ICIE’s Annual Membership Meeting program in November examined three issues which we have been following for years. The issues of the salmon Biological Opinion (BiOp) and bull trout critical habitat are related to the Endangered Species Act. The NPDES General Permit relates to the Clean Water Act. What they all have in common is a history of third party lawsuits, followed by revised consultations or regulations, and additional lawsuits against the revision. The result is these three issues have existed in a state of legal limbo for a decade or more with no actual resolution.
ESA/salmon BiOp/pestcide consultation issue driven by litigation
Background: In 1996, Congress passed a law requiring a re-evaluation of pesticides to be done by 2008 with concern focused on the impact on human health. In 2001, the Washington Toxics Coalition joined three other environmental activist groups in filing a lawsuit contending that EPA had violated the Endangered Species Act by not consulting with National Marine Fisheries Service (NMFS) when EPA issued new guidelines for the use of three widely-used pesticides. A U.S. district judge ruled that EPA had to complete a consultation by December, 2004.
Since that time there have been numerous injunctions, consultations and additional lawsuits on both sides of the issue.
Dirk Helder, of the Idaho Operations Office of the EPA, presented an update on the status of this issue at ICIE’s 2010 Annual Meeting. The lawsuit affects 115 counties in the Northwest: 40 in California, 33 in Washington, 32 in Oregon and 10 in Idaho. It addresses impacts on salmon in freshwater habitats, including “intermittent streams, off-channel habitats, drainages and man-made conveyances that lack salmonid exclusion devices.”
The latest Biological Opinion (BiOp) establishes target concentrations and buffer zones based on the width and depth of the river, air vs. ground application, the application rate, and the application equipment (droplet size). It sets a maximum wind speed of 10 mile per hour and requires reporting of fish mortality up to four days after application.
The problem is the consultation process of establishing BiOps is broken, says Heather Hansen of the Washington Friends of Farms and Forests. She asserts that when the Endangered Species Act was written, the consultation process was envisioned as a way to address what is going on in a specific place at a specific time.
Pesticide consultations need to be ongoing, she says. When salmon were listed, the National Marine Fisheries Services exploded in chaos. That was ten years ago, but they haven’t really come up with a structure for dealing with salmon going inland and the terrestrial issues associated with it.
Hansen says the NMFS didn’t use current labels or current monitoring data in establishing this BiOp. They used their own rather than EPA models and made invalid assumptions based upon incorrect data. Financial impact studies haven’t been conducted. User groups haven’t had input, neither have the registrants.
"The folks at EPA are as frustrated as everyone else with this process," Hansen says.
Hansen notes that a potential solution is oversight of the relationship between the NMFS and the EPA. Re-initiate consultation on the first three BIOs. Ultimately, the end game is that we need a functional, clear pesticide registration process to prevent future litigation.
A resolution passed by the National Association of State Departments of Agriculture asks that the EPA and NMFS and USFWS establish a process that includes stakeholder input, defines “best available science” and has a process to evaluate effect. BiOps must include “targets” for pesticide levels and must include an economic assessment.
Ongoing, there’s a lawsuit against NMFS on BiOp 1. Grower groups have petitioned EPA for a rulemaking on how the BiOp is implemented, and CropLife America has filed a petition with NMFS to clarify stakeholders’ rights for input into the process. There is further litigation likely, Hansen says, that could bring the whole country into this problem.
NPDES General Permit Issue: Specifics confound applicators
In 2006, the EPA issued a pesticides rule under the Clean Water Act (CWA) stipulating that the application of a pesticide did not constitute the discharge of a pollutant, and therefore did not require an NPDES permit when it was applied to, over, or near waters of the US for control of pests. That rule was challenged when an organic farmer in Gem County, Idaho, who didn’t want applications drifting over his crops and filed a lawsuit against the local mosquito abatement district. The court ruled that the application had been made following the label, but should have been made under an NPDES permit. This resulted in a ruling by the 6th Circuit Court of Appeals that such a permit is required as of April, 2011. The EPA recommended a Pesticide General Permit (PGP) for the six states which do not have primacy under the CWA which includes Idaho. The other 44 states have primacy and have their own permit programs which must be revised to comply with this new ruling by April, 2011, as well.
The pesticide uses that will come under this Pesticide General Permit include: mosquito and other flying insect control; aquatic weed and algae; aquatic nuisance animal control; forest canopy pest control; and pesticide application to water.
Areas that will not require the PGP include: applications to crops or forest floors; off target spray drift; irrigation return flow from agricultural fields; and agricultural storm water runoff.
A notice of intent will be required by some applicators in Idaho: Federal/state government with pest control function; Irrigation, weed, mosquito control districts; application above threshold.
The PGP will also require monitoring of management practices and visual monitoring for adverse effects. Water quality based effluent limits will need to be monitored to evaluate water quality. Applicators will need to conform to best management practices, which most do, but if they don’t, they will need to use the lowest amount of pesticide effective; keep their equipment calibrated, clean, and in good working order; and perform regular maintenance. There are other opportunities to control pest problems that can be looked into – draining swimming pools, emptying out flower pots, etc.
Reporting and recordkeeping requirements are also included in the permit.
