Steve Kealy gathers data on salmon habitat.
Endangered Species Act Consultations
Endangered Species Act
1. BACKGROUND OF EPA/NMFS CONSULTATION
2. CONCERNS WITH THE CURRENT BIOPS
3. MOVING FORWARD: CAMPAIGNING FOR A BETTER SYSTEM
The consultation process between National Marine Fisheries Services (NMFS) and the Environmental Protection Agency (EPA) regarding pesticides and the potential effect on endangered salmon is putting west coast agriculture at risk and setting a precedent that could eventually move much agricultural production out of the United States.
Background:
When a government agency takes an action that may affect an endangered species, it is required under Section 7(a)(2) of 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 NMFS.
2001: Washington Toxics Coalition sued EPA for violating section 7 (a)(2) of 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 listed as endangered under the ESA. The settlement in 2002 required EPA to initiate consultation by making “effect” determinations for all 54 pesticide active ingredients. EPA completed the requirement, but NMFS did not take follow-up action.
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 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) on 37 pesticides that “may effect” endangered salmonids according a set schedule.
2008: NMFS issued the first BiOp for three organophosphate insecticides (chlorpyrifos, malathion and diazinon.) (These products are critical for production of apples, cherries, pears, raspberries, and more.) It was severely criticized by EPA, the 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 result 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. The third BiOp which will cover azinphos-methyl, dimethoate, disulfoton, ethoprop, fenamiphos, methamidophos, methidathion, methyl parathion, naled, phorate, phosmet and bensulide is expected to be released in draft form in June 2010.
- 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.
EPA’s plan for implementing the BiOps, while based in better science than that used by NMFS, is still highly precautionary and, as written, would effectively prohibit of use these products on more than 112 million acres, including some of the most valuable and productive farm and forestry land in the U.S. What’s more, this decision is being made by regulatory authorities without consultation with agricultural stakeholders or consideration of the adverse impacts on their livelihood.
Concerns:
Thus far, there has been no evidentiary risk to salmon from the chemicals reviewed. NMFS has failed to demonstrate how they determined that the chemicals posed a threat to endangered salmon and therefore warrant mitigation and increased regulation. The conclusions of the BiOp were based on outdated data and information.
Since 2003, Washington State Department of Agriculture, in cooperation with the Department of Ecology has been conducting water monitoring studies designed to detect the 37 chemicals requiring NMFS BiOps. The study was designed with input from both EPA and NMFS to aid in the consultation. NMFS did not include this data in their decision making process.
The recommendations developed by NMFS and accepted by EPA are unrealistic. The recommendations would require:
- Applicators to predict weather in order to judge potential runoff. Rain events are predicted by the National Weather Service, however runoff events are not.
- Compliance with wind speed requirements that have no directional component. Whether the wind is blowing toward or away from the sensitive habitat is not taken into consideration.
- Use of variable buffers which could change from month to month, water body to water body, or chemical to chemical. These buffers will be a minimum of 100 feet around every water body for chemicals in the first BiOp and a minimum of 25 feet for chemicals in the second BiOp. In many cases, they will be up to 1000 feet. This expansion of buffer requirements will take large swathes of productive farmland out of production.
- More water sources are being included in the mitigation requirements than ever before. An expanded definition of the waterways will include intermittent streams, off-channel habitats, drainages, ditches, and other man-made conveyances. This is an unprecedented expansion of the definition of water bodies.
As unwieldy as these new requirements would be for applicators, they present herculean difficulty for enforcement agencies.
Moving Forward:
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 west coast congressmen about the impacts to agriculture if 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.
WSDA Director Newhouse has written a similar letter to Commerce Secretary Locke. The Department of Commerce is the oversight authority for NMFS.
The Center for Biological Diversity filed a Notice of Intent to sue EPA for failure to consult on the effects of 400 active ingredients on species across the country. If this lawsuit is filed, and results in a similar settlement, the pesticide registration process will collapse.
- To read the press release published by The Center for Biological Diversity regarding the lawsuit, CLICK HERE.
- To learn more about pesticides used in Washington and streams where fish are listed under the endangered species act CLICK HERE.
Some information for this section 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.
