The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

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Issue #17 The Water Report PESTICIDE USE 9TH CIRCUIT UPHOLDS BUFFERS DECISION On June 29, a three judge panel of the Ninth Circuit Court of Appeals upheld a lower court's ruling based on the Endangered Species Act (ESA) that established pesticide buffer zones around salmon and steelhead supporting water bodies in Washington, Oregon and California. Washington Toxics Coalition, et al. v. EPA, et al., Case No. 04- 35138. Buffer zones are areas adjacent to certain streams, rivers, lakes estuaries and other water bodies, in which the court ordered certain pesticides not be used. The 9th Circuit's decision keeps 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 or to control mosquitoes. The 9th Circuit also agreed with the lower court's requirement that point -of -sale notification be provided by urban distributors of products containing the restricted pesticides. The plaintiffs brought a citizen suit under the ESA and alleged that EPA was required to consult with NOAA Fisheries (NOAH) under Section 7(a)(2) of the ESA (16 U.S.C. § 1536(a)(2)). EPA maintained the position that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §136, et seq., exclusively governed the use of pesticides and thus, EPA was under no duty to consult with NOAA. A number of parties intervened in the action on the side of defendant EPA. The defendant - intervenors are CropLife America (CLA), Washington State Farm Bureau, and 35 other groups representing pesticide manufacturers, formulators, distributors, sellers, and applicators, While laying out the background for its decision, the 9th Circuit found that the lower court's actions were well founded. "The district court granted the plaintiffs' requests for injunctive relief in a series of well- crafted orders, after allowing all parties, including the intervenors, to introduce evidence on the effects of the use of the challenged pesticides. Although the complaint originally disputed registration of hundreds of pesticides, the district court held EPA violated the ESA consultation requirement with respect to only 54 pesticide active ingredients. The district court ordered EPA to initiate and complete consultation regarding the effects of those pesticide registrations on threatened and endangered salmon and steelhead according to a schedule set out in the opinion. Because it viewed the procedural violation of the ESA to have been a substantial violation authorizing extraordinary relief, the district court also enjoined EPA's authorization of any use of the pesticides within proscribed distances of salmon- supporting waters in California, Oregon, and Washington, pending EPA's fulfillment of its consultation obligations." Following this summary of the district court's orders the 9th Circuit decision stated: "We affirm the district court's orders in their entirety." The 9th Circuit cited Defenders of Wildlife v. EPA, 882 F.2d 1294 (8th Cir. 1989) and then stated: "We agree with the Eight Circuit that even though EPA registers pesticides with FIFRA, it must also comply with ESA when threatened or endangered species are affected. See Id. at 1299 - 1300." Washington Toxics, Slip Op. at 16. The 9th Circuit also cited Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 531- 532 (9th Cir. 2001), for the proposition that "the statutes have different and complementary purposes." In Headwaters it was the Clean Water Act and FIFRA that were complementary, while in Washington. Toxics the court found that the same reasoning applies to ESA and FIFRA. "The reasoning of our case law therefore leads us to conclude that an agency cannot escape its obligation to comply with another statute that has consistent, complementary objectives." Slip Op. at 17. The court soundly rejected EPA's argument that it had no authority to cancel a pesticides use except through FIFRA: "...here EPA retains ongoing discretion to register pesticides, alter pesticide registrations, and cancel pesticide registrations. See 7 U.S.C. § 136a -d. Because EPA has continuing authority over pesticide regulation, it has a continuing obligation to follow the requirements of the ESA." Slip Op. at 17. As it stands, the ruling continues the restrictions governing the use of 38 pesticides near rivers and lakes. The intervenors also challenged the scope of relief that the district court had granted, maintaining that "although the district court could order the agency to comply with the ESA, it had to permit the continuing use of the pesticides during consultation." The 9th Circuit held that the "purpose of the consultation process, however, is to prevent later substantive violations of the ESA. Sierra Club v. Marsh, 816 F.2d at 1389. The remedy for a substantial procedural violation of the ESA — a violation that is not technical or de minimis — must therefore be an injunction of the project pending compliance with the ESA. Id.; Peterson, 753 F.2d at 764. It is well - settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements. See Sierra Club v. Marsh, 816 F.2d at 1389; Peterson, 753 F.2d at 765." Slip Op. at 20. For info: Amy Williams - Derry, Earthjustice, 206/ 343 -7340 x29; Erika Schreder, Washington Toxics Coalition, 206/ 632 -1545 x119; EPA website: www.epa.gov /oppfeadI /endanger/ 26 Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited.