Endangered Species Act (ESA)

Pesticides and the Endangered Species Act 

The Endangered Species Act (ESA) is intended to protect and promote the recovery of animals and plants that are in danger of becoming extinct. Threats to a species from habitat destruction, pollution, over-harvesting, disease, predation, and other natural or man-made factors must be reviewed and evaluated before an animal or plant can be placed on the federal endangered or threatened species list. The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) administer the ESA. However, all federal agencies must ensure that their actions will not jeopardize the existence of listed species or adversely modify designated critical habitat. Thus the ESA requires the Environmental Protection Agency (EPA) to consult with these federal agencies on how EPA actions, such as granting a pesticide registration, might affect species on those lists.

This is an incredibly complex task for the EPA to perform for each pesticide active ingredient and all the listed endangered and threatened species, and the EPA has been working actively since 1988 to meet its obligations under ESA. EPA intends to evaluate species concerns within the context of pesticide registration, reregistration, and registration review so that when a registration or reregistration decision is made, it fully addresses issues relative to listed species’ protection. If a NMFS or FWS assessment determines that use limitations are necessary to ensure that legal use of a pesticide will not harm listed species or their critical habitats, EPA may either change the terms of the pesticide registration or establish geographically-specific pesticide use limitations.

Should this process not be followed – or be imperfectly followed – pesticide opponents can file suit to enforce the ESA.

In the case of chlorpyrifos and Pacific salmonids, the assessment process has become a virtual battleground. The decisions now being made about chlorpyrifos will set legal and regulatory precedents for future restrictions on as many as 34 additional pest  control products that NMFS is obliged to assess over the next few years.

Chlorpyrifos and Pacific Salmon

The Great Salmon Debate: Setting Legal and Regulatory Precedents

Proposed Chlorpyrifos Restrictions

Will New Restrictions Support Both the ESA and Agriculture?

Remaining Concerns

Chlorpyrifos and Pacific Salmon

EPA has had restrictions in place for the use of chlorpyrifos and other pest control products for many years that minimize potential impacts on non-target organisms – including Pacific salmon.  What EPA has apparently not had is a legally-sanctioned process for consulting with NMFS and FWS about these restrictions. Opponents of pesticides have been highly effective in using this administrative deficiency to impose court-ordered restrictions on pest control products based on legal opinion versus scientific assessment.

In fact, legal opinion has largely been responsible for shaping the process as it exists today. In response to a series of lawsuits against both the EPA and NMFS, NMFS entered into a legally-binding agreement requiring the Service to: 1) offer detailed opinions regarding 37 pest control products as to what precautions were needed to protect salmon; and 2) produce these opinions on a court-ordered timetable. EPA was then obliged to review these NMFS opinions, called Biological Opinions, or BiOps, and establish a plan for implementing them.

Along with two other pesticides, chlorpyrifos is one of the first pest control products to be evaluated under this process. As required, NMFS produced an evaluation summarizing the risk to salmon posed by these three products and the precautions required to protect them.  However, that assessment was severely criticized not only by agricultural groups and registrants of the three pesticides but also by state and federal regulatory authorities – including EPA – as highly assumption-based, derived from flawed modeling, and formulated largely without reference to the extensive water monitoring conducted on these three products over many years.

EPA’s plan for implementing these NMFS recommendations, while based in better science than that used by NMFS, is still highly precautionary and, as written, would effectively prohibit of use chlorpyrifos and these other two products on more than 112 million acres, including some of the most valuable and productive farm and forestry land in the U.S. What’s more, this decision is being made by regulatory authorities without consultation with agricultural stakeholders or consideration of the adverse impacts on their livelihood.

Learn more about the history of the controversy. 

The Great Salmon Debate: Setting Legal and Regulatory Precedents

As registrants work with EPA in an attempt to reach a balanced, well-informed approach to ESA requirements and the protection of salmon, the timing of converging lawsuits holds the potential either to improve or derail the regulatory process, not only for chlorpyrifos, but for many other pest control products.

Pesticide Opponents and EPA

Since 2000, activist groups have filed a number of lawsuits against the EPA based on a common template, alleging its failure to put in place an Endangered Species Act-compliant process for registering and reregistering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). These lawsuits concern the absence of a formal administrative process for EPA consultation with NMFS and FWS, the two agencies charged with implementing the ESA. Opponents have sought and obtained court-ordered injunctions that severely restrict agricultural, professional applicator, and consumer access to vital pest control products. Such injunctions have included arbitrary buffer zones and use restrictions.

