Seattle Judge Calls for Interim
by Bill Rudolph
Seattle District Court Judge John Coughenour has ruled that, for the time being, he will go along with environmentalists' recommendations that call for buffer zones along streams to keep pesticides from harming wild salmonids listed under the ESA. The July 16 ruling said the plaintiffs had demonstrated "with reasonable scientific certainty" that the buffers, 20 yards for ground applications and 100 yards for aerial applications, "will, unlike the status quo, substantially contribute to the prevention of jeopardy."
The ruling comes a year after Coughenour decided for plaintiffs in Washington Toxics Coalition et al v. EPA, which required that EPA must consult with NMFS over the potential effects of 54 different pesticides on ESA-listed salmonids in the Northwest. See NW Fishletter 146). The July 2, 2002 ruling came down after a long consultation collapsed between EPA and plaintiffs, led by the toxics coalition.
"It makes no sense to keep poisoning salmon in our rivers, while trying to protect them," said Glen Spain, Northwest regional director of the Pacific Coast Federation of Fishermen's Associations. "As the judge said, buffer zones to keep chemicals out of streams is a logical and already much used technique. It's also a logical step toward restoring a billion-dollar salmon fishing industry to our region."
The judge said neither EPA nor intervenor-defendant Croplife had demonstrated that ongoing agency actions were non-jeopardizing to threatened and endangered salmonids. Oral arguments are scheduled for August 14 where defendants may debate the size of the buffers, the judge said. But he said arguments will be limited because EPA failed to propose interim mitigation measures or make counter recommendations to those of the environmentalists.
Coughenour also said NMFS' participation "is contingent on its cooperation with all parties. That is, NMFS shall not participate as a witness for any particular party, but may act akin to an informal Court-appointed expert."
NMFS scientists have investigated the effects of small levels of diazinon on salmon (one part per billion) and found the pesticide can disrupt the fishes' sense of smell. Diazinon is one of the pesticides found throughout the region. The compound has been used in lawn care products for over 40 years.
Nominal exposure concentrations (0.1, 1.0, and 10.0 µg/L) were chosen to emulate diazinon pulses in the natural environment," says the NMFS study abstract in the Canadian Journal of Fisheries and Aquatic Sciences. "In the antipredator study, diazinon had no effect on swimming behavior or visually guided food capture. However, the pesticide significantly inhibited olfactory-mediated alarm responses at concentrations as low as 1.0 µg/L. Similarly, homing behavior was impaired at 10.0 µg/L."
The industry says over 99 percent of the monitored concentrations in Northwest waters were less than the sub-lethal levels (10 and 1 ppb) in the NMFS study. EPA has already begun to phase out diazinon use in the US, mainly over concern to children's' health. An industry spokesman said the 1999 report used by environmentalists is out of date because EPA has upgraded use restrictions on many pesticides since then.
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