Blowin’ in the wind (continued)

Hexazinone is more persistent. Elskus’s research is finding that juvenile salmon are exposed to low levels of hexazinone continuously for the three years they spend in the river before heading out to sea. "What we could say is that neither of these are causing lethal effects, because you’d see that," she explains. "What it could be causing is behavioral effects. Pesticides like atrazine, which is related to hexazinone, can affect the ability of salmon to smell," with the result that male fish don’t know when females are ready to mate and their sperm levels don’t spike. "There have been studies on hexazinone with adult fish that suggest that there’s not a problem, but those are short-term tests, and these fish see this stuff for three years, and even though it’s really low doses, we don’t know what that chronic exposure does," especially in the early life stages of the salmon.

Elskus is presenting her research at a March 23 forum sponsored by the Downeast Salmon Federation. Maine DEP biologist Mark Whiting and the BPC’s water-quality specialist Heather Jackson will also give talks on pesticide drift and water quality.

For his part, Flanagan doesn’t see a link between pesticide drift and Atlantic salmon. "We all want the salmon to come back," he says, "but the salmon aren’t coming back in the rivers where there aren’t any blueberry fields."

Kratka says that’s not the point. "The state of Maine has established that blueberry spraying is putting toxic pesticides directly into rivers and streams where there are endangered salmon, as well as lots of other water bodies around that area," he says, "and our objective in the suit is to cut down on the amount of toxic chemicals that are getting into the environment and are getting into people’s water."

Chiming in, Jay Feldman of Beyond Pesticides says, "This is really an enforcement case. You can’t on the one hand acknowledge that pesticides are dangerous, and then get angry with those who try to enforce the law. That’s the bottom line with this lawsuit."

In 2004, BPC drift study samples — which Jackson is currently compiling into the report she will deliver at the Downeast Salmon Federation event — found low levels of phosmet and a third chemical, fenbuconazole, on the surface of waters adjacent to aerially sprayed Wyman fields. Fenbuconazole, the active ingredient in the fungicide Indar, is not intended for use on blueberries, or any of Wyman’s other crops; according to the label posted on Dow Agro’s Web site, Indar is specifically indicated for stone fruits such as peaches and plums. In addition, Indar’s label carries the following all-caps instruction: DO NOT APPLY BY AIR.

"That’s news to me, and I highly doubt it," Flanagan says when informed of this.

Well, it’s true, as Flanagan later found out from Wyman farm manager Darren Hammond and BPC registrar Wesley Smith, who say the state filed what’s known as a Section 18 emergency registration for the use of Indar on blueberries after the EPA, under threat of lawsuit from environmental groups over maximum residue levels, pulled permits for propiconazole. Hammonds says that Indar is often used on "cultivated blueberries," the tall version that grows in rows, but its use on "wild blueberries" like Wyman’s is less common — at least in part because of the prohibition on aerial use, which means that wild blueberry growers have to drive boom trucks all over their crops to apply it from the ground. In this case, the EPA said Indar "may be applied by ground or air" — in other words, Smith says, the state petitioned for and received "a permit for a use that’s not on the label."

From Kratka’s perspective, this situation is "a perfect example" of why Clean Water Act permitting needs to be part of agricultural pesticide use. In this case, he says, the EPA has "weakened the protections that EPA originally thought were needed, without any analysis of where this stuff was being sprayed." FIFRA, he says, fails to take into account non-target pesticide residues. "Maine has classified its salmon rivers as Class AA waters, which are not supposed to receive any pollutant discharges at all," he points out. "FIFRA doesn’t take that into account; FIFRA sets a national, uniform standard for a particular pesticide as kind of a minimum level of precaution, but it’s only under the Clean Water Act that EPA and state environmental agencies are directed to look at specific, individual water bodies and what protections those water bodies need."

The legal precedent for the potential point-source lawsuit, in the words of Environment Maine’s Matthew Davis, "leans in our direction." The Ninth Circuit Court decided in 2002 that the US Forest Service needed a NPDES permit for aerial spraying to control moth infestations, and the next year the US Supreme Court let the decision stand. In addition, a court in Oregon found that agricultural interests who released non-indicated herbicides into irrigation canals for weed control needed NPDES permits because the herbicides’ labels specifically warned users not to introduce them into water. Closer to Maine, a fight between citizen groups and the city of New York, which sprays Central Park to control mosquito-borne West Nile virus, has shuttled back and forth between district and appeals courts.

The timber industry was infuriated by the 2002 aerial-spraying decision, and agricultural interests are beginning to catch on that the issue of point-source pollution from spraying isn’t going away. Western courts have recently held that pesticide applicators must observe buffer zones around bodies of water critical to salmon. Here, as in the point-source argument, the West Coast appears to be leading the way in tightening up rules on pesticide use.

Industry-friendly groups, predictably, are quick to label these decisions as judicial activism. An August 2004 article from the Heartland Institute, a leading conservative and anti-environmental think tank, took stock of the point-source debate and reported that a coalition of pesticide users and agricultural groups "has held meetings with congressional staff this year to solicit sponsors of the proposed amendment to FIFRA," the statute governing the labeling and use of pesticides. A draft bill circulating at the time would expand FIFRA’s scope to declare that "a product registered under this act, when used in accordance with the relevant requirements of this act, does not constitute the discharge of a pollutant that requires a NPDES permit under the CWA."

Kratka sees this attempt as vindication of the grounds of the groups’ potential lawsuit. "The fact that they are trying to do that pretty clearly answers the question of whether Wyman needs a permit now," he says. "They wouldn’t be pushing for a change in the law if the law didn’t currently say something different."

The article’s authors approvingly note that "clarification of the environmental statutes will prevent courts from mandating additional red tape on law-abiding, taxpaying farmers and pesticide sprayers," ignoring the obvious point that if aerial spraying is a point source, those farmers whose pesticides drift into area waters aren’t actually law-abiding.

But don’t tell that to Ed Flanagan. Asked why Wyman won’t stop aerial spraying, he asks, "Why should we?" He argues that FIFRA’s testing processes and accompanying EPA rules are sufficient. "You have to follow those, and we do," he says. "We err on the side of caution, and we are never within any sort of violation levels of any of the labels. The Clean Water Act is overly regulating things, and we feel that the EPA and FIFRA are basically completely adequate."