Steve Kealy gathers data on salmon habitat.
Issues
Endangered Species Act
1. BACKGROUND OF EPA/NMFS CONSULTATION
2. CONCERNS WITH THE CURRENT BIOPS
3. MOVING FORWARD: CAMPAIGNING FOR A BETTER SYSTEM
Washington, along with Oregon California and Idaho are standing on the brink of the destruction of agriculture. These states produce a remarkably wide variety of crops. Many of these crops are specialty crops with high farmgate values. Washington agriculture alone is a $32 billion dollar industry and one of the top employers in the state. Oregon and California are similar agricultural powerhouses. The consultation process between National Marine Fisheries Services (NMFS) and the Environmental Protection Agency (EPA) regarding pesticides and the effect on endangered salmon is putting west coast agriculture at risk and setting a precedent that could eventually move agricultural production out of the United States.
In 2001 the Washington Toxics Coalition (WTC) filed a lawsuit against EPA for violating the Endangered Species Act. WTC claimed that EPA had failed to consult with NMFS regarding the potential harm to protected salmon when the EPA registered 54 pesticides for use. Judge Coughenour ordered EPA to complete effects determinations for 37 pesticides on pacific salmon and steelhead. NMFS failed to fulfilled their obligation to complete the consultations by issuing biological opinions (BiOps) with reasonable and prudent alternatives and incidental take statements if appropriate. A court settlement in July of 2008 ordered NMFS to complete the BiOps per a defined schedule. The schedule began with chlorpyrifos, malathion and diazinon. The BiOp for these three active ingredients was issued in November 2008. A second BiOp was completed for carbofuran, carbaryl and methomyl.
To read the final BiOp for chlorpyrifos, malathion and diazinon CLICK HERE.
To read the final BiOp for carbofuran, carbaryl and methomyl CLICK HERE.
To read to NOAA press release regarding the BiOp CLICK HERE.
To see the BIOP schedule CLICK HERE.
These first BiOps find that there is harm to salmon from continued, unmitigated use of the products. Many feel that the assessment of the chemicals was done hastily in order to meet the court prescribed deadline rather than qualitatively using best science. This belief comes not only from the results of the BiOps and NMFS' recommendations, but also from the lack of communication between the two agencies. After the draft BiOp was released there was strong criticism from the EPA on the NMFS findings and recommendations. NMFS (NOAA-Fisheries) and EPA have a long history of poor communication. Their different agency cultures and operating procedures have prevented them from working together. This lack of communication extends to landholders and applicators. NMFS has declined allowing a public comment period on the consultation BiOps they have sent to EPA. Additionally, they have based decisions within the BiOps on theoretical models rather than real-world data. The conclusions have been severely criticized nnot only by registrants and users but also by other regulatory entities including the Washington Department of Agriculture and the California Department of Pesticide Regulation.
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. Thus far, NMFS has declined to use any of this data. There are continuing efforts to communicate with both agencies in order to develop science-based recommendations that will not adversely damage agriculture or forestry. Rather than using the real-world data that is readily available to them NMFS has developed invalid models, making their recommendations from assumptions.
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. Although rain is predicted by the National Weather Service, however runoff events are not.
- Compliance with wind speed requirements that have no directionality component. So whether or not wind is blowing matters whether or not it is blowing into or away from the sensitive habitat.
- 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 and may 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, freshwater habitats include flowing water and water that may be only temporarily connected to flowing water including 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.
Currently there are many groups working to change the outcome of these biological opinions. Registrants feel the recommendations are not science-based and will be impossible to comply with. Applicators are concerned about vaqueries in the implementation of these recommendations and how they will be enforced later on. Growers are concerned about the loss of productive land due to the expansive buffers.
WFFF has written letters to Steve Owens at the Office of Prevention, Pesticides, and Toxic Substances (OPPTS) within the EPA, as well as, to NMFS. The response to both of these letters has been one of placation. The agencies affirm that they are doing all that they are suppose to do and that input from industry is neither needed nor wanted.
To read the letters from WFFF to EPA and NMFS CLICK HERE.
WSDA Director Newhouse has written a similar letter to Commerce Secretary Locke. The Department of commerce is the oversight authority for NMFS and may have some influence in communicating the growing concerns with the BiOps.
To read the joint letter from Washington ag organizations to Secretary Locke CLICK HERE.
A coalition of growers in Washington, Oregon, and California is growing. The coalition hopes to educate west coast congressmen about the impacts to agriculture if implementation of the BiOps continues.
A recently filed lawsuit could expand the list of chemicals in the consultation process. And the threat of further litigation highlights the importance of fixing the system. The lawsuit cites nearly 400 pesticides that plaintiffs believe could harm endangered species.
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.
1,353 animals and plants in the United States are listed as threatened or endangered.