Water users frustrated by lack of science and input
Norm Semanko, with the Idaho Water Users Association, points out that all of these activities are already regulated under FIFRA labeling requirements. The user groups are feeling a growing frustration. There has been little fact, little science and little input going into these requirements, he says.
Water users are concerned with the permit process. In 2001-2002, there was a low priority enforcement letter that gave applicators the discretion to operate as they had been. Another EPA decision said that the farmers were exempt from the point source as defined by EPA. Then EPA said that farmers are covered as long as they’re following the label. Then the rule making in 2006 came that said this was the rule. Everyone filed a lawsuit against this rule. However, the court decided that pesticides were ruled as a pollutant and worthy of regulation.
Semanko says the EPA defended the rule up to the point where the 6th Circuit threatened a review, then EPA abandoned it. Their subsequent assertion that they have no choice but abide by the court decision is misleading.
“For them to say ‘the court told us to do this’ is disingenuous,” Semanko says. “The case was weaker than indicated. We are here because EPA chose to abandon this rule.”
Semanko also notes areas of vagueness, such as requirements for visual monitoring versus sampling, requirements for record keeping, and when a permit is required versus a letter of intent. These areas open multiple opportunities for third party lawsuits. The process leaves growers and others vulnerable. He predicts oversight from Congress, citing three bills already in Congress that would overturn the 6th Circuit decision.
It’s not just the 6 states, the federal and the tribal lands, but all the other states that are responsible for the NPDES permit development in their states. Are they going to develop a new process to comply with the court order? Are they are really going to be done by April 2011, or should the EPA go in and ask for a stay on this deadline since it’s not fair to treat 6 states different than everyone else?
The water user community also has concerns about terms like “minimizing the discharge of pollutants” that insinuate that water users have to go beyond the requirements under FIFRA. How will visual monitoring be sufficient over sampling is another question.
The definition of “waters of the United States,” is very broad. It appears that EPA wants to expand its definition beyond what is stated in the CWA.
The growers will be vulnerable to third-part lawsuits despite the fact that EPA does not intend that to happen.
Semanko predicts there will be oversight by Congress. There are already 3 bills in Congress that would overturn the decision by the 6th Circuit Court of Appeals.
Bull Trout Critical Habitat
Ted Koch, USFWS Bull Trout Coordinator, notes that the U.S. Fish & Wildlife Service (FWS) just published a final rule on critical habitat that took effect the week before the annual meeting. The FWS does not see this as a significant shift from the previous critical habitat designation. The agency is not seeking new opportunities to regulate under this rule.
“I can state pretty clearly that the FWS doesn’t see any reduction in state primacy as a result of this rule,” Koch says, acknowledging that his organization is speaking with the Bureau of Reclamation about issues brought up by water users, and that third party litigation is a current concern.
The endangered species listing program, and critical habitat listing program is all driven by litigation, Koch says. Bull trout critical habitat came up, and FWS published a final rule in 2005 reducing the amount of critical habitat by 75%, and then the agency was sued, resulting in a new rule that looks more like the 2004 rule.
Koch says the concerns brought from water users have to do with the Nez Perce agreement settlement within in the Snake River Plain adjudication process. The FWS is a part of that process and aligned with the water users and others involved in the process.
Semanko notes that this rule has been finalized, establishing “anywhere that could be habitat for bull trout,” as critical habitat.
The issues water users have with the new rule is the inclusion of reservoirs. These are the project areas for the water users, and they’re crying foul on this addition, resulting in two separate BiOps. Semanko says the environmental community is closely watching this process.
When critical habitat is identified as “bank full reservoirs,” there will be issues, Semanko says. The potential impacts to those who own water in that reservoir system are pretty staggering. In the case of specific water users, the downstream flows can result in little or no water in a given year. Koch maintains that the minimum pool provisions address the issue of “bank full reservoir” regulation.
It isn’t that the FWS issued critical habitat designations. It is the way they did it. Under the rules, the FWS needs to look at the economic impacts, and weigh the costs and benefits to the community as well as the species. Semanko says potential costs of the rule were not considered in relation to the minimal or no benefit to the species. These costs include those to recreational users of reservoirs, of increased damage by flood impacts, and costs to water users for the changes in water quality. This was a procedural failure that will favor the environmental groups. This does relate back to what’s going on with the Upper Snake River BIOps and the downstream BIOps.
Then there is the question of how we get these fish off the ESA list. Peer reviewed scientific data show that there are a lot of healthy populations in Idaho. We also have to worry about North Central Montana, and Eastern Oregon. There are three habitats in Idaho that feed into these. De-listing will depend upon the status of those other areas beyond Idaho.
If the fish were delisted, it would end all the regulatory nonsense, Semanko says. He does not see, however, how this can happen before the wolf situation has been addressed. The other solution would be to reopen the rule, and delete those segments from the critical habitat list because FWS did not do an adequate job of addressing the cost/benefit ratio.
Koch says both the Bush and the Obama administrations have agreed that the critical habitat provisions of the ESA are unworkable. He says there’s bipartisan recognition of the need to fix the Endangered Species Act.
“For 15 years, we tried to avoid listing critical habitat but got litigated into submission by environmentalists.”
Monday, December 20, 2010
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