Chlorpyrifos is one of the pesticides affected by these injunctions, and recent actions taken by EPA are now threatening grower access to chlorpyrifos (and two other pest control products) in large areas of the Pacific Northwest.

Chlorpyrifos Registrants Sue NMFS

In April 2009, Dow AgroSciences LLC; Cheminova, Inc.; and Makhteshim-Agan of North America filed suit against the U.S. National Marine Fisheries Service (NMFS), calling for ill-considered restrictions advocated by NMFS for the protection of endangered salmon to be set aside as arbitrary and capricious, lacking either legal or scientific foundation and offering no actual benefit to the environment. Meanwhile, however, EPA is actively moving forward with implementing the recommendations of the NMFS assessment it had previously so strongly criticized.

Proposed Chlorpyrifos Restrictions

In the case of freshwater salmon, both increased restrictions on application spray buffers and geographically-specific use limitations have been proposed in response to NMFS recommendations. Specific recommendations are as follows:

• A surface runoff buffer of 100 feet to all salmon habitats, which EPA has defined as including irrigation ditches and drains
• Aerial blast and ground boom spray drift buffers of 100-1000 feet, depending on application rate, spray nozzle type, and width/depth of adjacent waters.
• Spray drift and surface runoff buffers between treated areas and salmon habitat, including waters draining into salmon habitat.

As previously noted, each of these recommendations has serious implications for agriculture. Currently, actual salmon habitat is protected by use labeling addressing lakes, rivers, reservoirs, etc., where salmon live and breed. The newly-mandated buffer zones would include all water potentially draining into salmon habitat, even if the potential is somewhat slim, and even if the runoff would occur over a period of time during which chlorpyrifos would break down in the water.

Quoted from the current label:

“…permanent bodies of water such as rivers, natural ponds, lakes, streams, reservoirs, marshes, estuaries, and commercial fish ponds”

Quoted from EPA proposal:

“…freshwater salmonid habitats including flowing water and water that may be only temporarily connected to flowing water including intermittent streams, off-channel habitats, drainages, ditches, and other man-made conveyances that lack salmonid exclusion devices”

These new restrictions would virtually prohibit chlorpyrifos use in large portions (176,000 square miles) of the states of California, Idaho, Oregon, and Washington. (View a map for the affected areas.) While the spray buffers apply only to sprayable products, the runoff buffers would apply to all formulations, including granular products.

A third party analysis of these restrictions determined that “as much as two-thirds of the areas impacted could be deemed “no spray zones.”

Dow AgroSciences continues to work with EPA on its intended approach to the NMFS BiOp, providing feedback on process and scientific issues that need to be addressed, even while remaining concerned about resolution of important details bearing on that approach and even though the Agency’s approach remains more highly restrictive than scientific assessments and state monitoring data suggest is warranted. Additionally, Dow AgroSciences continues to believe that all parties – including agricultural stakeholders - need to have input into plans for implementing these new restrictions.

Will New Restrictions Support Both the ESA and Agriculture?

For the past year, three registrants for chlorpyrifos have submitted data and held discussions with EPA. Recently, they have offered constructive solutions for what they see as key implementation issues. It remains to be seen, however, whether an agreement can be reached with EPA in the short-term on a set of labeling restrictions or if a protracted and confrontational regulatory hearing process may be required to reach a conclusion. Communications between registrants and EPA thus far raise serious concerns for the future of agriculture in the Pacific Northwest if the new restrictions are put into effect as written.

Registrants’ Recent Communications to EPA

On August 15, 2009, DAS and the other registrants provided EPA with an assessment document demonstrating that salmon can be equally protected by less stringent measures than those proposed by EPA. This was accomplished using the best available information and refined assessment approaches.

A copy of this assessment can be downloaded here, or you can visit the EPA special docket and view document EPA-HQ-OPP-2008-0654-0070.1.

As a follow-up to an October 1, 2009, meeting that the three registrants had with EPA to discuss implementation plans, the registrants sent a communication summarizing key points from the meeting and stressing that they “seek to work constructively with EPA” using responsible scientific analysis and study.

Read the full text of the letter.

