SEPA
United Slates
Environmental Protection
Agency
Pesticides And
Tnxic Substances
(H-7502C)
EPA 540-09-91 -120
May 1991
Endangered Species
Protection Program
As It Relates To
Pesticide Regulatory Activities
Report To Congress
Bald Eagle, Animals Aninals/R.F. Head
Printed on Recycled Paper
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REPORT TO CONGRESS
ON THE
ENDANGERED SPECIES PROTECTION PROGRAM
AS IT RELATES TO
PESTICIDE REGULATORY ACTIVITIES
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OFFICE OF PESTICIDE PROGRAMS
.REPORT TO CONGRESS
ON THE
ENDANGERED SPECIES PROTECTION PROGRAM
Table of Contents
1.0 Introduction p. 1
l.l Purpose of the Report p. l
1.2 Legal Authority p. 2
2.0 Background of the Endangered Species Protection . .
PrQcyrajp p. 5
2.1 The Endangered Species Act Consultation
Process p. 5
2.2 Initial Development of the Endangered
Species Protection Program p. 6
3 .o Implementation of ting En.Jg*T»e[gred Species
Protection ProgrfUn P- 11
3.1 Conservation of Endangered or Threatened .
Species p. ll
3.1.1 Species-based Approach p. 13
3.1.2 Generic Labeling and Bulletins ' p. 15
3,1.3 State-initiated Plans and Pilot
Projects P- 17
3.2 Minimization of Impacts p. 22
3.2.1 Threshold Application Rates p. 23
3.2.2 Application Methods and Timing p. 24
3.2.3 Reasonable and Prudent Alternatives p. 25
3.2.4 Public Participation p. 26
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3.2.5 Generic Labeling and Bulletins p. 27
3.2.6 Exemptions p. 28
3.2.7 Economic Impact Analyses p. 29
4.0 -EflflffTigered Species Bffbitat Location Identification
-Maps and Alternatives to Mapping p. 34
4.1 Methods for Developing ^Accurate-Maps p. 34
4.2 Alternatives to Mapping p. 37
5.0 Alternatives to Prohibitions on Pesticide Use p. 40
5.1 Alternative Pesticides p. 40
5.2 Changes in Use of Pesticides p. 41
5.3 Non-Pesticidal Control Methods p. 43
5.4 Programs Available in 1990 Farm Bill p. 43
6.0 Ipipyovgfl Coordination Among USDA. FWS. w*. p. 45
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1.0 INTRODUCTION
l.l Purpose of this Report
On October 7, 1988, Congress passed amendments to the
Endangered Species Act (ESA) of 1973 (16 U.S.C. 1531 et sea.).
Section 1010(c) of the amended act directs the Administrator of
the United States Environmental Protection Agency (EPA) to submit
a report to Congress on the results of joint efforts undertaken by
EPA, the United States Department of Agriculture (USDA) and the
United States Department of the Interior (DOI). As described in
Section 1010(b), these efforts are to identify reasonable and
prudent means to implement an endangered species protection program
as it relates to pesticide regulatory activities. (Hereafter, it
will be referred to as the Endangered Species Protection Program
or the program.) The program would comply with the ESA while
ensuring that the nation's agricultural productive capacity would
not be significantly diminished and allowing continued production
of food, fiber, and forest products. In this program EPA, DOI, and
USDA would work cooperatively to accomplish the following:
1. Analyze means of implementing the Endangered Species
Protection Program or alternatives to such a program that
would:
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promote conservation of endangered or threatened
species;
minimize impacts to persons engaged in agricultural food
and fiber commodity production and other affected
pesticide users and applicators.
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2. Investigate the best available methods to develop maps
as the means of identifying geographic areas where
certain pesticide uses may be restricted;
3. Investigate the best alternatives to mapping;
4. Identify alternatives to prohibitions on pesticides use,
e.g. alternative pesticides and application
rates/methods, other agricultural practices; and
5. Identify methods to improve coordination among EPA, USDA,
and DOI in administration of the program.
1.2 Legal Authority
The Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA), as amended (7 U.S.C. 135 et seg.) governs the regulation
of pesticides in the United States. Under FIFRA, a pesticide
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product may be sold or distributed in the United States only if it
is registered or exempted from registration by EPA. Before a
product can be registered unconditionally, it must be shown that
the pesticide can be used without causing "any unreasonable risk
to man or the environment, taking into account the economic,
social, and environmental costs and benefits of the use of the
pesticide [FIFRA section 2(bb)] when used in accordance with label
directions."
Congress passed the ESA to provide protection for animal and
plant species that are threatened or endangered of becoming extinct
and to conserve the ecosystems upon which they depend. Such
threatened or endangered species are referred to as listed species.
The ESA institutes certain prohibitions against the "taking" of
listed species.
Section 7 of the ESA (15 U.S.C. 1536) requires all Federal
agencies to ensure that any action authorized, funded or carried
out by the agency will not be likely to jeopardize the continued
existence of a listed species or to result in the destruction or
adverse modification of the critical habitat of a listed species.
This duty extends to licensing activities such as the registration
of pesticides by EPA. In other words, EPA in registering
pesticides must ensure that its actions are not likely to harm
listed species.
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The 1988 ESA amendments (Public Law 100-478, Oct. 7, 1988)
directly address EPA and its activities affecting pesticides. The
ESA amendments require that EPA work jointly with USDA and DOI to
identify appropriate alternatives for implementing a program to
protect listed species from pesticides, while allowing agricultural
food and fiber commodity production to continue. The ESA
amendments require EPA to investigate the best available methods
to develop maps, alternatives to mapping, and to identify
alternatives to prohibitions of pesticide use. The ESA amendments
also require EPA to inform and educate fully those engaged in
agricultural production of the elements of any proposed pesticide
labeling program and to provide an opportunity to comment on the
elements of such a program.
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2.0 BACKGROUND OF THE ENDANGER*^ SPF-CIES PROTECTION PROGRAM
2.1 The ESA Consultation Process
The ESA consultation process begins when a Federal agency
makes a determination that its authorized or funded action may
affect a listed species or its critical habitat. As used in this
report, listed species that require consultation include those that
have been proposed for listing in a Federal Register notice. In
the case of registration or reregistration of pesticides, EPA
conducts an assessment of the potential effects of pesticides on
listed species. If a particular pesticide "may affect" a listed
species or its critical habitat, EPA requests a Biological Opinion
from DOI's Fish and Wildlife Service (FWS), the agency responsible
for administration of ESA for most species. FWS develops a
Biological Opinion that indicates whether use of the pesticide in
question is likely to jeopardize the continued existence of a
listed species or destroy or adversely impact a critical habitat.
The Biological Opinion may contain reasonable and prudent
alternatives to pesticide use to avoid the likelihood of jeopardy
as well as measures to reduce the possibility of incidental take
of listed species.
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2.2 Initial Development of the Endangered Species Protection
Program -
Originally, EPA's efforts to protect listed species were based
on consultations conducted on individual pesticide registration
actions as they were submitted to the Agency. This case-by-case
approach was slow and generally did not consider older and often
more toxic pesticides. Since newer pesticides were being reviewed
routinely as part of the registration process, they were more
likely to be referred to the FWS. The result was both inadequate
protection for listed species and potential market inequities among
registrants of different pesticides for the same uses.
In 1981, EPA in cooperation with FWS adopted the "cluster"
approach to requesting consultations. Using that approach, all
pesticides registered for the same use pattern were addressed at
the same time. Each pesticide in a cluster was then evaluated
independently for its toxicity and expected exposure to listed
species. The individual evaluations were grouped together and
Preferred to FWS for consultation as a cluster. This approach
enabled the Agency to accelerate the review of a larger number of
pesticides that could affect listed species, to treat new and old
pesticides consistently, and to eliminate market inequities by
reviewing pesticides with similar uses as one group.
