(Beyond Pesticides, November 19, 2013) Last week, the Environmental Protection Agency (EPA), the U .S. Department of Agriculture (USDA), Fish and Wildlife Service (FWS), and National Marine Fisheries Service (NMFS) released a white paper identifying how they plan to reconfigure the pesticide review process to meet the pesticide approval requirements for the Endangered Species Act (ESA). The new approach outlined in the white paper incorporates suggestions from the National Academy of Sciences’ Research Council (NRC) report released last May. The white paper is a step towards overhauling a deeply flawed process, though there will be several challenges to implementing this new approach for the agencies moving forward.
Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), before a pesticide can be sold, distributed, or used in the U.S., EPA is required to determine that the pesticide does not cause unreasonable adverse effects on the environment. However, in the case of species listed as endangered or threatened under the ESA, all federal agencies, including EPA, are required to ensure that their actions will not jeopardize the continued existence of a listed species by diminishing the species’ numbers and reproduction. To do this, in its pesticide registration process, EPA is required to consult with FWS and NMFS when a federal action may adversely affect a listed species or its habitat. Over the last decade, questions have been raised regarding the best approaches or methods for determining the risks pesticides pose to listed species and their habitats. EPA, FWS, and NMFS have developed different approaches to evaluating environmental risks because their legal mandates, responsibilities, institutional cultures, and expertise vary. As a result, NRC was asked to examine the scientific and technical issues related to determining risks posed to listed species by pesticides.
After reviewing the NRC’s report, Evaluating Risks That Pesticides Pose to Endangered, Threatened Species — New Report, the agencies worked together to develop a shared scientific approach that reflects the advice provided by the NRC. The interim approach, designed to guide the consultation process, uses a three step risk assessment process to determine whether a pesticide is likely to pose a threat to listed species. Each step assesses risk through problem formulation, exposure analysis, affect analysis, and risk characterization.
Step one of the proposed risk assessment process is to determine whether pesticide use “may affect” a listed species by determining if pesticide use and off-site transport areas overlap geographically with listed species ranges and their critical habitats. These use pattern sties will be mapped out by using the National USDA National Agricultural Statistics Service (NASS) Census of Agriculture data, The National Land Cover Database (NLCD), and The Cropland Data Layer (CDL). The Agricultural Dispersal Model (AGDISP), and the Variable Volume Pond Model will be used to evaluate off-site pesticide transport.
If it is determined through the first step that pesticides may affect listed species, the pesticide is then evaluated by step two. The purpose of step two is to determine if pesticide use is “likely to adversely affect” listed species or their designated critical habitats. This step examines if species are exposed to thresholds of the direct effects, indirect effects, and sub-lethal effects of pesticides. These determinations will utilize a weight-of-evidence approach that considers pesticide tank mixtures, formulations (including adjuvants, other active and inert ingredients), and environmental mixtures. The weight-of-evidence approach will also consider the ECOTOXicology database along with data submitted by pesticide registrations as a source for “best available” toxicity data.
If there is agreement between agencies that the pesticide is “likely to adversely affect” species or if there is disagreement between agencies the pesticides moves to step three of the interim risk assessment process. This step determines if pesticide labels for an active ingredient do not cause “jeopardy” to listed species and their designated critical habitat is not modified. This step builds off of steps one and two, and reconsiders the weight-of-evidence and population effects pesticides can have on species. If there is agreement between agencies that a pesticide causes jeopardy or adverse modification EPA must decide whether and under what conditions to register the pesticide so it complies with ESA.
The white paper acknowledges that there are several followup tasks, such as sharing information and developing a common approach to weight of evidence analyses, to define and improve techniques over time. A presentation put together by the agencies for a stake holder workshop, held last Friday, also outlines several challenges the agencies will face while implementing this interim plan. In terms of step one, some pesticide use sites are not well represented with existing data such as the use of pesticides on right-of-ways. Another important challenge is how the agencies will incorporate formulations and mixtures in the weight-of-evidence. Currently, inert ingredients are minimally tested and the EPA does not test for synergistic effects of pesticide mixtures.
Though this proposed risk assessment process is an important step forward toward greater cooperation between agencies, EPA’s risk assessment process does not function to protect the most vulnerable in biological systems, but institutes restrictions intended to mitigate risks. The mandated consultations with FWS and NMFS could present the opportunity to evaluate alternative practices that would avoid harm to listed species, but is largely limited to the risk management framework that has so long dominated EPA’s approach to regulating pesticides.
Prior to 2004, EPA believed the extensive environmental risk assessments required in the registration process also would include impacts on listed species. However, represented by the public interest law group Earthjustice, several stakeholder organizations including the Northwest Coalition for Alternatives to Pesticides (NCAP) and the Pacific Coast Federation of Fishermen’s Associations (PCFFA), filed suit in January 2001 to force EPA to fulfill the distinct ESA requirements. Specifically, the lawsuit challenged EPA’s decision to register 54 pesticides without first consulting with federal fish biologists regarding the potential impact on protected salmon and steelhead species in the Northwest. The judge, in a lawsuit initiated in 2002, called EPA’s “wholesale non-compliance” with its ESA obligations “patently unlawful” and ordered the agency to consult with NMFS regarding adverse impacts on the Northwest runs. More recently, EPA’s failure to consult with FWS on the impacts of hundreds of pesticides known to be harmful to more than 200 listed species prompted a 2011 lawsuit.
All unattributed positions and opinions in this piece are those of Beyond Pesticides