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Trainwreck: You Can See it Coming

by Lisa Urbat
Wheat Life, July 2010

"There's a train wreck waiting to happen between the Endangered Species Act and agriculture," said Bob gore, deputy director of the Washington State Department of Agriculture.

It began with over 50 pesticides named in a lawsuit, narrowed to 37 chosen for review. In 2004, the US District Court for the Western District of Washington issued a ruling in response to a Washington Toxics Coalition suit against the Environmental Protection Agency (EPA) for failing to consult with the US Fish and Wildlife Service or the National Marine Fisheries Service (NMFS), as appropriate, to ensure EPA's registration of a pesticide "will not result in likely jeopardy" to the continued existence of species listed under the Endangered Species Act (ESA), or destroy or adversely modify their designated critical habitat.

In the six years since the ruling, EPA and the National Oceanic and Atmospheric Administration's Office of Protected Resources, headed by director James H Lecky, has reviewed six pesticides. In the first Biological Opinion (BiOp) issued in November 2008, NMFS concluded that chlorpyrifos, diazinon, and malathion are likely to jeopardize 27 populations of salmon on the west coast listed under the ESA. In an April 2009 BiOp, NMFS said carbaryl, carbofuran and methomyl were "likely to jeopardize many populations of ESA-listed Pacific salmonids, and destroy or adversely modify designated habitat."

The final deadline for NMFS opinions on all 37 active ingredients is February 29, 2010. However, current progress is not encouraging, and suffers from miniscule human resources. There are only six or eight people in the entire US FWS/NMFS network tasked to deal with an impossible trainload of lawsuits. And the BiOps themselves are alarming for several reasons.

"Once it's approved, a BiOp is legally binding, in perpetuity," explained Dr Jim Cowles, WSDA environmental toxicologist. Dr Cowles spoke at WAWG's June board meeting in Rizville, along with Gore.

The NMFS BiOps mandate surface water monitoring, and their proffered Reasonable and Prudent Alternative (RPA) recommendations specify threshold levels of pesticides in "salmon-supporting waters." (The court determined that salmon-supporting waters are the area below the ordinary high-water mark of all streams, lakes, estuaries, and other water bodies where salmon are ordinarily found at some time of the year."

The levels are based on computer models weighted toward worst-case-scenario data for incidents occurring in the farthest reaches of flowing water -- off-channel water bodies. This data was also used to determine EPA's buffer zones.

The NMFS-recommended endangered species "level of jeopardy" was estimated to be 1.12 micrograms/liter. These levels were based on a maximum rate of active ingredient applied.

In determining buffers ranging from 60 to 1000 feet, EPA has taken these benchmark levels literally, however. In a September 2009 response to EPA's letter outlining their implementations intentions, NMFS Office of Protected director Lecky clarified the reasoning behind recommended no-spray buffers:

"The NMFS did not intend the concentrations of 1.1222 micrograms/liter to be a threshold value, and the RPA was not intended to achieve any particular target pesticide concentration. Rather, the RPA was developed to provide a mechanism to remove a substantial portion of the risk to salmonids from pesticide drift.

"... a 500-foot no-application buffer for ground application of these [chlorpyrifos, diazinon, and malathion] pesticides was seleceted because NMFS expected that with this size buffer the concentrations noted would not occur with most applications." NMFS determines buffer zone violations.

WSDA's Dr Cowles elaborates: "We need no-spray buffers to be based on observable science, with adequate consideration of Washington conditions and habitat, and input from stakeholders."

"Since 2003, data collected measuring pesticide levels in water bodies throughout the state has shown pesticide levels are consistently below the effects threshold under the ESA," he said.

IN fact, voluntary proactive pesticide application changes by producers in Washington have resulted in reduced levels of pesticides detected in the state's water bodies over the past seven years. Scientifically measured levels in real PNW fields have never come near EPA's no jeopardy level.

There's the consultation process itself.

"The EPA knows the consultation process needs to be fixed," said Dr Cowles, "but they've indicated that won't happen until they're finished with the first batch of 31 remaining pesticides."

While the dithering takes place, valuable agricultural production tools are thrown out or put in a holding pattern, leaving less options for producers dealing with highly adaptive diseases and pests.

Additional mitigation measures are subjective and murky, and some mandates seem to require a crystal ball: producers must not spray their crops when the National Weather Service predicts a storm that will cause a significant runoff event within 48 hours of application. There are wind speed restrictions, and you must report fish kills.

Large buffers can surround everything from dry intermittent streams to ditches, canals, and off-channel habitat (unless you have an approved "salmon exclusion device"). They can extend up to 10000 feet from these salmon-supporting waters, and vary depending on application rate and method.

Then there' the looming burden of huge backlogs of consultations, reviews, determinations, and opinions. If only 6 out of 55 pesticides have run the NMFS gauntlet in 6 years, review of 394 more will take an eternity. The Center for Biological Diversity recently filed notification of intent to sue the EPA for failure to consult, naming almost 400 pesticides, and 887 endangered species that may be hurt by them.

Dr Cowles said it's a resource problem at the federal level. "There are only two people at USFWS and four to six people at NOAA tasked with dealing with a huge amount of litigation," he stressed.

"It's like putting a pig through a python," says Gore. "It's not going to come out the other end."

Pesticide registrants are balking. They've sued NMFS to overturn the BiOps, and they've sued the EPA for implementing them. They're refusing to voluntarily comply with EPA's implementation of the NMFS BiOps, which will trigger an automatic cancellation process within the EPA that requires the NMFS opinions to be opened up for review and public opinion -- a good thing, in the end.

Finally, there's the legislative angle. Gore reminded WAWG members that legislators in Washington DC see this as a Pacific Northwest rather than a national issue. "Legislators are not as informed as they should be about the coming train wreck," he said. "We need to create a national coalition to address these issues. People in Florida don't care about salmon now, but they will care more when consultation on pesticides is required because of endangered or threatened species indigenous to the southeast US."

Related Pages:
'Pesticide Cocktails' Make a Deadly Synergy for Salmon by Staff, Columbia Basin Bulletin, 3/6/9
NOAA Releases More Pesticide Rules by Bill Rudolph, NW Fishletter, 5/6/9
Toxic Contaminants and Their Effects on Resident Fish and Salmonids by Jennifer Morace, Lyndal Johnson & Elena Nilsen, Science Policy Exchange, 11/11/9
Court Pass on Pesticide Dispute Alarms Industry by Mateusz Perkowski, Capital Press, 2/27/10

Lisa Urbat
Trainwreck: You Can See it Coming
Wheat Life, July 2010

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