Update on ESA Pesticide Consultations
June 19, 2017
Sierra Club v. EPA 18cv3472 NDCA
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Background: Endangered Species Act (ESA) Obligations for Pesticide Decisions
Why are pesticide decisions impacted by the ESA? Under Section 7(a)(2) of the ESA, Federal agencies must ensure that the "actions" they authorize will not result in jeopardy or adversely modify designated critical habitat for species listed as endangered or threatened by the U.S. Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS) (jointly the Services) For EPA's Office of Pesticide Programs (OPP), the actions we authorize are the sale, distribution, and use of pesticides according to the product labeling
Conventional pesticide decisions impacted by ESA: Registration review actions (~50-60/yr) New chemical registrations (~10-12/yr) New use registrations (~50-60/yr) Section 18 Emergency Exemptions (~100/yr) Section 24(c) Special Local Need (SLN) registrations (~200/yr)
Sierra Club v. EPA 18cv3472 NDCA
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Background
ESA Authority
Section 7(a)(2) of ESA: EPA makes "effects determination" for individual listed species in a biological evaluation (BE): No effect (NE) - no consuitation required Overview Document-compliant method (2004): Risk Quotient (RQ) < listed species Level of Concern (LOC) NAS-recommended method (2013): No geospatial co-occurrence of pesticide use footprint with listed species range Not likely to adversely affect (NLAA) - informal consultation; concurrence from Services Likely to adversely affect (LAA) - formal consultation including Biological Opinion (BiOp) from Services (jeopardy/no jeopardy determination)
Nationwide consultations must consider direct/indirect effects to 1850 listed species and 600+ designated critical habitats
Sierra Club v. EPA 18cv3472 NDCA
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Background - OPP History with the Services
Disagreement on: Scientific methods to assess the risk of pesticides to listed species Specific actions needed to protect listed species
EPA has completed over 200 chemical-specific BEs as the result of court-imposed ESA obligations. The Services have issued 9 BiOps based on court-mandated schedules. None of these BEs or BiOps were nationwide evaluations. Time required to complete BiOp is lengthy (typically 2-3 yrs) EPA has often been unable to follow the science logic behind the BiOps
Of 7 BiOps for listed Pacific Northwest salmon species submitted by NMFS (covering 32 chemicals), EPA has implemented only one (thiobencarb); NMFS 1st BiOp was overturned. Reasonable and Prudent Alternatives (RPAs)/Reasonable and Prudent Measures (RPMs) not feasible/practical to implement:
Arbitrary spray drift buffers
Lack of a target concentration where effects to listed salmon do not cause jeopardy
EPA has implemented 2 BiOps submitted by FWS for Rozol and Kaput rodenticides Geographically-specific Bulletins which restrict product use or timing of application
Sierra Club v. EPA 18cv3472 NDCA
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NAS Report Im plementation
Released on April 30, 2013
Developed in response to a joint request by EPA, NMFS, FWS, and USDA in 2011 to address scientific areas of disagreement
Recommended 3-step process that integrates ecological risk assessment methods with ESA Section 7 consultations
Goal: unified interagency approach with agreement on process across all steps
Multiple interagency workshops where interim methods for EPA's BEs (Steps 1 and 2) have been developed
Several stakeholder meetings held to engage public on potential refinements
Interim methods need streamlining to meet available resources
Final BEs for chlorpyrifos, diazinon, and malathion released in January 2017
Sierra Club v. EPA 18cv3472 NDCA
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ED 002061E 00001582-00005
NAS Report Implementation
The Biological Evaluation (BE) determines whether registered pesticides adversely affect one or more individuals of a listed species and/or their designated critical habitats
* Step 1 ["No Effect/May Affect" Determination] s Step 2 ["Not Likely to Adversely Affect (NLAA)/Likely to Adversely Affect (LAA)
Determination]
The Biological Opinion (BiOp) determines whether the registration of a pesticide is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of its designated critical habitat
Step 3 ["Jeopardy/No Jeopardy" Determination and "Adverse Modification/No Adverse Modification" Determination]
Sierra Club v. EPA 18cv3472 NDCA
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Methodology for Pesticide Consultations
The draft process follows the 2013 NAS recommendations for a 3-step approach:
The draft BE process was developed In close coordination with the Services EPA has worked very hard to provide information in Steps 1 and 2 that the Services said they would need to conduct Step 3.
Sierra Club v. EPA 18cv3472 NDCA
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Overview of the BE Method - Step 1
Two sets of spatial data are compared Pesticide exposure area
Based on national-level GIS data to identify potential use sites Buffered to account for transport to levels that potentially represent effects (based on
most sensitive toxicity data)
Species range - provided by Services
No Effect /May Affect determination Based on whether or not there is overlap of the potential exposure area and the species range
* No Effect (i.e., no overlap) - no need to seek consultation with Services * May Affect (i.e., overlap) - move to step 2
Sierra Club v. EPA 18cv3472 NDCA
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Overview of the BE Method -Step 2
Step 2 Weight-of-Evidence Approach
Risk and confidence evaluated for multiple lines of evidence (mortality, growth, reproduction and other sublethal effects) based on estimated exposure and effects thresholds
Incident data Qualitative discussion of mixtures and abiotic influence (e.g., temperature, pH) on toxicity
Intended to answer the questions: Is there a potential for an individual's fitness to be reduced? Is there a potential for important physical and biological features of a species habitat to be adversely affected?
Describes the process for making Likely to Adversely Affect(LAA)/Not Likely to Adversely Affect (NLAA) Determinations LAA - species/critical habitat moves to Step 3 (jeopardy/adverse modification determination) NLAA - concurrence from the Services
Sierra Club v. EPA 18cv3472 NDCA
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Deliberative Process / Ex. 5
Sierra Club v. EPA 18cv3472 NDCA
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Deliberative Process / Ex. 5
From Anita
Sierra Club v. EPA 18cv3472 NDCA
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Deliberative Process / Ex. 5
Sierra Club v. EPA 18cv3472 NDCA
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Deliberative Process / Ex. 5
Sierra Club v. EPA 18cv3472 NDCA
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Stakeholder Concerns
April 13, 2017 letter from registrants of 3 pilot OPs to political leadership of EPA and the Services requesting:
EPA to withdraw the BEs Services to stop work on the BiOps Services to modify settlement agreements to allow more time to
complete consultation
Registrants/Growers:
Too large and complex; inadequate comment period Current methods are not sustainable Do not account for taxon-specific toxicity data early enough in the
process Overly conservative GIS layers used are too broad (for use site and species range layers) Use of invalid and un-reviewed studies Need to consider public health, usage data and benefits
NGOs
Too large and complex Generally agreed with the overall process
Sierra Club v. EPA 18cv3472 NDCA
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ED 002061E 00001582-00014
Deliberative Process / Ex. 5
Sierra Club v. EPA 18cv3472 NDCA
Attachments Prod 1
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Deliberative Process / Ex. 5
Sierra Club v. EPA 18cv3472 NDCA
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Deliberative Process / Ex. 5
Sierra Club v. EPA 18cv3472 NDCA
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