EPA Tackles Endangered Species Duties

ARLINGTON, Va. (DTN) -- When you find yourself in a hole, the first step to getting out is to stop digging.

Earlier this week, one EPA official said the agency has put down its proverbial shovel when it comes to ignoring its duties under the Endangered Species Act (ESA) when registering pesticides. Instead, he said, EPA is taking steps it hopes will ensure predictable pesticide access for growers while protecting threatened and endangered species and their habitat as required by law.

In comments delivered during the annual meeting of the Weed Science Society of America, Jake Li, EPA deputy assistant administrator for pesticide programs, acknowledged that the agency had registered and reregistered pesticides without going through the ESA process for decades. He cited the sheer volume of work -- determining the potential effects of hundreds of pesticide active ingredients on more than 1,600 threatened and endangered species -- as the main reason.

"We believe that over 95% of past pesticide decisions that should have complied with ESA never did," he said. "We literally have four decades of backlog to dig ourselves out of at this point."

In recent years, past failures to comply with ESA have led to a near-constant barrage of lawsuits against the EPA and the looming threat that courts could vacate pesticide registrations. Li said that recent court decisions have made it clear that lack of funding, staff or an efficient process to complete the ESA process will not be an excuse moving forward.

"Neither Congress nor the courts are going to swoop in and magically make this issue disappear," he said. "I think without real progress through an administrative solution, what we're going to continue to see is wildlife that are not going to get the full protections they're going to need. We're going to see hundreds of pesticides that remain legally vulnerable to lawsuits, and we're going to see growers continue to face considerable uncertainty about whether the pesticides they rely on will remain available on the market or instead be abruptly removed by a court order."

PROPOSED PATH FORWARD

Li outlined the agency's recent efforts to reduce litigation and ultimately bring the pesticide registration process in compliance with its ESA obligations. He noted that, in January 2022, EPA adopted a policy for registering new conventional pesticide active ingredients, evaluating their potential effects on listed species and initiating ESA consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service, "as appropriate."

"In other words, we're just going to follow the law," Li said. "We're not going to create more uncertainty for growers by continuing to register new active ingredients without a path to bring them into compliance with the Endangered Species Act."

Toward that end, in April 2022, EPA released its ESA workplan detailing which actions it would prioritize for ESA compliance under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). In November, the agency published an updated workplan, highlighting a "pick list" of 16 interim ecological mitigation measures intended to reduce spray drift and surface water runoff, minimizing pesticide exposure to endangered species.

The list included off-field conservation buffers, such as vegetative filter strips, grassed waterways and field borders; on-field conservation practices, including reduced tillage in the form of no-till and strip-till, as well as planting cover crops.

"In our minds, the best way we can show progress is by implementing this workplan and including some of the early mitigations," Li said. "We can do these things under FIFRA years before we ever go through the ESA process. What we need to demonstrate to our stakeholders, especially the environmental community, is that we can start protecting endangered species. You don't have to sue us in order for us to get there."

PARTNERS TO PROGRESS

Kyle Kunkler, director of government affairs for the American Soybean Association, acknowledged the gravity of the situation.

"Increasingly, the grower community is becoming aware that unless this issue is resolved and there is some sort of meaningful path forward identified, this is probably one of the largest, most existential issues to the ability of growers to access pesticides," he said while also speaking at the WSSA annual meeting. "So, the grower community is invested in helping to find a solution here."

While he applauded EPA's current efforts, Kunkler reminded the audience that it is pesticide users, such as his organization's 500,000 soybean farmers, who will bear the cost of implementing mitigation measures.

"The devil's in the details as to how things are implemented," he said. "If farmers are making sacrifices to protect the environment -- which I think you will find they are ready, willing and able to do -- they want to make sure that it is truly necessary and is going to benefit the species and their habitats the way the regulators intended."

Both Kunkler and Bill Chism, chair of WSSA's ESA committee, shared concern that as a group overall, pesticide users don't appreciate the ramifications of the EPA's latest approach. Their concern is not without merit. Though the updated ESA workplan has been available for public comment since mid-November, only 15 total comments have been submitted to the online docket as of Feb. 3, 2023. By contrast, the EPA's proposed changes to atrazine use garnered more than 68,000 comments last fall.

"I absolutely think growers don't know this is happening," Chism said. "I think farmers would be more than willing to help, but right now, they don't even know they're part of a discussion. Our committee is hoping to put together some communications pieces to help explain the Endangered Species Act."

Li added that if the EPA can show real progress, delivering real-world protections for endangered species while providing growers with the tools they need, he thinks there's a real chance litigation will subside.

"We're just really one court decision away from having our pesticide tools vacated and being pulled off the market abruptly," he said of the situation without the ESA workplan. "But I think right now is the best time in the history of this issue to actually make some progress. If we are sued, we have something to show the courts. If we all roll up our sleeves together, we can solve this problem once and hopefully for all."

The public comment period for the updated ESA workplan ends on Feb. 14, 2023. To comment, go here: https://www.regulations.gov/…

Also see "EPA Proposes New Approach for Pesticides" -- https://www.dtnpf.com/…

Jason Jenkins can be reached at jason.jenkins@dtn.com

Follow him on Twitter @JasonJenkinsDTN

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