U.S. EPA announces Endangered Species Act protection policy for new pesticides

Date:01-18-2022

Reversing decades of practice, the U.S. Environmental Protection Agency (EPA) is taking meaningful action to further the Agency’s compliance with the Endangered Species Act (ESA) when evaluating and registering new pesticide active ingredients (AIs). Effective today, before EPA registers any new conventional AI, the Agency will evaluate the potential effects of the AI on federally threatened or endangered (listed) species, and their designated critical habitats, and initiate ESA consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the Services), as appropriate.

Before today’s announcement, in most cases, EPA did not consistently assess the potential effects of conventional pesticides on listed species when registering new AIs. This resulted in insufficient protections from new AIs for listed species, as well as resource-intensive litigation against EPA for registering new AIs prior to assessing potential effects on listed species. EPA’s new policy should reduce these types of cases against the Agency and improve the legal defensibility of new AIs, which often have lower human health and ecological risks than older pesticides.

"Protecting listed species and their habitats is essential to EPA’s mission to protect human health and the environment,” said Assistant Administrator for the Office of Chemical Safety and Pollution Prevention Michal Freedhoff. “With this policy, EPA is taking a critical step to register new pesticides in a way that prioritizes protections for listed species."

"Incorporating ESA assessments into the registration process for new pesticides is a key component of EPA's larger effort to meet the Agency's ESA obligations efficiently and effectively," said Ya-Wei (Jake) Li, Office of Chemical Safety and Pollution Prevention Deputy Assistant Administrator for Pesticide Programs. “I look forward to seeing the positive impact of this new approach and working on additional improvements that are both beneficial for species and fair to pesticide registrants.”

Under today’s policy, if EPA finds through its analyses that a new conventional pesticide AI is likely to adversely affect listed species or their designated critical habitats, EPA will initiate formal consultation with the Services before granting a new AI registration. As part of its analysis and under its existing authorities, EPA will consider the likelihood that the registration action may jeopardize the continued existence of listed species or adversely modify their designated critical habitat and provide its findings to the Services. To determine or predict the potential effects of a pesticide on these species and habitats, EPA will use appropriate ecological assessment principles and apply what it has learned from past effects determinations and the Services’ biological opinions.

If EPA determines that jeopardy or adverse modification is likely, the Agency will only make a registration decision on the new AI after requiring registrants to implement mitigation measures that EPA determines would likely prevent jeopardy or adverse modification. If EPA finds that a new AI is likely to adversely affect listed species or their critical habitat, but that jeopardy/adverse modification is not likely, it may nonetheless require registrants to include mitigation measures on their registration and product labeling to minimize the effects of incidental take to listed species that could result from use of a pesticide. In both situations, formal consultation with the Services is still necessary. Further, EPA may determine that it is necessary for registrants to incorporate a link to Bulletins Live! Two—an online system that describes use limitations for EPA-registered pesticides by geographic area—into the product’s labeling.

When identifying necessary mitigations to prevent jeopardy/adverse modification, EPA will consider a variety of factors including how species or critical habitats are exposed to a pesticide and what the likely effects of the pesticide exposure will be. Because listed species are often exposed to pesticides on treatment sites or in off-site habitats that receive spray drift and runoff, EPA expects that mitigation measures will often include avoiding or minimizing these exposure routes. Where possible, EPA intends to provide several mitigation options to allow flexibility for growers while ensuring protections for listed species.  

EPA is also continuing to explore applying these new ESA approaches to new biopesticide AIs and new antimicrobial AIs. EPA is currently developing a detailed work plan to outline additional improvements to further the Agency’s compliance with the ESA, including steps to implement protections for high-risk species more efficiently, provide growers with more flexible mitigation measures, and increase stakeholder engagement.

To learn more about EPA’s Endangered Species Act Protection Policy for New Pesticides, read the Q&A document.