13
Dec
EPA’s Registration of Herbicide under New Framework Puts Endangered Species at Elevated Risk, Advocates Say
(Beyond Pesticides, December 13, 2024) In October, the U.S. Environmental Protection Agency (EPA) approved the registration applications of BASF Corporation and Mitsui Chemicals Crop & Life Solutions, Inc. for the use of different formulations of the L-isomer of glufosinate (also known as “L-glufosinate” and “glufosinate-P”) as new active herbicidal ingredients. This decision marks one of the first times that EPA has employed its new Herbicide Strategy Framework to determine the level of mitigation necessary to protect listed species and critical habitat under the Endangered Species Act (ESA). Glufosinate is an organophosphate, with known neurotoxic, reproductive/developmental effects, toxic to aquatic life, and mobile in soils (see Beyond Pesticides Gateway). Scientists have found that formulated glufosinate is generally more toxic to aquatic and terrestrial animals than the technical grade active ingredient.
Manufacturers are introducing newer glufosinate products as alternatives for glyphosate-based herbicides, like Bayer/Monsanto’s ‘Roundup’ and dicamba. The Center for Biological Diversity notes in comments submitted to EPA on this decision, “L-glufosinate has the potential to be used on tens of millions acres of land every year given the crops EPA has proposed to register it on. The scale of potential use is far above most new active ingredients.”
This first significant application of the Framework demonstrates, according to advocates, that the herbicide registration process remains insufficient to protect endangered species, public health, the environment, and biodiversity. As advocates, as well as Beyond Pesticides, have observed, the agency presupposes that farmers must use toxic chemicals, an assumption that clouds and undermines the regulatory process, trapping farmers on a toxic pesticide treadmill. Fundamental change requires EPA—in every pesticide registration and registration review—to examine whether there are practices that can eliminate harm, not substitute one toxic conventional pesticide for another.
Glufosinate-P is an enriched isomer of glufosinate, a broad-spectrum herbicide registered in the U.S. that targets glutamine synthetase to inhibit photosynthesis and poison plants. While the currently registered active ingredient glufosinate contains both D- and L-isomers, only the L-isomer (glufosinate-P) is herbicidally active. Two forms—glufosinate-P and its ammonium salt, glufosinate-P-ammonium—are being registered as functionally equivalent, and EPA states, “Glufosinate-P-ammonium is the ammonium salt of glufosinate-P and shares all the herbicidal properties for glufosinate-P,” as mentioned in the document entitled Memorandum Supporting Final Decision to Approve Registration for the New Active Ingredient Isomer, Glufosinate-P (Docket ID: EPA-HQ-OPP-2020-0533). Both are nonselective, postemergence contact herbicides. To align with the International Organization for Standardization (ISO) naming conventions, EPA is establishing tolerances for glufosinate-P, the ISO standard name for L-glufosinate-free acid.
For years, EPA failed to comply with ESA by not accounting for impacts to threatened and endangered species (“listed species”) when approving pesticide usage under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (see here, here and here). Prior to the Herbicide Strategy Framework, EPA leveraged a chemical-by-chemical, species-by-species approach to meet its ESA obligations: an extremely slow process resulting in less than a five percent completion rate. The reactivity found EPA responding to legal challenges rather than proactively addressing endangered species concerns, and by early 2021 the agency faced nearly two dozen lawsuits covering thousands of pesticide products directly related to this failure. As a result, the agency acknowledged its failure to properly assess impacts on threatened and endangered species and, in the following year, released a work plan to guide program improvements, including strategies for EPA’s pesticide program to meet its ESA obligations. In August 2024, EPA published the Final Draft of its new Herbicide Strategy Framework to “assess potential impacts and identify mitigations to reduce potential population-level impacts to listed species from the use of agricultural herbicides.”
The agency’s Herbicide Strategy Framework utilizes a three-step decision-making process for determining appropriate mitigation measures:
- Determine the potential for population-level impacts to listed species as “not likely,” “low,” “medium,” or “high,” based on environmental fate and toxicity data submitted by registrants and EPA’s standard models.
