WASHINGTON -- Farmers in Washington and across the nation could face severe restrictions on the use of pesticides as environmentalists, spurred by a favorable legal ruling, want the courts to force federal regulators to protect endangered species from the effects of agricultural chemicals.
An 8-year-old ruling by a federal judge in Seattle required the National Marine Fisheries Service and the Environmental Protection Agency to review whether 54 pesticides, herbicides and fungicides were jeopardizing troubled West Coast salmon runs.
The agencies recently moved to restrict the use of three of the chemicals near any bodies of water that flow into salmon-bearing streams and regulators are now considering restrictions on 12 additional chemicals. The Washington State Department of Agriculture says such restrictions will prevent pesticide use on 75 percent of the state's farmlands.
A federal judge in California has issued a similar ruling involving 11 endangered and threatened species and 75 pesticides in the San Francisco Bay area.
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Rather than continuing to file piecemeal lawsuits, the Center for Biological Diversity says it will file a broader suit this summer involving nearly 400 pesticides and almost 900 species protected under the Endangered Species Act.
Washington officials said restrictions that might result from that lawsuit could "significantly" affect agricultural production in at least 48 states.
Dan Newhouse, director of the state Department of Agriculture who farms hops, apples, cherries and other row crops on 600 irrigated acres in the Yakima Valley, said if the courts ordered far-reaching restrictions, "farmers across the country will have significantly fewer tools at their disposal to manage plant pests and disease."
Newhouse said there was so much uncertainty it was impossible to tell how "widespread or dramatic" the effects might actually be. But in his state, Newhouse said, "I am coming to believe every farmer would be impacted one way or another."
The Endangered Species Act, signed into law in 1973, requires federal agencies contemplating an action that could "jeopardize" listed species consult with either the Fish and Wildlife Service or the National Marine Fisheries Service and come up with a plan to alleviate or lessen the effects. The fisheries service has jurisdiction over some fish species such as salmon, and the Fish and Wildlife Service covers everything else.
EPA has jurisdiction over pesticides. Over the years, environmentalists claim the EPA pretty much ignored the endangered species requirements.
That began to change in 1992 when U.S. District Court Judge John Coughenour in Seattle ruled EPA had violated provisions of the Endangered Species Act by not consulting with the fisheries services over how the use of pesticides and other chemicals could affect the more than two dozen salmon runs protected under the act in Washington, Oregon, California and Idaho.
"Such consultation is mandatory and not subject to unbridled agency discretion," Coughenour wrote.
After years of study, the fisheries service in 2009 found three pesticides -- carbaryl, carbofuran and methomyl -- were jeopardizing salmon runs and suggested EPA change the registrations on the chemicals to ban using them within 1,000 feet of salmon habitat and impose other technical restrictions involving aerial spraying, wind speed and weather.
EPA essentially agreed, but the manufacturers of the three chemicals say they won't voluntarily adopt new labeling requirements for their products and have threatened their own lawsuit.
EPA has a 2012 deadline to finish studying the other chemicals and adopt use restrictions on those that threaten salmon.
"For years and years and years, EPA didn't do these consultations on pesticides," said Steve Mashuda of Earthjustice's Seattle office, the law firm that brought the 2002 suit on behalf of the Washington Toxics Coalition. "Those days are over."
Jeff Miller, a spokesman for the Center for Biological Diversity, said until now, his and other groups have approached the issue species-by-species and region-by-region.
"We are trying to get EPA to do it nationally," he said.
Miller said, even now, EPA continues to drag its feet.
"I know (President) Obama has a lot on his plate right now, but the EPA is still not aggressively taking on this issue," he said.
Agriculture is a $40-billion-a-year business in Washington, employing 160,000 people. It's not just the large irrigation projects in the central part of the state or the wheat farms in the Palouse. It includes berry farms, tulip bulb fields and cranberry bogs on the west side.
Newhouse said state agriculture directors across the country are increasingly worried.
The consultation process for chemicals between EPA and the fisheries service and U.S. Fish and Wildlife Service needs to be overhauled, and that might entail changes in the Endangered Species Act and the Federal Insecticide, Fungicide and Rodenticide Act, Newhouse said.
In addition, Newhouse said the EPA needs to look at recent studies like one conducted by Washington state that showed only low levels of pesticides in five watersheds -- Thornton Creek in Seattle, the Skagit Delta, the lower Yakima Valley and the Wenatchee and Entiat basins. The study said the pesticide levels were not expected to affect salmon, though concentrations at some sites could harm aquatic species that salmon eat.
Manufacturers of agriculture chemicals have threatened to sue EPA, alleging the agency's method of crafting restrictions was riddled with "major flaws" and the industry was not asked to participate.
The companies that manufacture the three pesticides currently at the heart of the controversy told EPA they won't go along with voluntary labeling restrictions, arguing that if the chemicals are properly used they will not jeopardize endangered or threatened species.
The industry has also argued that pesticides actually help maintain habitat for endangered species by controlling the spread of noxious and harmful weeds, pointing to endangered orchids that have thrived in various rights of ways that have been sprayed with herbicides.
EPA officials were unavailable for comment despite e-mail and telephone requests. But they have notified the manufacturers if they don't voluntarily agree to the new labeling restrictions, the agency will pursue "administrative procedures" against them.
On Capitol Hill, lawmakers are tracking the controversy but no legislative fix has been introduced.
"Washington's agricultural industry, the backbone of our state's economy, will be enormously affected by the proposed buffers and restrictions," said Sen. Patty Murray, D-Wash. Murray said she has been in contact with the state's federal agencies and farm interests.
Rep. Doc Hastings, R-Pasco, whose district includes some of the state's richest farm lands, said in a letter to EPA Administrator Lisa Jackson it was "deeply troubling" her agency was moving ahead with restrictions despite studies that found salmon weren't being affected.