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Spokane, Washington  Est. May 19, 1883
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Court upholds protections for streams, fish

Elizabeth M. Gillespie Associated Press

SEATTLE – A federal appeals court has upheld a ban on the use of pesticides near streams in Washington, Oregon and California until the U.S. Environmental Protection Agency determines the chemicals won’t harm salmon.

U.S. District Judge John Coughenour in Seattle ruled in January 2004 that no-spray buffer zones be put in place near rivers where there are threatened and endangered salmon.

The EPA, pesticide makers and farming groups appealed, arguing, among other things, that a coalition of environmental groups had not proved that dozens of pesticides in question would cause irreparable harm.

On Wednesday, a three-judge panel of the 9th U.S. Circuit Court of Appeals rejected that argument.

It also dismissed the EPA’s contention that it shouldn’t have to comply with the Endangered Species Act because it was already working to comply with the Federal Insecticide, Fungicide and Rodenticide Act.

“An agency cannot escape its obligation to comply with the ESA merely because it is bound to comply with another statute that has consistent, complementary objectives,” the court said.

Lawyers with Earthjustice, a firm representing the Washington Toxics Coalition, the Northwest Coalition for Alternatives to Pesticides and other groups, hailed Wednesday’s decision as “a victory for salmon.”

“The EPA tried to argue that it was above the law. It tried to argue that because it had complied with FIFRA it didn’t have to comply with ESA,” said Amy Williams-Derry, a lawyer in Earthjustice’s Seattle office.

EPA spokeswoman Enesta Jones said the agency would have no immediate comment Wednesday because it had not had a chance to review the ruling.

Jay Vroom, president of CropLife America, a pesticide trade group, said the ruling was a disappointment that would pose a “further economic burden to our farm customers.”

“We continue to believe that the EPA and the Fish and Wildlife Service and the National Marine Fisheries Service are doing the appropriate evaluations, and that any hazards that might have existed have already been addressed,” Vroom said.

Coughenour’s 2004 ruling barred pesticides from being applied within 20 yards of salmon-bearing streams until the EPA determined whether they would likely harm protected fish.

He also banned the aerial spraying of pesticides within 100 yards of streams, except for public health reasons including controlling mosquitos.

The appeals court on Wednesday also upheld Coughenour’s ruling that stores selling pesticides in urban areas must post warnings that the products may harm fish.

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