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Pesticides and the Endangered Species Act
Environmental & Natural Resources,
Oregon State Bar Newsletter, "Outlook" Summer 2007
by Heather Hansen, Executive Director

Background – The Endangered Species Act
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 Environmental Protection Agency (EPA); the agency responsible for recovery is NOAA Fisheries. The EPA must first determine if its action (registration of a specific pesticide) may affect the species. If the answer is, “no,” and NOAA Fisheries concurs, no further action is needed. If the answer is “yes,” the agency has the option of beginning either informal or formal consultation. Through a series of steps, it is determined if the action may jeopardize the species and if so, how to mitigate the effects.

(Note: At no point during the last five years of legal decisions has there ever been a finding of harm to salmon. None of these procedural lawsuits
has claimed harm to any species.)

Washington Toxics Coalition v. EPA
On January 20, 2001, the Washington Toxics Coalition and other environmental groups sued the EPA in U.S. District Court for the Western District of Washington, asserting that the EPA failed to consult with NOAA Fisheries about the potential effects of pesticides on salmon, as required by the Endangered Species Act. No allegations were made about threats to endangered species. A list of 55 pesticide active ingredients were named in the suit.
 
A group of 30 western agricultural organizations intervened in the suit in an effort to ensure that the EPA vigorously defended its science-based pesticide
registration process. Intervenors claimed that an existing registration is not a new action and therefore does not trigger the consultation requirement.

The First Decision
On July 2, 2002, Judge John Coughenour held that existing pesticide registrations are an ongoing agency action by the EPA and thus concluded that the EPA must consult with NOAA Fisheries on the potential effects of certain pesticides on salmon.  He ordered the agency to make “effect” determinations and begin consultation, as appropriate, for the 55 pesticide active ingredients named in the suit.  The first three determinations were to have been made by July 15, 2002, the second three by August 1, 2002, the next seven by December 1, 2002 with all 55 made by December 2004. Washington Toxics Coalition v. Environmental Protection Agency, No. C01-0132C, Order (WD Wash July 2, 2002).
 
On August 14, 2002, the Washington Toxics Coalition petitioned Judge Coughenour to vacate his July 2 order and allow them to seek injunctive relief for interim measures of buffers along waters accessible to salmon for the named pesticides until the consultations previously ordered were complete. They also requested a complete ban on the use of thirteen pesticide products available to homeowners.

(Note: Fields and orchards are planted to the edge of streams and rivers in Washington, Oregon, and California. Restricting the use of pest control products near water eliminates the ability to control pests such as codling moths in apples and cherry fruit flies. Without effective controls in any part of the orchard, the insects will move throughout the orchard. All three states export produce worldwide. Other U.S. states and other countries will not accept produce that contains damage or larvae from pests.)

The Second Decision – Injunctive Relief
On July 16, 2003, the request for injunctive relief was granted while the EPA continued its review process. Washington Toxics Coalition v. Environmental Protection Agency, No. C01-0132C, Order (WD Wash July 16, 2003). For the products named in the suit, the court imposed: 60 foot buffer zones for ground application of pesticides and 300 foot buffer zones for aerial application of pesticides. Buffers do not apply to the pesticides for which the EPA had already made “no effect” or “not likely to adversely affect” determinations. Washington Toxics Coalition v. Environmental Protection Agency, No. C01-0132C, Order (WD Wash Aug 8, 2003).
 
All sides and the judge agreed that buffers should only apply to waters where salmon exist. Eventually, EPA produced maps identifying areas covered by the order.
 
After all 55 determinations were made, twenty-eight  products were determined to have “no-effect” on endangered salmon in Washington State; thus no buffers were required. Twenty-seven products received “may-effect” determinations for at least one evolutionary significant unit (ESU) of listed salmon, triggering further consultation and scientific review. Since a product may have a buffer in only a few watersheds, growers must go to their respective Department of Agriculture website, identify their location, then the product they wish to use, to determine if a buffer is in effect. To add to the complexity, several products were divided by formulation so that some formulations require buffers while others do not.
 
The court exempted applications made by government agencies for
the control of noxious weeds.

Appeal
A coalition of thirty agricultural groups from Washington, Oregon and California appealed Judge Coughenour’s orders, imposing pesticide buffers along salmon bearing streams, challenging the applicability of ESA requirements and the buffer zones and other components of the injunctive relief granted by the District Court . Appellants asserted that the Endangered Species Act states that enforcement occurs only when an endangered species has been harmed and since no finding of harm was made the enforcement provisions of the injunctive relief were improper. The District Court’s orders were affirmed in their entirety. Washington Toxics Coalition v. Environmental Protection Agency, 413 F3d 1024 (9th Cir 2005).

The Counterpart Rules
In his original July 2002 decision, Judge Coughenour also ordered the EPA to develop a plan to come into compliance with the ESA. In late 2002, the EPA issued an Advanced Notice of Proposed Rulemaking (ANPR) for public comment. The intent of the rule was to streamline the ESA consultation process so that decisions can be made in a timely manner.
 
The ESA consultation requirements were so convoluted that neither the EPA nor NOAA Fisheries was clear as to what information was required nor which agency had authority to make which decisions. After Coughenour’s order in the original Washington Toxics Coalition v. EPA case in July 2002, the EPA, along with the Departments of Interior and Commerce (parent agencies to USFWS and NOAA Fisheries) developed and adopted the counterpart rules to clarify consultation requirements. 50 CFR Part 402.
 
No sooner were the rules in place than Washington Toxics Coalition filed suit to block their implementation.  While Coughenour agreed to block certain portions of the rule and allowed other portions to stand, he stated in his decision that the “EPA is faced with a task of gargantuan proportions” and the “counterpart regulations challenged by Plaintiffs are an attempt to streamline and accelerate the process of registration and re‑registration” of pesticides by the EPA in compliance with the ESA.

Coughenour’s decision with respect to the counterpart rule will have no effect on pesticide determinations already made. The rule had not yet been used. All decisions about pesticides in the northwest had been made under the old rules.

Coughenour approved the section of the counterpart rule that allows the EPA to write its own biological opinions. The EPA is the only federal agency now allowed to write its own biological opinions. This is a significant change in the implementation of the Endangered Species Act.

Coughenour’s decision will make it more difficult to get new pesticides through the consultation process and approved for registration.

No pesticide can be sold or used without an EPA registration. The registration process already takes into account effects on cold-water fish species. Data is required on the effects of each pesticide on fish and the appropriate warning or conditions of use are added to the label if needed. This process results in much of the same information required for consultation under the Endangered Species Act. The EPA has a process for de-registering any pesticide that is found to impose imminent hazard to endangered or threatened species.

This is the first time in history that four federal agencies have joined together to issue joint rules. The rule was issued by the US Fish and Wildlife Service, NOAA Fisheries, the EPA and USDA. The four agencies worked together to develop a comprehensive, multi-agency review process to ensure protection of threatened and endangered species as part of the EPA’s approval process for pest control products.  The rule was developed following a comprehensive scientific review of the EPA’s risk assessment methodology.

The new rule also defined “the best scientific and commercial data available” for the EPA to use when it consults with the other agencies. It also keeps three Agencies from doing the same thing three times to get a single outcome.

Click here to read Outlook newsletter, Volume 8, No. 2.