Background

Shortly after the U.S. Environmental Protection Agency (EPA) assumed responsibilities for federal pesticide regulation under FIFRA , the Endangered Species Act (ESA) became law. As for all federal agencies, EPA is obligated to consider protection of endangered species in making its regulatory decision for pesticides. Over the years, EPA has modified data requirements, developed ecological assessment methods, and proposed several field implementation plans, including county bulletins, to ensure protection of endangered species in pesticide regulatory decision-making.

Industry has also been active in generating supporting data, and a significant outcome has been development of a task force-sponsored species location system .

During the past 35 years, EPA has developed a conservative, screening-level ecological assessment approach designed to provide a high degree of protection for ecosystems, including endangered species. However, limited success has been experienced in developing cooperation between EPA and the federal Services (U.S. Fish and Wildlife Service – FWS; National Marine Fisheries Service - NMFS) with respect to ESA activities. A variety of science and policy issues has impeded progress in effectively meshing EPA and FWS/NMFS efforts.

ESA and Registration Review

At present, efforts to make a fresh start on ESA-related activities via the EPA registration review program are in the early stages of development. At the time EPA launched the registration review program in 2007 the Agency placed a high priority on building the latest evaluation of endangered species safety into the process.

As of 2012, limited progress has been made in formalizing this assessment process and establishing cooperation with FWS and NMFS. Of the more than 300 pesticides that have begun the EPA registration review process, preliminary endangered species assessments have only been completed for two herbicides. In both cases, the FWS and NMFS have rejected EPA’s request for cooperation because these Services don’t believe EPA has given them complete information, and there is disagreement on scientific methods between the Federal Services and EPA. EPA is mandated to complete the registration review program during the 15-year period of 2007 to 2022, but it is unclear that the job can be completed with respect to endangered species assessments.

Legal Challenges

Pesticide opponents have grown increasingly frustrated at the slow progress by EPA along with FWS and NMFS in cooperatively implementing a program for the assessment and protection of endangered species as relates to pesticide regulation. Since 2000, these groups have filed a number of lawsuits against both the EPA and NMFS in an attempt to push the system to action. These lawsuits concern the absence of a formal administrative process for EPA consultation with NMFS and USFWS.

The focus of several of these lawsuits is Pacific salmon, which are on the Endangered Species list. In the case of chlorpyrifos and Pacific salmon, 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.

Seeking Improvements

Government agencies, agricultural organizations, industry and environmental advocates have all recognized the need to improve the consultation process for endangered species assessment and protection associated with pesticide regulation. Congressional hearings have been held and workshops organized to bring together federal agencies and key stakeholders in developing a path forward for revisions in policy, process and scientific methods. During 2011 and 2012, an expert panel operating under auspices of the National Academy of Science has been meeting at the request of EPA and the Federal Services to identify improvements in the science approach used by these agencies.

It is likely that these and other efforts will continue to seek a smoother path and improved process in future for integrating pesticide regulation decision-making and Endangered Species Act requirements.

Further Resources

EPA Request for Independent Review of Endangered Species Act Process
http://www.epa.gov/espp/nas-esa-letter.pdf

Ecological Risk Assessment Under FIFRA and ESA, Expert Panel for the National Academy of Science http://www8.nationalacademies.org/cp/projectview.aspx?key=49396

Federal Agency Proposal for Improvements in Public Participation in Endangered Species Consultations http://www.epa.gov/oppfead1/cb/csb_page/updates/2012/espp-stakeholder.html

“The Endangered Species Act and the Impacts to Pesticide Registration and Use”, Washington State Department of Agriculture.
http://agr.wa.gov/pestfert/natresources/docs/ESAAndImpactsToPesticideRegistrationAndUse.pdf