On September 25, 2024, the Environmental Protection Agency (“EPA”) released its Vulnerable Species Action Plan (“VSAP”), the finalized version of its Vulnerable Species Pilot Program that was launched in 2023. The VSAP is part of EPA’s new policy to address pesticide impacts to species listed as threatened or endangered under the Endangered Species Act (“ESA”). Along with the finalized Herbicide Strategy and recently released draft Insecticide Strategy, the VSAP will introduce new application restrictions to pesticide labels to reduce exposure to ESA listed species. While the Herbicide Strategy and draft Insecticide Strategy target entire groups of pesticides – herbicides and insecticides, respectively – the VSAP focuses on identifying species that are considered particularly vulnerable to pesticides and introducing new mitigation measures to pesticide labels in order to reduce exposure to those specific species.
Background
EPA’s new policy to better address pesticide exposure to listed species was initially announced in 2022 with the publication of a work plan in April of that year, and an update to that plan released the following November. The work plan and its follow-up were, in part, a response to mounting lawsuits filed against EPA by environmental groups challenging the agency’s failure to fully meet its ESA responsibilities when taking action under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).
Under the ESA, whenever a federal agency takes an “agency action,” which includes any activity the agency authorizes, funds, or carries out, the agency must consult with either the federal Fish and Wildlife Service (“FWS”) or the National Marine Fisheries Service to ensure that the action will not jeopardize the continued existence of any threatened or endangered species. FIFRA is the primary federal statute regulating pesticide use in the United States. No pesticide product may be legally sold or used in the United States until EPA has registered a label for it under FIFRA. EPA takes numerous FIFRA actions every year, including registering new pesticide products, and registration review of previously registered products. Historically, EPA has struggled to fully comply with its ESA consultation responsibilities when carrying out actions under FIFRA. The 2022 work plan is an effort by EPA to better satisfy those responsibilities.
As part of its work plan, EPA launched the Vulnerable Species Pilot Program (“VSPP”) in 2022. Under that program, EPA identified 27 listed species that the agency considered particularly vulnerable to pesticide exposure. Through the VSPP, EPA worked to develop mitigation measures that would be introduced to pesticide labels to reduce pesticide exposure to those vulnerable species. To learn more about the VSPP, click here. After a period of public comment and further development of the program, EPA has released its finalized VSAP which provides the agency with a framework to address pesticide impacts to vulnerable species.
Finalized Vulnerable Species Action Plan
According to EPA, the VSAP lays out the groundwork for the agency to use to adopt “early, meaningful protections to address potential population-level impacts” for listed species that EPA identifies as “particularly ‘vulnerable’ to pesticides.” Much like the final Herbicide Strategy and draft Insecticide Strategy, the VSAP outlines a three-step framework that EPA will use to address pesticide impacts to vulnerable species. Under Step 1, EPA will identify the potential of a particular pesticide to cause population-level impacts to any vulnerable species; in Step 2, EPA will identify the type and level of mitigation needed; and in Step 3, EPA will determine where geographically the mitigation applies. Importantly, EPA has clarified that the VSAP will not be self-implementing. Instead, EPA will apply the VSAP framework as it approves labels for new pesticide products and carries out registration review of existing pesticide labels.
Before providing detail on the three-step framework, the VSAP clarifies what EPA defines as a vulnerable species. According to the text of the VSAP, EPA defines a vulnerable species as “a listed species that is particularly vulnerable to pesticides due to a combination of factors including a declining population trend, a small number of individuals or small number of populations […], limited distribution […], and occurrence in areas that may be exposed to pesticides.” The VSAP also notes that EPA will add include a new species in the program if “potential pesticide impacts to a small number or group of individuals may have population level impacts to the species.” In other words, a vulnerable species is one that has either a small population or limited distribution range where impacts to a small number of individuals can be felt across the entire population. Currently, there are 27 species that EPA has identified as vulnerable species, and the agency has stated that it will continue to evaluate other listed species to see if they should be included in the VSAP.
