Watch for New Substantial Pesticide Restrictions From EPA
Over the years, the U.S. EPA’s pesticide program has been unable to meet requirements under the Endangered Species Act (ESA) to evaluate impacts to listed species associated with pesticide registrations, according to the law firm Hunton Andrews Kurth at Growing Produce. This is due largely to the Federal Insecticide, Fungicide, and Rodenticide Act’s (FIFRA’s) requirement that EPA reevaluate every pesticide every 15 years, including the hundreds of pesticides that affect federally listed species.
As a result, EPA has faced more than 20 lawsuits, covering over 1,000 pesticide products, challenging the Agency’s failure to meet ESA obligations, some of which have resulted in the vacatur of the pesticide registrations, creating significant uncertainty for growers and pesticide users. To address this problem, EPA’s Office of Pesticide Programs (OPP) recently developed a number of ambitious plans, strategies, draft and final guidance documents, and pilot programs to facilitate the ESA review process. EPA has committed to execute these initiatives by dates established in a Sept. 2023 settlement agreement. EPA’s new initiatives, outlined below, will have substantial impacts on the pesticide industry, as well as growers and other pesticide users. In particular, many of the proposed mitigations will restrict pesticide use in areas that overlap with listed species ranges or require growers to implement measures to reduce species exposure via spray drift or runoff/erosion.
Background
ESA section 7 requires EPA to ensure through consultation with the U.S. Fish and Wildlife Service (FWS) and, when appropriate, the National Marine Fisheries Service (NMFS) (together, the Services) that their FIFRA actions – including registration of new pesticides, registration review of existing pesticides, and the approval of new uses and pesticide label amendments – are not likely to jeopardize the continued existence of federally listed species or destroy or adversely modify designated critical habitat.
This requirement is difficult for EPA to satisfy, given the realities of the FIFRA program. For example, there are more than 17,000 registered pesticide products containing more than 1,200 active ingredients, with uses including insect repellents, household cleaners, lawn and garden chemicals, hospital disinfectants, biotech products, and a wide range of agricultural chemicals. Because EPA must reevaluate all existing registered pesticides every 15 years, this amounts to hundreds of registration review cases each year. Furthermore, FIFRA registrations are often geographically broad, covering many pesticide uses, and affecting dozens, if not hundreds, of listed species, complicating the analysis of potential impacts on species.
Read more at Growing Produce.
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