Friday, June 2, 2023

The Endangered Species Act

Understanding the ramifications on pesticides across the country

⋅ BY CASSIDY NEMEC ⋅
EDITOR

Figuring out how the Endangered Species Act affects the agricultural industry can be both complex and frustrating. The ESA of 1973 was enacted by Congress under President Nixon and has since drawn much attention to species across the U.S. that had/have the potential to be threatened or completely wiped from the map.

In recent years especially, it has become increasingly critical for growers, crop advisors, Extension, and a plethora of others throughout the agricultural industry to not just be aware of the ramifications from the ESA on their operations, but also be more and more involved.

FWS has jurisdiction

It is to be noted that the U.S. Fish and Wildlife Services federal agency (or the National Marine Fisheries Service in cases of aquatic species) has jurisdiction over the ESA. According to the FWS website, the act itself “establishes protections for fish, wildlife, and plants that are listed as threatened or endangered species, and for preparing and implementing plans for their recovery.” 

Species become listed one of two ways. The FWS may propose species, or any citizen can petition for it. The citizen petition route is the most common way for this to happen, due in part to the FWS having an extreme backlog of requests it must funnel through keeping the agency busy.

The FWS agency involves themselves in the candidate conservation, listing and classification, and recovery processes as they relate to ESA. Their website also mentions the provision “for interagency cooperation to avoid take of listed species and for issuing permits for otherwise prohibited activities.” This brings up two concepts: interagency cooperation should be taking place, and “take” can be broadly defined.

The Ag Law in the Field podcast is hosted by Texas A&M Agri–Life Extension ag law specialist Tiffany Lashmet. She recently sat down with Jonathan Wood, a lawyer by training who is now the vice president of law and policy at the Property Environment Research Center. He has been working with ESA for years now and discussed how “take” is defined in relation to the act.

Breaking down the “legalese” • FWS/NMFS has jurisdiction over ESA. • EPA has authority over FIFRA. • ESA focuses on continued existence of listed species and prohibits “taking” of them. • FIFRA deals with sale, distribution, and use of pesticides. • Ideally, FWS and EPA work together to comply with ESA. • Both FWS and EPA have been backlogged for a long time. • EPA has released a workplan and updated workplan in 2022. • Taking Action/What You Can Do: COMMENT, COMMENT, COMMENT! Stay aware of public notice and comment periods. Comments are to be submitted on EPA’s website when the comment period opens.

“Essentially, it’s any private activity that harms a listed species and, to some extent, also its habitat. The FWS may also issue regulations extending that prohibition to threatened species,” Wood said. He followed up by saying this is applied for both endangered (listed) and threatened species in terms of critical habitat and conservation, but the ESA only applies the “take” definition to endangered species for private land use.

Reemphasizing what he terms the “teeth of the law,” Wood further explained just what the “take” definition can encompass.

“Most people think it means you’re intentionally taking or harming, but the FWS interprets it far more broadly. If you harm a species, even unintentionally, if you disturb a species, if you modify its habitat in a way that may, in the future, restrict its ability to find food or to breed and reproduce — all of those things could violate the “take” prohibition, which, depending on the species and use of the land, can make continued use of that property really complicated.”

Wood confirmed that FWS can also regulate all other agencies and their respective activities that could have any effect on species.

In the podcast, Wood mentioned that FWS is currently facing a 10-year backlog of citizen requests, including those requests made mainly by about three major environmental litigation groups.

FIFRA, the Endangered Species Protection Program, and Bulletins Live! Two

In 1947, the Federal Insecticide, Fungicide, and Rodenticide Act was enacted with the original intent of establishing measures regarding the registering of pesticides used in interstate commerce with USDA as well as labeling provisions. The act was later expanded due to concerns over pesticides’ toxic effects and residues and now involves everything dealing with the “sale, distribution, and use of pesticides,” according to EPA’s website.

Information related to geographic pesticide use limitations is included in Endangered Species Protection Bulletins, which can be obtained through EPA’s website.

So where does FIFRA intersect with the ESA?

Wood said the ESA, while historically focused on more charismatic species like wolves in the Western U.S., has gone nationwide in the last 20 years with more types of species being added to the list that are more vulnerable to pesticide use.

“Increasingly, the ESA is requiring EPA when it’s approving pesticides to set species-protective limits on how they’re used,” he said. “With every additional species you add to that process, with every different pesticide or application you’re adding, you just add to the complexity.”

Registering and reregistering pesticides takes time, and EPA has a similar backlog to FWS in their listing petitions and permitting process. They are supposed to be evaluating every product and how they may impact species, which is both challenging due to lack of data and time consuming with their ongoing list of what they should be accomplishing. In working to comply with ESA and FIFRA’s regulations, EPA has implemented the Endangered Species Protection Program to help with this large task at hand.

Within the past two years, EPA has been having regular ESA-FIFRA meetings to work toward addressing what steps to take moving forward. They produced their first workplan in 2022 and an update to that plan in November 2022. The update includes regulation review efforts and other initiatives, which include many mitigation strategies for both agricultural and nonagricultural use.

