Groups Threaten Legal Actionby CBB Staff
Conservation and fishing groups on Monday threatened legal action against the U.S. Environmental Protection Agency, calling slipshod the agency's process for determining whether pesticides affect salmon and steelhead survival.
The groups, represented by Earthjustice, sent the EPA a 60-day notice of intent to sue the EPA unless alleged violations of the Endangered Species Act are remedied. The notice accuses the federal agency of erroneously concluding that a set of pesticides and active ingredient certifications have "no effect" or are "not likely to adversely affect" ESA listed Pacific salmon and steelhead.
The Washington Toxics Coalition, Pacific Coast Federation of Fishermen's Associations and the Institute for Fisheries Resources claim that the EPA is skirting the ESA consultation process, which is intended to draw in fisheries agencies to evaluate the pesticide "effects determinations" made by the EPA.
That abuse is evident, the groups say, in NOAA Fisheries preliminary reviews of EPA's risk assessments. Agency officials say, however, they are diligent in fulfilling their ESA responsibilities.
"Pesticides are deadly by design and they'll kill baby salmon after the poisons wash off fields, orchards, and lawns into salmon streams. EPA's job is to regulate their use so they don't violate the Endangered Species Act, but their own sister agency in the federal government has found them failing miserably at this obligation," said Patti Goldman of Earthjustice.
The 60-day notice cites an April 2004 draft memo from NOAA's Washington state director for Habitat Conservation, Steve Landino, to Arthur-Jean Williams, chief of EPA's Office of Prevention, Pesticides and Toxics Substances. The letter addresses EPA determinations regarding potential effects of 28 pesticides on listed West Coast salmon and steelhead.
EPA had asked for NOAA concurrence that the pesticides "may affect, not likely to adversely affect" salmon. The draft NOAA letter does not concur with EPA's determination, saying the ingredients "may have greater than discountable or insignificant effects on listed species," 26 stocks of listed salmon and steelhead.
The letter said the EPA determinations were not based on the "best commercial and scientific data available." Specifically, the letter said the biological assessment did not include reviews of the most recent peer-reviewed scientific citations on the topics. In one case the fisheries agency said it did a data search for two of the 28 pesticides and found 700-800 citiations that had not been included in the EPA evaluation.
The NOAA letter also detailed several other categories where it said the information was lacking for it to be able to make a true assessment of the chemicals' effects.
The fishing and environmental groups' 60-day notice says the letter "uncovered weaknesses in EPA's scientific basis and methods for ensuring that use of the pesticides will not jeopardize salmon survival." It asks that the determinations be redone and that the agencies engage in "legally valid consultation that properly addresses pertinent impacts."
"EPA is trying to get away with decades-old science instead of doing right by the salmon," said Erika Schreder of Washington Toxics Coalition. "We're holding EPA accountable for truly complying with the Endangered Species Act because giving it lip service doesn't help salmon."
The memo "shows us that, from NOAA Fisheries perspective, EPA is not doing its job," Schreder said.
The agencies do not agree. Landino said the draft memo was never signed by him or sent. It was drafted by his staff as a briefing letter for him and others that would be involved in both informal discussions and formal ESA consultations with EPA.
The letter represents NOAA's "technical staff concerns as of April," Landino said. "We have a continued commitment to work with EPA on these issues."
ESA consultation is indeed ongoing on some of the substances at the agencies' national level, he said.
EPA declined comment on the 60-day notice.
"It's ongoing litigation so it's not something we would comment on," said EPA's Doug Parsons.
The list of pesticides named in the 60-day notice include many of those have been evaluated as the result of a court order stemming from a lawsuit brought against EPA by the same fishing and environmental groups.
In that case Seattle-based U.S. District Court Judge John Coughenour's approved an injunction in January that prohibits spraying pesticides containing certain ingredients near salmon streams in Oregon, Washington and California while the EPA reviews with NOAA Fisheries a list of 54 chemicals.
Coughenour had ruled in 2002 that the EPA had violated the ESA when it failed to consult with NOAA when approving the physical applications of the pesticides. He required the EPA to complete its determinations by Dec. 1, 2004. Coughenour said it would be reasonable to conclude the ESA consultations by 2007.
On Jan. 22, 2004, Coughenour set buffer zones for 34 of the pesticides until EPA completes its review and establishes its own restrictions on the pesticides. That injunction prohibited aerial spraying of the chemicals within 100 yards of salmon bearing streams and it prohibited ground spraying within 20 yards of those streams. It also required stores that sell seven of the pesticides used in urban areas to warn their customers that the pesticides may harm salmon.
"EPA believes it is in full compliance with the judge's order in the Washington Toxics case," Parsons said.
NOAA Fisheries letter at is posted at www.earthjustice.org/news/documents/7-04/NOAA_fisheries_non_compliance.pdf
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