In September 2010, a group of associations representing agricultural interests in western states and calling themselves the Growers for ESA Transparency (GET) petitioned the EPA to undertake actions to ensure that the EPA, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service (the Services) provide growers and pesticide applicators with more opportunities to comment on pesticide decisions the EPA makes to protect endangered species.  The GET was particularly concerned that its members were not being allowed to provide data and other information before informal and formal consultations between the EPA and the Services.

Endangered Species Act (ESA) consultations may result in an EPA action under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) that amends labeling of an existing or new pesticide product to address ESA concerns. 

Nearly 4 years later, in May 2014, the EPA provided a response, essentially informing the groups that since the petition was sent, the EPA and the Services have enhanced public involvement in EPA’s pesticide effects determinations for endangered species in a way that “largely gives the petitioners the very processes they are seeking.”

Pacific salmon

In its letter, the GET contended that procedures in place at the time of the petition effectively barred the agricultural sector and pesticide applicators from effects determinations and consultations processes, leaving the EPA and the Services without valuable information on which to base sound decisions.  The petition arose from the alleged failure of the EPA to seek sufficient input from stakeholders as the Agency reviewed a series of biological opinions by the National Marine Fisheries Service on Pacific salmon and steelhead. 

The GET said that stakeholders have a right to review and comment on all aspects of draft biological opinions developed by the Services before the EPA makes effects determinations and that ESA Section 1010 requires the EPA to take comment on:

• An explanation of the proposed restriction or prohibition on the use of the pesticide;
• An identification of the geographic areas affected by the restriction or prohibition;
• An identification of the effects of the pesticide on the listed species; and
• An identification of the listed species with a general description of the geographic areas where the species are located and pesticide application would be restricted, prohibited, or otherwise limited in its use.

Further, the GET requested that the EPA promulgate new regulations that set forth clear procedures for the enforcement of Section 1010, which was included as an ESA amendment in 1988.

2013 paper

In its response, the EPA discussed its implementation of the pesticide registration and registration review process under FIFRA and the procedures in its Endangered Species Protection Program (ESPP).  A 2005 ESPP document provides three opportunities for public input and participation during registration review.

More pertinent to the petition, the EPA referred to workshops and meetings it held with stakeholders in 2011 and 2012, which led to a paper (Enhancing Stakeholder Input in the Pesticide Registration Review and ESA Consultation Processes and Development of Economically and Technologically Feasible Reasonable and Prudent Alternatives) jointly issued in 2013 by the EPA, the Department of Agriculture, and the Services.  The paper describes various actions the Agency intended to take to reach out to pesticide users potentially affected by registration reviews to discuss the technological and economic feasibility of reasonable and prudent alternatives (RPA) to avoid jeopardy to listed species and reasonable and prudent measures (RPM) to minimize take of listed species.

‘Very’ early stage participation

The EPA summarizes its response to the petition as follows:

“It is important to understand that EPA is planning to conduct the large majority of future ESA compliance activities in the course of registration review and that, as outlined above, EPA has already established procedural regulations for registration review that give stakeholders, such as GET, multiple opportunities to provide input into the development of EPA's registration review decisions. These procedures provide an opportunity for input at the very earliest stages of registration review and continue throughout the process as EPA initiates any necessary consultations and on any proposed registration review decisions that, among other things, may involve labeling changes to address impacts to listed species. Further, as explained most recently in the 2013 Stakeholder Paper, EPA will seek public comment on draft Biological Opinions and on any proposed Service RPAs/RPMs in those draft Biological Opinions as soon as they are received.”

The Agency added that it does not intend to codify ESA implementation practices required by Section 1010 into regulations because it is not required to do so by law and also believes it should retain “some measure of flexibility as it continues to implement the ESA.”

EPA’s response to the GET petition is at www.regulations.gov in docket EPA-HQ-OPP-2010-0854.