League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002).

Jason Savarese, 2L

The Ninth Circuit Court of Appeals recently held that aerial pesticide spraying by the United States Forest Service (Service) was point source pollution requiring a permit under the Clean Water Act (CWA).

Background
Moth epidemics are nature’s way of thinning a forest and establishing stand openings. About 700,000 acres in Oregon, Washington, and Idaho were destroyed by moths in the 1970s, prompting the Service to design a system to warn of impending moth epidemics. This warning system predicted a Tussock moth attack in 2000-2002, so a spraying plan was implemented to ward off these moths that kill Douglas fir trees. The Service aerially sprayed insecticide on 628,000 acres of national forest in Washington and Oregon, believing an attack would severely damage scenic areas, critical habitat areas, and seed orchards. The aerial insecticide spraying occurred over forests and streams, posing dangers to birds, plants, and insects like stoneflies, which in turn could potentially rob salmon and other fish of their sustenance. Some of the insecticide was carried from the target area by winds, possibly exterminating desirable species.

The League of Wilderness Defenders and several other environmental groups sued the Forest Service, claiming violations of the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA). They alleged that the Forest Service did not take into account the impacts of pesticide drift on unintended target areas in the prepared Environmental Impact Statement (EIS). The groups sought an injunction to prevent further aerial spraying.

The Forest Service claimed the aerial spraying was not point source pollution, pointing to an Environmental Protection Agency (EPA) regulation, two EPA letters written to the Forest Service, and an EPA “guidance document.” The Forest Service argued that the aerial spraying was a method of silvicultural pest control activity and claimed the above documents exempted such activities from the CWA permit requirement.

Point Source Pollution
Point source pollution is defined as “any discernible, 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.”1

The court found that the insecticide being sprayed was clearly a “pollutant” as defined by the CWA. Therefore, the CWA applies to the Forest Service’s aerial spraying because the insecticides were sprayed over rivers (in addition to the intended tree targets) regulated under the CWA.

The court rejected the Service’s arguments regarding silvicultural pest control activities. The court determined that only those pest control activities with natural runoff were excluded from the definition of point source pollution. Because the planes were spraying the insecticides onto trees, and incidentally into rivers, natural runoff was not the cause of the pollution in the rivers and, therefore, not an excluded silvicultural pest control activity.

The court also found the EIS to be incomplete, due to the Service’s disregard of the foreseeable pesticide drift and its impacts on areas outside the target area. Although the EIS included plans to lessen injuries to other moths species and butterflies in neighboring forest areas, such as a one-mile buffer zone around the target areas and the use of less deadly pesticides, the EIS did not discuss any measures to mitigate drift. The Forest Service failed to note the possible distance of the pesticide drift and the EIS did not discuss which direction the pesticide might be carried by winds.

Conclusion
The Ninth Circuit Court of Appeals held that the Forest Service’s aerial pesticide spraying was point source pollution, requiring an NPDES permit under the Clean Water Act. The court also held that the EIS was deficient regarding the impact of pesticide drift. The case was remanded to the district court and the Service is barred from future spraying until an adequate EIS is completed and the proper permits obtained.

ENDNOTES
1. 33 U.S.C. § 1362(14) (2002) (emphasis added) .