- Identify required mitigation requirements to reduce drift and runoff to non-target species to reduce exposure levels for listed species: three points of mitigation for “low” impacts, six points for “medium impacts,” and nine points for “high” impacts.
- Identify where geographically the mitigation measures identified in Step 2 will apply (i.e., some mitigation measures will be required everywhere while others may only be applied in specific geographic regions).
In a notable change from an earlier draft of the Framework, EPA now allows pesticide applicators to reduce buffer zones around herbicide applications by implementing additional measures to control spray drift. The mitigation options vary based on the method of application and include using specialized equipment, lowering the application rate, adding physical barriers like windbreaks or hedgerows, adjusting the treated area’s width, and considering relative humidity. Each measure has an assigned percentage value by which the buffer can be reduced. For example, a 100-foot buffer could be lowered to 80 feet if a mitigation measure with a 20% reduction is applied.
According to EPA Deputy Assistant Administrator for Pesticide Programs for the Office of Chemical Safety and Pollution Prevention Jake Li, “By identifying protections earlier in the pesticide review process, we are far more efficiently protecting listed species from the millions of pounds of herbicides applied each year and reducing burdensome uncertainty for the farmers that use them.” However, EPA also notes that the strategy itself does not impose immediate requirements or restrictions on pesticide use. Instead, it ‘requires’ pesticide users to research and consider implementing possible and various mitigation options, depending on their geographical location and guidance available online, linked to pesticide labels.
EPA’s decision on glufosinate employs the Herbicide Strategy Framework to identify mitigation measures for potential impacts on endangered species—before completing the required formal consultation with the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS). This approach aims to streamline the process by addressing likely impacts in advance. However, advocates argue that this framework will certainly undermine ESA protections, as it relies on assumptions about species impacts without fully consulting USFWS and NMFS. They are concerned that the EPA’s preliminary mitigation measures may not fully address or protect endangered species due to the limited input from these agencies before the final consultation is complete.
Glufosinate mitigation requirements
EPA’s registration decision on glufosinate-P requires “the implementation of the following mitigation measures to address on- and off-field effects to nontarget species, including listed species:
- Prohibiting application during rainfall and when soils are saturated or above field capacity;
- Requiring users to visit EPA’s Mitigation Menu Website before application and determine an appropriate strategy for meeting or exceeding the required number of mitigation points as specified on the label;
- Maintaining a downwind buffer between the last spray row and the protection area of 50 feet for aerial application and 10 feet for ground application; and,
- Instructing users to access and follow any applicable endangered species bulletins for the two listed species–the Spring Creek bladderpod plant and the whorled sunflower plant–from ‘Bulletins Live! Two’ web-based system in English for all additional directions and restrictions.”
Advocates argue that EPA’s Framework has effectively substituted one problematic and insufficient process for another. Even once a mitigation requirement is identified after a new or renewed pesticide registration, compliance by a pesticide applicator, farmer, or worker operates under a “self-service, honor system,” relying on users to proactively seek information online and then simply consider mitigation steps from a still complex menu of possible choices. EPA notes: “The final strategy itself does not impose any requirements or restrictions on pesticide use. Rather, EPA will use the strategy to inform mitigations for new active ingredient registrations and registration review of conventional herbicides.” Therefore, with this Framework, EPA does not appear to establish clear and specific use and site restrictions communicated through a pesticide label, which has historically been established as a set of enforceable legal restrictions under federal pesticide law.
Critics observe that EPA does not possess the scientific expertise, nor the statutory authority, to accurately determine the potential for “population level” impacts to “listed species.” They are obligated to rely on the USFWS and NMFS through a consultation process to make such assessments of the potential effects on species that inhabit such complex ecological systems. Therefore, any pesticide that has not gone through a complete ESA consultation cannot have been properly evaluated. (The Center for Biological Diversity argued this in its June 2024 comments.)
