September 2003
FIFRA versus the Endangered Species Act
Activists are now using the Endangered Species Act (ESA) in much the same way that the Clean Water Act has been recently used to undermine portions of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). In August, the Natural Resources Defense Council (NRDC) sued the EPA, stating that the recent reregistration of the herbicide atrazine did not consider the effect of the material on 21 endangered species or include consultations with other federal agencies charged with protecting endangered species. Specifically, the suit names endangered sea turtles in the Chesapeake Bay, salamanders in Texas, freshwater mussels in Alabama, and fish in the Midwest. In the suit, the NRDC demands that: EPA declare it has violated the ESA by failing to consult under section 7(a)(2), EPA consult with other agencies on endangered species and atrazine, and that EPA halt the use of the material until they are in compliance with section 7(a)(2).
In response to an earlier ESA court judgement in Washington State, EPA has concluded that atrazine does not pose unacceptable risks to endangered salmon species. “Modeling of atrazine estimated environmental concentrations indicates that exposures will be well below the risk levels for direct effects on fish and also below the risk level for indirect effects on fish,” states the determination promulgated by the Agency. Data on water quality in the Northwest demonstrate atrazine presence ranging from 0.01 to 0.88 PPB. When endpoints such as fish toxicity, loss of food supply, and loss of plant cover were examined versus that range of concentrations, chronic risks to salmonids and invertebrates were determined to be “minimal.”
Meanwhile, one western state is trying to mitigate the problems that arose with the aforementioned judgement. The EPA allows states or tribes to submit alternatives to any federal schemes for endangered species protection in their jurisdiction. The Agency felt that states and tribes can characterize the factors affecting listed species within their borders more accurately than the EPA and its regional offices. Greater accuracy helps ensure that mitigation plans to protect species won’t require needless or inappropriate measures, thus saving time and money for the regulated community - namely growers. The U.S. Fish and Wildlife Service and National Marine Fisheries would also have to agree to this option. Consequently, Washington State is currently devising its own protection plan. The plan doesn’t necessarily have to cover all listed species or all the pesticides subject to consultation. The plan that Washington will propose will be limited to salmonid habitat, although other species may be addressed later. Since growers in Washington cultivate 250 minor crops worth $6 billion annually, the Department of Agriculture for that state became concerned that the effort to strengthen the ESA could lead to restrictions or outright bans on minor crop pesticide uses. (Pesticide & Toxic Chemical News, 8/4/03 & 8/25/03, Associated Press, 8/21/03).
