Steve Kealy gathers data on salmon habitat.
In February 2013, the 4th Circuit US Court of Appeals found for the plaintiffs in Dow, Makhteshim and Cheminova v. National Marine Fisheries Service (NMFS). The first biological opinion (BiOp) issued by NMFS following the Washington Toxics Coalition lawsuit over the potential effects of pesticides on salmon is arbitrary and capricious.
The BiOp covered three insecticides, chlorpyrifos, diazinon, and malathion. The appeals court concluded that the BiOp was not the product of reasoned decision making. According to the court, “NMFS failed to explain or support critical assumptions in its opinion.”
A key factor in the decision was NMFS failure to consider the economic feasibility of its proposed one-size-fits-all buffer zones. According to the court, “NMFS relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational.”
This decision is a huge step for sound science and reasoned decision-making. We are hopeful that this decision will have a positive effect on the ESA lawsuits that remain to be settled.
When a government agency takes an action that may affect an endangered species, it is required by the Endangered Species Act (ESA) to consult with the agency responsible for recovery of that species. In the case of pesticides and salmon, the action agency is the EPA; the agency responsible for recovery is the National Marine Fisheries Service (NMFS).
The consultation process between National Marine Fisheries Services (NMFS) and the Environmental Protection Agency (EPA) regarding pesticides and the potential effect on endangered salmon puts west coast agriculture at risk.
2001: Washington Toxics Coalition v. EPA – Washington Toxics Coalition sued EPA for violating the Endangered Species Act by failing to consult with NMFS over registrations of 54 pesticides and their potential effects on 26 Pacific salmon and steelhead populations. The settlement in 2002 required EPA to initiate consultation.
2004: EPA, NMFS and USFWS adopted counterpart regulations to streamline the consultation process. Washington Toxics Coalition sued and in 2006, Judge Coughenour overturned large portions of the rules.
2007: Northwest Coalition for Alternatives to Pesticides (NCAP) v. NMFS – Northwest Coalition for Alternatives to Pesticides sued NMFS for failure to complete the consultations required by the 2002 settlement of the WA Toxics suit. A 2008 settlement required NMFS to complete consultations by issuing Biological Opinions (BiOps), according a set schedule, on 37 pesticides that “may effect” endangered salmonids.
2008: NMFS issued the first BiOp for three organophosphate insecticides, chlorpyrifos, malathion and diazinon – products critical for production of apples, cherries, pears, raspberries, and more. It was severely criticized by EPA, Washington State Department of Agriculture, and industry. Criticism included NMFS’ failure to use current labels to determine product use and failure to use current water monitoring data to determine the presence of pesticides in salmon habitat. In addition, NMFS applied buffers to every ditch, drain, canal and seasonal stream that could ever flow into salmon habitat. This would have resulted in buffers being applied dozens of miles from where salmon actually live. The second BiOp, covering carbofuran, carbaryl and methomyl had many of the same deficiencies.
To read the final BiOp for chlorpyrifos, malathion and diazinon click here.
- To read the letter from EPA to NMFS criticizing the first BiOp click here.
- To read the letter from the Washington Department of Agriculture to NMFS criticizing the first BiOp click here.
- To read the final BiOp for carbofuran, carbaryl and methomyl click here.
- To see the BIOP schedule click here.
2009: Dow, Cheminova, Mahkteshim v. NMFS – The registrants with products in the first BiOp sued NMFS claiming that the BiOp was arbitrary and capricious, lacking legal and scientific foundations and offering no benefit to the environment. The court found the BiOp to arbitrary and capricious in February of 2013.
2010: The third BiOp covered azinphos-methyl, dimethoate, disulfoton, ethoprop, fenamiphos, methamidophos, methidathion, methyl parathion, naled, phorate, phosmet and bensulide.
2010: NCAP v. EPA – NCAP sued EPA in November 2010 for failing to implement the first two BiOps. WFFF has intervened in this case along with CropLife America and Oregonians for Food and Shelter.
- To read the NASDA Resolution, click here.
- To learn more about pesticides used in Washington and streams where fish are listed under the Endangered Species Act click here.
click here to visit the NMFS website.
2011: Center for Biological Diversity v. EPA – The Center for Biological Diversity sued EPA in January for failure to consult on the potential effects of nearly 381 active ingredients on 212 species across the country. WFFF intervened with a coalition of grower groups lead by the American Farm Bureau. CropLife America and other registrant groups have intervened separately. If this lawsuit results in a similar settlement to that of the WA Toxics Coalition lawsuit, the pesticide registration process will collapse. The case is stayed pending settlement discussions.
