizes Vector Control to use Zoecon Altosid pellets, a methoprene, as a mosquito growth regulator.
(Defendants’ Exh. EW).
(10) DEC Permit to use an aquatic pesticide. May 7, 2004 through October 1, 2004—Permit No. 030504BC01
Also involving the use of Zoecon Altosid liquid larvicide mosquito growth regulator in large areas of Suffolk County. (Defendants’ Exh. EX).
(11) DEC Permit to Use an Aquatic Pesticide—May 7, 2004 through October 1, 2004—Permit No. 030504BC08
This is another Article 15 permit to use an aquatic pesticide called Valent Biosciences Vectobac 12 AS. Ninivaggi explained that Vectobac 12 AS is a liquid formula of the bacterial pesticide known also as Bti, which is utilized by Vector Control for mosquito control. These pesticides are applied in a variety of ways. By hand in catch basins and drainage areas to control the mosquitos who breed in those places. By helicopter, at daytime, with a liquid formula of Altosid and Bti over salt marshes and freshwater areas adjacent to salt marshes flying at a very low level of 10 to 20 feet.
(Defendants’ Exh. EU).
(12) DEC Permit to Use An Aquatic Pesticide—May 7, 2004 through October 1, 2004—Permit No. 030504BC09
This is another Article 15 permit to use the pesticide Valent Bioscience Vectolex CG. This is a live bacterial product that is also used to control mosquito larvae. (Defendants’ Exh. EV).
(13) DEC Permit to use an Aquatic Pesticide—May 7, 2004 through October 1, 2004■ Permit No. 030504BC06
This Article 15 permit authorized the Use of Valent Biosciences Vectolex WSP. This is another bacterial product used for controlling mosquito larvae, in a water-soluble powder. Both the Valent product and Bti are biological products that Suffolk County uses in its Vector Control program.
(Defendants’ Exh. EY).
(14) DEC Permit to Use an Aquatic Pesticide—May 7, 2004 through October 1, 2004- Permit No. 030504BC04
This permit authorizes the use of the pesticide “Summit Bti Briquets”.
(Defendants’ Exh. EZ).
(15) DEC Permit to Use an Aquatic Pesticide—May 10, 2005 through September 30, 2005. Permit No. 030705BC03
This permit authorizes the use of the pesticide Zoecon Atosid Liquid Larvicide Concentrate, containing methoprene.
(Defendants’ Exh. FE).
(16) DEC Permit to Use an Aquatic Pesticide—May 10, 2005 through September 30, 2005. Permit No. 030705BC07
This permit authorizes the use of the pesticide Valent Biosciences Vectobac CG biological larvicide granules.
(Defendants’ Exh. FF).
(17) DEC Permit to Use an Aquatic Pesticide—May 10, 2005 through September 30, 2005. Permit No. 030705BC01
This permit authorizes the use of Zoecon Altosid Liquid Larvicide Mosquito Growth Regulator (EPA Reg. No. 2724-392).
(Defendants’ Exh. FG).
(18) DEC Permit to Use an Aquatic Pesticide—May 10, 2005 through September SO, 2005. Permit No. 030705BC02
This permit authorizes the pesticide Zoecon Altosid XR-G (EPA Reg No. 2724-451).
All of the Altosid products are methoprene.
(Defendants’ Exh. FH).
(19) DEC Permit to Use an Aquatic Pesticide—May 10, 2005 through September 30, 2005. Permit No. 030705BC04
This permit authorizes the use of the pesticide Summit Bti Briquets (EPA Reg. No. 0218-^7) for long term control of mosquitos.
(Defendants’ Exh. FI).
(20) DEC Permit to Use an Aquatic Pesticide—May 10, 2005 through September 30, 2005. Permit No. 030705BC05
This permit authorizes the use of “Zoe-con Altosid XR Extended Residual Briquets” (EPA Reg No. 2724-421).