EPA’s Response to Registrants

Dow AgroSciences found EPA’s response to chlorpyrifos registrants’ October communication somewhat confusing in that its use of the word “negotiate” appeared to miss the intent of the registrants’ desire for a dialog addressing key points of concern. The EPA’s letter responded, in part, as follows:

The EPA’s letter also indicated resistance to input from registrants’ customers – those whose livelihoods would be adversely affected by the BiOp’s proposed product limitations -- and apparent resistance to dialogue about some of the practical issues of product use and labeling that would need to be resolved in order for implementation of the proposed changes to move forward:

In fact, as written, the EPA’s plan will not give growers enough time to adapt alternative Integrated Pest Management practices. Additionally, the concerns voiced by key stakeholders – such as experts from the state governments of Washington, Oregon, California, and Idaho – have largely been ignored. Moreover, this plan is proceeding without consideration of federally-mandated analysis of the economic impact to agriculture resulting from the restrictions.

Read the full text of the response.

Chlorpyrifos Registrants Petition EPA to Consider Input of Ag Stakeholders

In fact, EPA’s proposed approach to implementing NMFS recommendations ignores legislation passed in 1988 which mandates that ESA compliance for EPA’s pesticide regulatory program “minimize the impacts to persons engaged in agricultural food and fiber commodity production and other affected pesticide users and applicators.”  Congress enacted Section 1010 of the Endangered Species Act Amendments (ESA) of 1988 after EPA proposed a similar county bulletin approach in response to Biological Opinions dealing with clusters of pesticides and endangered species.  The proposal generated enormous public concern over the potential impact on agricultural land use, inaccuracies in the maps, inadequate public review and comment, and the need for additional education and training programs.  The provision directed EPA, in cooperation with the Secretaries of Agriculture and the Interior, to educate agricultural producers on, and include them in the development of ESA use restrictions on pesticides.

In conjunction with Makhteshim-Agan and Cheminova, Dow AgroSciences filed a petition in January 2010 calling on EPA to adopt transparent procedures allowing public notice and comment in establishing county-specific bulletins requiring local restrictions on pest control products in order to implement elements of the Endangered Species Act.  The petition argues that the essentially ad hoc process being used by EPA for development of these bulletins is being prepared largely without the benefit of input from affected growers and other agricultural stakeholders or from government agricultural experts in affected states and calls on EPA to change those dynamics, establish equitable procedures and restore proper balance so that all interested parties have an opportunity to be heard in the development of these restrictions.

Read the full text of the petition.

Read about the Legislative History of Section 1010.

Read the latest development regarding proposed ESA restrictions.

Remaining Concerns

In a recent letter to EPA, the presidents of the California, Idaho, Oregon and Washington Farm Bureaus have joined together to express their concerns about EPA’s current approach to the NMFS recommendations. These four agricultural leaders called EPA's plan “unreasonable and unworkable,” pointing out that it will impose significant new constraints on farming operations throughout the West Coast without the necessary scientific information to justify this action.

Dow AgroSciences continues to try to work with EPA toward a resolution that is protective of both endangered salmon and continued crop production in the Western U.S. – even as we continue to press for legal review of the NMFS proposal on which EPA’s currently problematic implementation plan is based. For instance:

• We believe that EPA needs to redefine the waters to be affected by these new restrictions so that the intended buffer zones apply to actual salmonid habitat. Unless this habitat is better defined, the new restrictions will apply to every ditch, drain, canal and irrigation furrow bearing water with some potential to reach salmon habitat, leading to an essential prohibition of use of these three products in large areas of the Pacific Northwest with more than 112 million acres – including some of the most valuable and productive farm and forestry land in the U.S. – being affected. Resolving this definitional issue is of critical importance to agriculture, since the regulatory decisions made on these three products are now setting a precedent for decision-making on 34 more pesticide active ingredients over the next few years.

• We also believe that it is imperative that EPA develop a transparent process for implementing these new restrictions with the full involvement of state authorities and registrants – and with input from the growers who actually use the products and whose competitiveness and livelihoods the overly broad application of these restrictions may be placing at risk. 

Pesticides are a necessity of modern food and fiber production. Arbitrarily restricting access to these important tools without valid data-driven scientific assessments demonstrating clear benefit to the environment offers no assurance of protection for salmon and steelhead. Such restrictions can, however, lead to reduced food supply and quality and increased food cost. They can also significantly impair the ability of American farmers to compete with growers overseas and cause tremendous financial risk and damage to their livelihood and the sustainability of their operations. Clearly, all parties have a stake in these important, precedent-setting decisions, and all parties – including agriculture – ought to have an opportunity to provide input on how they should be resolved.

Read a one-page summary of the issue.