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During the period 1982-85, EPA received Biological Opinions
from FWS on four clusters: rangeland or pastureland, forest-ry,
mosquito larvicides, and eight selected crops. EPA developed an
implementation plan to protect endangered species in 1986 that
would require affected pesticide product labels to instruct users
that they must comply with limitations on use. The label referred
users in certain specified counties to bulletins that detailed use
limitations.
In May 1987, EPA issued Pesticide Registration (PR) Notices
87-4 and 87-5. They required all registrants of pesticide products
identified in the clusters as causing jeopardy to listed species
to modify their product labeling. The purpose of the modification
would be to provide pesticide users with the information necessary
to protect listed species. Labels for forestry and mosquito
larvicide products would provide the user with a FWS telephone
number to obtain further information. Labels for crop and
rangeland/pastureland pesticides would list the counties in which
use limitations applied and would refer users to the bulletin for
the county in which the product was to be used. The bulletins also
would contain a map of the county identifying the area in which
there were pesticide use limitations to protect listed species.
Based on FWS information on the location of listed species, EPA
drafted maps of species locations for use in county bulletins.
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In October 1987, EPA invited states to develop alternative
plans to protect listed species. The state-initiated plans could
Delude changes in pesticide application rates, timing, methods,
or any other measures that would protect listed species. The
measures would be subject to the approval of both EPA and FWS.
State-initiated plans would provide EPA with recommendations to
achieve compliance with the ESA in the state through a program
tailored to local conditions and needs. Further, state-tailored
programs would be expected to reduce the potential adverse impact
on the user community within that state.
It was EPA's intent that the labeling/bulletin requirements
would take effect in the 1988 growing season. It became clear,
however, that implementation of the Endangered Species Protection
Program would be far more complex and time-consuming than
originally anticipated. Public response to the proposed program
indicated concerns such as map inaccuracies, the need for more
public review and comment on the program, and the necessity for
.additional education and training programs. Effective state-
initiated plans would require more time to allow for coordination
and cooperation among several groups. Consequently, in January
1988, EPA announced it was deferring implementation of the
Endangered Species Protection Program and PR Notices 87-4 and
87-5 were rescinded. Deferral of the program was in keeping with
congressional action as well. The 1988 Continuing Appropriations
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Bill temporarily blocked expenditure of funds to implement or
enforce the program as proposed.
Throughout 1988, EPA engaged in a number of activities to
improve the Endangered Species Protection Program. Efforts
included:
soliciting suggestions for revisions to the program from
the public;
conducting a broad public-education effort;
refining the scientific data supporting the program; and
working with involved federal and state agencies.
Through a Federal Register (FR) Notice published in March
1988, EPA reviewed its progress to date and invited public comment
on the proposed program. Public meetings were held around the
country to invite greater public participation in revamping the
Endangered Species Protection Program. Over 600 written comments
along with comments recorded at the public meetings were
instrumental in guiding program development.
On July 3, 1989, EPA published a FR Notice (54 FR 27984)
proposing a revised Endangered Species Protection Program. It
reflects the results of the public consultation efforts as well as
those of EPA, DOT, and USDA in addressing key concerns in program
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implementation. EPA believes the results are a much improved
program offering protection of listed species while avoiding
unnecessary disruption of agricultural or other pesticide uses.
Since the public comment period closed on October 2, 1989, EPA has
been evaluating the comments. They indicate much broader support
for the revised program along with a number of suggestions to
consider when filling in the details of implementation. (See
Attachment 1 for a summary of the comments.) It is anticipated
that the FR Notice describing the final program will be published
in 1991.
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Successful implementation of the Endangered Species Protection
Program is dependent upon achievement of two goals. The first goal
is to promote the conservation of endangered or threatened species.
The second is to minimize impact of the program on persons engaged
in agricultural food and fiber commodity production and other
pesticide users. This section of the report will describe analyses
being .performed by EPA, USDA, and FWS to determine the best means
of implementing the program in a way consistent with the two goals.
A summary of key features will be presented followed by details of
the supporting analysis.
3.1 Conservation of Endangered or Threatened-Species
To provide the best protection for listed species and in
response to public comments, EPA has abandoned the 'cluster1
approach and developed a species-based approach to biological
consultation. EPA will initially focus on the listed species that
are the most vulnerable to pesticide threats and are the subject
of existing Biological Opinions which have declared jeopardy. EPA,
along with FWS, will then identify the counties in which these
species are located and, with the assistance of USDA, determine the
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agricultural crops and other pesticide uses that may occur in the
vicinity of the species. The next step will be to identify the
ipesticides registered for use on these sites and evaluate all of
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their uses to see if any result in a 'may affect* determination.
If after consultation with -FWS,- pesticide products are found to
pose a threat to listed species, registrants will be required, to
provide on the product label a generic statement instructing
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pesticide users to comply with limitations described in a
corresponding bulletin for the county where the pesticide may be
applied. These bulletins will be developed by EPA in consultation
vrth- -FWS, -USDA,- -and the affected state and will tell the reader
what species within the county must be protected and will provide
all applicable use limitations. Bulletins will typically include
county maps showing the location of listed species' habitats within
the county along with the list of pesticides and the use
limitations for each.
States have the option of developing their own recommendations
for listed species protection through state-initiated plans. If
EPA determines that the state proposal provides adequate protection
and is administratively feasible, EPA will incorporate it into the
program in place of ±he federal -approach within -that state. EPA
vill then consult with FWS to determine if the state's
recommendations provide acceptable protection if the state-
initiated plan proposes that EPA take actions different from those
specified in existing FWS biological opinions. Even if a state
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does not develop a plan, it may still make recommendations to EPA
to be incorporated into the federal approach for the state. Such
recommendations would most likely relate to species distribution.
During 1991, voluntary and pilot programs will be implemented.
The enforceable program will be initiated in 1992 and implemented
in 1992-1994. Enforcement of the use limitations imposed for
pesticides included in this program will be carried out under the
misuse and misbranding provisions of FIFRA.
3.1.1 Species-based Approach
EPA believes that the goal of protecting listed species from
pesticides can best be achieved by focusing on the listed species
themselves rather than on a cluster of pesticide use crop/sites.
The main objection to the cluster approach has been called the
'corn/melon inequity'. This inequity occurs when within the same
geographic location, a particular pesticide may continue to be used
on a site not yet evaluated, such as melons. Meanwhile that same
pesticide may not be allowed on a site, such as corn, that has been
evaluated. Thus, a listed species has no protection against uses
of products that have not been evaluated. This could give growers
of some crops an advantage over growers of other crops. Further,
it could also cause some growers to switch to melons, thus negating
protection.
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In contrast to the cluster approach, a species-based approach
full give priority to those species most in need of protection from
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pesticides. This approach was the one favored in most of the
comments on the March 9, 1988, proposal. Because voluntary
protective efforts are essential to the success of any program
designed to protect Irsted 'specres, the -species-based -approach is
therefore likely to gain more acceptance by pesticide users.
EPA is proposing to proceed with the species-based approach
"in -several ^-phases. In each phase EPA would consult with the FWS
-to obtain information on the necessary use limitations to protect
listed species.
First, EPA would re-evaluate all pesticides for which there
are existing biological opinions, and re-initiate consultation with
FWS on those-pesticides when necessary. -Two major consultations
are anticipated. Pesticides that may affect the most vulnerable
species would be re-evaluated first. EPA has existing cluster or
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case-by-case opinions on about 148 chemicals and 250 listed
species. All uses of these pesticides would be considered by EPA,
and FWS would provide opinions -on all listed species that may be
affected.
In phase two, the ~proposed species-based approach would be
applied to all remaining chemicals that may be used or transported
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to outdoor environments. The number of chemicals is changing as
reregistration proceeds and active ingredients drop out of the
process. The evaluation would start with the most vulnerable
species.
In the maintenance phase, new chemicals,- newly listed species,
and hew information -would be processed on a case-by-case basis.