(Defendants’ Exh. FJ).
(21) DEC Permit to Use an Aquatic Pesticide—May 10, 2005 through September 30, 2005. Permit No. 030705BC06
This permit authorizes the use of the pesticide “Zoecon Altosid Pellets Mosquito Growth Regulator” (EPA Reg. No. 2724-448).
(Defendants’ Exh. FK).
(22) DEC Permit to Use an Aquatic Pesticide—May 10, 2005 through September 30, 2005. Permit No. 030705BC08
This permit authorizes the use of the pesticide “Valent Bioscience Vectobac 12AS” (EPA Reg No. 73049-38). (Defendants’ Exh. FL).
(23) DEC Permit to Use an Aquatic Pesticide—May 10, 2005 through September 30, 2005. Permit no. 030705BC09
This permit authorizes the use of “Va-lent Biosciences Vectolex CG” (EPA Reg No. 73049-20).
(Defendants’ Exh. FM).
(24) DEC Permit under the Environmental Conservation Law. October 8, 2003. Permit No. 1-4730-01203/00001
This is a tidal wetland permit to replace a deteriorated culvert in Jamesport, as part of the Vector Control water management process. In connection with this work, the County submitted plans and specifications to DEC, and the work was done in accordance with those plans and specifications.
(Defendants’ Exh. ER).
(25) DEC Permit under the Environmental Conservation Law. July 5, 2004 to December 31, 2004- Permit No. 1-4700-00007/00024
This was an important general permit involving major water management activities in tidal wetland areas.
The description of the authorized activity is as follows:
General permit for the following activities:
1.) Repair and/or in kind, in pace replacement of existing culverts, tide gates, tide boxes and other water control structures. 2.) In kind, in place repair or reconstruction of mosquito control ditches (up to a total of 400,000 feet/year) to within 6 inches of their original depth and width.
This permit does not authorize any new ditches or water control structures. Prior to the start of any specific project, the County will submit site specific project information to NYSDEC for review and approval. No application of pesticide is included in this project.
(Defendants’ Exh. FQ).
Ninivaggi explained this general permit in lay terms:
This is what is called a general permit. It was a permit to allow certain types of activities subject to the division of vector control submitting individual plans for these individual activities. That is, instead of issuing an individual permit for each activity, because there are many similar activities that we were proposing to do, it was grouped into this general permit in order to basically reduce paperwork and assure overall review of the program. Insure. Part of the permit was that no activities could be done until plans could be submitted for the projects.
Tr. at 570.
Ninivaggi explained his duties in detail, including his responsibility for the overall conduct of the Vector Control program; environmental compliance; obtaining the appropriate permits; obtaining the appropriate equipment; and the selection of pesticide application equipment. This includes surveillance of mosquitos to determine where they are; their species; the larvae mosquitos in the water; and the adult mosquitos. He explained that mosquitos need water to breed and have a broad range of sites on Long Island in which to do so. Mosquitos are not strong swimmers and usually leave their larvae in stagnant bodies of water. Vector Control tries to reduce the areas where mosquitos breed and endeavors to eliminate stagnant water.
Vector Control also maintains existing water control structures such as ditches and culvert pipes in order to keep water flowing, which renders each body of water less suitable for mosquitos. When the water is circulating there will be predators such as killie fish that will eat the mosquito larvae.
The County uses biological and chemical agents in its Vector Control program, such as Bti, Vectolex and methoprene to kill mosquito larva. In this regard, Ninivaggi works together and has frequent interaction with the New York State DEC to obtain permits and license to apply pesticides and make sure that his people have proper training. DEC people accompany Vector Control employees in the field and conduct inspections to make sure Vector Control is in compliance with state regulations. In addition, Ninivaggi interacted with the USEPA on many occasions, in the field and on committees on which he has served. In the early years of the West Nile response in 2000 and 2001 the EPA took a very active role. Later, the pesticide regulation program was delegated by the EPA to the New York State DEC.
