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Court Issues Order in Endangered Species Case - Washington Toxics Coalition v. EPA

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Introduction

On February 17, EPA published in the Federal Register a notice announcing the availability of the January 22, 2004, ruling of the U.S. District Court for the Western District of Washington in the case of Washington Toxics Coalition (WTC) v. EPA. The Court is establishing buffer zones around certain water bodies in California, Oregon, and Washington where the court has ordered that specific pesticides cannot be used. Generally, for ground pesticide applications, the court order establishes a 20-yard buffer zone; for aerial pesticide applications, the court order establishes a 100-yard buffer zone adjacent to salmon-supporting waters. Chief Judge Coughenour issued this order in response to the WTC's July 16, 2003, motion for injunctive relief to establish buffer zones as an interim measure to reduce the likelihood of jeopardy to 26 species of salmon and steelhead. This order is in effect until the Environmental Protection Agency and, when appropriate, the National Marine Fisheries Service (NMFS) have completed an evaluation of whether endangered Pacific salmon and steelhead are sensitive to exposure from 55 pesticides. Under the Endangered Species Act, EPA must ensure that its registration of a pesticide is not likely to jeopardize the continued existence of species listed as endangered and threatened or adversely modify habitat critical to those species' survival. In addition to the obligation to ensure that its actions are not likely to jeopardize listed species, the Agency must consult, as appropriate, with the U.S. Fish and Wildlife Service (FWS) or NMFS if a pesticide's use may affect listed species or designated critical habitat species.

The Federal Government is currently reviewing the order issued by Chief Judge Coughenour and considering whether to appeal the decision. The government believes that decisions to protect endangered species from potential pesticide risks should be based on the best available scientific information and a thorough scientific evaluation. EPA's risk assessment process for pesticides provides a level of protection to all nontarget plants and animals, including endangered species. EPA has been working with the Department of the Interior, Department of Commerce, and the U.S. Department of Agriculture to identify ways to make the consultation process more effective and efficient. FWS and NMFS proposed regulatory changes to the consultation process and these were published on January 30, 2004, for public comment. The Agency has reviewed over half of the 55 pesticides subject to this litigation. More than a dozen of those reviewed have been determined to have no effect on salmon and steelhead, others are now undergoing the consultation process, and some pesticide uses are still under evaluation at EPA. The Agency is on schedule to complete review of the remaining pesticides by December 1, 2004.

Below are links to the Federal Register notice, the various court orders, and questions and answers about specific buffers imposed by the January 22, 2004, Court Order.

Links to the Federal Register Notice and Supporting Documents:

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