NPDES Permit Required for Discharge to the Air? 9th Circuit Opinion in League of Wilderness Defenders v. Forsgren
By David E. Filippi, J. Mark Morford
11/1/2002

On November 4, 2002, the 9th Circuit Court of Appeals issued a surprising opinion that requires a National Pollutant Discharge Elimination System (NPDES) permit for aerial pesticide applications over forest lands. The opinion in League of Wilderness Defenders v. Forsgren, No. 01-35729, (9th Cir 2002), focuses on aerial insecticide spraying over national forest lands in Oregon and Washington. The broad holding in the decision, however, raises the specter of NPDES permitting requirements for a wide range of activities that have long been thought to be outside the scope of the federal Clean Water Act.

Factual Background

The facts in the case were not disputed. To combat the risk of defoliation caused by the Douglas Fir Tussock Moth, the United States Forest Service (Forest Service) implemented a program to control outbreaks of the moth with an annual aerial spraying regime. The program targeted 628,000 acres of national forest lands in Oregon and Washington, and was aimed at controlling outbreaks that would cause excessive damage in designated scenic areas, critical habitat areas for threatened and endangered species, and seed orchards that had prospered following substantial Forest Service investment.

While effective at controlling moth outbreaks, evidence in the court record also indicated that aerial insecticide will drift outside target spray areas and could result in harm to species other than the moth, including various butterfly species. In addition, even within target spray areas, insecticide applications were occurring directly above streams, and insecticide could settle in such waters, possibly affecting stoneflies and other aquatic insects.

A coalition of environmental groups led by the League of Wilderness Defenders/Blue Mountains Biodiversity Project sued the Forest Service in federal district court, asserting that the aerial insecticide program should be enjoined because the Forest Service lacked an NPDES permit and because the Environmental Impact Statement (EIS) prepared by the Forest Service was inadequate. U.S. District Court Judge James Redden ruled in favor of the Forest Service on both claims, and the environmental groups appealed. The 9th Circuit reversed the decision on both claims, and directed the district court to enjoin all further aerial spraying by the Forest Service until it acquires an NPDES permit and completes a revised EIS.

The 9th Circuit's Legal Analysis

As a basic starting point, the Clean Water Act requires an NPDES permit only when four prerequisites are satisfied: (1) a pollutant is (2) discharged (3) to waters of the United States (4) from a point source. Incredibly, the Forest Service did not dispute whether the insecticides at issue met the definition of a pollutant under the Act. Moreover, the Forest Service did not dispute whether the streams within the spray area qualified as waters of the U.S. under the Act. Nor did the Forest Service assert that the spraying of pesticides into the air is not a discharge to the water. Rather, the Forest Service focused exclusively on whether spraying insecticide from an aircraft amounted to point source pollution or nonpoint source pollution.

The Court's analysis on this point is cursory at best. The Court began by describing the difference between nonpoint source pollution, which is not regulated by the NPDES permit program, and point source pollution. The Court noted that nonpoint source pollution is undefined in the Clean Water Act, but includes such things as runoff from roads containing residues left by automobiles. Point source pollution on the other hand is defined in the Act. The Court recited the statutory definitions of several terms, including the term "discharge of any pollutant" (defined as any addition of any pollutant to navigable waters from any point source); the term "pollutant" (defined as dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial municipal and agricultural waste discharged into water..."); and the term "point source" (defined as "any discernable, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft from which pollutants are or may be discharged").

From there, the court summarily concluded that the insecticides at issue in the case were indeed pollutants, that the pollutants were being sprayed into jurisdictional waters, that the airplane amounted to a discrete conveyance, and therefore, "all the elements of the definition of point source pollution are met." In a footnote, the court analogized the application of aerial insecticides to the deliberate release of bombs from Navy aircraft directly into jurisdictional waters, which the U.S. Supreme Court has determined is a point source discharge requiring an NPDES permit.

The court then spent a good portion of the opinion addressing a regulatory definition of "silvicultural point source," which, according to the Forest Service, operated to exclude pollution arising from silvicultural pest control activities from the NPDES permit requirement. The regulation states that the term silvicultural point source "does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff." 40 CFR §122.27(b)(1) (emphasis added).

The court, however, rejected this argument, noting that this regulatory definition could not trump the clear and unambiguous language of the statute, which, according to the court, clearly encompassed aerial insecticide applications. Moreover, the court read the regulatory definition such that nonpoint source silviculture activities would include only those pest control activities from which there is natural runoff. Thus, the court held "[b]ecause discharging pesticide from aircraft directly over covered waters has nothing to do with runoff, it is not a nonpoint source activity."

In their second claim, the environmental groups alleged that the EIS for the aerial spray program was insufficient because it failed to consider the impacts of drift of the insecticide to all areas beyond the boundaries of the target spray area. The court also pointed to inconsistencies between the EIS, the Record of Decision, and the Project Guidelines regarding whether drift could be avoided. Finally, the court noted the failure of the EIS to address mitigation for potential impacts on nontarget species, which was a concern raised by the Washington Department of Fish and Wildlife. Taking the deficiencies together, the court determined the EIS to be insufficient, and called on the Forest Service to take a closer look at how far the insecticides might drift and in what direction, to make a closer examination of the wind conditions under which insecticides should be applied, and to undergo a more detailed evaluation of potential mitigation measures.

