In recent years, the US Environmental Protection Agency (EPA) has reviewed its overlapping responsibilities to regulate pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and to protect endangered and threatened species under the Endangered Species Act (ESA). In August, EPA completed its latest step in these efforts by issuing its “Herbicide Strategy to Reduce Exposure of Federally Listed Endangered and Threatened Species and Designated Critical Habitats from the Use of Conventional Agricultural Herbicides” (Herbicide Strategy). The rest of this note summarizes the Herbicide Strategy, and provides context regarding EPA’s FIFRA and ESA authorities.
How do EPA’s FIFRA and ESA responsibilities interact?
FIFRA requires the registration and classification of pesticides, and prescribes controls over their application and use. EPA uses FIFRA authority to collect information necessary to register and control the “active ingredients” in pesticides. This involves setting an overall risk/benefit standard that considers a pesticide’s intended function and effects on human health and the environment. FIFRA requirements fall into the following general areas:
- licensing of pesticide applicators and/or dealers
- registration of pesticides with EPA (and perhaps a state agency)
- notification and recordkeeping procedures
- pesticide storage and use restrictions
- application warning to the community
- worker safety and right-to-know
- groundwater protection
ESA extends EPA’s responsibilities for reviewing information and data to determine whether a pesticide product can be registered for a particular use. EPA must determine if ESA-listed species or their designated critical habitat may be affected by use of the product. If EPA determines a product “may affect” a listed species or its designated critical habitat, the product may be subject to EPA's Endangered Species Protection Program (ESPP). Under the ESPP, when EPA determines that use limitations are necessary to protect listed species, EPA makes them enforceable under FIFRA. EPA explains these activities in a workplan “Balancing Wildlife Protection and Responsible Pesticide Use: How EPA’s Pesticide Program Will Meet its Endangered Species Act obligations” (2022). The new Herbicide Strategy is designed to accomplish part of that workplan.
What does the new Herbicide Strategy provide?
The Herbicide Strategy provides detailed information, in a 79-page document plus multiple appendices. It covers conventional herbicides and plant growth regulators (“herbicides”), focusing on agricultural uses, and on mitigating population-level impacts on ESA-listed species that may be caused by impacts to listed plants. Its primary goals include:
- identifying mitigations for listed species likely impacted at the population-level by agricultural uses of conventional herbicides;
- considering mitigations to reduce major routes of herbicide exposure to listed species;
- improving future ESA consultations on conventional herbicides
- increasing regulatory certainty for growers and other stakeholders regarding the use and availability of conventional herbicides.
The Herbicide Strategy includes a three-step decision framework for EPA consideration of FIFRA actions for herbicides:
- Step 1 establishes the potential for population-level impacts to the listed species as not likely, low, medium, or high.
- Step 2 uses the potential identified in Step 1 to identify levels of mitigations needed to reduce spray drift and runoff/erosion to non-target habitats to levels that are not likely to impact populations of listed species.
- Step 3 identifies where in the contiguous U.S. the mitigations identified in Step 2 would apply.
What happens now?
The Herbicide Strategy explains that “This final Herbicide Strategy is not self-implementing. EPA will implement the strategies through its FIFRA actions in registration and registration review.” Accordingly, its effects will be revealed in individual regulatory actions. Outcomes will directly affect manufacturers, suppliers and users of affected herbicides, and will in turn affect customers for the relevant agricultural products. Organizations and individuals in areas subject to these measures will be indirectly affected by (reduced) pesticide exposures.
Self-assessment checklist
Does the organization manufacture or supply active ingredients or other ingredients in herbicides subject to the Herbicide Strategy?
Does the organization use herbicides subject to the Herbicide Strategy?
Are any of the organization’s activities in locations that will be affected if the use and availability of herbicides are changed to provide protections for ESA-listed species?
Where can I go for more information?
Information available via the Internet includes:
- EPA
- “Protecting Endangered Species from Pesticides” web portal
- “EPA’s Workplan and Progress Toward Better Protections for Endangered Species” web portal
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com