The Portland, OR-based Northwest Environmental Advocates on Thursday petitioned Oregon’s Environmental Quality Commission to adopt new rules restricting the use of pesticides across the state.
The proposed rules are based on findings in Endangered Species Act biological opinions developed by NOAA Fisheries Service and the U.S. Fish and Wildlife Service, NWEA says. Those BiOps say that use of certain pesticides will jeopardize the continued existence of some listed Oregon species such as salmon and steelhead. The BiOps prescribe measures the federal agencies say are necessary to avoid jeopardy.
The petition says that the U.S. Environmental Protection Agency, charged with regulating pesticide uses to protect water quality, has so far failed to act to implement the BiOps’ “reasonable and prudent alternatives.” Among the chief mandates of those RPAs are requirements for buffer strips between fish bearing waters and forests and farm fields where chemicals are applied to control weeds, bugs and disease.
The Commission makes rules for the Oregon Department of Environmental Quality to enforce.
“The federal fish and wildlife agencies tell us that pesticides are pushing threatened and endangered species, such as salmon and steelhead, to the brink of extinction, but the regulatory agencies such as the U.S. EPA and Oregon DEQ refuse to take the very actions necessary to prevent this result,” said Nina Bell, NWEA executive director. “Oregon DEQ has been working on a toxics reduction strategy for over three years yet it hasn’t taken this simple and obvious step to restricting the use of poisons in the environment.”
At the heart of the petition are the federal fish and wildlife agencies’ instructions to EPA on restrictions that must be placed on pesticide labels to offset the jeopardy opinions, the petition say.
The petition asks the Commission to adopt these restrictions into Oregon water quality standards along with similar restrictions placed by NMFS on a national EPA permit to discharge pesticides to water.
“The fish and wildlife agencies in charge of preventing species from going extinct have established what restrictions are needed to keep pesticides out of Oregon’s waters so it shouldn’t be too much to ask that Oregon’s water quality agency sit up and pay attention,” said Bell. “It shouldn’t be too much to ask that restrictions placed on a federal pesticide discharge permit to protect Oregon salmon would apply equally to a DEQ discharge permit for those very same pesticides.”
In addition to new rules to restrict pesticides, NWEA petitioned the Commission to ask two other state agencies to incorporate the federal restrictions into their regulatory programs. The petition asks for the Commission’s help in convincing the Oregon Department of Agriculture to adopt the federal agencies’ restrictions and to develop point-of-sale notifications to the public about the hazards associated with using pesticides according to EPA-approved labels. The petition also seeks Commission support for rule changes at the Board of Forestry.
NWEA’s petition says that Oregon must make the changes to meet criteria necessary for the state to continue receiving federal funds under the CWA and the Coastal Zone Management Act.
“If Oregon fails to show it can and will protect species in coastal watersheds, it will lose federal funding,” Bell said. “There’s a limited time in which Oregon has to make this demonstration so it’s time for the state to stop just talking about the problems with pesticides and start acting to control them.”
“First, Oregon is in jeopardy of losing federal funding if it does not ensure that it can meet water quality standards in coastal watersheds, including protection of beneficial uses from pesticides,” the petition says. “Oregon has authorized the discharge of pesticides to Oregon waters through a Clean Water Act (“CWA”) National Pollutant Discharge Elimination System (“NPDES”) general permit that fails to include restrictions needed to prevent the extinction of threatened and endangered species and enhance their recovery and thus amounts to a ‘take’ under the ESA.”
In 2004 a federal court order restricted use of specified pesticides. Since 2008 NMFS has established mandatory restrictions on a subset of those pesticides. NOAA Fisheries completed between November 2008 and July 2012 five BiOps covering 28 insecticides, herbicides. Another BiOp, completed in September 1989 by the U.S. Fish and Wildlife Service, was for 41 pesticides.
But as each of the NOAA Fisheries BiOps were completed, the interim buffers established by the court cease and thus leave no pesticide restrictions in place, the NWEA says.
“Despite the scientific analysis underlying these restrictions and the existence of these mitigation measures established by the federal fish and wildlife agencies, neither EPA nor the State of Oregon has taken steps to incorporate those measures into water quality protection programs,” the petition concludes.
“The Services are not regulatory agencies. They depend upon EPA and the States to incorporate their mandatory restrictions into regulatory programs and regulatory actions to ensure protection of designated and existing uses, including but not limited to threatened and endangered species.”
The Commission has up to 90 days to act on the petition. It may, but it is not required to, establish a public comment period. If the Oregon panel grants the petition it will begin rulemaking on the proposed new rules.