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Groups Challenge Feds on Pesticide Fish Consultation Policy by Barry Espenson Columbia Basin Bulletin - October 15, 2004

Conservation and commercial fishing groups challenged new rules that allow the Environmental Protection Agency to approve some pesticides without consulting with NOAA Fisheries and the U.S. Fish and Wildlife Service.

Earthjustice filed the lawsuit Sept. 23 with Seattle-based U.S. District Court Judge John Coughenour against the EPA, NOAA Fisheries and the USFWS. It charges that new rules approved by NOAA Fisheries and USFWS violates Section 7 of the Endangered Species Act when it allows the EPA to approve pesticides used in watersheds that could impact endangered salmon, steelhead and other species without formally consulting with the fisheries agencies. Earthjustice said those agencies have the expertise to judge impacts on species, not the EPA.

"This lawsuit challenges the shift of authority," said Patti Goldman, attorney for Earthjustice. "That's an authority that EPA does not have. They have the authority to look at the pesticides, but NOAA knows salmon and Fish and Wildlife knows bears."

Under the new rule issued in late July, when EPA completes an initial review of a pesticide and determines that it is not likely to adversely affect an endangered species, consultation with the fish and wildlife agencies is not required, according to Carl Arnie, EPA regional pesticide specialist in Seattle.

Toxicology tests on fish and wildlife and tests that determine the level of pesticide that could get into water sources are required before a new pesticide can be registered or before allowing the continued use of pesticides already approved but that could harm ESA species. Arnie said that the only time consultation is not required is when these tests show no adverse impacts.

The change in rules at the agencies eliminates the "checks and balances built into the Endangered Species Act" that formal consultation with the agency responsible for a species provides, Goldman said. The lawsuit claims that the federal agencies changed the rules that would require consultation for each pesticide in response to the ruling on a previous lawsuit that required the EPA to pursue consultation when a pesticide could impact Northwest salmon.

Both lawsuits have been filed by Earthjustice on behalf of the Northwest Coalition for Alternatives to Pesticides, Washington Toxics Coalition, Pacific Coast Federation of Fishermen's Associations, and Institute for Fisheries Resources.

"When the court found that the EPA was not playing by the rules, the EPA simply changed the rules," Goldman said. "The EPA is failing to protect endangered species from poisons."

In a separate but related court proceeding in late July, Earthjustice sent the EPA a 60-day notice of intent to sue unless alleged violations of the Endangered Species Act are remedied. The notice accused 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 most recent Earthjustice complaint that challenges the federal agencies on the change in rules can be found at . Goldman expects this fall that Judge Coughenour will set a schedule for the proceedings and that the federal agencies will file an administrative record. Both plaintiffs and defendants will file briefs this winter and coming spring. She hopes for a resolution by spring.