Overall, it is estimated that 400-450 species may be benefitted by
the program.
3.1.2 Generic Labeling and Bulletins
EPA has proposed that the Endangered Species Protection
Program be implemented through pesticide labeling which will refer
users to county-specific bulletins. The label statement will be
generic in that it will not list the counties in which limitations
on pesticide.use apply. Instead, the labels on affected products
will require that users in all counties comply with use
limitations, if any, in the bulletin for the county in which they
intend to use the pesticide. This is a change from the earlier
proposed program wherein labels would list affected counties and
users in those counties would have to obtain a bulletin. In its
July 3, 1989, proposal, EPA highlighted this as an area for
additional public comment.
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It is anticipated that pesticide use limitations to protect.
listed species will affect approximately 1,000 counties or one
third of the total in the United States. For the remaining two
thirds of -the counties, -generic bulletins vi 11 -be prepared and
distributed indicating that registered pesticide uses are
unaffected by the • requirements -of :the Endangered Species Protection
Program.
In affected counties, the bulletins will typically contain a
•^county-map-showing the geographic area associated with each species
of concern. (More information about maps will be 'covered in
Section 4 of this report.) They will identify the pesticides that
may harm these species and describe the use limitations necessary
to protect these species. For those counties in which no
limitations apply, the county bulletin will indicate that use of
"the pesticide according to label directions is appropriate. These
bulletins will also provide general information regarding the
protection of listed species.
Generic labeling reduces the frequency of changing labels as
additions, changes, and -deletions are made -over.time. -Relabeling
a product is expensive for the registrant and it takes
approximately 2 years for a revised label to reach the end-user.
During that relabeling period, protective measures for listed
species would be delayed.
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The burden shifts to EPA to keep bulletins up to date'and
continuously inform users of the existence or lack of use
limitations in a county. EPA intends that bulletins will be
available in advance of the time that pesticide labels are modified
to refer users to the bulletins. If needed, the bulletins will
be updated annually to add or delete limitations or to incorporate
new information received from pesticide users, registrants, and
other interested parties.
A generic labeling and bulletin approach relies heavily on a
successful outreach program to reduce uncertainty or confusion to
pesticide users. EPA will use many available avenues to ensure
wide distribution of and easy access to the county bulletins.
Distribution mechanisms currently exist through training and
certification programs within the states, through USDA, and EPA
regional offices. As the program is fully implemented, other
•avenues will be developed including pesticide dealers and
distributors and FWS regional and field offices.
3.1.3 State-initiated Plans and Pilot Projects
State involvement has been an important aspect of the program
because each state has its own unique situation and concerns
regarding listed species. Some states are developing state-
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initiated plans and are investigating the development of
alternative approaches that would provide protection for listed
|tpecies while still allowing the use of certain pesticides. Others
•are •developing education and training programs specific to the
needs of protecting listed species in their state. Additionally,
state-initiated plans may suggest additional local factors that EPA
can consider in making '»may affect' -determinations. The guiding
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principle for all state efforts will be to ensure that EPA
pesticide registration activities do not adversely affect the
species.
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When state-initiated plans are submitted to EPA for review
and approval, EPA will consult with FWS to determine if the
provisions of the plan will constitute reasonable and prudent
actions to protect listed species within that state. If approved,
EPA would incorporate the state-initiated plan and require through
the bulletins-that users comply .with the requirements of. the plan.
State-initiated plans can be developed for all or a portion of the
species affected in that state. Until the state-initiated plan is
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approved and implemented, however, the federally-initiated
requirements are in effect.
In another aspect of state participation in the development
of the Endangered Species Protection Program, EPA funded several
special projects for 1989 and 1990. Five grants totalling nearly
$530,000 have been funded under the Enforcement Cooperative
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Agreement Program administered through EPA's Office of Compliance
Monitoring. By working .through its regional offices and project
states, EPA is exploring alternative methods to protect listed
species and determine their utility to the federal Endangered
Species Protection • Program. -A summary of -the various—grant
activities follows.
The California Department of rood and Agriculture (CDFA) is
developing a model for gathering local data on listed species and
their habitats. Information to be collected includes local
•••pesticide ruse, terrain, >and climate. Measures will be developed
to mitigate pesticide exposure, and habitat maps will be refined.
Since CDFA's effort will address approximately 45 species, the
information may be useful in other geographic areas where these
species are found. Further, procedures for habitat analysis,
mapping, and information-gathering may be incorporated into the
•final federal-program and shared with other states. Finally,-the
CDFA project includes a small field survey to determine the
adequacy of pesticide labeling precautions to protect listed
species. The information derived from this work will be directly
useful to EPA in evaluating its own labeling approach.
The Minnesota Department of Agriculture project provides an
opportunity to evaluate a unique approach to-protection of listed
species: landowner protection agreements. While there may be few
circumstances where habitat is as narrowly limited as in Minnesota,
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EPA hopes to learn how to define clearly the types of situations
£hat may lend themselves to .such an approach. In addition, the
f,
one-on-one personal contact of the state with landowners provides
opportunities -for-of-feri-ng-education-and ^support and for monitor-ing
good management practices.
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'The Puerto Rico Department of Agriculture project is designed
to obtain pesticide usage and crop data, develop an experimental
design for sampling, to collect and analyze samples, and to draw
"conclusions and-recommendations regarding use-of pesticides. One
species will be chosen as the object of the effort. Again, lessons
learned will be shared with other states and, if appropriate,
incorporated into the final federal program.
The Inter-Tribal Council of Arizona pilot project involves
-development•-of a-model-Endangered Species Protection Plan. Maps
of species habitat, enforcement matrices, and model ordinances will
be developed. Again, the resulting recommendations may be
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applicable in other areas.
The Florida Department of Agriculture and Consumer Services
has undertaken a project to develop advanced pesticide management
techniques through use of a computerized Geographic Information
System (CIS). More information about the project will be detailed
in the section of this report dealing with mapping (Section 4.0).
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The Florida experience will help EPA determine the feasibility of
developing CIS approaches at the -federal level and assess the
technical and resource implications.
There is yet another -aspect of state participation in. the
development of implementation-strategies for the-Endangered Species
Protection Program: Federal Program Pilots. Working through the
EPA regional offices, a group of states has volunteered to pilot
the Federal interim voluntary program within all or part of their
"States. —Por-county/species combinations for which acceptable maps
have been developed, EPA will prepare the interim bulletins, fact
sheets, and other information materials for distribution within the
counties for voluntary use by pesticide users. By actively seeking
user feedback, volunteer states can help EPA evaluate the
usefulness of the bulletins and related information, distribution
methods-, and program impacts. -Between 18 to 25 counties in six
states may participate in the Federal Program Pilots.
In summary, EPA intends to rely heavily on the results of the
variety of State-initiated plans, special pilot projects and
Federal Program Pi-lots to .re£ine~-the Endangered Species Protection
Program implementation strategies; -The results-of these projects,
along with public comments -on the proposed program will identify
the reasonable and prudent means to implement the final program.
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3.2 Minimization of Impacts
'EPA realizes that pesticide users' cooperation, a crucial
factor in the success of the program, may -be best achieved by
minimizing impacts on them. Since deferral of the program in
January 1988, EPA ;has analyzed the extensive public comments.on
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impacts and revised the program accordingly. EPA believes that
reducing the burden on pesticide users can be achieved through the
use of a threshold application rate approach and consideration of
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"different ^exposures resulting from various application methods.
Extensive public participation is encouraged as a means of
gathering the most accurate information about pesticide use and
listed species habitat. While users must comply with the
applicable use limitations, EPA has relaxed the requirement that
users must acquire the bulletin itself in order to be in compliance
vith the -program. --Further, indoor -uses of pesticides are exempt
from the program requirements. Demonstrated public health
emergencies can be accommodated by EPA's emergency exemption
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procedures in concert with FWS. Finally, in conjunction with FWS
and USDA, EPA is conducting economic impact case studies to assess
the costs of the program to users and registrants. Each of these
factors is described in the sub-sections of the report that follow.