2011: After receiving pressure from stakeholder groups and other entities, NMFS held two public meetings to explain how they developed the BiOps. WFFF attended the first meeting, in Portland, January 2011.
2011: The fourth BiOp covering 2,4-D, triclopyr BEE, diuron, linuron, captan, and chlorothalonil was final June 30, 2011. NMFS’s conclusions are:
- Pesticides containing 2,4-D are likely to jeopardize the continuing existence of many listed salmonids and adversely modify critical habitat;
- pesticides containing chlorothalonil or diuron will adversely modify designated critical habitat for some runs of listed salmon;
- pesticides containing captan, linuron, or triclopyr BEE do not jeopardize the continuing existence of any runs of listed Pacific salmonids or adversely modify critical habitat.
2011: The National Academy of Sciences (NAS) has appointed a 17-member committee to review the science underlying pesticide risk assessments conducted under FIFRA and the ESA. Their report is due spring 2013.
2012: BiOps for the remaining thirteen active ingredients named in the original Toxics Coalition lawsuit are to be completed on or before June 30, 2013.
Note to applicators: Current law requires you to follow the label for the product being applied. No other requirements are enforceable at this time.
EPA’s plan for implementing the BiOps, would effectively prohibit use of the products on more than 112 million acres, including some of the most valuable and productive farm and forestry land in the U.S.
The recommendations in the first two BiOps developed by NMFS are unrealistic. They would require:
Prohibition of applications when a storm event that could result in runoff is predicted. While rain events are predicted by the National Weather Service, runoff events are not. This would require applicators to make a judgment call.
Use of variable buffers, which could change from month to month, water body to water body, or product to product. These buffers would be a minimum of 100 feet around every water body for products in the first BiOp and a minimum of 25 feet for products in the second BiOp. In many cases, they would be up to 1000 feet. This expansion of buffer requirements will take large swathes of productive farmland out of production.
More water bodies are being included in the mitigation requirements than ever before. An expanded definition of affected water bodies includes intermittent streams, off-channel habitat, drainage ditches and other manmade conveyances. This is an unprecedented expansion of the proposed buffers
These pictures depict the expansion of buffered waters that NMFS recommends applied to Skagit Valley. The RED lines follow salmon bearing waters. The BLUE lines follow each water body that would require a buffer.
Washington Friends of Farms & Forests represents approximately 200 members who engage in production agriculture and forestry across the State of Washington. These industries would be greatly harmed if the NMFS BiOp recommendations were implemented. On behalf of these members, we continue to work toward a better more transparent consultation process. This issue is a high priority.
These BiOps are being developed without consultation with agricultural stakeholders or consideration of the adverse impacts on their livelihood. We hope to change this and provide our members with a voice in the process.
Thus far, there has been no identified risk to salmon from the products reviewed when used according to label directions. NMFS has failed to demonstrate how they determined a threat to endangered salmon and therefore justify mitigation and increased regulation. The conclusions in the BiOps were based on outdated data and inaccurate information.
Since 2003, Washington State Department of Agriculture, in cooperation with the Department of Ecology has been conducting water monitoring designed to detect the 37 active ingredients requiring consultation with NMFS. NMFS did not take this data into account when they developed the BiOps.
As unwieldy as these new requirements would be for applicators, they present a herculean difficulty for enforcement agencies.
Although the concerns above are specific to the individual BiOps, industry is greatly concerned with the consultation process. NMFS lacks the resources to conduct proper consultations with EPA on pesticide registration. There was no stakeholder input, no understanding of current use and no economic analysis. The result is proposed use restrictions that would cause significant harm to agricultural production without benefitting salmon.
At a practical level, the consultation process has been driven by court-imposed timelines separate from the pesticide registration process. In the future, consultations should occur during product registration as part of a comprehensive review.
WFFF has written letters to EPA and NMFS. We have engaged the Washington Congressional delegation for support and helped organize a coalition of growers from Washington, Oregon, and California. The coalition hopes to educate the west coast delegations about the impacts to agriculture if development and implementation of the BiOps continues as is.
- To read the letters from WFFF to EPA and NMFS click here.
- To read the joint letter from Washington ag organizations to Secretary Locke click here.
- To read the letter to the Council on Environmental Quality from members of Congress, click here.
- To see the NMFS PowerPoint presentation on the 4th BiOp, click here .
To read the press release published by The Center for Biological Diversity regarding the lawsuit, click here.
Some information for this page was taken from www.chlorpyrifos.com. More information about the Endangered Species Act and the consultation process can be found there.
1,353 animals and plants in the United States are listed as threatened or endangered.