ESA may force EPA to strengthen pesticide permits

Requirements could heighten industry pressure on Congress to pass legislation exempting pesticide applications from CWA permit requirements and, thus, overriding a court mandate.

Earlier this year, EPA released its draft permit under the Clean Water Act (CWA) for certain pesticide uses as mandated by a ruling of the Sixth Circuit Court of Appeals. The agency, however, noted that the permit may change in accordance with the results of consultations with both the National Marine Fisheries Service (NMFS) and the Fish & Wildlife Service (FWS) as required by the Endangered Species Act (ESA).

On June 17, NMFS issued its Biological Opinion (BiOp) on the impact on aquatic endangered species of EPA's draft pesticide general permit and concluded that the permit in its current form is likely to jeopardize the continued existence of 33 endangered or threatened species under NMFS' jurisdiction and result in the destruction or adverse modification of critical habitat that has been designated for 29 of those species.

As a remedy, NMFS is calling on EPA to take several steps to strengthen the permit requirements in at least three states where it applies, including Idaho, Massachusetts and New Hampshire, as well as on federal lands in Washington State and on tribal land in other regions. NMFS says these areas require stricter conditions because they overlap with areas that have a high concentration of endangered species under their jurisdiction, including various salmon and trout species in the Northwest.

Among other things, NMFS requires EPA to demonstrate that there is no spraying in a critical habitat, no spraying in the "range" of endangered species, and that there is no known adverse effects on species from the chemicals. Moreover, it calls on EPA to strengthen the paperwork requirements to provide additional details about activities and planned chemical use. NMFS also is requiring EPA to establish a monitoring plan to ensure pesticide pollutant discharges do not exceed water quality criterion.

The final EPA-issued permit will apply in those states and regions that do not have delegated CWA permit authority -- Idaho, Massachusetts, Oklahoma, Alaska, New Hampshire, New Mexico, as well as tribal and federal lands. The ESA only applies to federal agencies and actions and, therefore, delegated states will not have to abide by the ESA BiOps but EPA hopes that other states will follow the agency's approach. However, few states with delegated permit authority are expected to adopt measures to protect endangered species.

Under the ESA, the NMFS opinion is binding and its terms must be implemented in their entirety. The NMFS opinion is the first of two that must be completed before EPA can promulgate the permit. The FWS review may find even greater impacts than the NMFS review because FWS oversees a significantly greater number of species potentially at risk from spraying than NMFS.

Such requirements could heighten industry pressure on Congress to pass legislation exempting pesticide applications from CWA permit requirements and, thus, overriding the court mandate. Sens. Boxer, D-Calif., and Cardin, D-Md., currently are blocking the legislation, HR 872, from proceeding in the Senate. Senate Majority Leader Reid, D-Nev., has said that he will not bring up the bill until a deal is worked out between the senators who have placed holds on the bill and the advocates for it.