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3.2.1 Threshold Application Rates
As one way to minimize impacts on pesticide users, EPA
developed a threshold application rate approach in making its 'may
affect' determinations. First, the highest allowed application
rate is screened to determine if 'may affect' criteria are
exceeded. If they are exceeded, a more thorough evaluation is
conducted to determine the threshold or lowest application rate
that may affect listed species. EPA will indicate threshold rates
only when they are within the range of rates specified on the label
for a particular use. Lower labeled rates are expected to be
efficacious under some circumstances, but they may not be
efficacious for certain soil conditions or geographic areas or for
some pests that are harder to control.
It should be noted that, most commonly, pesticide threats to
listed species will result from acute toxicity -from direct
exposure. lexicological data on surrogate species is analyzed when
'may affect' determinations are made. They also may be made on the
basis of chronic effects on surrogate species as well as effects
on habitat or food supply of listed species. These evaluations
will be based on a threshold application rate where test data on
an appropriate surrogate species provides an actual no-observed-
effect-level or one that can be extrapolated.
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The threshold application rate approach is a change from the
earlier practice of basing 'may affect' determinations only on the
Jiighest registered application rate. Application rates below the
threshold application rate will not be part of the consultation
with FWS.
This approach places the emphasis on reduced application rates
in lieu of complete prohibitions of use. Consultation will be
limited to the specific application rates and uses that may affect
listed species. In this way, EPA will be able to refine the risk
assessment, confine use limitations to where they are really
needed, and simplify the instructions to users. For example, users
would be instructed: do not use pesticide 'X' at an application
rate greater than 1/2 pound per acre in currently occupied habitat.
3.2.2 Application Methods and Timing
When making 'may affect' determinations and to the extent data
are available, EPA will consider other aspects of exposure such as
application methods, timing of application, or changes in
formulation. For example, in certain situations, a granule applied
on the surface of the soil would not be allowed, but a spray or
soil-incorporated granule would .be acceptable. A pesticide
registrant may amend a registration so that the pesticide would no
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longer affect listed species. EPA will review 'may affect1
determinations in light of the requested amendment.
3.2.3 "Reasonable and Prudent Alternatives
As part of the 'may affect* determination process, EPA, USDA,
and FWS are evaluating potential reasonable and prudent actions
that can be proposed to FWS in consultation requests. These are
actions that will reduce the burden on pesticide users while still
providing adequate protection for listed species. In addition, EPA
encourages users, registrants, and others to submit suggestions on
ways to minimize the burdens on pesticide users. Registrants, for
example, may amend a registration so that the pesticide would no
longer affect listed species. Pesticide users may provide
information on specific agricultural practices and pesticide usage
that affords protection of listed species. For example, instead
of a mapping approach, a survey for nesting colonies could be
conducted to identify where use limitations would apply to protect
the red-cockaded woodpecker. This was suggested to EPA by forestry
pesticide users and was accepted by FWS. Submission of data early
in the process will -enhance EPA*s ability to evaluate and, if
appropriate, use the information effectively. More information on
alternatives to pesticide prohibitions will be provided in Section
5 of this report.
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3.2.4 Public Participation
'EPA intends to build the Endangered Species Protection Program
through an open and participatory process that encourages the
involvement of states, counties, the agricultural and forestry
community, registrants, environmental groups, and the many
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individuals and organizations concerned about this issue/ The
revised program proposed in the July 3, 1989 FR notice specifies
several opportunities for public participation throughout the
process. Once EPA has made a 'may affect* determination, the
information will be available to the public. FWS biological
opinions will also be made available to the public. Another
opportunity for state and public participation is provided when
habitat maps are produced. This will be described more fully in
Section 4 of this report. Information from registrants as well as
-the interested public - often those with first hand knowledge of
specific.pesticide use and listed species habitat - will help EPA
tailor the program and minimize the impacts on users.
As noted in Section 2 of this report on the background of the
Endangered -Species-'Protection -Program, public .participation has
been an essential element of the process of revising the program.
Also in keeping with the £SA amendments, public outreach and
education efforts have been undertaken. A newsletter, information
brochures, and species fact sheets are being developed and
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distributed. An extensive mailing list has been built. The goals
are to help the public understand the effects of pesticide use and
the need for endangered species protection efforts.
3.2.5 Generic .Labeling .and Bulletins
As noted earlier in this report, EPA favors the generic
labeling/bulletin approach for a number of reasons. Of course,
some disadvantages have been identified as well and EPA has
•proposed to take the following actions to mitigate them.
First, the generic statement would not require a pesticide
user to obtain a bulletin, but instead would require the user to
comply with the limitations in the bulletin. This modification
would permit pesticide users to determine whether they need to have
the information without going out of their way to locate the
bulletin itself. For instance, a user could place a phone call to
his/her pesticide retailer, local USDA representatives, or EPA to
determine whether limitations apply within the county. EPA is
currently investigating the feasibility of a toll-free telephone
number that users jnay-call for .information.
Second, EPA will -work -witii representatives of the. pesticide
industry during the 1991 Interim Program period to determine an
effective method of distributing bulletins and information about
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which counties are affected and which are not. EPA is conducting
an economic impact analysis comparing generic labeling to county-
specific labeling. The analysis is described in Section 3.2.7 of
this report. If an effective information distribution system
cannot be developed that minimizes the potential burden and
economic impacts on the pesticide users in the many counties in
which limitations x3o-not apply, EPA will seriously reconsider the
option of listing counties on the labels of affected products.
3.2.6 Exemptions
The program proposed in the July 3, 1989, FR Notice provides
for several exemptions. It is proposed that indoor uses of
pesticides be exempt from program requirements.
In the case of a public health emergency where expeditious
control of disease vectors such as mosquitoes and fleas is.
required, a state agency or the U.S. Public Health Service/Centers
for Disease Control may obtain a public health emergency exemption
or may invoke a crisis exemption under Section 18 of FIFRA. EPA
strongly -'encourages public Jiealth ^agencies.-±o .contact FWS as soon
as possible - preferably prior to any problems occurring - to
develop options protective of listed species in the. event an
emergency or crisis exemption is necessary. This will permit a
more rapid emergency consultation to be undertaken with FWS by EPA.
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Federal agencies using pesticides are not exempt from the
program. However, in many cases, such federal agencies consult
directly with FWS on specific programs or operations in a
particular area. Often, 'these consultations ^re -fairly -narrow in
scope or area and, therefore, can be more tailored than EPA's
national prcgraro. In such eacec, the more specific -formal
consultation will take precedence over EPA's program. For example,
the Animal and Plant Health Inspection Service (APHIS) may consult
directly with FWS on a grasshopper control program for a particular
geographic area. APHIS should abide by the results of their
consultation with FWS. Where another federal agency has not
formally consulted with FWS, it must -follow EPA's program.
EPA has proposed deletion of the homeowner exemption that had
previously been proposed. since home owners may .have listed
species on t>r near their property, home and garden uses of
pesticides could affect them.
3.2.7 Economic Impact Analyses
EPA acknowledges that limitations on pesticide use may impose
some burden on registrants -because of relabeling costs and on
pesticide users, particularly where few or no alternative
pesticides or management practices are available. To address those
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concerns, economic impact analyses are being conducted. One deals
with the impacts of the full program. A second one focuses on the
jtssue of generic versus county-specific labeling.
EPA is working with .USDA and ,FWS on an Jjiteragency Impacts
and Alternatives Task Group to conduct economic impact studies of
the Endangered Species Protection Program. The related analyses
are based on case studies in the following areas: specialty crops
in Florida and California, field crops, public health, and
forestry. They are related to the biological opinions and
pestici-de-use limitations available to EPA in 1987. The task group
is joined by the California Department of Food and Agriculture, the
Florida Department of Agriculture and Consumer Services, and
selected pesticide applicators/users.
