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Agencies dispute pesticide reviews

EPA questions ‘transparency’ of NMFS analysis

Mateusz Perkowski Capital Press May 7, 2009

Judging from recent headlines, it would seem that federal scientists agree about the harmful effect certain pesticides have on fish, but records show that's not the case.

In fact, two federal agencies charged with developing new restrictions on these chemicals don't see eye-to-eye about the science behind recent conclusions.

Last year, a federal judge ordered the National Marine Fisheries Service to review 37 pesticides to determine if they harm endangered salmonid species in the Northwest.

Since then, NMFS has found that each of the six pesticides it has reviewed so far poses a jeopardy to the fish.

In a November 2008 biological opinion, NMFS proposed restrictions on the use of malathion, chlorpyrifos and diazonin. A second opinion released in April proposed similar restrictions for carbaryl, carbofuran and methomyl.

The Environmental Protection Agency is expected to develop label regulations based on these proposed mitigation measures, but agency managers say they are confused about how NMFS arrived at its findings.

After receiving a draft of the most recent biological opinion, EPA's director of pesticide programs, Debra Edwards, wrote a response letter criticizing NMFS' approach.

"The draft biological opinion lacks a level of transparency necessary for EPA to understand NMFS' rational for its opinion that the use of these pesticides will jeopardize the continued existence" of the endangered fish, Edwards said in the letter, dated April 10.

NMFS seemed to use "conflicting approaches" in how it compiled the biological opinion, drawing conclusions about pesticide risk from uncertain and incomplete data, Edwards said.

The biological opinion also failed to explain why NMFS took certain studies into consideration but did not use other studies provided by EPA, she said.

Edwards also questioned how realistic NMFS was about pesticide use in agriculture.

Farmers use less pesticides than estimated in the biological opinion, since NMFS assumed growers apply the maximum amount of chemicals permitted by law, Edwards said.

"There seem to be numerous assumptions made in the draft that are not reasonably likely to occur and in fact are very unlikely to occur," she said.

According to data in the biological opinion, populations of endangered fish have actually improved, but that information doesn't seem to factor into NMFS' conclusions, Edwards said.

"Use of these pesticides has been going on for decades," she said. "If the threatened status of the species has not changed appreciably during this time period, it would appear to provide some indication that use of these pesticides are not appreciably reducing the likelihood of both survival and recovery."

Angela Somma, chief of NMFS' endangered species program, said the agency disagrees with the EPA's view that the biological opinion lacks transparency.

"At this point, we have not resolved all the issues with EPA, but we certainly have conversations about it," said Somma.

NMFS acknowledges in the biological opinion that some of the studies it considered were uncertain, she said.

However, the Endangered Species Act and subsequent legal decisions require NMFS to consider all relevant data when conducting a biological opinion, Somma said.

"The courts have told us many times we have to look at all the information," she said.

NMFS discarded some studies provided by EPA because they were outdated, Somma said.

The positive fish population numbers may have been the result of habitat restoration and other efforts, and so did not figure into NMFS' findings, she said.

"The analysis of these pesticides is independent of these other actions," Somma said.

Joshua Osborne-Klein, an attorney for the Earthjustice environmental group, said EPA has traditionally been lax in its analysis of pesticides.

"EPA has been repeatedly criticized in the courts and by NMFS and (the U.S.) Fish and Wildlife (Service) for failing to account for all the different modes of toxicity these pesticides have," he said.

Even though the agency is dubious about NMFS' findings, Osborne-Klein is optimistic that EPA will take the mitigation measures seriously, largely because Obama administration is setting a new tone, he said.

"The trickle down from the top level appointments has not yet been felt at the decision-making level," Osborne-Klein said.

If the EPA had been sufficiently thorough in its pesticide registration process, the agency could have avoided any disruption to farmers, said Aimee Code, water quality for the Northwest Coalition for Alternatives to Pesticides, an environmental group.

"Now, they're playing catch-up," she said.

Terry Witt, executive director of the agricultural group Oregonians for Food and Shelter, said he hopes EPA will recognize the value pesticides have for farmers.

The NMFS biological opinion is overly cautious and unrealistic, he said.

"They're making every assumption in the negative and in many cases compounding assumption on top of assumption," Witt said.

It's discouraging that NMFS had not changed its approach in evaluating pesticides since the last November biological opinion, which was also criticized by EPA, said Susan Helmick, spokesperson for pesticide industry group CropLife America.

"The same problems that existed with the first bio-op exist with the second one as well," she said.