Updated 2/4/08

ESA-Related Lawsuits
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WSDA provides summaries of lawsuits that relate to the Endangered Species Act and may affect WSDA stakeholders.

Not all court records pertaining to the following lawsuits are available on this web site. The official source for court records is the clerk's office of the respective U.S. Court. All documents filed with a court are public records and are available through the clerk's office.

• WASHINGTON TOXICS COALITION, et al., Plaintiffs, v. EPA and CHRISTINE TODD WHITMAN, ADMINISTRATOR, Defendants, AMERICAN CROP PROTECTION ASSOCIATION, et al., Intervenor-Defendants

• WASHINGTON TOXICS COALITION, et al., Plaintiffs, v. UNITED STATES DEPARTMENTS OF INTERIOR, FISH & WILDLIFE SERVICE, COMMERCE and NATIONAL MARINE FISHERIES SERVICE, Defendants

WASHINGTON TOXICS COALITION, et al., Plaintiffs,
v.
EPA and CHRISTINE TODD WHITMAN, ADMINISTRATOR, Defendants, AMERICAN CROP PROTECTION ASSOCIATION, et al., Intervenor-Defendants

• Summary
• Final Order
• Related Motions

Summary

On July 3, 2002, the U.S. District Court for the Western District of Washington at Seattle found that the U.S. Environmental Protection Agency (EPA) had violated its obligations under the Endangered Species Act. The ruling was in response to a lawsuit brought by Earthjustice, the law firm representing the Washington Toxics Coalition and other environmental and fishing groups.

The court ordered EPA to review of the effects of 54 pesticide active ingredients on threatened and endangered salmonids and to consult, as appropriate, with National Marine Fisheries Service (NMFS) on any of the 54 pesticides that may affect salmon. EPA completed the effects determinations in December 2004.

On Jan. 22, 2004, the court ordered protections to prevent the potential adverse effects of any of the 54 pesticides on threatened and endangered salmonids. Under the order, buffer zones are required for the application of any of the 54 pesticides that received a "likely to adversely affect" determination as a result of the EPA review.

The order prohibits ground applications of these pesticides within 20 yards (60 feet) of streams and other water bodies accessible to salmon. The order also requires a buffer zone of 100 yards (300 feet) for aerial applications. The buffer zones remain in effect until the conclusion of the EPA consultations with NMFS.

The Jan. 2004 order was appealed to the U.S. Court of Appeals for the Ninth Circuit in September 2004.

The appellate court, in a decision released June 29, 2005, affirmed the Jan. 2004 order. The no-spray buffers will remain in effect until EPA and NMFS complete the pesticide consultation process.

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Final Order

The final order, issued on Jan. 22, 2004, mandates the following:

• Buffer zones imposed by the U.S. District Court order will not apply to any of the 54 pesticide active ingredients named in the lawsuit that have received a "no effect' determination from EPA.

• Buffer zones will not apply to any of the 54 pesticides named in the lawsuit that have received a "may affect, but not likely to adversely affect" determination, provided that NMFS has not rejected the "not likely to adversely affect" determination.

• Any of the 54 pesticides that have been determined as "likely to adversely affect" salmonids will be subject to buffer zones. WSDA has prepared a complete listing for those pesticides subject to buffer zones in Washington State.

• Buffer zone widths would be set at 20 yards (60 feet) for ground applications and 100 yards (300 feet) for aerial applications of pesticides.

• Buffers are measured from the "ordinary high water mark" of the all streams, lakes, estuaries and other water bodies where salmon are ordinarily found at some time of the year. The StreamNet database identifies these waters. StreamNet is maintained by the Pacific States Marine Fisheries Commission.

• Select pesticide uses are exempt from the buffer zone requirement:

  • Pesticide use for maintaining public health such as mosquito abatement programs (Public Health Vector Control programs).

  • National Marine Fisheries Service (NMFS) - authorized programs (e.g., Portland (OR) Parks).

  • Pesticides used by government agencies for noxious weed control (Noxious Weed programs). The exemption would apply only when the control program implements the safeguards routinely required by NMFS for such programs.

• Educational materials are required at the point of sale to alert pesticide users in urban areas to the potential risks of using seven pesticide active ingredients near salmonid habitat.

The seven active ingredients that require the mandatory point-of-sale warning are 2,4-D, carbaryl, diazinon, diuron, malathion, triclopyr BEE and trifluralin. An "urban area" is defined as an urbanized area with a population of at least 50,000.

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Related Motions

Earthjustice filed two additional motions regarding specific requirements of the Jan. 2004 final ruling in Washington Toxics Coalition, et al., v EPA. 

Earthjustice alleged in their first motion that EPA failed to comply with implementation of the urban point-of-sale notification.  The court agreed and ordered EPA to mail the requirements of the mandatory salmon hazard warning to pesticide retailers in urban areas.  The court further ordered EPA to include in the mailing a list of the seven pesticide active ingredients subject to the warning and the products containing those ingredients.

In the second motion, Earthjustice asked the court to clarify that the noxious weed exclusion does not authorize aquatic application of any of the 54 pesticides into salmon-supporting waters.  The court denied this motion, ruling that the clarification is contrary to the language of the noxious weed exclusion.  The exclusion allows those pesticides registered for aquatic application under FIFRA to be used to directly combat noxious weed in salmon-supporting waters.

WASHINGTON TOXICS COALITION, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENTS OF INTERIOR, FISH & WILDLIFE SERVICE, COMMERCE and NATIONAL MARINE FISHERIES SERVICE, Defendants

• Summary

Summary

In a lawsuit filed Sept. 2004, eight environmental groups challenged the counterpart regulations for pesticide consultations. According to Earthjustice, the law firm representing the environmental groups, the newly-enacted rules violated Section 7 of the Endangered Species Act (ESA). Section 7 of the ESA requires that federal agencies, in consultation with the U.S. Departments of Interior and Commerce, ensure their actions will not jeopardize threatened and endangered species or their habitat.

In August 2006, the U.S. District Court for the Western District of Washington issued the final order in this lawsuit. The ruling does not allow EPA to conduct informal consultations for those FIFRA actions that EPA determines are “not likely to adversely affect” any federally-protected threatened and endangered species or critical habitat. The ruling also does not allow the emergency consultation provisions of the counterpart regulations to be implemented. The Federal defendants are not appealing the order. 

The counterpart regulations, issued in July 2004, were designed to enhance the efficiency and effectiveness of the U.S. Environmental Protection Agency (EPA) consultations with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service on potential pesticide risks to endangered species. The regulations provide two optional alternatives for the EPA to complete Section 7 consultations for Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulatory actions.

Further information on the Section 7 consultation process may be found on the U.S. Fish and Wildlife Service consultation web page.

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