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NMFS' Pesticide BiOp Thrown Out on Appeal by Bill Rudolph NW Fishletter, March 7, 2013

The 4th U.S. Circuit Court of Appeals, based in Maryland, has thrown out a 2011 decision handed down by the Western Washington District Court that supported a 2008 biological opinion regulating the spraying of several pesticides near salmon streams in Oregon, Washington, Idaho and California.

The appeal was lodged by major pesticide manufacturers, Dow AgroSciences, Makhteshim Agan of North America, and Cheminova.

The three-judge panel ruled Feb. 21 on the pesticide BiOp, noting that the federal agency's determination of potential harm to fish was based on a faulty standard. NMFS had looked at effects on juvenile fish after 96 hours of acute exposure to certain chemicals in laboratory conditions.

But the panel didn't accept that standard. "The fact remains," said the ruling, "that the Fisheries Service postulates an environment where salmonids are exposed to lethal levels of pesticides continuously for 96 hours based on a laboratory protocol without explaining how the assumption matches up with real-world conditions."

NMFS said it recognized the limitations of its modeling, but the panel said "acknowledging a model's limitations does not go to explaining why it was chosen."

The ruling also agreed with the pesticide manufacturers' claim that the feds' had relied on outdated water monitoring data, a complaint noted in comments on the draft BiOp. And it sided with manufacturers, who had argued that NMFS' "one-size-fits-all" buffer zones were unreasonable. The panel also said the agency failed to account for the buffers' economic feasibility because it mistakenly believed such a requirement was trumped by the ESA.

The panel said NMFS may have had good explanations for its choices, but the 482-page BiOp wasn't clear enough for the court to review their reasonableness. "For that reason," said the panel, "we conclude the BiOp is arbitrary and capricious."

The court didn't stop there. They said the pesticide manufacturers claimed other flaws were in the BiOp, but the court said it had found enough wrong with it already, and ruled that NMFS must fix the identified flaws and "any additional matters that may be raised on remand."