Two strategies to address endangered species reviews of farm inputs at the Environmental Protection Agency are moving forward, but ag and environmental groups want important changes before either policy is finalized.

Two documents are now out for comment — a proposed pilot program addressing pesticides’ impacts on 27 federally listed species and a strategy that would guide herbicide use. In both cases, the agency has proposed measures to reduce exposure to at-risk species, including avoiding spraying altogether and implementing a suite of conservation measures, such as mulching, in-field vegetative strips or grassed waterways.

The measures included in the documents are part of a larger strategy to streamline the Endangered Species Act consultation process, which requires the U.S. Fish and Wildlife Service or National Marine Fisheries Service to weigh in when a federal agency proposes an action that may affect endangered species. 

The consultations are designed to determine how best to avoid or minimize seriously harming the species. 

EPA is driven, in part, by a series of court decisions that expressed little sympathy for the agency’s arguments that interagency consultations to examine the impact of individual active ingredients on listed species — of which there are more than 1,000 — are inherently complicated, time-consuming and expensive.

Too bad, courts have said, ordering EPA to meet tight deadlines despite what the agency says is a lack of sufficient resources. In response, EPA has been forced to take a more “broad brush” approach, said Nathan Donley, senior scientist with the Center for Biological Diversity, one of the more active groups when it comes to ESA litigation.

“I think strategies like [the herbicide strategy] and the vulnerable species pilot are really going to have enormous impact for listed species,” Donley said. But he also is concerned about the intricacy of the proposals.

Nathan DonleyNathan Donley, Center for Biological Diversity

“That’s one of the gripes we have,” he said. “It's frustrating to see the complexity here, because if this is fully implemented and complied with, and everyone does it the right way, it can probably make a huge impact. But compliance is a big question mark here.”

Bill Chism, a retired EPA biologist helping the Weed Science Society of America prepare comments on the proposals, also wonders what options will be available if EPA can’t get buy-in from growers.

If species are continuing to decline 10 or 20 years down the road, “What’s left to do? That's why I'm really hoping we can make this work," Chism said.

“I hate to say this, but if people aren't complying, what’s step two? Because I don't think there's enough enforcement people out there to deal with this,” Chism said. “I’m personally afraid that step two is going to be … to take [the product] off-label in that state.”

In both documents, EPA requires certain mitigation practices be met to keep using crop protection chemicals in species habitat areas called Pesticide Use Limitation Areas, or PULAs.

But it quickly gets complicated, said American Soybean Association government affairs director Kyle Kunkler.

Speaking just of the vulnerable species pilot project, he said, “In all of my years of working on public policy, this proposal is probably one of, if not the most concerning, I've seen.”

Someone located in a PULA is "effectively prohibited from using any type of pesticide — period — unless you meet certain requirements,” he said. Depending on the topography or geographic features of a field, that could be difficult.

“Contour farming, if you're in Georgia where you have flat fields, that doesn't make any sense,” Chism said. “Mulching doesn't make much sense. Grassed waterways, you may not have anything you can do with that.”

In the habitat for most of the species addressed by the pilot project, EPA said spraying is prohibited “unless the applicator coordinates with the local FWS Ecological Services field offices to determine appropriate measures to ensure the proposed application is likely to have no more than minor effects on the species. 

But EPA says that consultation is required three months before application. “Most farmers have no idea what their pest risks are even going to look like three months down the road,” Kunkler said. 

He also noted FWS biologists have many other responsibilities and “may be out in the field for significant periods of time. And now we're expecting them to start fielding calls from hundreds or thousands of farmers, asking them to make sure that they're not going to be impacting species?”

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The herbicide strategy contains a similar provision, letting growers earn the necessary points to allow them to apply chemicals by implementing certain conservation measures or “following recommendations from an expert conservation specialist to reduce off-site transport from the field.”

ASA’s “umbrella concern,” Kunkler said, is “EPA hasn't even done those initial first steps to determine whether there's even a risk here.” According to Kunkler, in some cases where the agency has looked closely at the effects of pesticides, it has been able to find few or no impacts.

Kunkler-Kyle-ASA-300.jpgKyle Kunkler, American Soybean Association

“It’s a very flawed, inappropriate approach to trying to protect species and to make sure that they're meeting their Endangered Species Act different obligations,” he said.

ASA plans to suggest in its comments on the species pilot project, due Aug. 6, that EPA gather data from USDA on the extent to which farmers are implementing conservation practices in the areas where species are located.

“We know that (EPA) can look at USDA data, both from NRCS and NASS, and there are millions of acres under these practices already,” he said. 

Responding to submitted questions, USDA's Office of Pest Management Policy said it is "working with other USDA colleagues to analyze the potential impact of the proposed Vulnerable Species Pilot and will include the results of these analyses in our feedback to EPA. Similarly, OPMP has, and will continue to, coordinate communications between USDA experts from several different offices, including NRCS and NASS, and staff from EPA’s Office of Pesticide Programs."

ASA also would like to see EPA employ more “real-world” data on the amount of product that is actually sprayed, noting that after more detailed analysis, EPA continued to allow use of Enlist herbicides in dozens of counties where it had been initially prohibited because of the presence of the American burying beetle.

The pesticide and endangered species issue is not going away any time soon. A recent settlement between the Center for Biological Diversity and EPA says the agency “will use its best efforts to issue a final Insecticide Strategy by Jan. 17, 2025, and in no event shall issue it later than March 31, 2025.” The agency did not promise a completion date for a separate fungicides strategy, and is also working on a rodenticide strategy.

It will decide by the end of the year whether to add any mitigation measures to the vulnerable species program, and by Sept. 30, 2024, whether to expand it beyond its current scope. EPA said it would finish the herbicide strategy by March 30, 2024.

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Editor's note: This story was updated to include a comment from USDA's Office of Pest Management Policy.