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We All Deserve Better Analysis of Pesticides

by Editorial Board
Capital Press, August 29, 2008

National Marine Fisheries Service, the federal protector of the West Coast's endangered salmon and steelhead, ducked an issue this month. Farmers, fishery biologists and environmental activists deserve better than they got in the draft biological opinion for use of three organophosphate insecticides.

NMFS found use of Lorsban and its cousins called chlorpyrifos, plus diazinon and malathion, "is likely to result in destruction or adverse modification" of the aquatic habitat of protected fish. That's known as a "jeopardy opinion." When a jeopardy opinion is issued, the federal agency making the determination is obligated to spell out "reasonable and prudent alternatives" to not using the chemicals.

The draft biological opinion sent out for comment has a blank piece of paper where reasonable and prudent alternatives should be proposed.

NMFS is under court order to have a completed opinion by Oct. 31. Time's a wasting if any interested parties are to check the government's conclusions beforehand. Figuring out what impact trace amounts of a chemical may have on fish isn't the stuff you calculate with a few pencil scratches on the back of an envelope. We're talking the need for serious number-crunching here, based on data parties can agree is accurate.

What's driving this whole thing is a 2001 lawsuit that's been back in court again and again. The Northwest Coalition for Alternatives to Pesticides, Pacific Coast Federation of Fishermen's Association and Washington Toxics Coalition sued the U.S. Environmental Protection Agency. They argued, and the courts agreed, that a pesticide label specifying approved uses doesn't satisfy the Endangered Species Act when it comes to inter-agency consultation on habitat for threatened or endangered anadromous fish.

Instead, the courts found, the proposing agency - EPA - must consult with NMFS, the federal agency charged by the ESA with protecting ocean-going salmon and steelhead who spend part of their life in inland waters where the once-popular organophosphates are used. Twenty-eight salmonid species in four Western states are on the ESA list.

Years ago, the federal judge handling the case took a stop-gap approach while scientists and regulators sort out real risks: Pesticide ground application is banned within 20 feet of a waterway deemed habitat to a listed fish, and aerial application is banned within 100 feet. Presumably that injunction will remain in force in California, Idaho, Oregon and Washington until the court is satisfied that the government is protecting the fish from potential risk.

The families of organophosphates involved all target insects, and are known to create what are called neurotoxins. They affect central nervous systems of animals. Under laboratory conditions, you can calculate lethal and sub-lethal doses for the various life-stages of the protected fish.

It's quite something else to predict residual chemical presence at a given time and place in a moving stream when it gets a shot of contaminated irrigation tailwater or drift from a pesticide application. On top of that, how the chemical breaks down in water varies with the chemistry of that water.

As part of a settlement of the salmon-related pesticide litigation, EPA and NMFS agreed to a schedule that by 2012 will result in consulting on all 37 basic pesticide ingredients named in the lawsuit. Earthjustice, the environmental law firm representing plaintiffs, made a separate settlement agreement with government lawyers, filed July 30, that triggered release of the organophosphate draft biological opinion.

However, the Earthjustice lawyer said he doesn't expect to see the government's reasonable and prudent alternatives until the Oct. 31 deadline. NMFS said it can't unilaterally issue an alternative document. That can only come after actual consultation with EPA. One meeting has been held, others are scheduled and an agency spokesman promises the reasonable and prudent statement will be available to the public before the end of October.

In the draft biological opinion, NMFS charges that EPA has yet to "clearly specify" the full range of permitted uses for the compounds, and that it isn't clear about boundaries for application nor frequency of use.

"Given the complexity and scale of this action, we are unable to accurately define exposure distributions for the chemical stressors," says the draft. Thus the jeopardy opinion rests on assumptions, which is the best NMFS says it can do with the information in hand.

CropLife America, a national lobbying group for pesticide users, charges that NMFS used "incorrect data and obsolete labels to evaluate canceled uses and application practices that are no longer employed."

If that is so, some of those tables scattered in the 377 page draft may trigger the wrong assumptions.

If we are going to get beyond the injunction now in place, a lot of fixing is needed.

This thing has been going on so long that the phase-out of all organophosphates - begun by EPA and manufacturers in 2000 - just might be complete before the government wraps up the cumbersome task mandated by this lawsuit.

Editorial Board
We All Deserve Better Analysis of Pesticides
Capital Press, August 29, 2008

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