Information related to geographic pesticide use limitations is included in Endangered Species Protection Bulletins, which can be obtained through EPA’s website. As stated there, “Bulletins set forth geographically specific pesticide use limitations for the protection of threatened and endangered (listed) species and their designated critical habitat.”

Bulletins Live! Two is the application system where these bulletins are housed. This is where a pesticide label comes into play. When reviewing a label that directs you to the website, it will then instruct you on the pesticide use limitations for the applicable area, or PULAs. The applicator is required to follow these for the intended area, product, and application month.

Bulletins are good for six months from the time they are created and protect the pesticide applicator for that entire length of time, even if additional measures arise that did not exist at the time of printing that bulletin. If no PULAs are listed, it is important to still print the documentation saying there are no bulletins for that area in order to still cover the applicator.

Information on how to find the EPA registration number needed to search for a product in the Bulletins Live! Two application, along with a tutorial on the system as a whole, is available at https://www.epa.gov/endangered-species/endangered-species-protection-bulletins. 

Impact on rice

While most pesticides, mostly herbicides, affected thus far have been impacting cotton, there are several concerns coming down the pipeline in terms of rice.

Drs. Thomas Butts and Jarrod Hardke, University of Arkansas weed specialist and rice specialist, respectively, spoke on how the ESA is currently impacting agriculture and what it looks like for rice down the road.

Butts commented that the process looks different for every product, state, and active ingredient. “Moving forward, it’s going to be that we either have more regulations and paperwork to do in order to make legal applications — or we’re just going to outright lose options.”

He remarked on how challenging the framework of the ESA is. “On the website, it’s listed as ‘present or believed to be present,’ so we don’t even have the data to know whether they’re there or not. There’s a lot of missing information in all of this, and it’s an impossible task for applicators, the EPA, and the FWS alike.”

The new 2,4-D (Enlist) and dicamba (Engenia, XtendiMax, and Tavium) formulations registered for use over-the-top of resistant crops have been the big players recently as far as reregistration goes in accordance with the new ESA measures. The next ones up to the plate are atrazine, fluometuron, and diuron, which are more residual, soil, and water based. Others up for bid next are paraquat, glyphosate, and metribuzin.

While not herbicides that come to mind for rice, Butts said paraquat and glyphosate are known to be used for burndown prior to their rice crop, and Hardke reiterated the role of starting clean for rice being key.

Butts reflected on how the regulation process used to look more like a risk-benefit analysis but now is strictly a risk assessment with no benefits factored in. He noted the lack of warning given in the cases of pulled products, providing the example of when Arkansas lost the ability to use Enlist in 11 counties last year.

“What was really scary for a lot of us is that none of us knew that was coming. It was just kind of a memo slid across a desk one afternoon, and all of a sudden, we didn’t have those products in those counties anymore.”

He said they currently do not have any sort of consistency with these regulations nor the capability to know how to better prepare — or prepare at all — for when they do come along. Butts commented that better direction moving forward would help at least in the sense that they could figure out what they could do to get a better handle on circumstances before they occur and plan for the future.

One concern about potential regulations on already scrutinized rice herbicides down the road is the impact they would have on aerial applications.

In attempting to comply with the runoff mitigation measures brought up, Butts discussed how many of the measures do not work for the Mid-South region and that they will be difficult to follow since they’re not driven for that area. “If you look at the proposed picklist of mitigation strategies, at all, it does not fit Mid-South growers because it’s very much geared toward crops grown on a slope, and about 75%-85% of our arable land in Arkansas is on a 0% to 3% slope. That picklist gets very limited in a hurry for our growers down here.”

He (Butts) said another consideration for the future of rice, in addition to rice herbicides already being so limited and under scrutiny due to the water aspect, is the impact these regulations could have on aerial applications. Given some of his recent survey results that around 50% of their applications go out by air, he said it could be detrimental if those products begin getting further limited or banned. 

Making comments to make a difference

“Getting those opinions and voices out there and having EPA hear them directly from growers and consultants goes a lot further than the mass emails or comments they get that’s just a template or form signed by a different name,” Butts said.
Niall Wiggan
Dreamstime.com

To make a difference, EPA is encouraging those in agriculture to make comments during the comment periods that come up during the lengthy registration and reregistration processes that will inevitably be ongoing for the foreseeable future.

Butts said he has been making a big push for people to pay attention to when the comment periods open to go and submit comments.

“That’s the only way we’re going to get our voices heard. Something like ‘aerial applications are super important for us in the Mid-South, or we’re already limited with herbicides in rice and can’t lose more options.’ That’s an opportunity where EPA can hear directly from growers about our practices. Getting those opinions and voices out there and having EPA hear them directly from growers and consultants goes a lot further than the mass emails or comments they get that’s just a template or form signed by a different name.” 

The Endangered Species Act turns 50 years old this year and is a complex issue for agriculture today. It will continue to become more of an important concept in the industry. This article is not all-encompassing. For more information on EPA, FWS, or any of the discussed Acts or programs, visit www.fws.gov/ or www.epa.gov/. 

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