Appeals Court Upholds Pesticide Spraying Buffer Along Salmon Streams

The U.S. Court of Appeals for the Ninth Circuit has upheld a lower court ruling to restrict the use of 38 pesticides near northwest rivers and streams where salmon live (Washington Toxics Coalition vs. EPA, 9th Cir., No. 0435138P, June 29, 2005). The appeals court also upheld the requirement that point-of-sale warnings be posted for products containing pesticides that may harm salmon.

The case arose when environmentalists sued EPA for not consulting the National Marine and Fisheries Service (NMFS) about "the impacts of pesticides on endangered Pacific salmon," thus violating the Endangered Species Act.

In January 2004, Judge John Coughenour of the U.S. District Court for the Western District of Washington, ruled that no-spray buffer zones be put in place near rivers where there are threatened and endangered salmon.

The ruling followed Coughenour's 2002 decision that found EPA out of compliance with the Endangered Species Act for failing to protect salmon from harmful pesticides. The judge ordered EPA to consult with National Marine Fisheries Service to establish permanent restrictions needed to protect salmon from 54 pesticides, over a two-and-a-half year timeline. After the 2002 ruling, environmental and fishing groups filed for an injunction to reduce contamination of salmon streams while EPA and NOAA Fisheries develop permanent restrictions.

The 2004 ruling put in place no-spray buffers of 100 yards for aerial applications and 20 yards for ground applications, with exceptions for certain uses that are unlikely to pollute water.

EPA argued on appeal, as it maintained in the district court, that it is bound to follow only the provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which include a limited provision dealing with endangered species. EPA also argued that the Endangered Species Act does not confer independent responsibilities on EPA to comply with ESA provisions.

The Ninth Circuit affirmed the district court's orders in their entirety. The appeals court found that EPA registers pesticides under FIFRA, it must also comply with the ESA when threatened or endangered species are affected.

The Ninth Circuit confirmed that "evidence in the record demonstrated a causal link between the 54 pesticide active ingredients ...and adverse effects" on salmon. The appellate court noted that the district court issued "a series of well-crafted orders," and allowed all parties, including corporate pesticide makers, to present evidence on the effects of pesticides on salmon.

Ninth Circuit opinions can be accessed at http://www.ca9.uscourts.gov.

This article originally appeared in the 07/01/2005 issue of Environmental Protection.

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