At the present time, Vector Control efforts are focused on mosquitos. This work includes a large surveillance effort to determine where the mosquitos are in relation to people. In addition there is ground spraying from units on the ground for both larval and adult mosquitos by special Vector Control trucks.
West Nile Virus is a mosquito-born pathogen, first found in North America in 1999. It is a disease that is sometimes transferred to humans by biting mosquitos. While Ninivaggi was with the New York State DEC he became acquainted and educated with the mosquito control program and the permitting process. As Superintendent of Vector Control, Ninivaggi has to submit annual plans to the legislature with DEC oversight. For example, the 2005 plan eliminated all EPA Class 1 and 2 pesticides and permitted only lower toxicity Class 3 and 4 products. The plans are reviewed for approval under the State Environmental Quality Review Act or SEQRA. In addition, input for the plans are solicited from various federal agencies such as the USEPA and the U.S. Fish and Wildlife Service and the Federal Center for Disease Control, especially with regard to dealing with West Nile Virus.
The primary pathogen that Ninivaggi has had to deal with over the years is West Nile Virus. The most serious potential threat is a virus called Rift Valley Fever, RIFT, which is even more lethal than West Nile Virus. Ninivaggi described the dangers involved in this disease:
If this pathogen were introduced and successfully established in the United States, the estimates are it would be over $20 billion a year in damage.
This again is a very serious pathogen in terms [that] it’s far more lethal than West Nile Virus. The primary vectors are salt marsh mosquitos, which are extremely abundant in Suffolk County. And perhaps the worst feature of this virus, that unlike the viruses we currently deal with, Rift Valley Fever is transmitted from adult female mosquitos to their eggs, which means that when the larvae hatch, they are already infected with the virus, which greatly complicates any kind of control efforts. Because, fortunately, the viruses we deal with now, the newly emerged mosquitos are not infected.
The consensus from the world’s leading experts that were there, it’s not a matter of if one of these exotic pathogens appears in North America the issue is when.
So we take—we’re fortunate that we haven’t seen these pathogens yet, but needless to say, we are concerned and we hope to be prepared, should they appear.
Tr. at 487-488.
Ninivaggi described the other vector-borne diseases that are present in Suffolk County. There are four pathogens or germs or agents that cause disease. The first is Eastern Equine Encephalitis or EEE, the most serious mosquito borne pathogen in Suffolk County. While rare, this disease has a very high fatality rate especially for high risk adults and children. The second mosquito-borne disease is malaria, which is also rare.
A New York State Public Health Threat confirms that there is an immediate threat of mosquito-borne disease based on findings in the County. Public Health Threats were issued for EEE in 1994 and 1996; malaria in 1999; and for West Nile Virus from 1999 through 2007.
On August 2, 2005, the New York State Deputy Commissioner of Public Health wrote to the Commissioner of the Suffolk County Department of Health Services concerning the threat of the West Nile Virus infection-Defendants’ Exh. FO. This letter declared that, with regard to the West Nile Virus, “a public health threat based on current activity exists in Suffolk County:”
The finding of West Nile Virus infection in a mosquito pool specimen on July 29, 2005, indicates that the West Nile Virus is present in Suffolk County. Accordingly, pursuant to the authority vested in me by the Public Health Law and the rules and regulations promulgated thereunder, including but not limited to 10 N.Y.C.R.R. § 44.50, I declare that a public health threat based on current activity exists in Suffolk County.
This declaration enables the County to undertake public health activities to control mosquito populations in accordance with the New York State West Nile Virus Response Plan. In the event that adulticiding is being evaluated, please carefully review and follow the criteria in the WNV Response Plan.... Enhanced education, as well as larviciding activities should also be included as essential components of your mosquito control efforts. We stand ready to assist you in your decision-making process. A copy of this declaration is also being transmitted to the Commissioner of the New York State Department of Environmental Conservation pursuant to Environmental Conservation Law Section 24-0701(5).
