An EPA pilot program proposed to address the impacts of pesticides on more than two dozen endangered species could shut down farming in some areas, USDA and grower groups contend.
The Vulnerable Species Pilot Program, or VSPP, is on a fast track at EPA, which has been under legal pressure to address its lack of compliance with the Endangered Species Act.
The ESA requires federal agencies contemplating actions that may affect endangered species to conduct consultations with federal wildlife agencies to determine how to address those impacts. For decades, the EPA did not conduct such consultations. The agency began getting sued, which resulted in court decisions lambasting it for not fulfilling statutory obligations.
Last week, EPA, the Center for Biological Diversity and Pesticide Action Network North America, as well as CropLife America, which intervened on the side of EPA, agreed to a proposed settlement that lays out a timeline for the completion of consultations on hundreds of products and of strategies addressing herbicide, insecticide, fungicides and rodenticide use — as well as implementation and expansion of the VSPP.
In the agreement, EPA says it will determine by Dec. 30 whether to revise or add mitigation measures to the VSPP. By Sept. 30, 2024, “EPA shall determine how it could expand the approach used in the Vulnerable Species Pilot to other selected vulnerable species,” the settlement says.
But the vast majority of the ag community, including state departments of agriculture, is skeptical of the approach, which relies on avoiding pesticide applications altogether in species habitat or minimizing impacts by employing a range of conservation measures.
“We have heard that states are concerned that the VSPP will be impossible to implement and it will drive impacted growers to leave farming altogether,” Kimberly Nesci, head of USDA’s Office of Pest Management Policy, told an audience at the National Association of State Departments of Agriculture annual meeting in Cheyenne, Wyoming, last week. “This is consistent with our analysis.”
“One quote I’ve heard is just a simple ‘this isn't going to work,’” Nesci said. Hearing the crowd’s humored reaction, she said, “I’m sensing from the chuckles that others have heard this as well.”
Nesci also said USDA is concerned at the pace of the changes. With EPA planning to expand the program within a year “without consideration of whether it's effective or the impact on growers, is that really a pilot?” she asked.
Kimberly Nesci, USDAIn addition, “The menu of mitigation options in the minimization areas is complex, doesn't necessarily account for what types of practices are available to minor crops and is not always feasible, so additional measures and support [are] needed,” she said.
For the habitat of six species where growers would not be able to apply pesticides, “farming may no longer be viable,” USDA said in comments to EPA. “Based on the 2022 Cropland Data Layer (CDL), more than 780,000 cropped acres (0.22% of total U.S. cropped acres) fall within an avoidance area” just for those six species.
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“We estimate a total of over 50 million acres of land affected by the areas identified in the vulnerable species pilot — and that is land to which pesticides could be applied, with about 14 million acres of cropland in that total,” Nesci said. “In specific areas. there are unique use sites that will be highly affected.”
For example, avoiding applications within the range of the Taylor’s checkerspot butterfly would “significantly and negatively” impact Oregon's hazelnut orchards, where 99% of all the hazelnuts in the country are produced, according to comments from Associated Oregon Hazelnut Industries.
A better solution, according to comments from both AOHI and the Center for Biological Diversity, is to focus specifically on “critical habitat and known areas of occupancy.”
“By requiring avoidance in approximately 3 percent of the range, the EPA could achieve a substantially similar conservation benefit for the butterfly while also quelling the concerns of the regulated entities conducting agricultural operations in the areas and ensuring broad support for this excellent concept,” CBD said in comments.
More than 100 farm groups said pesticide users in designated Pesticide Use Limitation Areas for 25 of the 27 species in the pilot “must adopt four erosion/runoff mitigations to continue to use nearly any outdoor pesticides. This will be immensely difficult for affected pesticide users.”
Among the mitigation measures to address runoff and erosion are a 40% rate reduction, vegetative filter strips, contour farming, grassed waterways, cover crops and avoiding the use of pesticides highly toxic to invertebrates.
But the ag groups said “some crops, such as onions, peanuts, potatoes, or sugarbeets, necessitate soil disturbance as a means of production. To suggest these groups could implement reduced tillage is not practical.”
More broadly, the groups said EPA “is presupposing that any use of a pesticide will harm the vulnerable species rather than doing any type of risk assessment. It is a hazard-based approach when a risk-based approach should be undertaken.”
Another set of growers that would be adversely affected are southern rice producers, “as the agency has only proposed four mitigations which a producer must adopt to achieve compliance,” the letter said. “This offers no flexibility for compliance. If a grower’s operation is not suited to adopt these mitigations, they will be essentially banned from using pesticides.”
Nesci, a former official in EPA's Office of Pesticide Programs, offered a defense of her former colleagues. “I know EPA does care about growers,” she said, despite the perception that the agency is not listening closely enough to growers and is taking pesticide-related actions to minimize its legal vulnerability.
“We know about the resource constraints that EPA is up against, and I actively want to use my team to help refine EPA’s efforts in targeted areas wherever possible,” she said. EPA has recently reached out to USDA to help it map the Pesticide Use Limitation Areas, which Nesci said she finds encouraging.
In addition, according to the VSPP, “If the lands are managed with a site-specific runoff and/or erosion plan implemented according to the recommendations of a recognized conservation program, then no additional runoff/erosion mitigations are needed.
“Recognized conservation programs include but are not limited to those run by federal and state agencies, a state university extension programs, National Alliance of Independent Crop Consultants, or certified agricultural conservation specialists,” according to the pilot program.
“We and OPP are working really closely with EPA on how these conservation programs could be defined,” Nesci said.
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