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- Will New Restrictions Support Both the ESA and Agriculture?

Will New Restrictions Support Both the ESA and Agriculture?

“[A] major shortcoming of this Biological Opinion: it must be based on the best available data and it isn’t.” – California Department of Pesticide Regulation

[Underlining in the original.]

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:

Let me be as clear as possible in responding to these points, because your proposals go to the heart of how EPA intends to proceed over the coming months to address the BiOp. While EPA is pleased that the registrants may be willing to put some use limitations in place absent agreement to implement all label amendments and data submission EPA is seeking, EPA will not negotiate with the registrants the terms of any necessary limitations to address the BiOp, nor will EPA negotiate the scope of any resulting FIFRA hearings should EPA proceed to take regulatory action against the registrants' products in order to address the BiOp.

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:

We understand at this point that you are still seeking input from customers and commercial personnel regarding many of the specifics of EPA’s letter to NMFS outlining the Agency’s plan for address the BiOp. [W]hile the Agency has no intention of negotiating about the use limitations necessary to address the BiOp, the Agency will review and adopt alternative limitations that it believes are appropriate.

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.