The task group has gathered relevant data in several counties
in California and Florida. These site-specific data will be used
to determine the potential impacts to growers of fruit and
vegetable specialty crops. In general, the task group will focus
on the extent to which listed species' habitats overlap with areas
used for agricultural production. Once this has been determined,
the impacts of -potential .pesticide use limitations will, be
estimated. Impacts will be expressed in terms of foregone
agricultural productivity and/or increased cost of production.
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The field crop analyses will include estimates of the impacts
on the following: corn, cotton, sorghum, wheat, barley, soybeans,
oats, and rye. The-methodology used to analyze the impacts on
field crops -will be consistent with the analytical methodology
applied to specialty <:rops.
Public health analyses, on the other hand, will focus
primarily on the availability, comparative cost, and efficacy of
alternative, non-jeopardy pesticides. Analysis will be limited to
areas which are most affected by the Endangered Species Protection
Program.
Within the task group, USDA's Forest Service has taken the
lead in providing estimates of potential impacts to forestry.
These estimates will be presented primarily in terms of foregone
timber production. Once again, the task group has narrowed the
focus of the study by-analyzing the impact of use limitations in
certain representative forests.
EPA will consider the economic costs and risk reduction
achieved under three options regarding use limitations. The three
types to be analyzed are:
Outright prohibition of affected pesticides in currently
occupied endangered species habitat and buffer zones;
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Allowing continued use of affected pesticides below
certain threshold rates -of application; and
"Allowing use of affected pesticides vhen species are not
present, i. e., migratory species.
The case studies were chosen because they are representative
V
of potentially affected pesticide use sectors. Specific states or
-forest*, -however, were analyzed based on certain assumptions
regarding use practices and pesticide availability. For example,
EPA expects that these areas represent locations where there is a
relatively high overlap between species* habitats and pesticide
use areas. Minor crops have been chosen for analysis since they
tend to have the least number of effective alternatives available.
•Therefore, the sites/geographic areas tend to represent locations
where the greatest magnitude of economic impacts is anticipated.
EPA is conducting an additional economic impact analysis
comparing generic labeling to county-specific labeling. Under
•generic-labeling, pesticide.users would have to .take-the time to
determine if use limitations -apply in the county in which they plan
to use the pesticide. This factor will be analyzed in terms of the
cost of additional time required to comply with the program. In
contrast, county-specific labeling would impose additional label
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modification costs on pesticide registrants, but may cost the user
less time. The analysis is designed to weigh the increased
opportunity costs of time for generic labeling against the
increased-label modification costs of county-specific labeling.
The potential of both -approaches ~to -disseminate information -to--the
user community and resulting reduction of risk to listed species
will also be considered in the analysis.
EPA anticipates completing the economic impact analyses after
review by USDA and FWS. The results will be considered in
-developing.-the - final program and will enable EPA to estimate the
level of impacts and potential location of affected areas. In
addition, tools to mitigate economic impacts on affected
communities will be identified.
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4.0 . jjMTO^rcERED SPECIES HABITAT LOCATION IDENTIFICATION - MAPS MUD
* ALTERNATIVES TO MAPPING
An essential element of the Endangered Species Protection
Program is determining the location of listed species at risk from
i
•pesticide use and effectively communicating location information
to affected pesticide users. The ability to produce clear,
accurate maps or other methods to communicate location information
is critical to the success of the program. EPA, the FWS, many
State and local government officials, and the interested public
have devoted a great deal of effort and resources to this matter.
This section of the report will first describe the best available
methods to develop maps. This will be followed by descriptions of
the best available alternatives to mapping as the means of
identifying circumstances in which pesticide use may be limited.
4.1 Methods for Developing Accurate Maps
EPA believes that county .bulletins with species location maps
are the best method for communicating with pesticide users about
areas where pesticide use should be limited. EPA has an obligation
to'develop the most accurate-maps and distribute them to affected
users. The basic principle behind accurate mapping is to have
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federal, state and local experts review maps and suggest
improvements. In January 1988, EPA began that process.
As a first step, based on species location information
provided by FWS, ~EPA "prepared -draft maps -of -several hundred
counties in 28 states where listed species have been designated as
jeopardized by pesticide uses. To ensure thorough review by
knowledgeable parties, EPA distributed the draft maps to EPA
regions, USDA Headquarters, FWS Headquarters, and the states.
States were requested to further distribute the draft maps to
state-level pesticide coordinators, agriculture departments, fish
and game departments, and endangered species or heritage programs.
The state-lead agencies were asked to compile the state's comments
on maps and send them to EPA. USDA and FWS also were asked to
provide comments to EPA.
•Comments received on the maps are of two general types. Some
comments are related to style or geographical features and are
incorporated as appropriate and necessary to make the maps more
understandable. Comments also focus on the actual distribution of
species. Where comments identify distributions other than that
•provided by FWS, ;EPA works •with-FWS and the commenters to resolve
conflicts and come to a mutual agreement* After a resolution is
achieved, EPA again revises the maps. Depending on the extent of
the revisions, the maps may be sent out for an additional review.
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The new maps will be incorporated into county bulletins to be
distributed once again to EPA's regions, USDA, FWS, and states and
made available to the public on an on-going basis. The initial
^distribution (1990/1991) will be -to a minimum of 65 counties in
nine states. • EPA will-encourage -the public to^-use the-information
in the bulletins on a voluntary basis and to provide comments to
EPA on improvements on maps or -other aspects of the bulletins -where
appropriate. Using FWS as the final concurrence authority on
location information, EPA will revise maps annually as the need
arises.
Currently, EPA is using computer Aided Design (CAD) technology
to develop maps for inclusion in bulletins. At present, the CAD
techniques allow for greater 'artistic* freedom for development of
map features aimed at the user community. Accuracy in depicting
. species boundaries is pre-eminent in the map production process as
veil as readability and -usability by the average user.
Parties that commented on the initial Endangered Species
Protection Program suggested that EPA explore the use of
computerized Geographic Information Systems (CIS) as a method for
"developing more -accurate "maps. To "that -end., -current maps .are
developed in a way that will permit conversion to a CIS format if
feasible and necessary. EPA is working with the U.S. Geological
Survey and its National Mapping Program. In addition, EPA is
fortunate to have the cooperation of the state of Florida in
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exploring this possibility. The Florida Department of Agricultures
and Consumer Services has undertaken a project to develop advanced
pesticide management -techniques • using CIS. The work is being
performed under the Enforcement Cooperative Agreement Program
referenced in Section 3.1.3 t>f-this-report.
CIS allows many ~distincf data bases to be superimposed and
displayed graphically. It also offers decision-makers an
opportunity to view and evaluate multiple geographic parameters
(soil type, land use, etc.) concurrently. In the Florida project,
CIS will be used for identification and graphic display of
geographic zones where groundwater protection and listed species
protection zones overlap agricultural and other land-use data. It
is also helpful for targeting compliance monitoring and enforcement
efforts. Assuming a successful outcome, EPA will assess the
feasibility of developing CIS approaches at the Federal level and
••incorporating-them into the implemented program.
4.2 Alternatives to mapping
-is not limiting- itself to-anaps as the only way to identify
species location. If • -other descriptive information or other
methods are available, they will be used. The goal is to provide
as much information as possible to affected pesticide users.
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As parties commenting on the initial program pointed out, maps
may not fully portray the habitat of highly mobile species or a
£mique habitat within-a broad -range. In those cases, habitat
Description information will be used in lieu of or as a supplement
to maps. Landmarks such -as streets - and roads as well as
township/range/section names will be used to designate areas where
protective measures are needed.