(Defendants’ Exh. FO) (emphasis supplied).
Ninivaggi testified that, as a result of this West Nile Virus “Public Health Threat,” Vector Control has stepped up its surveillance activities, identifying areas of higher risk and sending crews to look for mosquito sources and identify their species. Vector Control is required to provide public notification when there will be a ground or aerial spray. Vector Control has provided substantial and widespread notice of its spraying activities. It provides newspaper notices; notifies the media; posts on the county website; maintains a spray hotline; posts notices at park entrances; notifies school districts, county legislators, other local government officials; and distributes maps which are also posted on the county website. Also, there is a “no-spray” list if someone doesn’t want Vector Control on their property; which can be overcome in the event of a disease threat and an aerial application.
As to spraying, the County only uses chemicals in its Vector Control program that are registered by the USEPA and New York State DEC. The labeling process is important in the Vector Control activities. The labeling process is designed to control the actual use of the material by the user. Ninivaggi described this labeling process in detail:
The labeling process is designed to control the actual use of the material by the user. The labels have to meet certain legal requirements in terms of the information that is provided on it. It needs to have information about the product contained in the container. It has to have information related to safe use of the product, such as whether personal protective gear, such as gloves or a mask, needs to be used. There’s information on environmental hazards. There’s information on exactly how to use the product.
And the label has the force of federal and state law. There is a saying in the industry that the label is the law.
Tr. at 498.
All the pesticides used by Vector Control have the appropriate labels. Prior to spraying, weather conditions are taken into account. Further, in certain weather conditions Vector Control may decide spraying is not appropriate. For example, if windy, spraying may not be done. Also, in the cool part of the season, perhaps in September, mosquitos may not be flying. In addition, there is no spraying in areas where school children are nearby.
Ninivaggi explained the process that Vector Control goes through in order to obtain its New York State DEC permits, such as the ones in evidence.
Q Can you tell the Court in general— we’ve been through a lot of permits this morning so far—the process that the county’s vector control program goes through in order to get its permits, such as the ones we’ve discussed so far this morning, from the New York State Department of Environmental Conservation?
A All permits involve an application process where we have to fill out certain forms that provide certain information. Most of the permits require various types of maps.
In the case of a pesticide permit, we also have to provide the labels for the products that we’re going to use. That information is provided as required by the state DEC. They then review that information, both for sufficiency, legally, to issue the permit, and for technical reasons, to determine if it’s appropriate to issue a permit under their laws and their standards for issuing permits.
Tr. at 564.
An important event occurred on August 23, 2005. On that date an Emergency Authorization was issued to Vector Control by the New York State DEC (Defendants’ Exh. FN). This authorization permitted Vector Control to conduct an aerial-based application of the pesticide Scourge, using a helicopter, provided that every precaution was taken to prevent introduction of the pesticide into surface waters. The DEC made a finding “that an Emergency Exists.” The DEC emergency authorization stated the basis for the emergency:
There is currently an immediate threat to public health in the affected area. Suffolk County discovered isolations of West Nile Virus (WNV) in two samples of Culex spp. Mosquitoes collected in the spray area. One positive sample was obtained from a CDC light trap at Peconic Avenue in West Babylon (one positive out of two pools totaling 38 mosquitoes). The second positive sample was obtained from a gravid trap on Calhoun Street (one positive out of three pools totaling 129 mosquitoes). In addition, seven WNV-positive birds were collected from the spray area and represent half of the WNV-positive birds found in Suffolk County thus far this season. This cluster of birds represents a likely center of viral amplification. In addition, the area is densely populated by people increasing the potential risk of infection. This history indicates that viral activity detected this early in the season is likely to continue without intervention. The State Commissioner of Health subsequently declared a public health threat for West Nile Virus in Suffolk County on August 2, 2005. This has triggered the need to treat the affected areas. Aerial application has been selected because of the' large areas involved and the lack of road access to all areas that require treatment. Ground application is much less effective under those conditions.
