EPA’s plan to keep up with ESA

Workplan reference: https://www.epa.gov/endangered-species/epas-workplan-and-progress-toward-better-protections-endangered-species#workplan

Feature image: https://www.epa.gov/endangered-species

The EPA recently announced that it will evaluate the potential effects of all new pesticide active ingredients on federally endangered or threatened (i.e., listed) species and their critical habitats. Though the Endangered Species Act (ESA) of 1973 called for federal agencies like the EPA to ensure its actions, like registration of pesticides, do not harm listed species, the EPA undertook the necessary assessments in only 5% of cases. The major reason for low compliance is the length of the process, which can be anywhere between 4 to 15 years for a single pesticide (note: the EPA must consult with the FWS/NMFS if the pesticide might affect listed species and the agencies often assess risks differently). This is compounded by the fact that the EPA must undertake a listed species assessment whenever it registers and reregisters (done every 15 years) a pesticide and also when it amends a pesticide label.

In recent years, the EPA has faced multiple lawsuits for its failure to adequately comply with ESA. Because of limited resources at its Office of Pesticide Program and inefficient processes for assessing risk to listed species, the EPA believes it is vulnerable to additional lawsuits. These lawsuits can result in a court vacating a pesticide use, affecting farmers and public health agencies that use pesticides to manage pests. Thus, the agency is collaborating with the FWS, NMFS, USDA, Council of Environmental Quality, and environmental and agricultural stakeholders to improve its ESA assessments and protect listed species from pesticide effects. This would involve supporting the development of safer technologies to control important pests, making pesticide registration decisions in a timely manner, and using real-world up-to-date information to protect listed species through pesticide decisions. To achieve this, the EPA has identified 6 key challenges to overcome:

• There is a growing number of ESA reviews being conducted with no concurrent increase in staff
• Current process often does not produce practical and timely mitigation measures to protect listed species. Also, the EPA lacks a specific approach to incorporate offsets (i.e., compensation for unavoidable impacts after mitigation measures have been applied) like habitat restoration and preservation into pesticide decisions
• FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act), the law under which EPA registers pesticides, often clashes with ESA
• Incorporating ESA requirements into the FIFRA process is challenging; for e.g., under FIFRA, each pesticide active ingredient is assessed separately. This could create unequal mitigation requirements under ESA, which could lead to inadequate species protection
• While more refined data, models, and risk assessment tools have become available to undertake more accurate ESA determinations, it has also made the process more detailed, complex, and longer. More refined data on species distribution, pesticide use, exposure, and toxicity could increase the number of “no effect” or “not likely to adversely effect” determinations (note: the EPA often makes worst-case assumptions when data are lacking)
• There is a need to improve the working relationship between EPA, FWS, NMFS, and USDA. In particular, there is a need to build trust and respect between the EPA and FWS/NMFS. This would lead to more efficient consultations and enhance species conservation

To address these challenges and to adequately protect listed species and their habitat from pesticide effects, the EPA has established four overlapping strategies and multiple actions to implement each strategy. These have been summarized below and in the Figures.

Strategy 1: Meet ESA obligations for pesticide registrations

EPA plans to meet its ESA obligations by prioritizing its actions. The top tier will include ESA assessments for pesticides with existing and future court enforceable deadlines and new conventional pesticides (process outlined in Figure 1). The second tier will include conventional pesticides that are undergoing reregistration (or registration review). The third tier will include other conventional pesticides and antimicrobials and biopesticides. For the latter two pesticide groups, ESA assessment methods will first have to be developed.

Strategy 2: Improve approaches to mitigate pesticide effects

The EPA will identify and incorporate early protection for listed species. This will involve:

• identifying vulnerable species (see Figure 2) and mitigation options and incorporating the necessary mitigation into pesticide decisions
• proactively adopting mitigation for listed species facing great survival risk from pesticides and expediting consultation for species that benefit from early mitigation
• identifying flexible mitigation options for all listed species (registrants and pesticide users are more likely to implement mitigation measures if given flexibility). EPA plans to do this by engaging stakeholders early in the process, creating a menu of mitigation options to choose from, and gathering information from species expert about effective mitigation techniques and from registrants and users about practicality of implementing the techniques.
• coordinating mitigation between registration and registration review decisions by matching new and older pesticides based on crop use, target pests, timing of FIFRA and ESA reviews, registrants, etc.
• identifying opportunities for registrants to use offsets to supplement other mitigation measures. The EPA will work with FWS/NMFS to develop general guidelines for using offsets and oversee its implementation. It will work with registrants to identify and adopt offsets and ensure they are legally binding as a condition of pesticide registration
• pursuing other policies and program improvements like requiring language on certain pesticide labels that will direct users to check Bulletins Live! Two for restrictions on pesticide applications, adopting electronic labeling system that will allow for quicker pesticide label revisions, identifying and incorporating pesticide stewardship and best management practices into pesticide decisions, coordinating with EPA’s Office of Research and Development and other federal agencies and academic institutions on research topics, etc.

Conclusions

Within the next two years, EPA will assess its progress under the workplan and make necessary updates if needed. Stakeholders can provide feedback on the workplan, help implement measures to protect listed species, and provide better data to expedite the process.