Judge Rules Salmon Entitled to Protection From Pesticides

BALTIMORE, Maryland, November 1, 2011 (ENS) – A federal judge has upheld measures required to protect endangered salmon and steelhead from three toxic pesticides.

Judge Alexander Williams, Jr. of the U.S. District Court for the District of Maryland, made the ruling Monday in a lawsuit brought by Dow AgroSciences, Makhteshim Agan of North America, and Cheminova, Inc. USA against the National Marine Fisheries Service.

The plaintiff companies hold registrations issued by the U.S. EPA that authorize them to sell products containing three insecticides: chlorpyrifos, diazinon and malathion.

The companies sued the National Marine Fisheries Service to challenge its 2008 biological opinion (BiOp). The biological opinion, a formal government document, holds that registration of the three products without restrictions such as streamside no-spray buffer zones would jeopardize the continued existence of 27 protected species of Pacific salmon and steelhead and their habitat.

Salmon jumps from a rushing Oregon stream (Photo by BLM Oregon)

The companies alleged that the biological opinion is not based on the best scientific and commercial data available as required by the Endangered Species Act.

Conservation and fishing organizations intervened on the side of the Fisheries Service. Federal Defendants and Intervenor Defendants argued that the three pesticides jeopardize the continued existence of the Pacific coast salmonids and that the agency’s actions were necessary to mitigate the harm and were not arbitrary and capricious.

Judge Williams took note that the Fisheries Service filed nearly 20,000 pages of material in the administrative record.

“Plaintiffs simply have not made a sufficient case that, of the voluminous data provided to the NMFS, it failed to adequately consider and respond to significant and relevant comments and to incorporate them in the BiOp,” the judge ruled, rejected the companies’ challenges.

“The best available science shows that these toxic pesticides pose a major threat to Pacific coast salmon,” said Steve Mashuda, an attorney with the public interest law firm Earthjustice representing the intervenor groups: Northwest Center for Alternatives to Pesticides, Pacific Coast Federation of Fishermen’s Associations, and Defenders of Wildlife.

“Today’s ruling is yet another reason why the government must move quickly to ensure that pesticides are removed from Northwest salmon waters,” said Mashuda.

The pesticide chlorpyrifos, marketed by Dow Agrosciences as Lorsban-4E (Photo by Pacific Northwest Health and Safety Center, U. Washington)

The organophosphate pesticides chlorpyrifos, diazinon, and malathion are known to contaminate waterways throughout California and the Pacific Northwest, he said.

These pesticides kill salmon directly, affect their food supply and habitat, and interfere with their ability to navigate back to their home streams to spawn.

In addition to poisoning salmon, the entire class of organophosphate pesticides has been linked with attention-deficit hyperactivity disorder and childhood developmental delays, the groups point out.

“The court’s decision is a victory for everyone’s health,” said Aimee Code with the Northwest Center for Alternatives to Pesticides. “It foiled the pesticide industry’s attempt to evade the laws that protect both people and wildlife.”

The case stems from a lawsuit filed by conservation and fishing groups represented by Earthjustice in 2001, Mashuda explained. In response to that litigation, the National Marine Fisheries Service evaluated these pesticides and determined that no-spray buffer zones next to streams and vegetated strips to catch pesticide-laden runoff from fields are needed to protect salmon.

The Fisheries Service handed implementation of the pesticide restrictions to the U.S. EPA, the agency charged with regulating pesticides, almost three years ago. Yet, the EPA has not taken any action to implement any of the recommended measures.

“EPA’s priority should be preventing the poisoning of America’s endangered wildlife, not boosting the profits of pesticide manufacturers,” said Jason Rylander, attorney for Defenders of Wildlife. “Now that the court has ruled, hopefully the agency will get back to saving imperiled salmon and steelhead without further delay.”

“This case was ultimately just a diversion from the main issue. The fact is, many pesticides are getting into the nation’s rivers and poisoning fish as well as destroying fisheries jobs,” said Glen Spain of the Pacific Coast Federation of Fishermen’s Associations. “With this diversion behind us, the agencies can now turn to solving the real problem.”

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