The Environmental Protection Agency’s new strategy for pesticide registrations, driven by Endangered Species Act-related court rulings, may multiply impacts on agriculture, said Brigit Rollins, staff attorney for the National Agricultural Law Center.

Rollins is the author of a guide to the Endangered Species Act, the NALC ESA Manual, written to help farmers navigate the law in the context of their operations.

Two agencies charged with listing species as “endangered” or “threatened”— the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. The two services also designate “critical habitat,” which is the environment that at listed species needs to exist or recover.

“Not every species will get a critical habitat,” Rollins said. “But that designation does feed into federal agency responsibilities.”

FIFRA and the Endangered Species Act

The Endangered Species Act requires all federal agencies to comply and ensure that their actions will not jeopardize endangered or threatened species. This includes the Environmental Protection Agency, or EPA, which is in charge of registering herbicides, insecticides and other chemicals to manage pests that affect crops and livestock, under the  Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA.

“The FIFRA-ESA realm has kind of exploded over the last several years,” Rollins said.

Environmental groups have repeatedly sued the EPA for failing to conduct Endangered Species Act consultations with Fish and Wildlife and the Marine Fisheries services when approving pesticides under FIFRA. Because of the number of years it would take to conduct the court-ordered ESA consultations, the EPA has launched a new policy aimed at making more legally defensible labels and reducing the number of lawsuits it faces.

Under the new policy, EPA is creating a menu of mitigation options that offer different means of protecting listed species. For example, options might include buffers where spraying is not allowed, or limiting when spraying can occur, such as during a rain event, Rollins said.

Additionally, the EPA is grouping pesticides and creating mitigation measures that can be used across a specific group.

“For example, if EPA combines all the neonicotinoid-based pesticides into the same grouping, it will give them all the same mitigation measures,” Rollins said. “The idea is to reduce the number of consultations EPA has to do and create more consistency for farmers.”

Pilot species

Another tactic is a list of “pilot species” deemed vulnerable to pesticides. The list includes the American Burying Beetle and the Taylor’s Checkerspot butterfly.

Rollins said, “This is why in 2022, we saw the situation with Enlist being banned in 11 Arkansas counties because of the American Burying Beetle.”

She said the same tactic will be tested next year in the northwest U.S., but with a difference. In Arkansas, no critical habitat had been designated, but it will be in Oregon and Washington.

“It appears that EPA has determined that the appropriate mitigation measure for the checkerspot is to prohibit broadcast and aerial spraying of all pesticides in the areas where the butterfly is found,” Rollins said. This would essentially create large areas of Oregon and Washington where pesticides cannot be sprayed. The plan is slated to go into effect next year.

“If it goes into effect without any changes, it's going to be a massive deal for farmers in the region, particularly in Oregon's Willamette Valley which is prime farmland for the state,” she said.

Private landowners and mitigation

The Endangered Species Act does allow for private landowners to collaborate with the two services by entering an agreement that allows an incidental or accidental take of a listed species — or even a species under consideration for listing — without penalty, provided the landowner follows specific mitigation actions.

“For example, if you’re a row crop producer and you see monarch butterflies, you might reach out to Fish and Wildlife Service and say you’ll enter into an agreement to do whatever mitigation is needed to protect a species,” she said. “As you stick to that plan, if the species gets listed, you will not be required to adjust your practices.”

Monarch butterflies are classified as endangered by the International Union for Conservation of Nature and while their inclusion under the ESA is warranted, the butterflies were not included because other species took higher priority.

Source: University of Arkansas System Division of Agriculture