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Agencies Announce New Rules for Pesticide/ESA Consultations by CBB Staff Columbia Basin Bulletin - July 30, 2004

The U.S. Fish and Wildlife Service and NOAA Fisheries Thursday finalized new regulations establishing what the agencies say is a more efficient approach to ensure protection of threatened and endangered species as part of the U.S. Environmental Protection Agency's approval process for pesticides.

Under the new process, the EPA will be required to consult with the USFWS and other federal agencies only if its own "risk assessment methodology" shows that a pesticide might "adversely affect" a listed species or its critical habitat.

The previous policy required the EPA to consult with USFWS and NOAA Fisheries over potential impacts from pesticides on listed species.

Agency officials say the new regulations were developed following a comprehensive scientific review of EPA's risk assessment methodology.

The new review procedures, developed in cooperation with EPA and the U.S. Department of Agriculture, will provide a more workable and efficient framework to ensure necessary measures are taken to protect fish and wildlife, say federal officials.

Under the Endangered Species Act, EPA must consult with the other federal agencies to ensure that registration of products under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) is not likely to jeopardize the continued existence of federally listed threatened or endangered species or result in the destruction or adverse modification of critical habitat.

The two services proposed the new regulations in January and received extensive public comment.

Because of the complexity of consultations to examine the effects of pest-control products, there have been almost no consultations completed in the past decade. A recent court decision has cited the lack of consultations in limiting the use of essential agricultural pest-control products.

Under existing law, EPA routinely evaluates the broad impact of pest-control products on the environment, including the effects on endangered species and other non-target organisms. Before proposing this rule, scientists and regulators within the Fish and Wildlife Service and NOAA Fisheries spent a year conducting an extensive review of EPA's approach to ecological risk assessment and offered recommendations that EPA has incorporated.

Based on this scientific review, the USFWS and NOAA Fisheries concluded that EPA's approach to risk assessment will produce determinations that reliably assess the effects of these products on listed species and critical habitat.

"This is the first administration to address a long-standing need to create a workable framework to protect species, ranging from salmon to butterflies and songbirds, ensuring that the potential effects of thousands of pest-control products are examined in a timely and comprehensive manner," said Steve Williams, USFWS director. "At the same time, we are making sure that farmers can continue to provide abundant food for our country and that consumers can continue to use many popular household and garden products.'"

"The two agencies completed a scientific review of EPA's risk assessment process, and concluded it allows EPA to make accurate assessments of the likely effects of pesticides on threatened and endangered species," said Bill Hogarth, assistant administrator, NOAA Fisheries. "We've worked with EPA to make sure that this new process will help eliminate the chances of pesticides harming threatened and endangered species. This approach will allow the Services to focus their resources on those consultations that will have the greatest benefit for the species. I am very pleased that we are able to help expedite the pesticide review process."

"Today's final regulations, if implemented appropriately, will greatly improve the science-based decision-making process for protecting endangered species," said Susan B. Hazen, EPA's principal deputy assistant administrator for prevention, pesticides, and toxic substances. "This successful collaboration between the services and EPA will lead to stronger protections for endangered species faster."

Conservation and pesticide reform organizations said the new rules favor pesticide makers and users at the expense of endangered fish and wildlife species. They say the policy inappropriately takes away the authority of the fisheries agencies to judge effects determinations.

"If they (EPA) say there's no effects it's final," said Patti Goldman, who represents the Washington Toxics Coalition, Pacific Coast Federation of Fishermen's Associations, and the Institute for Fisheries Resources in the litigation that effectively stopped the use of pesticides in certain buffer zones on salmon bearing streams. The judge in the case ordered EPA into ESA consultations with NOAA.

"The EPA proposes to assume near-complete responsibility for assessment of pesticide impacts known as "self consultation", despite its dismal track record and complete lack of knowledge of the biologic aspects of species needing protection," the fishing and pesticide reform groups said in a press release announcing the potential litigation.

The groups say there has been widespread opposition to the policy changes, including a letter of "serious concern" sent in June 2004 by 66 members of Congress. Conservation and pesticide reform organizations challenged the scientific basis and legality of these rules and close to 20,000 people submitted comments in opposition to these changes, according to the fishing and pesticide reform groups.

Farm organizations and others applauded the new regulations as an effort to "streamline" ESA consultations.

"These new consultation procedures will provide a practical and effective structure to ensure that necessary measures are taken to protect fish and wildlife, yet provide the necessary pesticide tools to farmers and foresters enabling them to grow food and trees," according to Oregonians for Food and Shelter. "These procedures will also ensure that consumers can use household products (disinfectants and lawn care) and that vector control districts can continue to use mosquito and rodent control products for public health purposes."

On June 25, 92 members of the U.S. House of Representatives, including Greg Walden of Oregon's 2nd Congressional District, signed a letter to Interior Secretary Gale Norton supporting the new rule.

According to the Oregonians for Food and Shelter, nearly 40,000 folks filed comments in support of the new rules during the public comment period.

As finalized, the agencies say these new regulations will:

• By using the most sophisticated scientific methodologies available to protect wildlife from potential pesticide risks, EPA could determine that the use of a pest-control product is "not likely to adversely affect" a listed species or its critical habitat without either concurrence of the Services or informal consultation. The wildlife agencies would perform periodic reviews of the methods that EPA employs to arrive at these determinations to ensure EPA is making determinations that are consistent with the requirements of the ESA.
• When formal consultation is required, EPA may utilize an optional procedure to develop a determination of the effects of the pest-control product on listed species for the Services' review. The procedure also allows EPA to request direct involvement of representatives of the Services in the effects analysis. As required by law, the Services would make the final determination whether threatened or endangered species are likely to be jeopardized by a FIFRA action.
• Manufacturers register a wide variety of products, ranging from agricultural pesticides to commonly used household products, which are regulated under FIFRA. As a result of EPA's ongoing reevaluation of previously registered pest-control products, as well as the recent litigation, the three agencies anticipate a significant increase in the number of future consultations.