On August 20, 2024, the Environmental Protection Agency (“EPA”) released its final Herbicide Strategy. The document, which was released in a draft form and had a period of public comment in 2023, outlines steps EPA plans to take to reduce herbicide exposure for species listed as either threatened or endangered under the Endangered Species Act (“ESA”). The final Herbicide Strategy is the first of several similar policy strategies that EPA is developing as part of an overall effort to reduce pesticide exposure to listed species. While the policy is not self-implementing, growers and pesticide applicators can expect to begin seeing additional application requirements appear on herbicide labels as EPA registers new products and completes registration reviews.
Background
EPA first announced that it was developing a new policy to address pesticide exposure to listed species in 2022 with the release of a work plan in April of that year and its subsequent follow up in November. The policy was, in part, a response to mounting lawsuits challenging EPA for failing to comply with the ESA when taking actions under the Federal, Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). FIFRA is the primary federal law regulating pesticide use in the United States and is implemented by EPA. Under FIFRA, no pesticide may be sold or used in the United States until EPA approves and registers a use label for the product. Once a pesticide label is approved, FIFRA directs EPA to review the label every fifteen years to ensure that the label continues to meet federal requirements.
The ESA is considered the leading federal wildlife protection law in the United States. It is administered jointly 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 to list as either protected or endangered. Once a species is listed under the ESA, it receives certain legal protections that are intended to conserve the species and prevent it from going extinct. While the Services are responsible for administering the bulk of the ESA, the law requires all federal agencies to “conserve” listed species. 16 U.S.C. § 1531(c)(1). To achieve that goal, the ESA requires federal agencies to consult with the Services over the impacts their proposed agency actions will have on listed species. The consultation process is mandatory for any action a federal agency has “authorized, funded, or carried out[.]” 16 U.S.C. § 1536(a)(2). The purpose of ESA consultation is to ensure that no agency action results in the extinction of a listed species.
There are multiple FIFRA actions EPA takes every year that require ESA consultation, including the registration of new pesticide products and registration review of previously approved products. However, EPA has historically struggled to fully comply with the ESA when taking actions under FIFRA. According to EPA, the agency has struggled to complete ESA consultations when registering pesticides or conducting pesticide registration review. There are over 1,700 listed species in the contiguous United States, and tens of thousands of registered pesticide products that are used throughout the country. Completing just one ESA consultation for a FIFRA action can take years.
Because EPA has failed to comply with its ESA responsibilities when registering pesticides, the agency has faced mounting lawsuits filed mostly by environmental groups seeking to compel EPA to complete ESA consultation. Due to how strictly courts tend to interpret the ESA’s consultation requirements, these lawsuits are typically resolved favorably for the plaintiffs, with a judge either ordering EPA to complete ESA consultation or the agency agreeing to a deadline as part of a settlement. Currently, EPA believes that the consultations it is required to conduct as part of a court order will take the agency into the 2030s to complete. In an effort to better protect listed species from pesticide exposure, create pesticide labels that are less likely to be challenged in court, and ensure that future ESA consultations result in fewer pesticide application restrictions, EPA has launched its new policy to introduce mitigation requirements to pesticide labels in order to reduce exposure to listed species.
To carry out its new policy, EPA has sorted all registered pesticides into broad groups – herbicides, insecticides, rodenticides, and fungicides – and has been developing mitigation requirements that can be applied to pesticides that fall into those categories. The mitigation measures are aimed at reducing pesticide exposure to listed species as a result of spray drift and runoff/erosion. In 2023, EPA released its draft Herbicide Strategy. That document detailed a series of mitigation measures that EPA was proposing to reduce spray drift and runoff/erosion from herbicide applications. According to the draft Herbicide Strategy, mitigation measures could apply either to geographically specific areas, or across a pesticide’s entire spatial use pattern. While spray drift mitigations focused on increased buffer zones and increased droplet sizes, mitigations to reduce runoff/erosion were more diverse. Those mitigations were sorted into what EPA described as a “menu” of options that applicators could choose from depending on what worked best for their unique situations. Each mitigation measure on the menu was assigned a point value with the idea that an herbicide label would detail the number of points an applicator needs to achieve prior to making an application. More information on the draft Herbicide Strategy is available here.
A public comment period for the draft Herbicide Strategy was open for sixty days, ending in October 2023. According to EPA, it received thousands of comments, with feedback focusing on a series of concerns from growers including the complexity of the mitigation menu point system and the size of the geographically specific areas where additional mitigations would be required. The final Herbicide Strategy recently released by EPA aims to address those concerns and achieve EPA’s goal of reducing herbicide exposure to listed species.
Final Herbicide Strategy
Like the draft Herbicide Strategy, the finalized document is focused on reducing herbicide exposure to listed species via spray drift and runoff/erosion. Importantly, the final Herbicide Strategy is not an ESA document, but instead is meant to identify proactive mitigations that EPA can use when registering a new herbicide product or conducting registration review actions. The mitigations identified in the Strategy are aimed specifically at protecting plant species listed under the ESA. By protecting listed plants, EPA concludes that any listed animal species which depend on those plants will also be protected.
Like its draft version, the final Herbicide Strategy focuses on mitigations that reduce spray drift and runoff/erosion. However, the final Strategy provides greater detail on how EPA will identify and assign mitigation measures to herbicide products. Specifically, the Strategy outlines a three-step “decision framework” EPA will use to implement the policy.
Under step one of the framework, EPA will establish an herbicide’s potential to have population-level impacts to listed species as either not likely, low, medium, or high. Step one is critical to implementing the rest of the Herbicide Strategy because the amount of mitigation required for each herbicide will correspond to its step one classification. Any herbicide sorted into the low, medium, or high categories is considered to have some amount of population-level impacts to listed species that requires mitigation. To make the classification, EPA will consider the proposed and registered uses of the herbicide, how it behaves in the environment, likely exposures for listed species, and the toxicity of the herbicide to listed species and their habitats.