Another alternative to mapping was explored by EPA during the
initial efforts to protect listed species: instructing pesticide
users to contact regional or field offices of FWS. Using phone
numbers available on county bulletins or in widely distributed
advisories, the pesticide user would call their local FWS office
and describe the pesticide they intend to use and the location
where it would be applied. The FWS staff would advise them if the
product could be used in that location or if protective measures
should be taken. "This -concept was tested on two of the -clusters
of pesticides - mosquito larvicides and forestry uses. While.it
appeared to be convenient for users, it met with only limited
success. FWS did not have sufficient resources to fully
disseminate information on the program to FWS field staff or to
handle'tiie volume of -calls.. .In .the .future, ^however* - uhen. *the
program is fully implemented-and field staff are fully informed of
the features of the program, this may be a practical alternative
for a limited number of species. This may be especially effective
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when revealing location information could result in illegal
collection of the listed species.
•Finally, as another alternative to mapping, the state of
Minnesota-has proposed to develop -and -enter into 'protection
agreements' with landowners. The work is another of the special
project pilots funded under-EPA's Off ice of Compliance Monitoring
Enforcement Cooperative Agreement Program. This technique is
appropriate in limited circumstances: when species are found in
isolated areas mostly on privately owned land with resident owners.
Landowner-protection agreements will be site-specific management
plans. Protection may be afforded by such activities as posting
signs, monitoring listed species population at least annually, and
reporting problems to FWS. A key element of this approach is the
one-on-one personal contact of the state with the landowners and
the resulting opportunities for offering education and support, and
for monitoring •tjood management practices. Through information
gathered under the Minnesota grant, EPA hopes to better define the
types of situations that may lend themselves to landowner
protection agreements within the context of the federal program.
Project completion is scheduled for July, 1991.
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5.0 ALTERNATIVES TO PROHIBITIONS ON PESTICIDE USE
Once EPA and FWS have determined that listed species need to
be protected from certain .pesticide uses in a particular location,
the next step is to determine what alternatives -may exist to
*
prohibition on use. Several approaches can be employed: use of
alternative pesticides, changes in pesticide application rates or
methods, and non-pesticidal pest control methods. In addition, the
1990 Farm Bill provides several programs that address cropland that
overlap with potentially sensitive habitats. A description of each
approach is provided in this section of the report.
5.1 Alternative Pesticides
EPA only refers pesticides for consultation with FWS if they
exceed the 'may affect* criteria for particular groups of species
such as birds, fish, or plants. Those pesticides that do not
exceed the criteria can then be considered as potential
alternatives that may bemused'within the -habitat x>f listed-species.
Some pesticides that may be a hazard to only one group of species
such as birds, may be able to be used as alternatives within the
range of other listed species, such as fish. EPA has developed
a preliminary list of alternative pesticides based on the initial
40
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program. These lists will be supplemented as the program matures.
Information on alternative- pesticides must be further refined by
consulting with USDA and the states to determine their efficacy.
In addition, states will'be instrumental in evaluating location-
specific conditions of pesticide use as well as species
characteristics to-identify efficacious pesticides that do not harm
listed species and their habitats.
5.2 -^Changes- in Use of Pesticides
As a second approach, it may be possible to avoid prohibitions
of use of affected products by modifying the ways in which the
pesticide is used. Within the range of registered uses, changes
in the timing, application method, or using a different formulation
may result in protection of listed species. For example, .switching
from a dust to a granular formulation may reduce exposure caused
by drift. In some cases, timing of the application can be tailored
to when the species is not present or an appropriate crop stage is
reached and the species is not likely to be exposed. Using an
example of a migratory -species, it may be -possible .to use a
pesticide when the species is absent to-avoid -or -^reduce exposure.
When considering crop stage, a pesticide might be used to control
pests prior to emergence of a crop. If an endangered animal feeds
directly on the crop or on insects that feed on the crop, its food
41
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supply may not be affected by the harmful pesticide. Application
rates can be adjusted to label rates below the threshold level that
"triggered-the 'may affect' determination. It is essential that the
information gathered to-support this approach is -very specific to
the affected species, crops, and geographic location. Again, this
is an area where close coordination and cooperation among EPA,
ifSDA, states, and registrants will greatly aid the program.
In the process of developing biological opinions in response
tb EPA»s 'requests for consultation, FWS provides EPA with
reasonable and prudent actions to take to protect listed species.
In the old cluster program, FWS typically specified that, the
pesticides found to jeopardize listed species not be allowed for
use within or adjacent to the species1 habitats. In their most
recent biological opinion, however, FWS has provided EPA with a
-variety of -examples of -reasonable and prudent actions. Some
actions were specific to pesticide types or individual pesticides,
while others applied to particular species. These alternatives
(see Attachment 2) reflect the substantial refinements that have
been made in the program resulting from ongoing discussions among
EPA, FWS, and USDA. , As-more ^pes tic ides -and species are evaluated,
comparable or additional-alternatives will be.compiled.
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5.3 Non-Pesticidal Control Methods
•The 'third approach considers non-pesticidal pest control
methods such as those being -considered under the concept-of -low
input sustainable agriculture or LISA. USDA's assistance in
research, education and outreach on LISA will be invaluable in the
implementation of the program. There are some effective biological
and mechanical controls and there will undoubtedly be more in the
future as a result of research underway within USDA, state
agricultural-experiment stations, and in private industry. While
»
some may be labor intensive, they can result in reduced pesticide
use and related expense and frequently would be necessary only in
small areas. Again, these methods must be carefully tailored to
geographic areas .and agricultural practices. Since the
applicability of these methods cannot be generalized, they will be
developed as species-based consultations are completed and species
location information has been gathered.
5.4 Programs Available in 1990 Farm Bill
The 1990 Farm Bill offers several promising approaches to
endangered species protection in the estimated 500,000 to 600,000
acres of cropland that are located in endangered species habitat.
There are two programs which pay farmers to take land out of
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production in areas where nonpoint sources of pollution have been
documented to pose a significant threat to listed species or the
quality of their habitat. One is the Environmental Easement
Program-which "enables farmers to permanently enroll cropland. -The
other is the Conservation -Reserve •Program which allows for
temporary enrollment. Another possibility is the Wetland
Restoration Program-which vi 11 pay farmers to restore 1,000,000
acres of cropped wetlands. In situations where pesticide use poses
a threat to listed species, these programs could reduce disruption
to agricultural activities. They could also reduce EPA compliance
'costs -provided-habitat do not overlap with high value fruit and
vegetable cropland. In those places, the subsidy payments may not
be high enough to compensate for setting the land aside. EPA, FWS,
and USDA could work closely to determine the habitat locations,
value of the land, the cost-effectiveness of participating in these
programs. Finally, farmers may also participate in the Water
Quality -incentive Program which compensates them for employing best
management practices for reducing pollutant loading in sensitive
areas including endangered species habitat.
All the approaches described in this section of the report
are - greatly-.-dependent -upon --good -research «fforts; -thorough
communication, and willing compliance-by pesticide users. A strong
.cooperative effort between EPA, FWS, USDA, States, users and the
public is essential to discovering practical, innovative approaches
to pest control and protection for endangered species.
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-.6.0 .IMPROVED. COORDINATION AMONG EPAP USDAf AND FWS
The administration of the Endangered Species Protection
Program relies on the expertise of FWS with responsibility for
implementation of the ESA; EPA with responsibility for pesticide
regulation; and USDA with its expertise in agriculture and
knowledge of pesticide users. This section of the report will
describe -efforts., undertaken to improve the coordination and
communication among the three organizations.
In reviewing the history of the Endangered Species Protection
Program, it is apparent that the first attempts to design and
implement the program were not fully successful. Efforts of USDA,
FWS, -and EPA were not well coordinated and public participation
efforts were inadequate. The parties most affected by the
requirements of the program did not fully understand the ESA
largely because it was not adequately communicated.
