United Slates
           Environmental Protection
              Pesticides And
              Tnxic Substances
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


               ON THE


          AS IT RELATES TO


                       .REPORT TO CONGRESS
                              ON THE
                        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

          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


     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

               promote  conservation  of endangered  or threatened

          minimize impacts to persons engaged in agricultural food
          and  fiber  commodity  production  and  other  affected
          pesticide users and applicators.
     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

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

     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.

     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.


     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.

      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.

     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

     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.

      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

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

           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

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.

     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


 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
 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
 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


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


      In contrast to the cluster approach, a species-based approach
 full give priority to those species most in need of protection from
 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
• -»
 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

      In phase  two,  the ~proposed  species-based approach  would be
 applied to all remaining chemicals that may be used or transported


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

     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.

      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

      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.


     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-


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
principle  for all state efforts will be  to  ensure  that EPA
pesticide  registration activities  do  not  adversely  affect the
     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
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


 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,


 EPA hopes to  learn  how to define clearly the types of situations
 £hat may  lend themselves to .such an approach.   In addition, the
 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.
      '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
 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).


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.

      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
 v                                                               ,
 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
"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
 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.

           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.

     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

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.

           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
 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


 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


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.


     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


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.

     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

     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;


           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
 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


 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.

     An essential element  of the  Endangered  Species Protection
 Program is determining the location of listed species at  risk from
•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

 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.

      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

      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


 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.

     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.
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

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.


     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


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


 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.

     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

 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.



      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

 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.
      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


      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


analyses, and other information, the task force will make decisions
on  the  content  of  the  final  program.   Final  implementation
procedures will also  be determined.

    • 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
     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


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

      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

      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.

     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.

  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

       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

     having bulletins available through field offices of the USDA
     extension service and local conservation agencies;

      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.

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.

Attachment 2

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

11.  Prohibit use within a 1/2  mile radius of the species occupied

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.

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

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

18.  Prohibit  use  of  the  chemical   within   3  miles  of  known

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.

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.