In an Aug. 17 Federal Register notice, EPA announced that it is seeking comments on a proposal jointly developed with USDA, the National Marine Fisheries Service (NMFS) and the US Fish and Wildlife Service (together,“the Services”) to enhance opportunities for stakeholder input during pesticide registration reviews and endangered species consultations.
Section 7 of the Endangered Species Act (ESA) requires all federal agencies to consult with the Services prior to any federal action if there is any potential impact on a protected species. Pesticide registration is considered a federal action. Prior to 2004, EPA believed the extensive environmental risk assessments required in the registration process also would include impacts on endangered species. However, the judge, in a lawsuit initiated in 2002, ruled that EPA was in violation of the ESA for not consulting with the Services. The Food Quality Protection Act mandates EPA to review all registered pesticides every 15 years. EPA began that process in 2006 and has included ESA consultations in its reviews.
EPA and the Services have not worked effectively at all in the consultation process. One reason for this problem is the difference in legal authorities – EPA registers pesticides under the Federal Insecticide, Fungicide & Rodenticide Act, which is a data-dependent, risk-based process and must consider cost/benefit analyses in its decisions. The Services, acting under ESA, is more speculative and precautionary in its approach and has no cost/benefit directive. EPA has lambasted some of the earlier opinions issued by the NMFS, which used outdated pesticide labels, included cancelled uses and assumed 100 percent fields treated at maximum allowable rates.
Highlights of the proposal include:
· Emphasis on coordination across these federal agencies;
· Expanded role for USDA and the pesticide user community in providing current pesticide use information to inform and refine EPA’s ecological risk assessments;
· “Focus” meetings at the start of registration review for each pesticide active ingredient, to clarify current uses and label directions and consider the potential for early risk reduction;
· Formal ESA consultations later in the registration review process, allowing time to engage stakeholders in the development of more refined ecological risk assessments and more focused consultation packages including mitigation for listed species; and
· Outreach to potentially affected pesticide users to discuss the technical and economic feasibility of draft Reasonable and Prudent Alternatives (RPAs) intended to avoid jeopardy to threatened and/or endangered species.
Comments must be submitted by Oct. 16, 2012, to docket EPA-HQ-OPP-2012-0442 at www.regulations.gov.