Lawsuit may bring new restrictions on crop protection

Future use of 74 pesticides has been cast in doubt by the proposed settlement of a federal lawsuit, which affects the materials' use in eight San Francisco Bay Area counties. If adopted, the settlement would establish buffer zones for the use of herbicides and insecticides in both agricultural and urban settings, and experts say it could ultimately have far-reaching impacts on food production in California.

The proposal results from the proposed settlement of a lawsuit filed in 2007 against the U.S. Environmental Protection Agency by the Center for Biological Diversity. The EPA announced the proposed settlement last month.

Farm groups say they're concerned that the EPA appears willing, through the settlement, to agree with claims that it did not properly evaluate and consult with other federal agencies on the potential impact of the pesticides on 11 protected species.

The proposed settlement would require 100-foot to 600-foot no-application buffers in the eight counties, around "protected" areas being treated with pest and weed control materials.

"If approved, this proposed settlement will be detrimental to farmers and ranchers because of its pest management restrictions on large amounts of land devoted to food production," said Kari Fisher, California Farm Bureau Federation Natural Resources and Environmental Division associate counsel. "It also sets the stage for similar lawsuits in other regions of the state."

The proposed settlement covers a five-year interim period that requires the EPA to consult more fully with other federal agencies on potential impacts of pesticide use on endangered and threatened species.

As currently spelled out in the proposed settlement, the EPA has to make determinations of "no harm" to protected species by 2014, Fisher said. Depending on findings, the U.S. Fish and Wildlife Service would then need to conduct a scientific review. And because federal agencies typically get bogged down due to limited staff and litigation, finalizing impact assessments could take a long time.

"In reality, it could be years before determinations on species impact and pesticide use are made," she said.

Farm Bureau has been actively monitoring the case and will submit comments to the EPA about the proposed settlement, Fisher said.

In San Mateo County, which last year produced more than $163 million in food crops, county Farm Bureau Manager Jack Olsen said his organization has been in discussions with the county agricultural commissioner about the possible impact of the proposed settlement.

"I don't think California farmers and ranchers realize yet what might be on the horizon," he said. "Many growers in those counties don't realize that this potentially conflicting and complex settlement proposal is even on the radar screen."

Fisher said how restrictions in the proposed settlement would be enforced remains unknown.

Napa County Agricultural Commissioner Dave Whitmer said, "What I see in the proposed settlement is a need for growers to know if they are farming in areas where protected species are known to exist, and who might be impacted by the proposal."
He said his staff, using satellite data, identified the areas in Napa County that could be affected and sent letters to about 30 specific landowners, advising them of the proposed settlement.

"We don't know how these individuals might be affected," Whitmer said, who added that "without this information, they might not even be aware."

"Producers need to be in the loop on this proposed settlement agreement and any other decisions that could restrict their pesticide use," he said.

Whitmer said one of his concerns is that as more entities attempt to regulate pesticides, including the courts and third parties, the more problems it presents for enforcement.

Renee Pinel, president and chief executive officer of Western Plant Health Association, said her organization is working to distribute information about the proposed settlement agreement to farmers, ranchers and other pesticide users.

"We've been very involved in tracking this lawsuit and determining the potential impact of the proposed settlement," she said, noting that it could affect use of materials for agricultural, structural and consumer uses.

The proposed settlement in the Bay Area case follows other recent federal court decisions that further impact the use of pesticides and require buffer zones. For example, a case known as Washington Toxics, decided in federal court in Washington state, requires buffers to protect salmon from organophosphates.

Under various buffer scenarios being considered, a cumulative 2.2 million acres along the West Coast would be affected, using the court's 500-foot buffer, and 4.2 million acres would be impacted with a 1,000-foot buffer.

Other decisions deal with single species, such as the California red-legged frog.
"These court decisions could have a major bearing on crop protection, especially when paired with the large number of listed species in California.The areas covered by the decisions are increasing," said Jack King, California Farm Bureau National Affairs manager. "This signals a very serious, emerging issue for farmers and ranchers." He said the complex settlements, worked out in the courts with third parties, "will greatly influence how farmers and ranchers can manage pests and grow crops."

King said Farm Bureau will work with other agricultural associations to evaluate the new trend and assess the impact of judicial regulation on farming and ranching operations.

For its part, the EPA said in a public statement that it "continues to work with regulatory partners to meet its obligations under the Endangered Species Act and FIFRA (the Federal Insecticide, Fungicide and Rodenticide Act) to protect endangered or threatened species from potential risks posed by pesticide use." The agency said it is addressing those issues while, to the extent appropriate, continuing to keep pest control tools available.

The 74 pesticide active ingredients identified in the lawsuit and proposed settlement are listed by EPA.

Pesticides Named in Law Suit

The 74 pesticide active ingredients identified in the lawsuit are: