Conservation and fishing groups on Monday filed a lawsuit asking the U.S. District Court in Seattle to rescind, at least temporarily, the U.S. Environmental Protection Agency’s authority to allow the use of pesticides that cause harm to imperiled West Coast salmon and steelhead.
The complaint says that EPA has failed to require changes in the way six pesticides are used as called for by NOAA Fisheries Service in two biological opinions about the chemicals’ impact on protected salmon and steelhead stocks in California, Idaho, Oregon and Washington.
The BiOps for two sets of pesticides say the chemicals jeopardize the survival of fish listed under the Endangered Species Act. The documents outline “reasonable and prudent actions” and “reasonable and prudent measures” that NOAA Fisheries feels are necessary to avoid jeopardy.
The filing asks the federal court to “Enjoin, vacate, and set aside EPA’s authorization of any use of diazinon, malathion, chlorpyrifos, carbaryl, carbofuran, and methomyl that does not comply with the RPAs and RPMs until such time as EPA has put in place adequate permanent measures that ensure against jeopardy to listed salmon and steelhead or adverse modification of their critical habitat and has complied with the terms and conditions of the incidental take statements.”
The lawsuit seeks to force EPA to implement measures such as no-spray buffer zones to reduce the levels of pesticides in salmon-bearing streams.
NOAA Fisheries issued BiOps on Nov. 18, 2008, and April 20, 2009, that allowed the use of the pesticides under certain conditions that would reduce the impact on salmon and steelhead to levels that would not jeopardize the species. The conditions include buffers for both ground and aerial application of the pesticides on crops and other uses. The BiOps permit the incidental killing or “take” of some listed fish.
EPA in September 2009 announced anticipated changes to product labels for the three pesticides addressed in the 2008 BiOp that included the addition of pesticide buffer zones; application limitations based on wind speed, soil moisture and weather conditions and fish mortality incident reporting requirements. The changes were not as restrictive as those proposed by NOAA Fisheries. EPA asked pesticide producers to voluntarily adopt the changes, but none did.
"This is the fourth time we have had to turn to the courts because EPA has failed to protect endangered salmon from pesticides,” said Amanda Goodin, an attorney with Earthjustice, which is representing the groups. “It's been eight years since the courts have ordered EPA to comply with the law, but we still don’t have a single safeguard in place to protect salmon from these chemicals.”
Throughout the legal and ESA process agricultural interests have argued that the impact of the pesticides on salmon has been overstated and that the science used by NOAA Fisheries is unsound. They say the proposed use restrictions would negatively impact farmers and agricultural productivity.
In a lawsuit filed in 2001 by the Washington Toxics Coalition, the Northwest Coalition for Alternatives to Pesticides and the Pacific Coast Federation of Fishermen's Associations, U.S. District Court Judge John Coughenour of Seattle ruled in 2002 that the EPA had violated the ESA when it failed to consult with NOAA Fisheries when approving guidelines for the physical application of the pesticides. He required the EPA to complete its consultation by Dec. 1, 2004.
On Jan. 22, 2004, Coughenour approved an injunction request that set buffer zones for 34 of the pesticides until EPA completes its review and establishes its own restrictions on the pesticides. That injunction prohibited aerial spraying of the chemicals within 300 feet of salmon bearing streams and it prohibited ground spraying within 60 feet of those streams.
Croplife America and other agricultural organizations appealed the injunction but Coughenour's order was upheld.
The review process lagged, however, so the fishing and environmental groups late in 2008 filed another complaint, claiming unreasonable delay. They ultimately agreed to a settlement that established a timetable for producing BiOps for all of the pesticides.
EPA is now consulting with NOAA Fisheries to determine whether EPA’s pesticide registrations potentially jeopardize the continued existence of endangered and threatened salmon and steelhead. Some of these consultations are now complete, but EPA has failed to implement the protections required by NMFS to avoid jeopardy to salmon, the conservation groups say.
“EPA continues to ignore the science provided by expert fishery biologists,” said Jason Rylander, an attorney with Defenders of Wildlife. “Instead of implementing necessary safeguards to restore these endangered species, EPA has capitulated to the demands of the pesticide industry. We should not be poisoning our most precious fish and wildlife for the benefit of corporate profits.”
Pesticides can harm salmon in a number of ways, including killing them directly, affecting their food supply and habitat, impairing their ability to swim, and interfering with their ability to navigate back to their home streams to spawn, according to the NOAA Fisheries BiOps.
"Pesticides are deadly by design,” said Glen Spain of the Pacific Coast Federation of Fishermen’s Associations, a West Coast commercial fishing industry trade association which is also a co-plaintiff in the lawsuit. “Unfortunately, pesticides also can kill salmon after these poisons wash off fields, orchards, and lawns into salmon streams. EPA's job is to regulate their use so they don't violate the Endangered Species Act, but so far the EPA is failing miserably. This case seeks to give salmon what they need to survive, as well as help the coastal and inland communities that depend on those fish for their livelihoods.”
“EPA’s refusal to put these needed salmon protections in place hurts everyone from farmers to fishermen,” said Aimee Code of the Northwest Coalition for Alternatives to Pesticides. “The best science and the law both require these protections – it’s time to put an end to the uncertainty and move on.”
The groups represented by Earthjustice, which include the Pacific Coast Federation of Fishermen's Associations, the Northwest Coalition for Alternatives to Pesticides, Institute for Fisheries Resources, and Defenders of Wildlife, are asking that the court order EPA to put permanent protective measures in place for salmon and steelhead.