U.S. EPA releases draft strategy to better protect endangered species from herbicide use

On July 24, 2023, the U.S. Environmental Protection Agency (EPA) released the draft Herbicide Strategy for public comment, a major milestone in the Agency’s work to protect federally endangered and threatened (listed) species from conventional agricultural herbicides. The Strategy describes proposed early mitigations for more than 900 listed species and designated critical habitats to reduce potential impacts from the agricultural use of these herbicides while helping to ensure the continued availability of these important pesticide tools.

″Ensuring safe use of herbicides is an important part of EPA’s mission to protect the environment,″ said Deputy Assistant Administrator for Pesticide Programs for the Office of Chemical Safety and Pollution Prevention Jake Li. ″This strategy reflects one of our biggest steps to support farmers and other herbicide users with tools for managing weeds, while accelerating EPA’s ability to protect many endangered species that live near agricultural areas.″

The Strategy released is part of EPA’s ongoing efforts to develop a multichemical, multispecies approach to meeting its obligations under the Endangered Species Act (ESA). EPA’s traditional chemical-by-chemical, species-by-species approach to meeting these obligations is slow and costly.  As a result, EPA has completed its ESA obligations for less than 5% of its actions, creating legal vulnerabilities for the Agency, increased litigation, and uncertainty for farmers and other pesticide users about their continued ability to use many pesticides. The Strategy — which is primarily designed to provide early mitigations that minimize impacts to over 900 listed species — is one of EPA’s most significant proposals to help overcome these challenges.

EPA focused the Strategy on agricultural crop uses in the lower 48 states because hundreds of millions of pounds of herbicides (and plant growth regulators) are applied each year, which is substantially more than for non-agricultural uses of herbicides and for other pesticide classes (e.g., insecticides, fungicides). Additionally, hundreds of listed species in the lower 48 states live in habitats adjacent to agricultural areas. The proposed mitigations in the Strategy would address the most common ways that conventional agricultural herbicides impact these listed species.

EPA expects that the Strategy will increase the efficiency of future ESA consultations on herbicides with the U.S. Fish and Wildlife Service (FWS), which has authority over most listed species that could benefit from the proposed mitigations. Under the Strategy, EPA proposes to identify and begin mitigating for potential impacts even before EPA completes ESA consultations. These early mitigations should expedite EPA’s ability to fully comply with the ESA by reducing impacts to listed species before EPA conducts most of its ESA analysis. Adopting mitigations earlier will also allow EPA and FWS to far more efficiently use their resources in ESA consultations.

The Strategy’s proposed mitigations reflect practices that can be readily implemented by growers and identified by pesticide applicators and that provide flexibility for growers to select the mitigations that work best for them. The Strategy also gives credit to landowners who are already implementing certain measures to reduce pesticide runoff. For example, existing vegetated ditches and water retention ponds will qualify for credits that reduce the need for additional mitigation. Similarly, the Strategy would require less mitigation on flat lands, which are less prone to runoff, and in many western states, which typically experience less rain to carry pesticides off fields. The Strategy also describes how the Agency could add other mitigation practices to the menu of mitigation options in the future, particularly to incorporate emerging technology or new information on the effectiveness of specific practices.

Draft Herbicide Framework Document

The draft framework document includes a discussion of both the proposed scope of the Herbicide Strategy and the proposed decision framework to determine the level of mitigation needed for a particular conventional agricultural herbicide. The draft framework document also includes examples of how the proposed herbicide mitigation would apply to some of the herbicides for which EPA has conducted case studies as well as EPA's proposed implementation plan.

The draft herbicide framework and accompanying documents are available in docket EPA-HQ-OPP-2023-0365 for public comment for 60 days.

In its ESA Workplan and ESA Workplan Update, EPA outlined this and other ESA initiatives to develop early mitigations that provide listed species with practical protections from pesticides. The Strategy complements those other initiatives, such as targeted mitigations for listed species particularly vulnerable to pesticides and Interim Ecological Mitigations that EPA has begun incorporating under the Federal Insecticide, Fungicide, and Rodenticide Act. The draft framework describes how EPA would apply the mitigations in the Strategy compared to mitigations in the other initiatives.