“Never say die” is the mantra of many of our most radical environmental groups. Just when it seems that just about everything is regulated — water, air, endangered species, wetlands — we find “Environment Incorporated” activist lawyers seeking new ways to impose their ideas of Utopia on the rest of us.
Recent court decisions by activist federal judges have opened new avenues for regulation. Now we have decisions saying that the Endangered Species Act (ESA) and the Clean Water Act (CWA) trump pesticide uses legally authorized under FIFRA and FQPA. Additionally, the ESA we find also trumps the CWA and water distribution in the western United States.
Let's look at the fundamentals of some of these decisions and see if and when and how they might come home to roost in the South or other parts of the country. Naturally most radical environmental decisions find their genesis in California and more recently in the Pacific Northwest.
Aquatic herbicides. In March the Federal 9th Circuit Court of Appeals ruled that an irrigation district in Oregon may be subject to liability under the CWA because it failed to obtain a CWA permit to allow spraying of an aquatic herbicide legally labeled for that use under FIFRA. This case is precedent-setting and could negate the FIFRA regulatory scheme nationwide where potential run-off or use could get into so-called navigable waters of the United States.
We don't understand how an irrigation canal is a “navigable water,” but stranger definitions have been made before. This case must be appealed to the highest level if necessary. Think about the potential ramifications of this decision in Louisiana and Arkansas — and other Southern states.
Two cases in California and Washington filed by separate environmental coalitions challenge EPA's alleged failure to adequately consult with the Fish and Wildlife Service (FWS) as required by the ESA concerning effects of application of pesticides which might affect salmon and steelhead fish. Again, industry must intervene since the ramifications of an unfavorable decision could affect labeling and use of many pesticides near certain water bodies. Imagine if catfish or trout or bass had been the subject of the suit.
Water levels. A most recent and even more absurd application of the consultation requirements of the ESA is one where the 12th Circuit Court required the Bureau of Reclamation to allocate available water coming from the Upper Klamath Lake in southern Oregon and set minimum levels in the lake and downstream. The water level established by the Fish and Wildlife Service is to ensure that the habitat of a variety of “sucker” fish is maintained and that downstream levels be kept high enough to facilitate salmon swimming.
Meeting what the FWS called minimum levels leaves no water for 1,400 farmers who make their livelihood from growing crops in the Klamath basin and who depend on having river water available for irrigation. Could this happen in our drought stricken Southeast? Who allocates our water? Is the ESA involved?
So where does all this lead? First, we must be prepared to answer the philosophical question. “If push comes to shove, who should be on top — man or beast?” Looking out for endangered species is a noble goal, but we should not forget where man should be placed and whose ultimate survival should be foremost. Since commonsense doesn't seem to prevail, does our Congress have the guts to straighten out a poorly thought out and terribly implemented law?