On July 25, 2024, the Environmental Protection Agency (“EPA”) released its highly anticipated draft Insecticide Strategy, the latest step in the agency’s effort to revise its approach to reducing pesticide exposure to endangered species. The draft Insecticide Strategy is similar to the draft Herbicide Strategy published by EPA in 2023, with a focus on reducing pesticide spray drift and runoff to better protect species listed as threatened or endangered under the Endangered Species Act (“ESA”) from harmful levels of exposure. EPA began its current effort to reduce pesticide exposure to listed species in 2022 after facing years of litigation over the agency’s struggle to comply with both its ESA responsibilities and its Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) responsibilities. By adopting this new policy, EPA hopes to create stronger pesticide labels while reducing impacts to listed species.
Background
In April 2022, EPA published a work plan titled Balancing Wildlife Protection and Responsible Pesticide Use: How EPA’s Pesticide Program Will Meet its Endangered Species Act Obligations. That work plan, together with an update released the following November, outlined EPA’s plan to begin introducing new mitigation measures to pesticide labels in order to reduce exposure to threatened and endangered species. According to EPA, this new policy approach was necessary to address what the agency described as a “decades-old challenge” of how to satisfy its ESA obligations when taking action under FIFRA.
The ESA is the primary federal wildlife protection law in the United States. It is jointly administered by the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”) which are responsible for identifying species at risk of extinction and then listing those species as either “threatened” or “endangered” under the ESA. However, the Services are not the only federal agencies that have ESA responsibilities. All federal agencies are required to further the purposes and aims by the ESA in part by consulting with the Services any time they carry out an agency action to ensure that the action does not jeopardize the continued existence of any listed species. 16 U.S.C. § 1536(a)(2).
Under the ESA, an agency action is broadly defined as any activity that a federal agency has “authorized, funded, or carried out[.]” 16 U.S.C. § 1536(a)(2). Any time an agency does something that would be considered an agency action, the ESA requires the agency to determine whether its action “may affect” any listed species. 50 C.F.R. § 402.14. If an agency concludes that its action “may affect” any species listed under the ESA, it must then determine whether the action is likely to adversely affect any listed species. If the agency finds that its action is likely to adversely affect listed species, then the ESA requires the agency to reach out to the Services for formal consultation. During formal consultation, the Services will prepare a detailed document known as a Biological Opinion (“BiOp”). 50 C.F.R. § 402.14(e). The overall goal of formal consultation is to ensure that the proposed agency action will not jeopardize the continued existence of a listed species. Therefore, if the Services conclude that the proposed action is likely to jeopardize a species, the BiOp will contain a selection of mitigation measures or alternative proposals that will allow the agency to meet its goals while avoiding jeopardy of a species. Once the BioOp is issued, formal consultation is at an end. The agency has satisfied its ESA responsibilities and may determine how best to proceed. To learn more about ESA consultation, click here to read the NALC’s ESA Manual.
Just as the ESA is the primary federal wildlife statute in the Untied States, FIFRA is the primary federal statute regulating the sale and use of pesticide products. EPA is responsible for administering FIFRA, and in that capacity the agency takes numerous agency actions every year. Under FIFRA, no pesticide product may be legally sold or used in the United States until EPA has registered a label for that product. 7 U.S.C. § 136a(a). To register a pesticide label, EPA is required to determine whether use of the pesticide product according to the proposed label instructions will result in “unreasonable adverse effects to the environment.” 7 U.S.C. § 136a(c)(5)(C). Registering a pesticide label is considered an agency action. Along with registering labels for new pesticide products, FIFRA also requires EPA to review all registered pesticides once every fifteen years. The registration review process can take several years to complete and may involve issuing an interim decision prior to a final decision. Both the interim and final review decisions are considered agency actions. Additionally, EPA may amend an existing pesticide label in a variety of ways such as adding a new use, approving an emergency use, or introducing a new label requirement. Those may be considered agency actions as well. Because any single pesticide may have a wide use area – for example, glyphosate is registered for use through out the United States – ESA consultation on the effect of any one FIFRA action can take months to years to complete.
In the fifty years since the ESA was first adopted, EPA has struggled to fully comply with its consultation responsibilities when taking action under FIFRA. Over the last several years, EPA has faced mounting lawsuits challenging the agency for its failure to fully comply with FIFRA. Most of these lawsuits end in favorable rulings for the plaintiffs because of how strictly courts interpret the ESA’s consultation requirements. According to EPA, completing all the ESA consultations for FIFRA actions that are currently subject to court orders would take the agency at least until the 2040s and would represent only 5% of EPA’s ESA obligations. In an effort to more efficiently meet its ESA obligations and craft stronger pesticide labels, EPA has developed its new ESA-FIFRA policy. The draft Insecticide Strategy is the latest step in that process.
Draft Insecticide Strategy
In its initial workplan, EPA outlined two primary strategies the agency would use to reduce pesticide exposure to listed species. The first strategy involves breaking out registered pesticides into similar groups – herbicides, insecticides, and rodenticides – and then identifying and implementing early ESA mitigation measures for those groups. The second strategy involves identifying threatened and endangered species that are considered highly vulnerable to pesticides and developing mitigation measures to protect those species from pesticide exposure. The draft Insecticide Strategy reflects the first of the two strategies by proposing mitigation measures that would apply specifically to insecticides. Last year’s draft Herbicide Strategy did the same for herbicides, and both draft Strategies share similarities. To learn more about the draft Herbicide Strategy, click here.
