One June 22, 2023, the Environmental Protection Agency (“EPA”) released a draft white paper for its Vulnerable Species Pilot Project (“VSPP”), a central component of the agency’s new policy approach to meeting its Endangered Species Act (“ESA”) responsibilities when carrying out actions under the Federal Insecticide, Rodenticide, and Fungicide Act (“FIFRA”). While the draft white paper was released earlier this year, the EPA began developing the VSPP in 2021 and announced the program in 2022. The primary purpose of the VSPP is to add new restrictions to pesticide labels in order to limit exposure to species that EPA has found are highly sensitive to pesticides. Although the program has yet to be fully implemented, it is expected that the VSPP will lead to increased restrictions on pesticide applications, and possibly even prohibit applications in some areas all together.
Background
According to the ESA, whenever a federal agency takes an agency action, the agency must consult with either the U.S. Fish and Wildlife Service (“FWS”) or the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”) to ensure that the action will not jeopardize a species listed as threatened or endangered under the ESA. 16 U.S.C. § 1536(a)(2). In this context, an agency action is any activity that a federal agency has “authorized, funded, or carried out[.]” 50 C.F.R. § 402.02. Meanwhile, “jeopardy” refers to an action that is reasonably expected to appreciably reduce the likelihood of the survival of a listed species. 50 C.F.R. § 402.02.
Whenever a federal agency takes an agency action, it must determine whether that action “may affect” a species listed under the ESA. 50 C.F.R. § 402.14. The “may affect” standard is considered a relatively low threshold to clear as it includes any possible impacts the proposed agency action may have on a listed species. If the agency reaches a “may affect” finding, it will then reach out to the Services to determine whether the action is “likely to adversely affect” or “not likely to adversely affect” a listed species. This is considered the first step of the consultation process, often referred to as informal consultation. If the agency reaches a “not likely to adversely affect” finding and the consulting Service agrees, then the consultation process is at an end and the agency may proceed with its action. 50 C.F.R. § 402.14(m)(3). However, if the agency finds that its proposed action is “likely to adversely affect” a listed species, then the agency must initiate formal consultation with the Services. 50 C.F.R. § 402.14. The formal consultation process requires the consulting Service to thoroughly examine the expected impacts the proposed agency action will have on listed species, and culminates in the development of a document known as a Biological Opinion or BiOp. 50 C.F.R. § 402.14(m)(1). Among other things, the BiOp will contain the consulting Service’s determination as to whether the proposed agency action will result in jeopardy to a listed species. 50 C.F.R. § 402.14(h)(1)(iv). If the consulting Service finds that the agency action is likely to result in jeopardy, the BiOp will contain recommended mitigation measures that the agency can adopt to reduce or eliminate the likelihood of jeopardy. 50 C.F.R. § 402.14(h)(2).
EPA is the federal agency responsible for administering FIFRA. In that capacity, EPA takes numerous agency actions every year. Such actions include registering a new pesticide product for use, modifying an already registered pesticide to allow for a new use or new labeling instructions, re-registering a pesticide product, and carrying out pesticide registration review. For each of these activities, FIFRA requires EPA to determine that the action will not cause “unreasonable adverse effects on the environment.” 7 U.S.C. §§ 136a(a), (c)(5)(C), (7)(A). FIFRA defines “unreasonable adverse effects on the environment” as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide[.]” 7 U.S.C. § 136(bb). Unlike the ESA’s “may affect” standard which is a simple yes/no test, the “unreasonable adverse effects” standard is a balancing test that requires EPA to weigh both the costs and benefits of using a pesticide before making a final decision.
While each of the actions EPA takes under FIFRA are recognized as agency actions subject to ESA consultation, until recently EPA has primarily only engaged in ESA consultation when registering new pesticide active ingredients. For all other actions, EPA has relied on FIFRA’s “unreasonable adverse effects” standard. This practice has led to a wave of lawsuits, mostly resulting in wins for environmental plaintiffs. Currently, EPA believes that completing all of the ESA consultations for FIFRA actions that are subject to court ordered deadlines would take the agency until at least the 2040s. In an effort to more efficiently meet its ESA obligations, while also crafting pesticide labels more likely to hold up under judicial review, EPA has developed its new ESA-FIFRA Policy.
Vulnerable Species Pilot Program
EPA’s new policy for satisfying its ESA responsibilities while carrying out agency actions under FIFRA employs two primary strategies. In a work plan published by EPA in April 2022, and a subsequent update published the following November, EPA outlined the two basic approaches the agency would pursue in an attempt to bring existing pesticide labels into ESA compliance. The first strategy involves dividing registered pesticides into similar groups – herbicides, insecticides, and rodenticides – and then identifying and implementing early mitigation measures intended to reduce the impacts those groups of pesticides have on listed species. Currently, EPA is focusing on creating mitigation measures for herbicides. To learn more about this first strategy and what steps EPA has taken so far, click here.
