Courts, EPA threaten mosquito control

Delta County has verified seven live cases of West Nile. Thirty-eight states, plus the District of Columbia, have reported live cases of West Nile virus, which includes four human fatalities.

Delta, Mesa and Montrose counties have typically seen half of Colorado's recorded cases of West Nile, but their efforts to control the mosquitoes are threatened by a court ruling and EPA rules.

West Nile virus, first detected in North America in 1999, is an arthropod-borne virus spread by infected mosquitoes. The virus is a threat to human and livestock (especially equine) health and can cause febrile illness, encephalitis, or meningitis in humans.

The battle between combating West Nile infected mosquitoes and protecting their breeding grounds (stagnant puddles, muddy cattle hoof prints, or anywhere there is non-moving water and some vegetation) hinges on the passage of H.R. 935 and the definition of "navigable waters."

Under National Cotton v. EPA (6th Cir. 2009), the court held that the Environmental Protection Agency is required to issue permits for all biological and chemical pesticide applications when such applications are made "to, over, or near waters of the U.S." Jurisdiction over navigable waters, or "waters of the U.S." belongs to the federal government, rather than the states or municipalities. The National Cotton court used the Kaiser Aetna test for navigable waters to declare bodies of water smaller than lakes and rivers to constitute waters of the U.S., and thus subject to federal jurisdiction.

To comply with the court order, the EPA, under the authority of Clean Water Act of 1972, redrafted the National Pollutant Discharge Elimination System (NPDES) permit process. The new set of regulations took effect on October 31, 2011. The new NPDES is required for all ground and aerial application of biological or chemical pesticide over or near waters which affect navigable waters.

The summer of 2012 was the first time mosquito spraying operations over ditches, ponds, and stagnant aquatic zones became affected by the Clean Water Act. As a result of a burdensome NPDES process and virtually unlimited statutory liability, many mosquito spraying operations came to a halt. The result was the worst outbreak in West Nile virus cases in the past decade.

Local cases of West Nile virus are due to high numbers of irrigation ditches and storage ponds, which create boroughs of stagnation perfect for mosquito breeding.

In 2011, the Town of Orchard City in Delta County, which boasts many small farms and retirees, chose to spray 0.007 lbs. of pesticide per acre to control and eliminate the growing mosquito population. The town sprayed at dusk to avoid harming honey bees and saw a 95% mosquito larva extermination rate. Orchard City went from the worst breeding spot for mosquitoes carrying West Nile to one of the safest in Colorado.

By 2012 Orchard City ceased mosquito spraying and the results were 22 confirmed cases of West Nile, including the death of an 82-year-old man. The board of trustees for the town passed a resolution calling for Congress to reduce the burdens of federal regulation created by National Cotton. An original copy was delivered to Congressman Tipton and U.S. Senators Udall and Bennet.

Historically, farmers, municipalities, and other government entities were exempt from the auspices of the Clean Water Act's permit requirement. Those exempt had to comply with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which provided the framework for regulating pesticides. In 2006, the EPA issued a final ruling that the NPDES permit would not be required around water if applying the pesticides directly to water to control pests, or applying the pesticides to control pests that are present over or near water where a portion of the pesticides will be deposited to target the pests. The National Cotton case was a challenge to the EPA's final ruling.

U.S. Rep. Bob Gibbs (R-Ohio) introduced H.R. 935 which seeks to reduce the regulatory burdens and associated statutory liability of National Cotton, by amending the Clean Water Act and FIFRA to prohibit the EPA from requiring a NPDES permit for authorized FIFRA pesticides, of which mosquito spray is such a pesticide. The others include storm water discharge, and industrial treatment effluent and discharges incidental to normal vessel operations.

Keeping mosquito spraying exempt makes sense, as the health and well-being of a community is an essential obligation. Employing aerial pesticide to combat West Nile virus-carrying mosquitoes is highly effective, environmentally safe, and a cost value which reflects a community's fiduciary responsibility to both public health and fiscal stewardship.

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M. Soper. 'Courts, EPA threaten mosquito control'. [opinion/letter] Delta County Independent. 28 August 2013 <http://deltacountyindependent.com/index.php/opinion/soapbox/7457-courts-epa-threaten-mosquito-control> 29 August 2013

Protecting Colorado water: a constant battle

Water is the lifeblood of Colorado. 

The Colorado Constitution, Article 16, sections 5 and 6 provides that the water in streams belongs to the people this great state and that diverting unappropriated water for a beneficial use (eg- irrigation, mining, municipal use, electricity generation, etc) shall never be denied. An appropriation is made when an individual physically diverts water from a stream. The Colorado Doctrine, known as the “prior appropriation system” or more commonly referred to as “first in time, first in right” creates a real right in property for individuals. The doctrine stems from the ratio decidendi in Yunker v. Nichols (1872), and later codified in right to appropriate clause of the Colorado Constitution, which was affirmed by the Supreme Court in Coffin v. Left Hand Ditch (1882). The basic appropriation language is also mentioned in sections 37-82-101 and 37-92-102 of the Colorado Revised Statutes.

With the majority of water users in Metro Denver and along the Front Range, it is crucial for West Slope legislators to band together to protect our water rights from greedy downstream interests.

There are two proposed ballot initiatives (No 3 and 45) heading for this year’s general election which threaten to undo Colorado’s 120-plus years of Water law and precedence. On Friday (20 July 2012), the Daily Sentinel reported these two initiatives might not make the November ballot due to not enough signature. That said, those of us who have an interest in water, property rights, and legal consistency need remain mobilized to defend our way of life!

Richard Hamilton of Fairplay and Phillip Doe of the Denver Metro-Area are pushing have been pushing for major overhauls of Colorado water law since 1992 and initiatives 3 and 45 are current examples of how our rights must be constantly defended from attacks. The initiatives threaten everything from septic systems to stocked water ponds.

Initiative 3 would make public ownership of water in natural streams legally superior to water rights, contracts and property law. It would also turn all state waterways over to a public trust, which would allow recreational access along all streams and stream-banks.

Initiative 45 would place strict limits on water diversions, “prohibiting any use of water that would irreparably harm the public ownership interest in water”.

It is no wonder why the Associated Governments of Northwest Colorado (AGNC) and Xcel Energy have voted unanimously to oppose initiatives 3 and 45, and the Colorado Water Congress has legally challenged the initiatives all the way to the Colorado Supreme Court.

Protecting water is a constant battle.