Under the first step of the VSAP framework, EPA will identify whether a particular pesticide is likely to have population level impacts to a vulnerable species. This step is triggered when EPA determines that a pesticide demonstrates risk to a taxon or group of species that includes a vulnerable species. For example, if a pesticide has shown that it poses a particular risk to invertebrates, EPA will do further analysis to determine whether the pesticide could cause population level impacts to any of the invertebrates included on the list of vulnerable species. To make that analysis, EPA will consider things like a pesticide’s use pattern and how it behaves in the environment to estimate levels of exposure in aquatic, wetland, and terrestrial environments. From there, EPA will determine population level impacts to vulnerable species by comparing exposure estimates to data showing how much exposure will cause direct impacts to vulnerable species and impacts to species that the vulnerable species relies on for food, shelter, and reproduction. EPA will use that information to designate a pesticide as having “not likely,” “low,” “medium,” or “high” potential for population level impacts. The higher the likelihood of population level impacts, the more mitigation will be required.
Step 2 of the VSAP directs EPA to identify what mitigations should be added to a pesticide’s label to reduce pesticide exposure to listed species in order to avoid population level impacts. The mitigation measures identified in the VSAP are primarily aimed at reducing pesticide exposure via spray drift and runoff/erosion and are largely identical to the mitigation measures outlined in the Herbicide Strategy and draft Insecticide Strategy. To reduce exposure from spray drift, EPA will typically apply a buffer the distance of which will increase depending on the level of population level impacts identified in Step 1. Similar to the Herbicide and draft Insecticide Strategies, EPA may also identify other mitigations measures that applicators may use to help reduce buffer distances such as the use of specific equipment or application rate; the use of a windbreak, hedgerow or forested area as a physical barrier; or the relative humidity during application. To reduce exposure to vulnerable species from runoff or erosion, EPA will determine a level of mitigation points that applicators must reach in order to apply the pesticide. This is identical to the point system described in the Herbicide Strategy. Three points of mitigation will required for pesticides expected to have low impacts, six will be required for medium impacts, and nine will be required for high impacts. Different mitigation measures will be assigned a certain number of points, and applicators will have flexibility to determine which measures are best for their situation.
Finally, in Step 3 of the VSAP, EPA will determine where in the contiguous United States to apply mitigations for vulnerable species. Mitigations identified under the VSAP will be limited to specific geographic areas known as Pesticide Use Limitation Areas (“PULAs”). These PULAs will be posted to EPA’s website, Bulletins Live! Two. If EPA has added VSAP mitigations to a pesticide label, language on the label will direct applicators to check Bulletins Live! Two prior to application to see whether there is an active PULA in their area. According to the VSAP, when considering where to apply mitigations, EPA will estimate the overlap between the location of a VSAP species and the potential use site of a pesticide. If the overlap is less than 1%, then no mitigation will be required. However, if the overlap is 1% or more, then EPA will require mitigation. Because Step 3 relies on knowing where vulnerable species are located, EPA has worked to refine the maps identify species location. EPA has stated that it will continue to refine those maps as part of VSAP implementation.
Overall, EPA notes that the primary purpose of the VSAP is to ensure that the agency considers impacts to vulnerable species beyond what is considered in the Herbicide and draft Insecticide Strategies. For example, under the Herbicide Strategy, EPA will focus on mitigating the direct impacts an herbicide may have to ESA listed plant species even though a particular herbicide may also have direct impacts to a listed bird species as well. The purpose of the VSAP is to help fill in those gaps.
Going Forward
Like the final Herbicide Strategy, EPA will begin to implement the VSAP as it registers new product labels and conducts registration review of existing pesticide products. The agency will use the three-step framework to determine whether and what mitigation measures are required to prevent population level impacts to vulnerable species. While there are currently only 27 species included as part of the VSAP, EPA has stated that it will continue working with FWS to determine whether other listed species should be included. Pesticide applicators should be aware that VSAP mitigations will begin appearing on product labels and check Bulletins Live! Two for active PULAs when directed to by label language.
To read the text of the VSAP, 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 information on pesticides, click here.