Farm Bureau calls EPA buffer-zone rules 'unworkable'

Issue Date: November 4, 2009

By Kate Campbell
Assistant Editor

New federal rules that threaten common agricultural practices have sparked a strong response from Farm Bureaus in four Western states. At issue are new pesticide label restrictions and expansive buffer zones near streams, intended to protect salmon and steelhead. But future actions could affect a greater range of species habitat and materials.

The initial decision specifically affects the use of three organophosphates—chlorpyrifos, malathion and diazinon—but other reviews will follow.

The sweeping federal proposal to protect Pacific Coast salmon and steelhead results from a 2003 federal court decision that found fish populations are being harmed by pesticides. The National Marine Fisheries Service spent more than a year developing a new biological opinion that it said is consistent with the Endangered Species Act to protect the species and comply with the court's order.

Now the U.S. Environmental Protection Agency has issued its statement on how those protections will be implemented, largely retracting its earlier criticism that cited serious concerns about the accuracy of claims that the target materials actually stress the species and hamper recovery.

In response to the EPA letter and the underlying biological opinion, presidents of the California, Oregon, Washington and Idaho Farm Bureaus joined together to express their concerns, calling the EPA proposal "unreasonable and unworkable," and pointing out that the new requirements will impose significant constraints on farming operations throughout the West Coast.

They said in a joint letter to EPA that the plans fail to rely on necessary scientific information to support the proposed protective actions.

"Although EPA has presented its plan, nothing has yet happened at the farm level," said Kari Fisher, CFBF Natural Resources and Environmental Division associate counsel. "At this point, we have expressed our objections, but the state and local agencies have not indicated what role they will play in implementing and enforcing the new federal usage requirements. We do know that California farmers are most likely to be impacted by the species protection plans, particularly those farmers producing nuts, fruits and certain kinds of row crops."

The agency's plan, which will greatly limit the use of chlorpyrifos, diazinon and malathion, requires application buffer zones ranging from at least 100 feet from waterways and up to 1,000 feet for aerial application near certain waterways. The commonly used materials protect a variety of California crops, from livestock forage to fruits and vegetables.

EPA officials said the buffers will vary depending on application rate, spray droplet size and water body size, but in no case will they be less than 100 feet, to account for potential runoff in addition to drift.

Aerial application will not be permitted when winds exceed 10 mph. A 20 foot-wide vegetative runoff buffer also will be required on treatment sites adjacent to any surface waters that have a connection to salmonid-bearing waters.

Fisher said the announced plan is highly problematic for California farmers, and that the three materials currently targeted for restriction are just the beginning. There are another 30 materials that likewise will have further use restrictions added in the future under the court decision.

"Potentially dozens more could be added due to subsequent lawsuits, for example the 'Goby 11' decision that involves 11 species in the San Francisco Bay Area and the red-legged frog in the Central Valley," she said.

Beyond the immediate effects of the proposed restrictions, the state Farm Bureaus said they are very concerned about the negative, precedent-setting implications of the agency's action as it relates to current and future litigation.

Contradictions between the new plan and the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act have not been ironed out and a range of feasible alternatives to avoid economic impacts also has not been analyzed.

In addition, Fisher said, there has been little coordination to date between EPA and affected state pesticide regulators, such as the California Department of Pesticide Regulation, and little or no outreach to affected stakeholders, including agricultural commissioners, pesticide applicators or growers themselves.

In the interim, EPA said because use limitations related to endangered species protection are geographically specific, it has developed a Web-accessible application that will be used to relay the new labeling information to pesticide users. The use limitations will apply to all freshwater, estuarine and near shore marine habitats, including bays within the range of the species. EPA will use GIS (geographic information systems) files to show pesticide users where the use limitations apply.

"We're very disappointed that EPA seems to have altered its earlier position," said Jay Vroom, CropLife America president and CEO. "We believe current labeling is already protective of endangered species and that further restrictions are not required."

He said Section 1010 of the Endangered Species Act specifically requires ESA implementation programs to "minimize the impacts to persons engaged in agriculture and other affected pesticide users and applicators."

"As always, our concern remains how these decisions might ultimately impact our country's farmers and agricultural productivity," Vroom said in a prepared statement.

Additional background on the court decision and steps being taken by EPA are available online at www.epa.gov/espp/litstatus/wtc/qs-as.htm.

(Kate Campbell is an assistant editor of Ag Alert. She may be contacted at kcampbell@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item. Top