First Regulatory Changes to ESA Proposed Since 1988 and How They Might Impact Agriculture

In the U.S., the Environmental Protection Agency (EPA) is responsible for registering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) without placing unnecessary burden on agriculture and other pesticide users. At the same time, EPA must comply with the Endangered Species Act (ESA) and ensure that the “action” of a pesticide registration does not affect species that are listed under the ESA (“listed species”). If the “action” is determined by EPA to potentially affect a listed species or legally designated critical habitat, EPA must initiate consultation with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), collectively referred to as the “Services,” to minimize potential effects to listed species. On July 25, 2018, the Services proposed regulatory revisions to the ESA, including revisions to Listing Species and Designating Critical Habitat, Interagency Cooperation, and Prohibitions to Threatened Wildlife and Plants. There is a 60-day comment period for all interested parties, closing on September 24, 2018.

While these changes are not specific to pesticides or agriculture, they could have direct positive impact or unintended negative consequences to the agricultural community. Many of the proposed changes are intended to clarify current definitions and are consistent with the existing approaches. Provided below is an overview of a few of the proposed changes that have the potential to impact FIFRA and US agriculture.

Changes to current definitions and Service responsibilities:

  • Removal of “without reference to possible economic and other impact of such determination” from listing criteria: Under FIFRA, pesticides registered by EPA in the U.S. “will not generally cause unreasonable adverse effects on the environment.” Unreasonable adverse effects are defined as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” While FIFRA recognizes the potential economic and social costs and benefits of pesticide use, the current ESA clearly limits the role of economics by requiring the Secretary to make determinations “solely on the basis of the best available scientific and commercial information regarding a species’ status, without reference to possible economic or other impacts of such determination.” With the proposed removal of the statement “without reference to possible economic and other impact of such determination” from the regulatory language in ESA Section 4, 50 CFR Part 424, determinations would still be made solely on biological considerations; however, with the new language, economic and other impacts could be presented for public review if warranted on a case-by-case basis. The language does not insinuate that the economic impacts would be used as part of the actual determination process, but instead would be used to “inform the public.” The Services state that economic and other impacts will not be presented for every determination but only under certain circumstances; however, it is not clear how these “circumstances” will be defined. Unlike FIFRA, the role of economic analysis in informing the final decision is not active nor is it defined as an integral part of the overall assessment and decision-making process. FWS and NMFS specifically requested feedback on the removal of the “economic and other impact” statement.
  • Changes to Critical Habitat designations: For listed species, the Services designate areas of habitat believed to be essential to the species’ conservation. Any federal actions occurring within the designated area may need to be amended or restricted if there is the potential to affect components of the designated critical habitat that are important to a listed species’ survival and reproduction. The Services propose clarifying in ESA Section 4, 50 CFR Part 424.12(b) that areas not occupied by listed species will only be designated as critical habitat when occupied areas are inadequate to ensure conservation or would result in less efficient conservation. The Services define efficient conservation as conservation that is effective, where societal conflicts are minimized, and cost of conservation is in proportion to benefits of the species. These proposed changes could result in more precise designations of critical habitat, minimizing unnecessary impacts on agriculture. They are not likely, however, to end the debate about the extent of critical habitat designations necessary for species recovery. Along with comments on critical habitat designations, the Services specifically seek public comment on whether they should consider modifying the definitions of “geographical area occupied by the species” or “physical or biological features.”
  • Beneficial and adverse effects in evaluation of action: As part of the consultation process, the action agency (i.e., EPA when registering a pesticide under FIFRA) is required to provide the Services with an “initiation package”, containing details about all aspects of the proposed action (i.e., a pesticide registration). The proposed ESA changes to ESA Section 7, 50 CFR Part 402.14(c) would clarify what constitutes necessary information and how all available information, including beneficial actions, will be taken into consideration when the Services evaluate the effects of the action. Consideration of the benefits of an action could be a good thing for agriculture; benefits such as using an herbicide to control invasive weeds, or beneficial actions taken or proposed by the EPA or registrant, such as establishing a conservation program with direct benefit to listed species, will be given appropriate consideration when the Services make determinations. However, like other provisions, underlying definitions could impact what is considered a beneficial action and thus how a change in this section would affect agriculture.
  • Collaboration: Proposed additions to ESA Section 7, 50 CFR Part 402.14(h) would allow for collaboration between the EPA, the Services, and the applicant. In the case of a pesticide registration, the applicant is the registrant (entity registering the pesticide), although this is not clearly defined in the regulations. Depending upon how or if the definition of the “applicant” is clarified, participation by the registrant in the development of the “initiation package” and input into the process and results could also be affected, hopefully positively.