After completing step one, EPA will move onto step two and determine the levels of mitigation needed to sufficiently reduce spray drift and runoff/erosion exposure to listed species. The classification an herbicide received in step one will be critical to EPA’s implementation of step two. To mitigate herbicide exposure to listed species via spray drift, EPA will largely depend on buffer distances which can range from 10 to 320 feet depending on both an herbicide’s classification and the method of application. In general, the required buffer distance will increase according to the level of impact an herbicide is expected to have on listed species. If an herbicide is classified as having a “low” impact, then the buffer distance will be smaller, and if the herbicide is classified as having a “high” impact, the buffer distance will be larger. Additionally, buffer size will depend on the equipment and style used to apply an herbicide. EPA has identified different buffer distances for aerial applications, broadcast ground applications, and airblast applications.
In a change from the draft Herbicide Strategy, the final Herbicide Strategy offers pesticide applicators options to reduce the required buffer size for an herbicide by adopting additional mitigation measures aimed at reducing spray drift. Those mitigation methods differ according to application method and include using specific application equipment; reducing application rate; using a windbreak, hedgerow, or forested area as a physical barrier; the width of the treated area; and the relative humidity. Each of those mitigation measures are assigned a percentage value by which a buffer distance may be reduced. For example, if an herbicide has a 100-foot buffer requirement, and the applicator chooses to use an additional mitigation method to which EPA has assigned a 20% distance reduction, then the buffer distance for that herbicide would be reduced to 80 feet. According to EPA, this will help to give growers and applicators more flexibility while still achieving the goals of the Herbicide Strategy.
For mitigation measures aimed at reducing runoff/erosion, the final Herbicide Strategy continues to use the mitigation menu and point system introduced in the draft Strategy, but has added more details in order to make the system more user-friendly. Each of the mitigation measures included on the menu are assigned a value of either one, two, or three. High efficacy mitigation measures receive a three, medium efficacy measures receive a two, and low efficacy measures receive a one. Herbicides considered to have a low population-level impact to listed species will require three points of mitigation to reduce runoff risk and two points to reduce erosion risk. Herbicides with a medium impact to listed species will require six points to reduce runoff risk and four to reduce erosion risk. Finally, herbicides with a high impact will require nine points to reduce runoff risk and six to reduce erosion. The mitigation activities included on the menu are diverse and include actions such as reducing annual application rates, applying to fields with a slope less than or equal to 3%, applying to fields with predominantly sandy soils, reduced tillage management, contour farming, planting a cover crop, irrigation management, erosion barriers, and water retention systems.
The Herbicide Strategy also offers growers and applicators options to reduce the number of runoff/erosion points needed to apply a pesticide. First, EPA has identified counties that have low pesticide runoff vulnerability and have assigned those counties points that count towards the number of mitigation points required. Counties with medium runoff vulnerability have two points, counties with low runoff vulnerability have three points, and counties with very low runoff vulnerability have six points. Additionally, growers and applicators that work with a runoff/erosion technical expert that meets certain criteria will receive one mitigation point, while growers and applicators that participate in a voluntary conservation program can receive two points. Lastly, any growers or applicators who track their herbicide mitigations either on paper or in electronic format will receive one mitigation point. All the mitigation measures and their corresponding points will be available in an online mitigation menu that language on herbicide labels will direct users to consult prior to application.
Finally, in step three of the Herbicide Strategy framework, EPA will determine where in the contiguous United States the mitigations identified in step two will apply. In some cases, the mitigations will apply across an herbicide’s entire use area, while in other cases the mitigations will be geographically specific and only apply in certain areas. For the mitigations that apply across an herbicide’s entire use area, EPA expects to include the mitigation requirements directly on the product’s general label. For mitigations that apply only to specific areas, EPA will incorporate the mitigation requirements into an herbicide’s label via its website Bulletins Live! Two. Language on the herbicide’s label will direct applicators to check the website for any active bulletins that include the application area prior to use. A common piece of feedback EPA received on the draft Herbicide Strategy was the size of the areas, known as Pesticide Use Limitation Areas (“PULAs”) covered by mitigation bulletins. Many believed that EPA had been overestimating the size of the PULAs based on inaccurate maps showing the areas where listed species are located. In the final Herbicide Strategy, EPA addressed this concern by noting that while it was working to create more accurate species maps to help the agency refine the size and location of its PULAs, EPA would also be limiting PULAs to extend only 1000 feet from those areas identified as necessary for conservation of a species.
EPA concludes the Herbicide Strategy by outlining further steps the agency will take to increase outreach and education on the Strategy to help agricultural producers and pesticide applicators understand the new requirements. While the Herbicide Strategy is not self-implementing, pesticide users can expect to start seeing additional mitigation requirements appear on herbicide labels as EPA registers new products and completes registration review for previously registered herbicides.
Going Forward
The final Herbicide Strategy is only one component of EPA’s new policy regarding FIFRA and listed species. Earlier in August, EPA released a draft Insecticide Strategy which identifies mitigation measures the agency expects to include on insecticide labels after the Strategy is finalized. That document is open for public comment through September 23. More information on the draft Insecticide Strategy is available here. While it may take some time for these new requirements to begin appearing widely on pesticide labels, applicators should be aware that changes are ahead.
To read the final Herbicide Strategy, click here.
To read the text of FIFRA, click here.
To read the text of the ESA, click here.
For more National Agricultural Law Center resources on pesticides, click here.