When a government agency takes an action that may affect an endangered species, that agency is required by the Endangered Species Act (ESA) to consult with the agency responsible for recovery of the species. This is known as a Section 7 consultation. In the case of pesticides and salmon, when EPA registers a pesticide, they must consult with the NOAA-Fisheries (formerly known as the National Marine Fisheries Service or NMFS). The consultation process was designed for a specific action in a specific location. Attempting to use that process for a nationwide registration for ongoing use has been unwieldy to say the least.
The purpose of the consultation is to determine whether the action (the pesticide registration) will adversely affect the endangered or threatened species or their critical habitat. The consultation process begins with the action agency (EPA) determining whether the action will affect the species. If the determination is that it may effect, the recovery agency (NOAA-Fisheries) prepares a Biological Opinion (BiOp). The BiOp includes measures to prevent adverse effects that the action agency is expected to implement. For more detail, see http://www.nmfs.noaa.gov/pr/consultation/.
The battle over how to consult on pesticide registrations has been before our federal court system since 2001 when Washington Toxics Coalition filed the first lawsuit in the Pacific Northwest. That lawsuit spawned three follow-up lawsuits. Several similar lawsuits were filed in California and elsewhere across the country. Most of the lawsuits have settled and many Biological Opinions (BiOps) have been written.
2001: Washington Toxics Coalition v. EPA – Washington Toxics Coalition sued EPA for violating the Endangered Species Act by failing to consult with NOAA-Fisheries over registrations of 54 pesticides and their potential effects on 26 Pacific salmon and steelhead populations. The settlement in 2002 required EPA to initiate consultation.
2004: EPA, NOAA-Fisheries and USFWS adopted counterpart regulations to streamline the consultation process. Washington Toxics Coalition sued alleging that the regulations gave EPA too much authority and did not follow the letter of the Endangered Species Act. In 2006, Judge Coughenour overturned large portions of the counterpart regulations.
2007: Northwest Coalition for Alternatives to Pesticides (NCAP) v. NOAA-Fisheries – NCAP sued NOAA-Fisheries for failure to complete the consultations required by the 2002 settlement of the WA Toxics suit. A 2008 settlement required NOAA-Fisheries to complete consultations by issuing Biological Opinions (BiOps), according to a set schedule for 37 pesticides that EPA had determined “may effect” endangered salmonids. See link to NOAA-Fisheries Pesticide Consultations Summary above for completed BiOps.
2008: NOAA-Fisheries issued the first BiOp for three organophosphate insecticides, chlorpyrifos, malathion and diazinon – products critical for production of apples, cherries, pears, raspberries, and more. It was severely criticized by EPA, Washington State Department of Agriculture, and industry. Criticism included NOAA-Fisheries’ failure to use current labels to determine product use and failure to use current water monitoring data to determine the presence of pesticides in salmon habitat. In addition, NOAA-Fisheries applied buffers to every ditch, drain, canal and seasonal stream that could ever flow into salmon habitat. This would have resulted in buffers being applied dozens of miles from where salmon actually live. The second BiOp, covering carbofuran, carbaryl and methomyl had many of the same deficiencies.
2009: Dow, Cheminova, and Mahkteshim v. NOAA-Fisheries – The registrants with products in the first BiOp sued NOAA-Fisheries claiming that the BiOp was arbitrary and capricious, lacking legal and scientific foundations and offering no benefit to the environment. In February of 2010, the court found the BiOp to be arbitrary and capricious.
2010: NCAP v. EPA – NCAP sued EPA in November 2010 for failing to implement the first two BiOps. WFFF intervened in this case along with CropLife America and Oregonians for Food and Shelter. The case settled out of court with little relevance following the decision in Dow about the first BiOp.
2011: Center for Biological Diversity v. EPA – The Center for Biological Diversity sued EPA in January for failure to consult on the potential effects of nearly 381 active ingredients on 212 species across the country. WFFF intervened with a coalition of grower groups lead by the American Farm Bureau.
2013: The National Academy of Sciences released the long-anticipated report “Assessing Risks to Endangered and Threatened Species from Pesticides”. The report found that “agreement among the agencies has been impeded by a lack of communication and coordination throughout the process.” They emphasized the need for coordination among the agencies to eliminate duplication. The report recognized that EPA’s current pesticide registration process, including risk assessments, adequately protects endangered species. However, they also favor more complex probability models than EPA has been using. The committee recommended that US Fish & Wildlife and NOAA-Fisheries build on EPA’s analysis of whether or not a pesticide is likely to adversely affect a listed species rather than conduct a completely new analysis. December 2014: EPA, USDA, U.S. Fish and Wildlife Service (FWS), and NOAA-Fisheries reported to Congress on the status of Endangered Species Act (ESA) implementation in pesticide regulation. The agencies seek to refine their approach to pesticide consultations in accordance with the 2013 National Academy of Sciences report.
Since receiving the NAS report, the agencies have:
- Developed a collaborative relationship;
- Clarified roles and responsibilities;
- Improved stakeholder engagement and transparency;
- Held two joint workshops;
- Created a plan and a schedule for applying new approaches to a set of pesticides; and
- Hosted multiple workshops and meetings with stakeholders.