The draft Insecticide Strategy proposes additional mitigation measures that will be added to the labels of “conventional insecticides, insect growth regulators, and miticides that are used in agriculture.” Like the draft Herbicide Strategy, the mitigations identified in the draft Insecticide Strategy are focused on reducing pesticide exposure via spray drift and runoff/erosion. According to EPA, the mitigations are intended to address impacts to listed aquatic and terrestrial invertebrates which EPA states are the types of species most heavily impacted by insecticides.
In the draft Insecticide Strategy, EPA outlines a three-step framework the agency will use to determine whether a particular insecticide requires additional mitigations. During step one, EPA will establish what level of potential a particular pesticide has for population-level impacts to listed species. Possible outcomes include “not likely,” “low,” “medium,” or “high.” If an insecticide is found to pose either low, medium, or high levels of possible population-level impacts, then the product will require some degree of additional mitigation. EPA will base that determination on “long standing FIFRA risk assessment approaches EPA uses to identify potential ecological risk to non-target species, with additional considerations to refine the typical FIFRA risk assessment.” Specifically, EPA will consider both the use pattern of a particular pesticide, and how that pesticide behaves in the environment to reach its final determination. Ultimately, mitigation will be lesser when the potential for population impacts is lower, and higher when the potential is higher.
After making its final determination in step one, EPA will proceed to step two. There, EPA will use the potential of population level impacts to identify levels of mitigation needed to reduce spray drift and runoff/erosion. Many of the mitigation measures identified in the draft Insecticide Strategy are similar if not identical to the mitigation measures identified in the draft Herbicide Strategy. To reduce spray drift, EPA is proposing increased spray buffers, with the size of the spray buffer increasing with the level of mitigation required. Insecticides identified in step one as low risk will have smaller spray buffers, while those identified as high risk will have larger buffers. Additionally, EPA has identified mitigation measures that could be used to reduce the required buffer distance, such as use of specific equipment, reduced application rate, and increased droplet size.
For runoff/erosion, EPA has identified a variety of mitigation measures that it has organized into the following categories:
- Application Parameters – methods of application that reduce runoff/erosion such as annual application rate reductions, partial field treatments, and soil incorporation
- Field Characteristics – characteristics that indicate a particular field will have less runoff/erosion, includes fields with a low slope, or fields that have permeable soils
- In-field Mitigation Measures – methods of managing a field such as management of irrigation water, use of cover crops, reduced tillage, and use of mulch
- Adjacent to the Field Mitigation Measures – management techniques used next to a field and down-gradient from where applications occur, including grass waterways, vegetation filter strips, and habitat improvement areas
- Systems that Capture Runoff and Discharge – methods of capturing runoff and erosion through discrete conveyances such as water retention ponds, sediments basins, and catch basins
- Other Mitigation Measures – methods of reducing runoff/erosion that do not fit into any of the above categories
Just as in the draft Herbicide Strategy, the various mitigation measures used to reduce runoff/erosion will be placed into a mitigation menu and each measure will have a point value of either 1, 2, or 3. EPA will identify a mitigation level for individual insecticides (none, low, medium, and high) with up to 9 points of mitigation possible. From there, applicators can choose the mitigation measures that work best for their fields and meet the number of points needed to apply a particular pesticide.
Finally, step three of the framework outlined in the draft Insecticide Strategy requires EPA to determine where in the contiguous United States mitigations will apply. In some circumstances, EPA expects mitigations to be required across an insecticide’s entire use area. In those instances, the mitigation requirements will be included on the insecticide’s general label. However, in other circumstances, EPA expects that mitigation requirements will be geographically limited to protect a specific species. For those instances, EPA will rely on its website Bulletins Live! Two to alert applicators to the specific geographic areas where mitigations will be required. EPA will use labeling language to direct applicators to check Bulletins Live! Two for any active bulletins in the area.
Along with providing the three-step framework EPA will use to assign mitigations to insecticides, the draft Insecticide Strategy provides information on how and when mitigations will begin to appear on insecticide labels. Importantly, EPA notes that the draft Insecticide Strategy is not self-implementing. Instead, mitigations will appear on labels as EPA registers new insecticide products and conducts re-registration reviews of existing products. This indicates both that mitigation measures will not appear suddenly across all insecticide labels at once, and that farmers and applicators will have some warning as to when new language will appear on general labels.
Going Forward
The draft Insecticide Strategy is the most recent step EPA has taken to implement its new policy for balancing the agency’s ESA and FIFRA responsibilities. Like the draft Herbicide Strategy published in 2023, the draft Insecticide Strategy focuses on reducing pesticide spray drift and runoff in order to limit exposure to listed species. The draft Insecticide Strategy is currently open for a 60-day public comment period that will conclude on September 23. Click here to learn more about submitting a comment.
While the draft Insecticide Strategy is the latest action EPA has taken to roll out its new policy, it will not be the last. A final draft of the Herbicide Strategy is expected before the end of 2024, and a final draft of the Insecticide Strategy is expected in 2025. It is currently unclear when new mitigation requirements will begin appearing on pesticide labels.
To read the draft Insecticide Strategy, click here.
To read the text of the ESA, click here.
To read the text of FIFRA, click here.
For more National Agricultural Law Center resources on pesticides, click here.