For example, there is a significant overlap (20-75%) between the habitats of some terrestrial invertebrate pollinators, such as bees and butterflies, and the areas where this pesticide is most likely to be employed. Moreover, L-glufosinate is considered “mobile” to “highly mobile” in soil and can reasonably be expected to be applied in areas of the U.S. with “high” runoff potential. Thus, the requirements of only a 50-foot buffer and one point of runoff mitigation are expected to be insufficiently protective. Migration of toxic chemicals into adjacent habitats could imperil not just listed plant species, but the habitats of listed animal species.
Beyond Pesticides and fellow changemakers—including organic and regenerative organic farmers and advocates—have long argued that the failure of EPA to consider the viability, productivity, and profitability of organic practices and product alternatives to conventional pesticides means the agency’s registration and reregistration of toxic pesticides, including glufosinate-P, have not been subject to a complete assessment. In this context and given the availability of less and nontoxic alternatives, EPA has failed in its responsibility to ensure that pesticides registered for use under FIFRA will not cause unreasonable adverse effects. In fact, EPA notes in an interim decision on glufosinate from 2016, “The (EPA) registration review program is intended to make sure that, as the ability to assess and reduce risk evolves and as policies and practices change, all registered pesticides continue to meet the statutory standard of no unreasonable adverse effects.”
The planet is facing an urgent biodiversity crisis, with more species approaching extinction than ever before (see here and here). The purpose of ESA is to address this loss of biodiversity by protecting habitats critical to the survival of the most at-risk species. Pesticide use is a major driver of biodiversity decline, contributing to extinctions and elevating species’ vulnerability to environmental challenges such as climate change, habitat fragmentation, and exposure to toxic chemicals. To protect biodiversity, EPA is charged with examining how its decisions may exacerbate this crisis. Pesticides are a leading factor in the decline of insect populations and diversity, often referred to as the “insect apocalypse,” which threatens ecosystems across the planet. EPA’s approval of insecticides has posed risks to insect populations, while herbicides degrade insect habitats and food sources and pesticides disrupt food webs—in both freshwater and marine ecosystems (see here and here for Beyond Pesticides 2023 Forum session).
As industrial agriculture further reduces biodiversity by destroying or contaminating habitats, organic land management systems, in contrast, require producers to actively conserve and enhance biodiversity. Organic agriculture is a viable, productive option embraced by consumers and thriving as a $60 billion industry. This market success comes despite structural bias in USDA funding or programs, including the continued subsidization of conventional and monocrop agriculture through the Farm Bill in Congress. Consumers continue to make a difference by choosing to buy organic—reducing their own exposure to pesticide residues from conventional produce—and supporting organic farming, which protects not just consumers, but farmworkers and their families. Read more about agricultural justice and take action to support organic agriculture and strengthen organic certification here.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Sources:
EPA Registers New Herbicide Active Ingredient Glufosinate-P, EPA website, October 18, 2024
EPA Finalizes First-of-its-Kind Strategy to Protect 900 Endangered Species from Herbicides, EPA announcement, August 20, 2024
Federal Register: EPA Announcement Glufosinate-P; Pesticide Tolerances, effective October 29, 2024, available under EPA-HQ-OPP-2020-0250 and EPA-HQ-OPP-2020-0533
Comments to EPA on Proposed Decision to Register a New Enriched Isomer L-Glufosinate for Use on Conventional and Genetically Engineered Corn, Cotton, Canola and Soybean, The Center for Biological Diversity, June 8, 2024
Glufosinate-P. Human Health Risk Assessment for New Active Ingredient Isomer, EPA docket EPA-HQ-OPP-2020-0250-0027, May 8, 2024
Memorandum Supporting Proposed Decision to Approve Registration for the New Active Ingredient Isomer, Glufosinate-P, Memo EPA Office of Pesticide Programs, April 30, 2024
Threatened Biodiversity and Ecosystems, Pesticides and You, Beyond Pesticides, 2023-2024
