Endangered Species Law & Policy

In a letter to the President's Council on Environmental Quality (CEQ), 18 members of Congress urged the Obama Administration to "ensure that NMFS, EPA, the Department of the Interior, USDA, and DOJ work together" to strengthen the modeling and to use the best scientific and commercially available information to re-evaluate existing biological opinions (BiOps) and to inform forthcoming BiOps for EPA pesticide registrations.

The members of Congress claim that the existing BiOps, which prohibit the application of certain pesticides to cropland within certain buffer zones adjacent to streams, rivers, wetlands, and floodplain habitat to protect threatened and endangered salmon and steelhead, "will force family farmers out of business and devastate rural communities and trade throughout the districts we represent, while crippling our food production capacity for the foreseeable future."  According to the authors, the BiOps issued to date expand existing buffer zones to such a great extent that "it would affect millions of acres in the Northwest and California, including a staggering 61 percent of farmland in Washington state and 55 percent in Oregon."

The 18 members of Congress argue that the consultation process between the National Marine Fisheries Service (NMFS) and EPA for the first of the pesticide BiOps (issued in November 2008) was flawed because it lacked transparency, consultation with the agricultural community, and the opportunity for public comment.  More fundamentally, they argue that NMFS's consultation for all three of the existing BiOps ignored the best available scientific and commercial data on the prevalence of the pesticides in salmon spawning waterways.

The letter's authors cite a September 2008 letter from EPA's Director of Pesticide Programs to NMFS, which criticized the July 31, 2008 draft BiOp for failing to disclose NMFS's rationale for its determination that use of chlorpyrifos, diazinon, and malathion will jeopardize the continued existence of dozens of listed salmonids in California, Oregon, Washington, and Idaho.  In the September 2008 letter, EPA also complained that it could not meaningfully discuss the proposed Reasonable and Prudent Alternative because the BiOp "fails to identify a level of exposure to these pesticides that would not result, in NMFS['s] opinion, in jeopardy to the species."

As explained in more detail below, the letter's authors are especially concerned that the administration orchestrate future interagency consultations as well as consultations with the agriculture industry and other stakeholders because EPA faces a host of other court-mandated deadlines to determine whether other pesticide registrations may affect listed species, and if so, to consult.

The consultations in question stem from litigation initiated over a decade ago.  Under a court order in the seminal case of Washington Toxics Coalition v. EPA, EPA was required to review 55 pesticides to determine if they may affect listed species or their designated critical habitat.  EPA made may affect determinations for 37 of the 55 pesticides, and requested formal consultation with NMFS.  NMFS issued the first BiOp, discussed above, in November 2008, it issued the second BiOp in April 2009, and the third BiOp in August 2010.  Consultation on the remaining pesticides is scheduled for completion by February 2012.

But the Washington Toxics case is just the tip of the litigation iceberg.  Other lawsuits have followed, including Center for Biological Diversity v.Johnson (filed 2002, stipulated injunction entered October 2006 requiring EPA to make effects determinations and enter consultation, as appropriate, on the impact of 66 pesticide active ingredients on California red-legged frogs and critical habitat), Center for Biological Diversity v. Johnson II (filed 2004, settlement agreement entered September 2005 requiring EPA to make effects determinations and consult, as appropriate, for effects of certain pesticides on Barton Springs Salamander), and Center for Biological Diversity v. EPA (filed 2007, settlement entered May 2010 requiring EPA to study the impacts of 66 pesticide active ingredients on one or more of 11 listed species in counties around the Sacramento-San Joaquin River Delta).

In January 2010, as part of its ongoing Pesticides Reduction Campaign, the Center for Biological Diversity filed a 60-day Notice of Intent to Sue to EPA for failing to consider the impacts of nearly 400 pesticides on more than 880 protected species across the country, and it recently filed suit in January 2011 seeking to compel EPA to make effects determinations and consult, as appropriate, on the impacts of over 300 pesticide active ingredients on 214 listed species.

The January 2011 lawsuit, in particular, appears to have precipitated the letter to CEQ, which states that the suit "would, by some estimates, require over 28,000 consultations [and result in] hundreds of new bi-ops."  The authors of the letter to CEQ argue that the proliferation of lawsuits underscores the immediate need for better intra-agency coordination, including coordination with DOJ, to ensure that consultations are conducted in a transparent fashion, with the opportunity for agency and public comment, and that they are based on the best scientific and commercial data available.