EHS Administration, Special Topics in Environmental Management, Sustainability

EPA Announces New Actions to Comply With Endangered Species Act

Abandoning decades-long practices, on January 11, 2022, the EPA announced it is taking meaningful actions to comply with the Endangered Species Act (ESA) before registering new active ingredients (AI) in pesticides.

Moving forward, before the Agency registers any new conventional AI, it will evaluate the potential effects of the AI on federally threatened or endangered (listed) species and their designated critical habitats, as well as initiate ESA consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the Services), as appropriate.

Previously, in most cases, the EPA did not consistently assess the potential effects of conventional pesticides on listed species when registering new AIs, resulting in insufficient protections. An additional result was that the Agency was the target of expensive litigation by various environmental groups to force compliance with the ESA.

The “EPA’s new policy should reduce these types of cases against the Agency and improve the legal defensibility of new AIs, which often have lower human health and ecological risks than older pesticides,” states an Agency news release.

“Protecting listed species and their habitats is essential to EPA’s mission to protect human health and the environment,” says Michal Freedhoff, assistant administrator for the Office of Chemical Safety and Pollution. “With this policy, EPA is taking a critical step to register new pesticides in a way that prioritizes protections for listed species.”

“Incorporating ESA assessments into the registration process for new pesticides is a key component of EPA’s larger effort to meet the Agency’s ESA obligations efficiently and effectively,” notes Ya-Wei (Jake) Li, Office of Chemical Safety and Pollution Prevention deputy assistant administrator for pesticide programs. “I look forward to seeing the positive impact of this new approach and working on additional improvements that are both beneficial for species and fair to pesticide registrants.”

“Under today’s policy, if EPA finds through its analyses that a new conventional pesticide AI is likely to adversely affect listed species or their designated critical habitats, EPA will initiate formal consultation with the Services before granting a new AI registration,” continues the news release. “As part of its analysis and under its existing authorities, EPA will consider the likelihood that the registration action may jeopardize the continued existence of listed species or adversely modify their designated critical habitat and provide its findings to the Services. To determine or predict the potential effects of a pesticide on these species and habitats, EPA will use appropriate ecological assessment principles and apply what it has learned from past effects determinations and the Services’ biological opinions.

“If EPA determines that jeopardy or adverse modification is likely, the Agency will only make a registration decision on the new AI after requiring registrants to implement mitigation measures that EPA determines would likely prevent jeopardy or adverse modification. If EPA finds that a new AI is likely to adversely affect listed species or their critical habitat, but that jeopardy/adverse modification is not likely, it may nonetheless require registrants to include mitigation measures on their registration and product labeling to minimize the effects of incidental take to listed species that could result from use of a pesticide. In both situations, formal consultation with the Services is still necessary. Further, EPA may determine that it is necessary for registrants to incorporate a link to Bulletins Live! Two—an online system that describes use limitations for EPA-registered pesticides by geographic area—into the product’s labeling.”

In assessing the risks, the EPA will consider a variety of factors, such as how species and their habitats are exposed to pesticides, including spray drift and runoff. The Agency expects mitigation measures to include avoiding or minimizing exposure routes.

“The EPA is also continuing to explore applying these new ESA approaches to new biopesticide AIs and new antimicrobial AIs,” the EPA’s news release concludes. “EPA is currently developing a detailed work plan to outline additional improvements to further the Agency’s compliance with the ESA, including steps to implement protections for high-risk species more efficiently, provide growers with more flexible mitigation measures, and increase stakeholder engagement.”