Since .late 1987, -EPA, FWS, and USDA have been working more
closely on the Endangered Species Protection Program. A
significant change is that EPA has promoted communication between
FWS and USDA. The benefit is that each agency has learned far more
than before about protecting listed species and the practical
45
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realities of field implementation. While serving as a bridge
between USDA and FWS, EPA also gained valuable insights on
implementation responsibilities including improved communication
and 'outreach to pesticide -users in the field. An unexpected
benefit is that the lessons learned can be applied to field
implementation of other EPA pesticide programs directed toward
users -such as groundwater protection-and farm worker safety.
I
The key to improved coordination was formation of an
interagency task force with the following membership: USDA's
deputy ••••assistant- secretary for science and education, USDA's
assistant secretary for natural resources and the environment, the
director of FWS, EPA*s assistant administrator for pesticides and
toxic substances, and the deputy director of the pesticide program
office. Starting with its first meeting in December of 1987, this
high level policy group set the stage for development of the
revised program. First, it formed three interagency staff-level
task groups and assigned them specific responsibilities:
Technical Task Group - to provide the best available technical
information on listed species, effects of pesticides, and
• * "mitigation -practices -and .to—identify .research .needs -.where
current information is insufficient;
Outreach and Education Task Group - to identify educational
needs, develop materials, and deliver them to the field; and
46
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Impact and Alternatives Task Group - to investigate economic
•costs of the program to affected pesticide users and to
-suggest alternative pest control methods.
The policy group provided the early direction to the task
groups on those aspects - of -the program that-warranted further
development or re-evaluation. Based on the results of the task
group efforts, the senior officials reached agreement on the basic
principles for the design of the Endangered Species Protection
^rogpam. ^^^ese-^re reflected in the July 3, 1989, FR Notice that
proposed the revised program.
Initial reaction to the revised program FR Notice could be
viewed as a barometer of the success of EPA, FWS, and USDA in
improved coordination and communication with the public. When
•considering-the-Endangered Species Protection Program, the focus
is no longer whether to implement the program but how. Although
FWS expressed a preference for the cluster-based approach, they
agreed to consult on any reasonable approach including the species-
based approach.
Senior officials from EPA,.FWS, .and USDA remain committed to
full interagency cooperation and communication as they proceed with
implementation over the next several months. Based on staff level
analysis of comments on the July 3, 1989, FR Notice, economic
47
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analyses, and other information, the task force will make decisions
on the content of the final program. Final implementation
procedures will also be determined.
,<
t
• Each agency/department a*i 11.-have-^responsibilities as the .lead
in its specific areas of expertise. The other two
agencies/departments will -.provide -advice and developmental
assistance to the third as well as perform key review functions.
Although. responsibilities will not be detailed until after
decisions are made on the final program features, the key roles
. i
4>e
The FWS will continue its key role in the consultation process
and resulting biological opinions. Because of its expertise on
endangered species, its information is essential in interagency
groups* efforts to rank species. It will lead in the review of
EPArs imay affect* -procedures and will validate models -for
estimating- effects of pesticides on endangered species. It will
also serve as the initiator of map information, a reviewer of state
initiated plans, and as the primary resource on the biology of
listed species.
USDA is "uniquely qualified to-provide-^outreach assistance to
the field and to conduct research on impacts and alternatives.
USDA's excellent network of county-level offices will be invaluable
in distribution of informational materials such as county
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bulletins. They can also help develop efficacy information for
both alternative pesticides and alternative pest control methods.
Another contribution is -research to assess economic impacts and to
encourage mechanisms to mitigate burdens on affected pesticide
users .' A supplemental agreement to the -Memorandum of Understanding
between USDA and EPA vill -ratify the final implementation
decisions.
EPA will continue as the lead agency for the Endangered
Species Protection Program and coordination point for USDA and FWS.
Risk assessments, 'may affect1 determinations and submissions for
consultation, imposition of use limitations on registrants, and
production of maps and county bulletins will continue as key
responsibilities.
It is necessary for EPA to have an Endangered Species
-Protection Program "to-protect -the environment and to comply with
the ESA. EPA's previous attempt to implement a program
demonstrated the need for many organizations to be involved if a
program is to be successful. EPA, USDA, and FWS have benefitted
from coordinated efforts on the program. Each organization has
particular .expertise ..and.-experience .that *must .Jbe considered .and
used by the other- two if --an--adequately-protective, yet not
excessive, program is to be developed. The value of actively
involving the states and the general public cannot be overstated.
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EPA is committed, jointly with FWS and USDA, to developing a
sound, practical program. Communication with the public is a key
V •
feature and one that is essential in promoting the willingness of
pesticide users to cooperate in protecting our nation's valuable
resource of endangered and threatened species.
50
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Attachment 1
Summary of Comments on the July 3, 1989, Federal Register Notice
proposing the revised Endangered Species Protection Program
The revised Endangered Species Protection Program was proposed
in the Federal Register on July 3, 1989. Comments were received
from a vide variety of organizations and individuals. The largest
group of responders (53 comments) came from agricultural and
forestry interests, including professional associations, fanners,
ranchers, fruit and vegetable growers, and forest product
industries, Anothe* 15 eosasenis »5i'c r«caivai from the pesticide
industry; 13 from the environmental community; 28 from state
agencies; 12 from cooperative extension services; and 39 comments
were received from mosquito abatement and vector control
associations.
One endangered species in particular— the fat pocketbook
pearly mussel—was the subject of 37 comments from farmers and
Congressmen from Arkansas and Tennessee, as well as a letter signed
by 216 individuals claiming that use limitations to protect the
mussel would put their farms out of business. The commenters
recommended the use of a particular buffer along the river instead.
General Comments
In general, comments were largely favorable to the new
program. The species-based approach and the use of a threshold
application rate in the "may affect" determination were applauded
by the majority of commenters. Commenters were pleased with EPA's
•» commitment to using scientific methods to determine vulnerability
and impacts as well as to producing more accurate maps.
Some commenters urged EPA to implement integrated pest
management in conjunction with or instead of the use limitations
of this program, and to conduct more extensive research on the
impact of pesticides on endangered species. On the other side,
some commenters urged EPA to impose limitations on pesticide use
unless there was factual evidence that a pesticide has already
endangered a listed species, and to seek means of mitigating
' jscpariy short of prohibiting th; urr rf ~ prcticide altogether.
Numerous commenters called on EPA to provide more detail on
how the program will be implemented, including bulletin
distribution procedures, educational plans, consultations, and the
role of the states and the USDA Extension Service in implementing
the program. Key points of controversy in the proposal remain in
the areas of generic labeling, availability of bulletins, home and
garden products, and public participation . Below is a sampling
of comments on theses topics. Note that the selection of comments
does not imply EPA's endorsement.
-------
Generic Labeling and Bulletins
EPA proposed the use of a generic .label statement on affected
pesticide products. The label would instruct users of the product
>to comply vith any use limitations contained in a bulletin for the
county where the pesticide will be used. The generic product
labels would not, however, specifically list the counties where use
limitations apply. Thus, pesticide users would not be able to tell
from the label if use limitations apply in their county.
Comments by the pesticide industry and numerous organizations
were generally favorable on the use of generic labeling. They
noted that generic labeling would avoid the need for frequent label
changes and delays in providing users with up to date information.
Some industry commenters also pointed out that product labels
already contain so many precautions that basic information on " how
and where to use" the pesticide have had to be removed.
Consequently, they contend that a bulletin, and not the label, is
the appropriate place to present specific information on limiting
risks to endangered species.
Farm organizations, however, warned that generic labeling
would mean the program is not "user friendly* and called for more
detail on how tide bulletins would be made available. Environmental
groups also opposed the use of generic labels, noting that the
basic building block for regulating pesticides rests almost
entirely upon label directions, precautions, and use restrictions.
Therefore, any program that relies on other means of communication
with users could not be expected to be effective.
