WASHINGTON, Feb. 20, 2016 - Restrictions on atrazine and glyphosate to protect endangered plants and animals across the country may be in the cards as the result of a settlement reached between an environmental group and the Fish and Wildlife Service (FWS).

The settlement, filed in federal court in San Francisco, includes a schedule for FWS to consult, with the Environmental Protection Agency, as required by the Endangered Species Act’s Section 7. Although required by the ESA, consultation has not routinely taken place to assess the effects of pesticides on listed species.

Under Section 7, FWS (and the National Marine Fisheries Service, which is responsible for marine species) consults with federal agencies whose actions – in this case, pesticide registration – may affect listed species. The result is a Biological Opinion (BiOp) that specifies measures that need to be taken to avoid jeopardizing the existence of that species.

Previous lawsuits brought by the Center for Biological Diversity (CBD) and other groups have resulted in imposition of buffer zones for application of certain pesticides. The center, which announced the settlement Friday, expects that will be the result of the agreement.

CBD said the settlement “ensures that the Fish and Wildlife Service will develop conservation measures on (glyphosate and atrazine), along with propazine and simazine, which together represent nearly 40 percent of annual pesticide use in the United States.”

The settlement does not “obligate” FWS to do anything, but CBD endangered species policy director Brett Hartl noted that consultation is legally required by the ESA, and “I don’t expect (FWS) will ignore EPA’s request to consult.”

Despite the “clear legal requirement” to consult with FWS, EPA has “repeatedly failed to do so when it registers a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act,” the center said.

Under the terms of a previous settlement, EPA expects to complete a nationwide evaluation of the effects of atrazine, simazine, propazine and glyphosate on listed species by June 30, 2020, in connection with registration review under FIFRA, and then begin consulting with FWS.

“Today’s settlement follows a similar framework and requires (FWS) to finish the consultation process on these chemicals by December 2022,” CBD said.

FWS issued a brief statement: “This settlement agreement will allow the service to move forward in a systematic, efficient and comprehensive way, should the EPA initiate Section 7 consultations with us on potential effects of these four pesticides on ESA-listed species.”

CropLife America intervened in the lawsuit on the side of FWS. It did not take any position on the settlement, but said it would “continue to stress the inefficiencies of species-specific BiOps and the need for a comprehensive, science-based approach to ESA review of FIFRA registration decisions. CLA supports a nationwide ESA review process.

“The crop protection industry is committed to preserving and protecting vulnerable living species in and around farmland. Crop protection products help farmers preserve wildlife habitat by allowing them to grow food more efficiently on less land. In addition, pesticide technologies can help protect endangered species by controlling invasive pests that attack them and deplete their food supply. Through the legal use of crop protection products, farmers can decrease land-use and promote the stability of biodiversity.”

CBD already had reached a settlement with FWS requiring consultation on the effects of atrazine and alachlor on the Delta smelt and 2-4,D on the Alameda whipsnake, two California species that have been the subject of high-profile Biological Opinions and lawsuits.

However, CBD and FWS agreed it would be more efficient for the service to consult on the potential effects of atrazine, simazine, propazine, and glyphosate on a nationwide basis. Once the nationwide consultations are completed, the consultation requirements for the smelt and whipsnake will be considered to have been met.

U.S. District Judge Joseph Spero must approve the settlement for the deadlines in it to have any effect. Once he does, however – and there is no reason to believe he would not – FWS will have 30 days to develop a schedule to complete the nationwide consultations.

In separate developments, EPA and FWS also expect to complete nationwide ESA consultations for chlorpyrifos, diazinon, and malathion by Dec. 31, 2017, and for carbaryl and methomyl by Dec. 31, 2018, according to the settlement




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