Comments and Observations

A broad reading of the decision brings into question many activities that currently are not regulated under most state NPDES programs. The immediate concern is for the list of silvicultural activities that have long been viewed as nonpoint activities by the Forest Service to the extent those activities result in pollutants entering surface through other than stormwater runoff. The opinion also has the potential to apply to less obvious practices, such as the entire range of conduct, silviculture and otherwise, that results in emissions to the air that may eventually make their way to surface water.

The potential scope of the opinion underscores a fundamental flaw in the approach taken by the Forest Service in the case--it conceded the arguments that an insecticide properly applied amounts to the discharge of a pollutant and that such release amounts to a discharge of a pollutant to jurisdictional waters. The Forest Service also does not appear to have made the argument that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) acts as a bar to plaintiffs' claims.

In direct contrast to the 9th Circuit's opinion in this case, the U.S. District Court in No Spray Coalition v. City of New York, 2000 WL 1401458 (SDNY), affirmed on other grounds, 252 F3d 148 (2nd Cir 2001), reached an entirely different conclusion than the 9th Circuit on similar facts. That case involved a challenge to an insecticide spraying program undertaken by the City of New York. Environmental plaintiffs argued that the spraying program violated the Clean Water Act and required an NPDES permit. The district court rejected the claim, holding that while trucks and helicopters might amount to point sources:

"they discharge the insecticides into the atmosphere and not into navigable waters. It would be stretching the language of the statute well beyond the intent of Congress to hold that the de minimus incidental drift over navigable waters of a pesticide is a discharge from a point source into those waters. The fact that a pollutant might ultimately end up in navigable waters as it courses through the environment does not make its use a violation of the Clean Water Act." 2000 WL 1401458.

The district court held that the pesticide application was governed by FIFRA, which does not include a citizen suit provision. The court emphasized that FIFRA requires detailed pesticide labeling based on EPA's determination that the use will not result in unreasonable adverse effects on the environment. In response to the plaintiffs' Clean Water Act arguments, the district court opined:

"The basic problem with their arguments is that they fly in the face of the regulatory scheme established by Congress and require a strained reading of the statutory language."

* * *

"Plaintiffs contend that the unintended drift of minuscule particles of the City's pesticide spray into the waters surrounding New York City violates the Clean Water Act. However, this is the natural consequence of the use of the pesticides for the very purpose for which they were approved by the EPA." Id.

The district court's opinion in the No Spray Coalition case and the logic that supported the opinion cannot be squared with the 9th Circuit's holding in League of Wilderness Defenders. One possible explanation is that the 9th Circuit in Headwaters v. Talent Irrigation Dist., 243 F3d 526 (9th Cir 2001), had already rejected the argument that the proper application of a pesticide in accordance with EPA-approved FIFRA labeling is outside the reach of the NPDES permit requirements of the Clean Water Act. The Headwaters case, however, concerned the application of aquatic herbicides directly to surface water. The League of Wilderness Defenders opinion is a considerable leap beyond Headwaters, in that it will require an NPDES permit for discharges to the air that make their way to surface water.

Another possible distinction between the holding in League of Wilderness Defenders and the logic applied in the No Spray Coalition case is that the 9th Circuit appeared to be impressed by the fact that the Forest Service did not dispute that the pesticide was being applied directly over surface water. The issue in No Spray Coalition was drift of pesticides into areas where they could enter surface water. The No Spray Coalition court specifically declined to opine as to whether a different analysis would apply to the spraying of pesticides directly over surface water. This distinction, however, may be one that makes no difference given that the district court in No Spray Coalition clearly concluded that a discharge to the air simply is not a direct discharge to the water.

The sweeping conclusion of the 9th Circuit's opinion that the Forest Service was discharging the pesticide to surface water raises a specter about which the district court in No Spray Coalition warned:

"The fact that a pollutant might ultimately end up in navigable waters as it courses through the environment does not make its use a violation of the Clean Water Act. To so hold would bring within the purview of the Clean Water Act every emission of smoke, exhaust fumes, or pesticides in New York City." No Spray Coalition, 2000 WL 1401458 (citations omitted).

Clearly, the League of Wilderness Defenders case has precisely this potential for broad reaching implications both with respect to silviculture and a host of other activities ranging from ground application of pesticides to virtually any air emission source. The Forest Service has not yet decided whether to give up the battle or request review en banc by the 9th Circuit or to seek review by the U.S. Supreme Court. If the opinion stands, it is sure to foster much confusion, consternation and the litigation that inevitably follows such human conditions.

For additional information, contact: Stoel Rives attorneys David Filippi, 503/ 294-9529, defilippi@stoel.com, Mark Morford, 503/294-9259, jmmorford@stoel.com, or Greg Corbin, 503/ 294-9632, gdcorbin@stoel.com.