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Judge Orders Pesticide Buffer Zones to Protect ESA Fish by Mike O'Bryant Columbia Basin Bulletin - July 18, 2003

A Seattle-based U.S. District Court judge ruled this week that the U.S. Environmental Protection Agency must provide buffer zones for pesticide applications near streams where endangered species are present.

Environmental groups requested the ruling in December 2002 as an interim measure to protect Endangered Species Act-listed species while the EPA consults with NOAA Fisheries about how to ensure that the use of 54 pesticide, insecticide and herbicide active ingredients do not impair fish recovery efforts.

In July 2002, Judge John C. Coughenour ruled that EPA had violated the ESA for not consulting with NOAA Fisheries regarding the impact of pesticide use on listed salmon. He ordered the EPA to initiate those consultations and set a schedule for the agency that began July 15 and runs to Dec. 1, 2004, during which the consultation process must begin for all 54 substances. He added that it would be reasonable to conclude the talks by 2007.

"Despite its legal obligation not to allow actions that harm endangered salmon, EPA has continued to authorize the use of dangerous pesticides that are ending up in salmon streams," said Patti Goldman of Earthjustice, which represented the environmental groups. "The court agreed to block the use of pesticides along salmon streams until the government has ensured salmon will not be harmed."

The groups filing for the injunction are the Northwest Coalition for Alternatives to Pesticides, the Washington Toxics Coalition, the Pacific Coast Federation of Fishermen's Associations, and the Institute for Fisheries Resources.

In December they sought from the court interim protections, including:

• a 100-yard no-spray zone to protect salmon from aerial applications of pesticides near salmon streams;

• a 20-yard no-spray zone to protect salmon from ground applications of pesticides near salmon streams; and

• a ban on homeowner (non-licensed) use in urban areas of certain pesticides likely to harm salmon.

The ruling said that the EPA and Croplife, a coalition of chemical companies, failed to show that EPA actions regarding pesticides did not jeopardize salmon and so granted the plaintiffs their request for interim protections. He said in his order released July 16 that the buffer zones "will, unlike the status quo, substantially contribute to the prevention of jeopardy. The evidence submitted.demonstrate that pesticide-application buffer zones are a common, simple, and effective strategy to avoid jeopardy to threatened and endangered salmonids."

"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."

Although the plaintiffs requested a 100-yard buffer for aerial spraying and a 20 yard buffer for ground applications of pesticides near salmon streams, Coughenour will entertain limited oral arguments Aug. 14 about the size of the buffer zones. "These arguments shall be specific to particular pesticide active ingredients and particular ESUs of threatened or endangered salmonids," he said.

He will also hear arguments about additional urban-use restrictions for 13 pesticide active ingredients. The common names for some of those ingredients, according to Goldman, are casoron, Weed & Feed products, Weed-B-Gone (all herbicides), and severin and home orchard spray (both insecticides). One restriction Goldman is seeking is a requirement that urban applicants be certified.

Goldman said that NOAA Fisheries and EPA are working through the list of 54 pesticides, but have yet to complete any review. "The consultations are trickling out," Goldman said. "This is the first time NMFS (National Marine Fisheries Service) has done this, and so they are taking some time."

She added that the ultimate result of the consultations could be the banning of some substances all together or in salmon watersheds.

Related Sites:
Earthjustice Legal Defense Fund: www.earthjustice.org
Environmental Protection Agency Region 10: www.epa.gov/r10earth
EPA Office of Pesticides: www.epa.gov/pesticides