Based on the Department’s review of the situation and the information provided by Suffolk County and having consulted with the Department’s Office of Natural Resources and Bureau of Pesticides, the Department has determined that this situation meets the definition of an emergency, “an event which presents an immediate threat to life, health, property, or natural resources,” as defined in the Uniform Procedures regulations, Section 621.1(g). There is currently an immediate threat to human health due to the presence of West Nile Virus.
Accordingly, the Department hereby make a finding that an emergency exists pursuant to Section 621.12 of the Uniform Procedures Act regulations due to the threat noted above. The Department has determined that emergency action is necessary in order to protect human health.
(Defendants’ Exh. FN) (emphasis supplied).
The Emergency Authorization further provided that spray jets would be turned off over visible lakes, parks, rivers, streams and other surface waters. Annexed to the Emergency Authorization was a map showing where the West Nile Virus was found and where mosquitos are likely to fly. A spray plan was created in accordance with this Emergency Authorization and was accomplished. (See Plaintiffs Exhs. 64 and 67).
Ninivaggi testified that after the presence of West Nile Virus was detected, the County had to seek additional emergency authorizations almost every year. These authorizations were all issued by the New York State DEC and permitted the application of adulticide to kill the infected adult mosquitos before they transmitted disease. There also were a number of other emergency authorizations for aerial application of mosquito adulticide to control West Nile Virus. The other emergency authorizations in evidence, are as follows:
1. August 4, 2000—Letter giving emergency authorization to spray mosquito adulticide “to control West Nice Virus,” “an event which presents an immediate threat to life, health, property natural resources” in the Belmont State Park area. A finding made that “an emergency exists ... due to the public health threat of West Nile Virus.” Vector Control was authorized to spray Anvil and Piperonyl Butoxide in accordance with label concentrations. (Defendants’ Exh. EG).
2. August 9, 2001—A DEC emergency authorization permitting the use of the pesticide Scourge (resmethrin) for the area north of Lake Ronkonkoma. It was issued in regard to an emergency, “an event which presents an immediate threat to life, health, property or natural resources.” (Defendants’ Exh. EJ).
3. August 16, 2001—A DEC emergency authorization for a thirty-day period, for aerial application as to West Nile Virus, in Nesconset, to conduct ground based application of the pesticide Scourge (resmethrin). (Defendants’ Exh. EK).
4. August 23, 2002—A DEC emergency authorization for a spray event in Huntington for aerial application of the pesticide Scourge (resmethrin); with an annexed spray map showing an authorized treatment area. A spray event was conducted in Huntington pursuant to this emergency authorization. (Defendants’ Exh. EL).
5. August 23, 2002—A DEC emergency authorization in the Town of Babylon as a “West Nile Virus Response” and authorizing the use of Scourge. The treatment area boundary was approved by the DEC. The County did apply adulticide from August 23, 2002 to September 23, 2002 in that location pursuant to this emergency authorization. (Defendants’ Éxh. EM).
6. September 20, 2002—A DEC emergency authorization in the Towns of Islip and Brookhaven for the application of adulticide in response to West Nile Virus. The area treated encompassed the area shown on an area map entitled “Mosquito Control Treatment Zone” and is stamped “DEC approved” on September 20, 2002. However, this project was cancelled “because it was getting late in the season and the weather was poor.” (Tr. at 600-601).
7. August 26, 2003—-A DEC emergency authorization. The area to be treated was in and surrounding Blydenburgh County Park in Smithtown. In that area Vector Control performed adulticide activities. New York State DEC was consulted on how to comply with the label restrictions of Scourge while still appropriately conducting the operation. As a result, certain no-spray zones were mapped out and agreed upon. In those no-spray areas, the pilot would cut off the spray in compliance with the label. In particular, there would be no spray over lakes, streams and ponds. The Court notes that on the last page of this emergency authorization there is a stamp which states “NYSDEC approved as per terms and conditions of Permit No. 1-4700-00007/00034 Dated August 26, 2003” and initialed. (Defendants’ Exh. EN).
