The California Department of Pesticide Regulation is set to list chlorpyrifos as a toxic air contaminant.

Report addresses ESA/FIFRA pesticide conflict

A new report concludes that when determining the potential effects pesticides could pose to endangered or threatened species, a common scientific approach should be used.

The National Research Council (NRC), a part of the National Academy of Sciences (NAS), released its report on improving the scientific assessment of risks to endangered species from pesticides. Sponsored by the National Oceanic and Atmospheric Administration, EPA, US Fish and Wildlife Service (FWS), and USDA, the report concluded that when determining the potential effects pesticides could pose to endangered or threatened species, EPA, the National Marine Fisheries Service (NMFS) and FWS should use a common scientific approach.

Under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA), before a pesticide can be registered in the United States, EPA must ensure that it does not cause unreasonable adverse effects on the environment, which includes species that are listed as endangered or threatened and their habitats. Moreover, the Endangered Species Act (ESA) requires federal agencies, including EPA, to consult with FWS and NMFS when a federal action "may affect" a listed species or its habitat. If EPA determines that a pesticide is "not likely to adversely affect" a listed species -- and FWS or NMFS agrees -- no further consultation is required. However, if EPA determines that a pesticide is "likely to adversely affect" a listed species, a formal consultation with FWS or NMFS is required. At that point, FWS or NMFS determines whether a proposed action is likely to jeopardize the listed species and issues a biological opinion.

Over the last decade, the consultation process for pesticides has been non-functional. In the ’04 Washington Toxics case, the court determined that EPA must consult with FWS or NMFS on pesticide registrations. Since that time, not a single pesticide consultation has been completed. EPA, FWS and NMFS have developed their own approaches to pesticide risk assessment because of differing legal mandates, institutional cultures and expertise. Although the agencies have tried to resolve their differences in assessment approaches, they have been unsuccessful at reaching a consensus. As a result, the NRC was asked to examine the scientific and technical issues related to determining risks posed by pesticides to listed species.

The committee that wrote the report said a common approach among the agencies is needed. If FWS and NMFS could build on EPA's analysis of whether a pesticide is likely to adversely affect a listed species rather than conduct a completely new analysis, the assessment would likely be more effective and scientifically credible, the committee determined. Furthermore, agreement among the agencies has been impeded by a lack of communication and coordination throughout the process. Therefore, the committee emphasized the need for coordination, which it views as necessary to ensure a complete and representative assessment of risk and that each agency's technical needs are met.

Speaking last week at a conference sponsored by CropLife America, industry and non-governmental organization representatives suggested the NAS report is unlikely to even settle the scientific disputes between EPA and the wildlife agencies over how best to assess risks to species from pesticides or what mitigation measures are appropriate to ensure they are adequately protected.

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