Endangered Species Case - Washington Toxics Coalition v. EPA
Under the Endangered Species Act, EPA must ensure that its registration of a pesticide is not likely to jeopardize the continued existence of federally listed threatened or endangered species or destroy or adversely modify their designated critical habitat. In addition the Agency must consult, as appropriate, with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) if a pesticide's use may affect listed species or their designated critical habitat.
This Web page provides information on the Washington Toxics Coalition (WTC) v. EPA case, related to protection of Pacific salmon and steelhead in the Pacific Northwest.
Background on this Court Case
On January 30, 2001, the WTC, et al., filed suit against the EPA in the Western District of Washington, alleging that EPA had failed to consult with the NMFS on whether certain pesticides posed jeopardy to 26 federally listed endangered and threatened Pacific salmon and steelhead.
On January 22, 2004, the District Court issued an Order granting interim injunctive relief to the WTC, et al., in response to the WTC's July 16, 2003, motion for injunctive relief, pending EPA's compliance with a schedule for review of these pesticides ordered earlier by the Court. The January 2004 Order:
- Imposed no-use buffer zones around Salmon Supporting Waters (as defined by the Court) in Washington, Oregon and California where the court ordered that specific pesticides could not be used.
- Required EPA to develop a point-of-sale notification that contains specified text and a prominent graphic for pesticides containing any of seven named active ingredients and used in Urban Areas (also defined by the Court). The seven pesticide active ingredients are: 2,4-D, carbaryl, diazinon, diuron, malathion, triclopyr BEE and trifluralin. The list of urban areas affected by this point-of-sale notification may be found in an attachment, Exhibit 3 on page 22 of the January 22, 2004 court order.
Buffer Zone Implementation
Subject to certain limited exceptions, the court order establishes the following no-use buffer zones for pesticide applications adjacent to salmon-supporting waters:
- 20-yard buffer zone for most ground pesticide applications;
- 100-yard buffer zone for aerial applications.
As a general matter, these buffers are in effect until EPA completes its consultation obligations including finding that a pesticide has no effect on the species, receipt of a biological opinion from NMFS, or a finding by EPA that the pesticide is not likely to adversely affect the species with no affirmative rejection of that finding by NMFS. For chlorpyrifos, diazinon, malathion, carbaryl and methomyl, the terminating events are set forth in the 2014 stipulated settlement in NCAP v. EPA. View the NCAP v. EPA settlement.
Distribution of the Point-of-Sale Notification
The defendant-intervenors in this case (groups representing pesticide manufacturers, distributors and pesticide users) were ordered to distribute the point of sale notification to retail outlets in Urban Areas of Washington, Oregon and California.
EPA, in turn, was ordered to provide the point of sale notification to State Fish Agencies, Pesticide State Lead Agencies, and Land Grant University Extension Coordinators in Urban Areas by April 5, 2004. Consistent with the court order, EPA also requested that these entities provide notification to certified applicators in the state who are certified in any category that would permit the applicator to apply pesticides in parks, golf courses and housing areas in the Urban Areas.
The Agency met its December 1, 2004, deadline to complete the review of the 55 pesticides as ordered by the court on July 2, 2002. For 37 pesticides, EPA determined there may be effects to one or more of the listed Pacific salmon or steelhead and therefore initiated consultation with the NMFS.
Additional Information on this Case
Federal Register Notices
- March 24, 2004, Federal Register notice on point of sale notification.
- February 17, 2004, Federal Register notice announcing the availability of the Court ruling.