Pesticides Court Ruling

Background

As summarized by EPA on its webpage Endangered Species Case – Washington Toxics Coalition v. EPA

On January 30, 2001, the Washington Toxics Coalition et al. (WTC) 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.

See also Bernstein et al.  2013, pg 57; and  the January 22, 2004, Court Order.

The January 22, 2004 ruling by the United States District Court, Western District of Washington, at Seattle, established rules for use of pesticides near “Salmon Supporting Waters.” It cited information on the StreamNet web site as the definition of these waters for Oregon and Washington. (Further information is provided by the Washington State Department of Agriculture and the Oregon Department of Agriculture’s Pesticide Division.)

While the court cited StreamNet as the source of information on “Salmon Supporting Waters,” we do not have data specifically intended for that purpose. What we do have is information on salmon and steelhead distribution, broken down by life stage (i.e., spawning, rearing, migrating). This information indicates areas where salmon and steelhead occur for at least a portion of the year and what they are doing there. We presume these occupied streams would fit under any definition of “Salmon Supporting Waters” as intended by the court. This information is the best place to start to find waters that support salmon or steelhead, as described below.

Be aware that the information in the StreamNet database, while extensive, is not exhaustive. If a stream is included in the StreamNet anadromous fish distribution list, then that stream should be covered under the court’s definition. But just because a stream is not included does NOT necessarily mean that salmon and/or steelhead do not occur there. The primary reason this is so is that data in StreamNet cover mainly those streams contained on maps at the 1:100,000 scale. [As of July 2021 our distribution data are a mix of 100k and 24k+ (‘high-resolution’ NHD)]. However, we know that salmon and steelhead also occur in smaller streams that are not included in our salmon distribution data. These smaller streams can be quite valuable to salmon and steelhead. The Washington and Oregon fish and wildlife departments continue to work to develop fish distribution information at larger scales, and those data will be more inclusive. Even though that work is in progress and has not been completed, it might be useful to check to see what data are available at that larger scale. For Washington, contact Brodie Cox (Brodie.Cox@dfw.wa.gov). For Oregon, contact Jon Bowers (jon.k.bowers@odfw.oregon.gov).

Users of these data should also understand that it takes much more sampling to determine that a fish species does not occur at a site than to show that it does, but such higher levels of sampling effort have been done in few places. And, fish distribution can shrink in years of low population size or low water and expand in years of high populations or high water. A “Salmon Supporting Water” designation would presumably relate to a stream’s potential ability to support salmon, and not be diminished by a low population size or low water in some years. We recommend beginning with the mixed-scale StreamNet data and refining that information at the larger scale as a second step.