Procedures for an optional consultation technique:

  • “Programmatic” Consultation: The proposed changes include the addition of “programmatic consultation” as an optional consultation technique in ESA Section 7, 50 CFR Part 402.14(c)(4). Where there are similar and repeated multiple actions on a program, region, or other basis, programmatic consultation addresses those in one overarching review. If approached effectively and strategically, such a review could bring predictability and consistency to pesticide consultations, but there could be unintended consequences as well. As demonstrated by the recent NMFS Biological Opinion for organophosphates, the consultation process for national evaluation of pesticides is not as straightforward or predictable as other consultations that are limited in scope. For example, a single pesticide may be applied on multiple different crops and non-cropped areas for the control of multiple pests across a large geographic area. The ability to programmatically address pesticides could be an improvement for the pesticide and agricultural industry if it increases efficiency and predictability. Alternately, the pesticide and agricultural industry could be negatively impacted if programmatic consultation is used as a mechanism to define the terms and conditions for subsequent individual action consultations, resulting in the need for additional layers of consultations that would be required between national assessment and local use. Alternative consultation mechanisms could open the door for approaching consultation differently than in the past for agriculture, such as utilizing voluntary conservation and other practices that avoid, minimize, or offset the effects of pesticides on listed species. And, with the proposed additions to ESA Section 7, 50 CFR Part 402.14(h), if specifically included in the “initiation package” any such practices that are intended to avoid, minimize, or offset a pesticide’s effects on listed species could be formally adopted by the Services and used to issue a permit under ESA Section 10(a) (to protect for incidental take (harm) of a species). For the agricultural industry, this might mean that voluntary conservation measures agreed to by EPA, industry, and growers could be incorporated into the consultation process and considered in the issuance of a take permit by the Services. Alternately, measures that may not have been agreed to by the industry could become required practice even though they are expensive or unworkable — a route that would not be favorable to agriculture.

Revisions to the blanket section 4(d) rule:

  • The ESA makes a distinction between listing a species as “threatened” or “endangered,” with “endangered” being a more urgent protection need. Under ESA Section 4(d), 50 CFR Part 17 of the ESA, the Services have the authority to write species-specific rules for threatened species assuming the species-specific rules are necessary for conservation of the species. Currently, the FWS applies a “blanket” 4(d) rule which essentially treats threatened and endangered species as if they were equal under the law in terms of take provisions. The NMFS, on the other hand, does not use a “blanket” 4(d) rule and develops species-specific 4(d) rules for threatened species. The proposed change will align the implementation of Section 4(d) between the FWS and NMFS and will mean that FWS will develop species-specific plans for each threatened species when deemed necessary. However, the proposed change will not be retroactive and will only apply to species listed as threatened after the rule is finalized. The FWS has developed species-specific 4(d) rules in the past and lists the benefits of species-specific rules to include: removal of redundant permitting requirements, facilitate implementation of beneficial conservation actions, and make better use of limited personnel and budgets. The use of species-specific 4(d) rules appears to allow for more flexibility in addressing species recovery by allowing other federal and state agencies, as well as local partners, to have a more prominent role in the recovery and protection of the species through the use of targeted and collaborative conservation. The FWS specifically requests feedback on their intention to finalize species-specific rules in conjunction with final listing rules, as well as whether they should include binding language in the regulation, such as setting a timeframe for finalizing species-specific rules after a final listing or reclassification determination.

With all the proposed provisions, the final changes to the regulations and resulting impact on agriculture could vary greatly based on how the definitions discussed above are changed, as well as on how the provisions and underlying definitions are currently interpreted. Since many of the changes will be applied on a species-specific basis, the potential impact on agriculture will also be site- and species-specific.

Get informed and make your voice heard

These are just a few of the proposed changes to the ESA that could potentially impact U.S. agriculture. The Services have clearly identified specific areas where they are requesting public feedback in the form of comments, information, and recommendations on the proposed changes to the ESA. In general, the Services seek public comments recommending, opposing, or providing feedback on specific changes to any provisions including but not limited to revising or adopting as regulations existing practices or policies, or interpreting terms or phrases from the ESA. This is just one of many opportunities where EPA, FWS, and NMFS request public feedback during the FIFRA or ESA process, with this opportunity specific to more general ESA provisions but relevant to potential impacts on agriculture and pesticide use.

We recommend that agricultural interests get engaged in this process and submit comments where applicable. Vocal non-governmental organizations (NGOs) are painting these changes as “gutting the Endangered Species Act” and that is far from fact. However, it is also important to realize that without input from agricultural interests, the potential negative impact of these changes could prevail over any potential positive impact. It is vital to the rulemaking process that the agricultural community provide comprehensive feedback during public comment periods, contributing based on knowing how the proposed actions could impact their operations or industry as well as food, feed, and fiber production.

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