8. August 27, 2003—A DEC emergency authorization for treatment for adult mosquitos in response to West Nile Virus reports in the town of Southhold. This was another New York State approved spray plan. This authorization included no-spray areas that were open water in order to meet the Scourge label requirements. (Defendants’ Exh. EQ1).
9. August 27, 2003—A DEC emergency authorization in response to West Nile Virus. This involved the Mastic/Shirley aerial application within the boundary lines set forth in the map annexed to the authorization. This authorization was also stamped “approved” by the New York State DEC. (Defendants’ Exh. EQ2).
10. August 25, 2004—A DEC emergency authorization to apply pesticides by air in response to West Nile Virus for the Mastic/Shirley area. Vector Control discussed this operation with New York State DEC as to the area to be treated and the compliance with the label requirements of the chemicals. The authorization was stamped “approved” by DEC. (Defendants’ Exh. FC).
In addition to the permits and emergency authorizations in evidence, the defendants introduced a “Special Use Permit” by the United States Department of the Interior, Fish and Wildlife Service (Defendants’ Exh. FD). The permittee was the “Bureau of Vector Control.” This permit allowed Vector Control to control larval mosquitos in two refuges in Suffolk County: the Wertheim National Wildlife Refuge in Shirley and the Seatuck National Wildlife Refuge in Islip.
Ninivaggi described the various permits in the Vector Control field by the United States and the State of New York, and, significantly, noted that permit authority in this field has been delegated by the United States to the State of New York, as follows:
Q Mr. Ninivaggi, do you know what an NPDES or an SPDES permit is?
A An NPDES permit is a permit under the National Pollutant Discharge Elimination System, and it is a Clean Water Act permit under federal law. SPDES is often called “speedy’s,” pronounced “speedy’s” for short. It’s a permit under State Pollutant Discharge Elimination system. That’s a state permit issued under the Clean Water Act in states where that act has been delegated to state authority.
Q Are you aware through your job responsibilities whether the USEPA has delegated that responsibility to the New York State Department of Environmental Conservation?
A Yes, I am aware it has been delegated to the State of New York.
Q And in the State of New York?
THE COURT: Excuse me. What was delegated to the State of New York?
THE WITNESS: Permit authority has been delegated to the State of New York.
BY MR. JEFFREYS:
Q And in New York State, could you tell the Court what governmental agency administers SPDES permits?
A It’s the New York State Department of Environmental Conservation, or the New York DEC.
Tr. at 696-697.
Ninivaggi testified that he speaks to New York State DEC personnel regularly and asks them for their advice on many matters, including “how to interpret a pesticide label” and other environmental conservation legal matters. DEC responds to his inquiries and he incorporates its advice in his Vector Control activities. He also testified that Vector Control relied on the determinations of DEC that there was no requirement for a SPDES Permit. However, in 2005, Vector Control again inquired of New York State DEC as to whether a SPDES Permit was required for the Suffolk County activities.
FIFRA is the primary federal law regarding the use of pesticides. The acronym is short for the Federal Insecticide Fungicide and Rodenticide Act, 7 U.S.C. § 135 et seq. (1970). All of the pesticides utilized by Vector Control have instructions on their labels concerning their use, pursuant to FIFRA. These instructions are issued by both USEPA and DEC. These label instructions are written in precise language. There are industry handbooks and other materials used in the industry to interpret the specific language in the pesticide labels. Ninivaggi has a copy of the USEPA label manual, which Vector Control uses. All of these labels were approved by the New York State DEC.
