Delta County has verified three 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.