Stream Buffers to Protect Endangered Salmon: Where does the EPA stand?

Posted on December 28, 2012 in Administrative Law, Environmental Law | Comments Off

On October 24, the U.S. 4th Circuit Court of Appeals heard arguments in Dow Agrosciences LLC. v. National Marine Fisheries Service that will determine not only whether salmon in the Pacific Northwest will be protected from potentially dangerous pesticides, but will also forecast the ability of the U.S. Environmental Protection Agency (EPA) to protect endangered species in the future.[1]

In this suit, Dow Chemical and two other chemical manufacturers are appealing a lower court decision that found for the National Marine Fisheries Service (NMFS) last October. The plaintiffs are contesting the scientific validity and economic feasibility of an NMFS biological opinion (BiOp), which found that the EPA’s registration[2] of three pesticides (diazinon, chlorphyrifos, and malathion) would threaten 27 protected species of salmon and steelhead (salmonoids) and destroy or adversely modify critical habitats for 25 of these fish species in the Pacific Northwest.[3] The BiOp also recommended six reasonable and prudent alternatives (RPAs) that the EPA should have implemented within a year of the BiOp release to protect these fish species. The most contested RPA is a stream buffer requirement that would eliminate the ground application of these chemicals within 500 feet (and aerial application within 1,000 feet) of any salmonoid habitat.[4] The chemical manufacturers claim that the NMFS BiOp is arbitrary and capricious and does not accurately state the threat to protected salmonoids, nor does it explain how the proposed buffer zones are economically feasible for the agricultural industry.

The position of the NMFS as a federal environmental regulator in this case is more than a little ironic, as pesticide manufacturers side with the EPA (as intervenors) in Northwest Coalition for Alternatives to Pesticides v. United States Environmental Protection Agency. In this case, advocacy groups concerned with protecting the environment from the harmful effects of pesticides are suing the EPA for failing to implement the BiOps, including the buffer zone recommendation, in a timely manner.[5] The EPA is required to implement the NMFS BiOp, according to the ruling in Washington Toxics Coalition v. Environmental Protection Agency.[6] On October 1st, the U.S. District Court for the Western District of Washington denied the intervenors’ motion to dismiss and ruled that the environmental groups had “pled sufficient facts to demonstrate a reasonably certain threat of imminent harm to a protected species.”[7] This is one small victory for the environmental groups; however, it is only one step in what is sure to be a long road of appeals.

Both of these cases are rooted in a long history of litigation between the EPA, pesticide manufacturers, and environmental non-profit organizations. In Washington Toxics Coalition v. Environmental Protection Agency, environmental non-profits sued the EPA for failing to consult with NMFS before registering a group of 54 pesticide ingredients that were potentially harmful to protected salmonoids.[8] The court ruled that EPA was required to comply with both the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)[9] and the Endangered Species Act (ESA)[10] in the regulation of pesticides, and to comply with ESA, the EPA had to consult with NMFS about the potential effects of these pesticides on endangered species. After this ruling, the NMFS was then sued and compelled by consent decree to complete the biological opinions, one of which is the fuel for the two current court battles discussed here.

The simultaneous litigation of these two cases undermines the authority of federal regulators. On one hand, the NMFS is fighting to legitimize its BiOp and buffer zone recommendation, while on the other, the EPA is essentially fighting to avoid enforcing it in any substantial way. Litigation by citizens—and therefore environmental advocacy groups—who see a government agency violating the Endangered Species Act is not only allowed, it is one of the main enforcement mechanisms of the act[11]; however, the EPA is currently waiting to take any further steps with the implementation of these buffer zones until these lawsuits are resolved, allowing potentially deadly pesticides to reach protected salmon and steelhead. The sooner the courts resolve this issue, the sooner the EPA and NMFS can follow their mandate and actually protect valuable endangered species.

—Sarah Wightman is a General Member of MJEAL. She can be reached at sjwigh@umich.edu.


[1] Endangered Species and Wetland Report, http://www.eswr.com/2012/10/fourth-circuit-hears-arguments-in-case-involving-nmfs-biop-on-use-of-pesticides-in-columbia-basin/

[2] Registration of a pesticide is a process in which the EPA determines how the pesticide should be used so that it is does not jeopardize human or environmental health. For more information, see EPA: Registering Pesticides: http://www.epa.gov/opp00001/regulating/registering/.

[3] Dow Agrosciences LLC, et al. v. National Marine Fisheries Service, et al., 821 F.Supp.2d 792, 797 (D. Md. S.D. 2011).

[4] Id.

[5] Northwest Coalition for Alternatives to Pesticides, et al. v. United States Environmental Protection Agency, et al., No. C10–1919 TSZ, 2012 WL 4511371 (W.D. Washington, Oct.1, 2012).

[6] Washington Toxics Coalition, et al. v. Environmental Protection Agency, et al., 413 F.3d 1024 (9th Cir. 2005).

[7] Id.

[8] Washington Toxics Coalition, et al. v. Environmental Protection Agency, et al., 413 F.3d 1024 (9th Cir. 2005).

[9] 7 U.S.C. § 136a-d.

[10] 16 U.S.C. § 1536(a)(2).

[11] 16 U.S.C. § 1540(g)(1).