Beginning in 2004 and thereafter, Vector Control used the pesticides Scourge and Anvil for control of adult mosquitos in “ultra low volume application.” It also used a small amount of a product called Suspend SC, which is applied to vegetation in upland areas to kill mosquitos resting on the vegetation. In 2003 or earlier, Vector Control also used a chemical called malathion.
Ninivaggi defined the term “terrestrial use,” as where the pesticide is applied to the soil or ground or vegetation directly in order to target pests on the ground or in the vegetation. The “ultra low volume” application of materials by Vector Control “is specifically not a terrestrial use.” (Tr. at 725). So that label precautions that apply to terrestrial use do not apply to the manner in which Scourge and Anvil are used by Vector Control. Ninivaggi offered a further explanation of terrestrial use as opposed to Vector Control “ultra low volume” application, which involves “tiny” amounts:
“Terrestrial use” is a general term that applies to things like agriculture. For instance, where you say caterpillars are terrestrial animals that live on the vegetation, and you trying to kill, say, the caterpillars, so you are applying the pesticide directly to the vegetation.
It is distinctly different from ultra low volume mosquito control, where the target organism is up in the air and you are applying organisms that are flying in the air as opposed to an insect that is on the ground.
As a matter of fact, when you apply ultra low volume mosquito control pesticides, it’s known that the application will have little or no effect on mosquitos that are not flying at the time of the treatment.
THE COURT: It must be me. I still don’t understand what terrestrial use means.
MR. JEFFREYS: Your Honor, I’ll go into a little more detail with the witness. We should be able to hone in a little more for you.
BY MR. JEFFREYS:
Q The manner in which ultra low volume pesticides, Scourge and Anvil, are applied, can you tell the Court in some detail that [what] you know of the manner in which they are applied?
A The exact equipment varies, but what they all have in common is that they produce a very small droplet of the pesticide, which is designed to stay up in the air and produce an aerosol or a mist or a fog. And ultra low volume means that the volume, the amount of the material that is put out, is very, very small.
In the case of Scourge and Anvil, the total volume of liquid put out into this aerosol is six-tenths of an ounce per acre. So it’s a very, very tiny amount of pesticide per acre. And the reason we can do that is because the pesticide is concentrated, and it has these drops that stay in the air, and the mosquitos encounter it.
It’s very different from—for instance, there are mosquito control products that are designed to kill mosquitos that are resting in the vegetation. And the dose of pesticide for that use is about 6Jp times the dose that we use of the material for when we are trying to kill the mosquitos up in the air.
Q Now, you told us something about an aerosol mist or fog?
A Yes.
Q That’s how ultra low volume pesticides, Scourge and Anvil, are applied by the division of vector control?
A Yes.
Q And is that applied down, facing towards the ground? Is it applied in the air? In water?
Where is it applied?
A If it’s a truck-mounted system, what the machine does, it generates these very fine droplets, and it has a system for blasting those droplets up into the air to form this cloud. And there are various different means, but they all blast the material up in the air. And you want the material up in the air, because that’s where the flying mosquitos are. You want it not to settle down on the ground.
For aerial application, the drops are generated by the aircraft. And it is the speed and the flow past the air drop that generate the cloud of droplets. The droplets basically come to the ground by a combination of mixing from the air flow around the aircraft, plus mixing in the air. As the air circulates, it mixes, and it brings this cloud down to the ground.
There’s very little, if any, gravitation settling. The drops are so small that for all practical purposes, gravity doesn’t affect them. They basically move whichever way the air currents and turbulence bring.
So it’s different if you are targeting organisms on the ground. In that case you use large drops, and you direct the treatment, the spray, down onto the ground to get the stuff on the ground as much as you can and as little as possible into the air. So it’s kind of the opposite of what people generally think of when they think of spraying pesticide.
Q So Mr. Ninivaggi, when you tell us about the ultra low volume aerosol mist and fog, in your experience with vector control is that a terrestrial use?
A No, it’s not.
Q Why not?