States were generally mixed in "their assessment of generic
labeling. Some advocated specifying at least the* state, if not
the county, on the label, and pointed out that generic labels will
mean thousands of unnecessary telephone calls and a large resource
burden on state and/or county agencies. Some commenters from state
•agencies and environmental groups worried that the program would
not require users to obtain a county bulletin when purchasing an
affected product and have the bulletin in their possession, thus
failing to send a clear signal that their compliance is required.
A large number of commenters addressed the issue of the timely
availability of bulletins. A variety of suggestions were made on
how to disseminate information to users including the following:
requiring manufacturers to provide the county bulletins
through their distributors;
requiring pesticide dealers to publicly list affected
pesticides;
having bulletins available through field offices of the USDA
extension service and local conservation agencies;
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setting up a national toll-free hotline to provide up-to-date
county information; and
listing the toll-free number on pesticide labels along with
a distinctive logo to attract attention.
Numerous commenters strongly endorsed the idea of having
bulletins given to the purchaser at the time of sale.
Home and Garden Products
Despite the significant differences between agricultural and
commercial pesticide uses and home and garden uses, EPA included
home and garden products in the proposal because of the belief that
there may be some uses that may affect listed species. EPA also
specifically sought comments on how to implement the program with
respect to home and garden products.
Numerous comments were received on this subject as well as on
the issue of including home and garden products at all. Commenters
supporting the inclusion of home and garden products agreed that
relatively few products are likely to be affected by use
restriction, but noted that homeowners often use higher rates of
pesticides per acre. These commenters stated that endangered
species must be protected wherever they occur. Commenters favoring
an exemption noted the large burden that would be placed on
homeowners for relatively little gain and the widespread confusion
thai: fcC--i-"-j k~€suii.. 5£v~val commenters rioted that an exemption for
home products could be devised through the incidental take
provisions of the Endangered Species Act. Others suggested an
exemption below 1 or 5 acres of use or below a certain quantity of
pesticide purchase. Both sides on this issue noted the difficulty
of making information available to homeowners and. enforcing the
program, and the consequent need to make bulletins and information
available through supermarkets, nurseries, lawn care companies,
local television gardening programs, and newspaper garden sections.
Public Participation/Implementation
Another theme raised by a number of commenters' was the need
for additional, specific opportunities for public participation.
Cossisntsrs note* th?t t-~ ^---1- •{«*«««»<-•?.-.- .-575 ^sv.i-at is frequently
avaii^Llc frcs; prc^-Jw usi.'i ;_.;: iai-t^r opjc-rtv..-'vies for making
use of such information should be built into the program. Numerous
commenters insisted that habitat maps should be available for
public review and comment.
Commenters also called on EPA to actively solicit comments
from state governments on consultations. Other commenters
requested that EPA explain how it will evaluate state-initiated
plans to protect endangered species, establish an appeals process
for landowners and users, and provide a timetable for implementing
each phase of the program.
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Public Health Exemption
The proposed public health exemption was supported by the
California Mosquito and Vector Control Association and othe'r
associations around the country who find that the program now gives
due consideration to public health concerns. These commenters
rioted that with population growth and additional species being
added to the endangered list, potential conflicts between vector
control and endangered species can be expected to increase. At the
same time, they noted that in some instances, endangered species
benefit when pesticides are used to control vectors of certain
diseases. For example, in the past, some bald eagles have died of
avian malaria. The associations strongly recommend a greater role
for the Centers for Disease Control and the U.S. Public Health
Service. They were also concerned that once a public health
emergency has been verified, that EPA grant an exemption without
delay, and that FWS not have the power to delay or veto
implementation of the exemption.
A formal summary of all comments received by EPA and a
description of the amended program will be made available by EPA
in the Spring. The public docket of comment is available for
viewing at the Information Services Section, Office of Pesticide
Programs, U.S. EPA, Room 246, 1921 Jefferson Davis Highway,
Arlington, Virginia. Telephone:703-557-2805.
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Attachment 2
REASONABLE AND PRUDENT ALTERNATIVES (RPA)
The following are frequently adopted reasonable and prudent
alternatives, cited by number in the individual pesticide profiles
under the column titled RPA.
1. Prohibit use of the chemical within 20 yards of the water
at sites of known populations or designated critical habitat
for ground applications and 100 yards for aerial applications.
2. Prohibit use of the chemical within 40 yards of the water at
sites of known populations or designated critical habitat for
ground applications and 200 yards for aerial application.
3. Prohibit use of the chemical within 100 yards of the water at
sites of known populations or designated critical habitat for
ground applications and 1/4 mile for aerial applications.
4. Use only granular formulations or soil incorporation.
5. No ultra low volume (ULV) application within 1 mile of
species' occupies habitat.
6. No application within identified aquifer recharge zones for
cave/spring dwelling species.
7. Prohibit use of chemical within 20 yards of all caverns,
sinkholes, and surface waters within the defined recharge
areas of the species' habitat for direct application and 100
yards for aerial application.
8. Extend prohibited use buffer zone upstream 1/2 mile from known
species' populations or designated critical habitat.
9. Extend prohibited use buffer zone upstream 2 miles from known
species' populations designated critical habitat.
10. No direct application of mosquito larvicides to water within
1 mile upstream, 400 yards downstream from species' occupied
habitat.
11. Prohibit use within a 1/2 mile radius of the species occupied
habitat.
12. Develop program {see note for RPM 4} that would include the
species' occupied habitat and designated buffer, if
appropriate, in landowner agreements precluding use of the
chemical. If, after one year of receipt of this opinion, this
necessary protected area is not under agreement, consultation
must be reinitiated.
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13. Adjust maximum application rates to reduce hazard ratios to
below one (1.0), using the appropriate model, for both
freshwater fish and aquatic invertebrates.
14. Prohibit application, by any method, within 100 yards from
the edge of the field being treated, except those borders
contiguous to neighboring fields.
15. Prohibit use of chemical above 5,000 feet elevation vithin
the occupied range of the New Mexican ridged-nosed
rattlesnake.
16. Extend prohibited use buffer zone upstream 5 miles from known
species populations.
17. Prohibit use of the chemical within 100 yards of known
populations for round applications and 1/4 mile for aerial
application.
18. Prohibit use of the chemical within 3 miles of known
populations.
19. Prohibit use of the chemical within all identified wood stork
rookeries, including a buffer extending 8 to 12 miles from the
rookery to encompass essential feeding habitat, as depicted
on the maps supplied.
20. Our biological opinion and reasonable and prudent
alternatives, if any, from our prior opinion is reaffirmed.
Pesticides as indicated are not to be applied within the
occupied range of the listed species.
21. Applicators of the listed forestry use pesticides will be
required to conduct a survey for red-cockaded woodpecker
colonies prior to using these pesticides in forests containing
pine trees over 30 years old. If any colonies are found, use
of the listed pesticides shall be prohibited from the colony
site including a 200 foot buffer around the perimeter of all
woodpecker trees (i.e., start holes, inactive and active
trees). This prohibited zone shall be no less than 10 acres.
Surveys conducted up to five years prior to application will
be acceptable,-except in ..the case of an.apparently abandoned
colony. If survey results indicate an abandoned colony, .a
search shall be conducted that would encompass an area of 1
mile from the abandoned colony.
22. After periods of heavy rains (>10cm) do not apply chemical
with a 100 yard radius of the known breeding sites of the
Puerto Rican crested toad. Restrictions shall remain in place
for 25 days.
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23. Prohibit use of the chemical (as a burrow fumigant) within
gophertortoise habitat in the currently occupied range of the
eastern indigo snake.
24. Prohibit use of the chemical within a 20 mile radius of Laguna
Atascosa National Wildlife Refuge.
25. Prohibit use of the chemical within a 10-mile radius of Laguna
Atascosa National Wildlife Refuge.
26. Prohibit use within the range of the Sacramento Mountains
thistle from May 1 through July 31.
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