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If no-spray buffers proposed by the U.S. Environmental Protection Agency go into effect, orchardists will be unable to use critical pesticides on a large proportion of their acreage, including products that will be necessary to control new, invasive pests.

The agency is proposing a 500-foot buffer alongside all flowing water for ground applications and a 1,000-foot buffer for aerial applications to protect endangered salmon.

In 2002, the EPA was sued by the Washington Toxics Coalition for failing to consult with the National Marine Fisheries Service on the registration of pesticides and their potential to impact salmon.  As part of a court order, NMFS is writing biological opinions that include proposed mitigation measures for 37 pesticides that are likely to harm salmon.

So far, NMFS has issued three biological opinions for 18 pesticides. These measures include no-spray buffers along any river, canal, ditch or even seasonal stream that might carry salmon or flow into salmon habitat. The EPA has one year after a biological opinion is issued to implement the measures.

The Washington State Department of Agriculture believes such large buffers will prevent growers from treating large portions of their land. For example, Jim Koempel, a fruit grower with orchards at 13 locations in Washington from Peshastin to Rock Island, estimates that a 500-foot buffer will prevent him from spraying 42 percent of his land.


NMFS issued its first biological opinion, concerning the organophosphates chlorpyrifos (Lorsban), diazinon, and malathion in November 2008. Lorsban is typically applied in apple orchards during the delayed-dormant season to control woolly apple aphid and as a preventive treatment for other pests such as mites.

Dr. Elizabeth Beers, entomologist with Washington State University, said a delayed-dormant application of oil plus organophosphate has been a standard treatment for many years, but the organophosphate has changed over the years, as materials have lost their registrations. “We’ve lost most of our other options in that time slot,” she said. ­“Chlorpyrifos is kind of the last man standing.” Without the use of chlorpyrifos during the dormant season, more sprays  would be required during the growing season, and the next best treatment for woolly apple aphid is, ironically, diazinon.

“We have pretty much only got two materials that are really, truly effective against woolly apple aphid,” Beers said. “Diazinon is most effective, and ­Thiodan (endosulfan) is the second best, and there are not a lot of options after that.”

Use of malathion for cherry fruit fly control dropped off with the introduction of the GF120 bait several years ago, but the new pest spotted wing drosophila, which moved into the Pacific Northwest during the last couple of years, is not ­controlled by GF120. It is controlled by malathion, which will likely be a critical tool. Malathion has typically been applied to cherry orchards as an ultra-low-volume spray by air, but aerial applications will be subject to a 1,000-foot buffer.


In April 2009, NMFS issued its second biological opinion, concerning carbaryl (Sevin), carbofuran (Temik), and methomyl (Lannate). Sevin is widely used in the apple industry as a postbloom thinner but is not used as an insecticide as much as it used to be because alternatives are available, Beers said.

Lannate is an old, toxic material that the tree fruit industry has tried to avoid. However, it is one of very few options for control of another new pest, the brown marmorated stinkbug, which is devastating orchards in the eastern United States and is expected to spread to the Pacific Northwest soon.

“We’re faced with these new invasive pests, and, unfortunately, some of the older materials are some of the most effective,” Beers said. “They just couldn’t have picked a worse time to start yanking these out of our systems, with all these new pests on the horizon.”

Label changes

Although EPA was given only one year to implement the biological opinions, the buffers have not yet gone into effect. Dr. Jim Cowles, environmental toxicologist with the Washington State Department of Agriculture, said EPA sent out an implementation notice that required label changes. Registrants of the pesticides involved refused to voluntarily change their labels. They have filed a lawsuit ­challenging the first biological opinion.

If the registrants refuse to change the labels, that should trigger an administrative procedure by EPA to cancel the registrations of the pesticides, but Cowles said the agency has not yet taken that course. He thinks that EPA might be waiting to see the outcome of the lawsuit, which was filed with the U.S. Court of Appeals Fourth Circuit in Maryland. The EPA has not issued an implementation notice for the second ­biological opinion, possibly for the same reason.

NMFS issued a third biological opinion, concerning 12 more organophosphate insecticides, in August 2010, so implementation is not due until next August. The agency is expected to issue biological opinions on 19 more herbicides and pesticides within the next year.

Cowles said that for the time being buffers are not required, but the court could rule on the first biological opinion at any time. “Conceivably, if the court upheld the biological opinion and the registrants decide to comply, there could be buffers within months after that.”

Another lawsuit

In January, the Center for Biological Diversity, based in Arizona, sued the EPA for failing to protect more than 214 endangered species by not consulting with NMFS and the U.S. Fish and Wildlife Service regarding the registrations of 394 pesticides. This has the potential to impact farmers across the United States.

Cowles said the Department of Agriculture would like to see a better-defined consultation process between NMFS and EPA so everyone can agree on what it is.

“It needs to be rolled into the standard procedures of EPA so it’s a predictable process,” he said. “Our position is that the Endangered Species Act consultation has to occur because, if it doesn’t, it sets us up for these lawsuits and we have a situation that’s very difficult to manage.”

He’s also calling for the biological opinions to reflect actual conditions. The Washington State Department of Agriculture has been monitoring surface water weekly during the growing season since 2003 and found only one detection, in 2005, where a pesticide concentration was above the level the EPA considers harmful. The department worked with the grower to correct the problem. Most detections have met the even more stringent water quality standard, Cowles said.

NMFS did not incorporate this information into its assessments, which are based on models of worst-case scenarios that don’t reflect real-life agricultural practices in Washington, Cowles said. The agency assumes that all pesticides would be used at maximum rates.
The Department of Agriculture is also concerned about the lack of opportunity for stakeholder involvement in the process. When considering the economic feasibility of its proposals, NMFS only considered what was feasible for the EPA, and not pesticide users.
The good news, Cowles said, is that the EPA is more in tune than NMFS with the actual use of pesticides and potential exposure.
“It looks kind of grim right now,” he conceded, “But it would be worse if all the regulatory agencies were singing the same tune, and they’re not.”