(Beyond Pesticides, August 30, 2012) The U.S. Environmental Protection Agency (EPA) announced on August 17 that it is seeking comments on a proposal developed jointly with the U.S. Department of Agriculture (USDA), the National Marine Fisheries Service (NMFS), and the U.S. Fish and Wildlife Service (FWS) to enhance opportunities for stakeholder input during pesticide registration reviews and endangered species consultations. The proposal specifically emphasizes coordination across federal agencies and expanding USDA’s role, as well as pesticide users to provide current pesticide use information to EPA’s ecological risk assessments.
The proposal describes EPA’s plan to reach out to potentially affected pesticide users to discuss the technical and economic feasibility of draft Reasonable and Prudent Alternatives (RPAs) intended to avoid jeopardy to threatened and/or endangered species. It also describes the process by which public comments received on RPAs will be summarized and organized by EPA and provided to the Services, which will prepare a document to be included in the administrative record of the consultation explaining how comments were considered, and if appropriate, how the final biological opinion was modified to address the comments. The Services will provide the document to EPA, and both the Services and EPA will make the document available to the public upon request. These process changes are intended to provide clarity and transparency to the ESA Section 7 consultation process for pesticides.
Historically, EPA has run into problems when reaching out to pesticide users for advice on limiting pesticide use, since their practices of pesticide dependency have tended to bias the agency’s understanding of the viability of organic and non-toxic cultural practices that do not rely on toxic pesticides. As a result, EPA decisions (under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and its amendments) typically do not take into account whether a pesticide’s use is necessary, given the availability of alternative practices and green products. One law that does require an essentiality review when evaluating the use of any synthetic materials, assuming they meet health, envronmental and biodiversity standards of review, is the Organic Foods Production Act.
Section 7 of the Endangered Species Act (ESA) requires all federal agencies to consult with NMFS and FWS prior to any federal action if there is any potential impact on a protected species. Therefore, under ESA, EPA is required to determine how a pesticide will affect threatened and endangered species when that chemical is registered or has its registration reviewed; the agency must consult with FWS and NMFS for any necessary additional information and analysis. To implement these procedures, EPA’s Endangered Species Protection Program (ESPP) utilizes risk assessment tools to evaluate any concerns about effects to listed endangered species. FIFRA’s standard to protect against “unreasonable adverse effects to man and the environment,” while broad enough to evaluate and reduce impacts on biodiversity, instead has been used to establish standards of use that result in levels of harm deemed acceptable.
EPA’s risk assessment process does not function to protect the most vulnerable in biological systems, but institutes restrictions intended to mitigate risks. The mandated consultations with FWS and NMFS could present the opportunity to evaluate alternative practices that would avoid harm to endangered species, but unfortunately has been largely limited to the risk management framework that has so long dominated EPA’s approach to regulating pesticides.
Prior to 2004, EPA believed the extensive environmental risk assessments required in the registration process also would include impacts on endangered species. However, represented by the public interest law group Earthjustice, several stakeholder organizations including the Northwest Coalition for Alternatives to Pesticides (NCAP) and the Pacific Coast Federation of Fishermen’s Associations (PCFFA), filed suit in January 2001 to force EPA to fulfill this requirement. Specifically, the lawsuit challenged EPA’s decision to register 54 pesticides without first consulting with federal fish biologists regarding the potential impact on protected salmon and steelhead species in the Northwest. The judge, in a lawsuit initiated in 2002, called EPA’s “wholesale non-compliance” with its ESA obligations “patently unlawful” and ordered the agency to consult with NMFS regarding adverse impacts on the Northwest runs.
The Food Quality Protection Act (FQPA) mandates EPA to review all registered pesticides every 15 years. EPA began that process in 2006 and has included ESA consultations in its reviews. However, EPA, NMFS, and FWS have not worked effectively in the consultation process. One reason for this problem is the difference in legal authorities — EPA registers pesticides under FIFRA, which is a risk-based process and must consider cost/benefit analyses in its decisions. NMFS and FWS, acting under ESA, is more precautionary in its approach and has no cost/benefit directive.
Take Action: Comments on the proposal are being accepted through Oct. 16, 2012. Go to docket EPA-HQ-OPP-2012-0442 at www.regulations.gov. Click here to go directly to the submit comments page. The proposal can be found on the docket page as well, or by clicking here.
Source: Western Farm Press
All unattributed positions and opinions in this piece are those of Beyond Pesticides.