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Judge Upholds No-spray Buffers by Mitch Lies Capital Press, November 3, 2011

Malathion, diazinon, chlorpyrifos banned near salmon habitat

A federal judge has upheld rules stipulating the federal Environmental Protection Agency require no-spray buffers around salmon-bearing streams for three widely used pesticides.

In a case brought by Dow, Makhteshim and Cheminova, U.S. District Judge Alexander Williams on Oct. 31 ruled the pesticide manufacturers failed to demonstrate the buffers were not necessary to protect salmon.

The ruling is the latest in a long line of court decisions stemming from a 2002 ruling that required EPA to confer with the National Marine Fisheries Service over the impact of 54 pesticides on endangered fish. Courts subsequently reduced the number of pesticides subject to review to 37.

Williams' ruling, in Maryland, is on the first three of the 37 scheduled for review.

The ruling leaves in place findings by the National Marine Fisheries Service that applications of products containing chlorpyrifos, diazinon and malathion be prohibited within 500 to 1,000 feet of salmon-bearing streams, depending on if the application is by ground or air. The ruling affects Oregon, Washington state, California and Idaho.

Garry Hamlin, a spokesman for Dow AgroSciences, which makes chlorpyrifos, said the company has not decided whether to appeal.

"We're considering our options," Hamlin said. "We're disappointed (in the ruling), but we continue to believe that based on high-quality scientific assessment, our product does not pose a risk to salmon."

Terry Witt, executive director of Oregonians for Food and Shelter, said the farm organization was "shocked and disappointed in the decision."

"This case never gave an opportunity for science to get truly vetted and evaluated," he said. "We're often in a position where we have to prove our innocence, and it is nearly impossible to prove something won't happen."

Witt said there is no evidence showing fish are being harmed by these pesticides. No-spray buffers of 500 to 1,000 feet are unnecessary and extremely harmful to production agriculture, he said.

"If you look at the amount of space in Oregon that would be impacted, it's over 50 percent of the agricultural lands," he said.

"Particularly if you happen to be a small farmer with a stream or conveyance to a fish-bearing stream on your land, you could lose 50 to 60 percent of your tillable acreage, or at the very least be forced to rethink what crops you produce."

Aimee Code of the Northwest Center for Alternatives to Pesticides praised the ruling.

"The court's decision is a victory for everyone's health," she said. "These antiquated chemicals are some of the most broadly used chemicals in the Northwest, and they should not be, because they are broad spectrum and they are harming salmon."

Code called on the EPA to "start the lengthy process to put the buffers in place."

The EPA, which regulates pesticide use, has yet to require the buffers on pesticide labels.

Witt said the biological opinion -- developed by NMFS on the impact of the three pesticides on salmon -- contains several flaws, including that it is based on risks that do occur in agriculture or forestry.

"NMFS is taking the extreme situation that could occur if every label use was made at the maximum application rate," Witt said.

"You wouldn't use all three of the insecticides on the same agricultural product at the same time. You would pick one. Or even if you did a tankmix of more than one, you obviously would reduce the rate," he said. "You would not apply the maximum rate for each product.

"There has to be some relevance to ground-truthing the assumptions developed by the agencies," Witt said.

Witt said the pesticides in question, all organophosphates, are valuable tools.

"(Losing them) might not be significant the first growing season," he said. "But these chemicals are used in rotation so you can avoid the buildup of resistance among target pests.

"If there is scientific evidence to support removal of these chemicals from use in the U.S., than that should happen," he said. "If not, there is no reason to remove them."