A It’s basically intended to target an organism up in the air, while terrestrial use, you are targeting an organism that is on the ground or on the vegetation. In the case of a terrestrial use, you are trying to put the drops down onto the ground or down onto the grass or other vegetation, while on mosquito control ultra low volume use, you are trying to put the pesticide up in the air and the droplets up into the air to kill a flying insect.
Tr. at 726-729 (emphasis supplied).
As stated above, Vector Control does not own a helicopter. The County has a contract with the North Fork Helicopters to apply adulticide when there is a need. (Defendants’ Exh. FT). Included in the contract are provisions that the applications are to conform to the labels on the pesticides and the equipment is to be shut off while flying over lakes, ponds, streams and bays. Also, applications are not to be made in wetland areas designated by the DEC.
Ninivaggi also described ditch maintenance. The purpose of these ditches is to control mosquitos by either draining off surface water where mosquitos breed or providing a habitat for fish that eat mosquito larvae. The ditches were originally constructed in the 1930s. At that time, Suffolk County had several hundred cases of malaria, and it was believed that by installing ditches, it would greatly reduce the number of mosquitos. Ninivaggi described the ditches as “mostly long, straight ditches in the marsh. Typically, they are about two feet wide, plus or minus, and about two feet deep.” (Tr. at 735-736). As they have over the years, today, according to Ninivaggi, the ditches do provide some mosquito control. Vector Control has maintained some of the ditches, based on sitespecific considerations, by field crews.
As to Napeague Meadows, there are probably hundreds of grid ditches running, possibly for several miles, as they are shown, running in horizontal and vertical lines on the aerial photographs in evidence. No new ditches have been constructed in Napeague Meadows since 1994, but the existing mosquito ditches have been maintained so as to provide fish to eat the larvae. Vector Control advises DEC of the monthly ditching activities and follows advice from the DEC as to the proper manner to maintain the seventy year old grid ditch network.
In 1990, Ninivaggi was employed by the New York State DEC. On August 13,1990, he authored an opinion for the DEC that was sent to the Suffolk County Department of Health Services, Bureau of Vector Control (Defendants’ Exh. FP), which reads, in part, as follows:
In response to the recent inquiry you made of Dominick Ninivaggi regarding the regulatory status of mosquito ditch maintenance in tidal wetlands, I can pass on to you the guidance I recently gave to Bureau and Regional regulatory staff. Basically, no Tidal Wetlands (Article 25) permit is necessary for the ordinary maintenance of mosquito ditches on tidal wetlands. This includes all the necessary operations normally associated with maintenance....
While no Article 25 permit is required for ditch maintenance, you should work with management staff (Dominick Ninivaggi) when determining which ditches on the State lands should be maintained.
I hope that this letter, which will become part of the Bureau file regarding mosquito control, clears up any misunderstandings regarding this matter. The Department has a responsibility to minimize the adverse impacts of mosquito control on tidal wetlands. This goal will be accomplished through cooperative efforts with mosquito control agencies. In particular, please feel free to contact me or my staff if you have any problems or questions regarding a particular project. Sincerely,
/s/
Kenneth L. Koetzner
Chief, Bureau of Marine Habitat Protection
(Defendants’ Exh. FP) (emphasis supplied).
The New York State DEC policy set forth in this letter has never been revised or revoked and still controls. The County of Suffolk operates its ditch maintenance program in accordance with the guidelines set forth by the New York State DEC. There have been no violations from DEC with regard to Vector Control ditch maintenance policies.
Ninivaggi also formerly worked with the U.S. Army Corps of Engineers and was familiar with its nationwide permitting process. He testified that all of the ditch maintenance activities by the County of Suffolk since 2004 have been covered by the U.S. Army Corps of Engineers Nationwide Permit No. 3.
On redirect examination of witness Ninivaggi, counsel for the plaintiffs emphasized that the emergency authorization instructed the helicopter pilots to turn o