The second strategy EPA has developed as part of its new policy is the VSPP. Under this approach, EPA will identify threatened and endangered species that are considered highly vulnerable to pesticide use, and develop mitigation measures designed specifically to protect those species from pesticide exposure. While the VSPP is still in the process of development, a draft plan issued by EPA earlier this year outlines how the agency intends the program to function.
In the draft plan, EPA identified twenty-seven species that serve as the “initial set” of pilot species addressed by the VSPP. According to EPA, these species are considered particularly sensitive to pesticides due to a combination of factors such as small population sizes, limited geographic ranges, and overall general susceptibility to environmental stressors. EPA claims that these species have a higher likelihood of receiving a “jeopardy” determination in future ESA consultations on FIFRA actions. In effort to reduce the possibility of future jeopardy determinations, EPA intends to use the VSPP to introduce “early” mitigation measures across multiple registered pesticides to protect the pilot species. These mitigations will take the form of additional restrictions on pesticide application.
Under the VSPP, EPA is proposing two broad categories of early mitigation measures – avoidance and minimization. Each mitigation is intended to apply broadly to conventional pesticides that are applied outdoors. As the name suggests, avoidance mitigation would involve prohibiting pesticide applications in certain areas, specifically those areas where one of the pilot species is most likely to occur. To identify these areas, EPA is relying on “species-specific location information,” primarily the species range and habitat description provided by FWS. For areas subject to avoidance mitigations, all pesticide applications would be prohibited unless the applicator coordinated with FWS at least three months prior to the application.
The other category of mitigation measures identified under the VSPP focuses on minimizing pesticide exposure to the twenty-seven pilot species through additional restrictions on pesticide applications that are designed to minimize pesticide spray drift, runoff, and erosion. Spray drift mitigation measures identified in the draft plan include additional buffer requirements, and prohibitions of certain application methods or droplet sizes. Proposed runoff and erosion mitigation measures include prohibitions on applications when the soil is saturated or when rain is in the forecast, and the requirement of certain land use practices designed to reduce both runoff and erosion such as contour farming, cover cropping, or grassed waterways. When any additional land use practices are required, EPA intends to allow farmers and applicators flexibility in choosing which methods to apply, noting that farmers are the most knowledgeable about the characteristics of their fields.
All of the mitigation measures identified under the VSPP, whether avoidance or minimization, will be geographically specific and based on the areas where the pilot species are located. Because of that, EPA intends to incorporate all VSPP mitigation measures into the applicable pesticide labels through bulletins rather than directly into the general label. All such bulletins will be available through EPA’s website Bulletins Live! Two, and any pesticide label that contains a VSPP bulletin will include language directing the applicator to visit the website. Each bulletin will include a description of the relevant mitigation measures and the geographic area where the restrictions apply.
Going Forward
When the draft plan for the VSPP was published in June, a 45-day public comment period was provided. According to EPA, the draft plan received more than 10,000 comments. In November 2023, EPA published a brief update to the VSPP addressing the categories of comments EPA received and outlining modifications EPA plans to make to the VSPP going forward. According to EPA, one of the main themes that emerged in comments on the VSPP draft plan focused on how EPA would identify the geographic areas where VSPP mitigation measures would apply. In response to concerns that EPA would take an overly broad approach, the agency states that it plans to refine the process by which those areas are identified by relying on species habitat maps over habitat descriptions and limiting areas with VSPP restrictions to only include locations that are most important for species conservation. Other modifications EPA intends to make based on the comments it received on the draft plan include clarifying potential exemptions to the VSPP, revisiting how vulnerable species are identified and selected, and developing a consistent approach for the strategies used to reduce pesticide exposure to listed species.
Currently, it is unclear when the VSPP will be fully implemented. In the June draft plan, EPA noted that it would spend the next eighteen months developing mitigation bulletins for the initial set of twenty-seven pilot species and begin posting the bulletins to the Bulletins Live! Two website when they become available. EPA also stated its intention to expand the VSPP to other vulnerable species, although currently the number of species included in the program remains at twenty-seven.
Ultimately, many questions remain as to whether the VSPP satisfies either EPA’s ESA or FIFRA responsibilities. It is unclear whether the early mitigations proposed by the VSPP satisfy the ESA’s consultation requirements, or meet FIFRA’s “unreasonable adverse effects” standards. EPA has stated that it expects to provide further updates to the VSPP by fall 2024. The NALC will continue to follow the VSPP as the program develops.
To read the VSPP draft plan, click here.
To read the VSPP November update, click here.
For more NALC resources on the ESA, click here.
For more NALC resources on pesticides, click here.