Endangered Species Act Update: Section 7 Consultations and Next Steps
May 20-21, 2020 Pesticide Program Dialogue Committee Meeting
Interagency Collaboration Formalized in Farm Bill:
• The December 2018 Farm Bill formalized an Interagency Working Group (IWG) comprised of
leadership from EPA, Department of the Interior (DOI), Department of Commerce (DOC), U.S.
Department of Agriculture (USDA), and the Center for Environmental Quality (CEQ). The
working group is charged with reviewing statutory requirements, regulations and case law and
making recommendations to improve scientific and policy approaches to pesticide consultation.
The Farm Bill tasked EPA with leadership responsibilities of the IWG.
• As part of the efforts to improve the pesticide consultation process, EPA developed and released
the Revised Method for Conducting National Level Listed Species Biological Evaluations of
Conventional Pesticides (referred to as the Revised Method) in March 2020. Before the Revised
Method was finalized, EPA incorporated input from a public comment period, formally consulted
with federally recognized Tribes, and collaborated with Fish and Wildlife Service (FWS), the
National Marine Fisheries Service (NMFS), together "the Services", and USDA. The Revised
Method incorporates actual pesticide usage data into the Biological Evaluations (BEs) for the first
time, using reliable and robust data sources that EPA has relied on for 20 years to support human
health risk assessments and certain risk management decisions. The method also incorporates a
probabilistic approach, a weight of evidence framework, and characterization of the strength of the
evidence for Likely to Adversely Affect ("LAA') determinations. Strength of evidence is based on
factors such as confidence in spatial data (including species ranges and footprint of a use pattern),
confidence in usage data, and confidence in toxicity data.
• The Revised Method was used to conduct draft BEs for methomyl and carbaryl, which were also
released in March 2020. The public comment period for these two BEs is open through July 2,
2020 (a 45-day extension was recently granted based on several requests for extensions). Public
comments may be submitted at www.reeulations.gov in docket EPA-HQ-OPP-2020-0090. The
Revised Method, methomyl and carbaryl draft BEs, and the Report to Congress on Improving
Consultation Process Under Endangered Species Act Section 7 for Pesticide Registration and
Registration Review can be found at: https://www.epa.gov/endaneered-species.
• Also pursuant to the 2018 Farm Bill, EPA continues to increase opportunities for meaningful
stakeholder feedback on the working group's activities. Stakeholder feedback is a vital part of
sound regulations, and the agencies are committed to continued outreach to stakeholders. EPA and
the Services have actively sought stakeholder feedback on a number of key activities. For example,
EPA hosted an Environmental Modeling Public Meeting (EMPM) in October 2019 on
"Incorporation of Pesticide Usage Data into Environmental Exposure and Ecological Risk
Assessments." Presenters included federal and state regulatory agencies, mosquito control
authorities, and technical consultants. Topics of the presentations and associated discussions
included how to incorporate usage data into listed species assessments and descriptions of available
usage data and their utility in ecological risk assessments. The EMPM provided a forum for
stakeholders to present scientific and technical feedback on this important data source in ecological
risk assessment methodology.
In March 2020, EPA solicited public comment on the draft methomyl and carbaryl BEs, which
were conducted using the Revised Method for national-level listed species BEs for conventional
pesticides. In April 2020, EPA hosted a public webinar to present the draft BEs for carbaryl and
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methomyl and answer questions from the public, with the goal of improving the overall quality of
comments from stakeholders during the public comment period. After considering comments
received during the public comment period, EPA is planning to issue the final BEs in early 2021
along with a response to the public comment document. EPA will continue to thoroughly consider
feedback received through public comment periods, stakeholder input, and additional interagency
discussion before finalizing these BEs and initiating consultation with the Services.
Biological Evaluation Schedule
• The schedule for upcoming nationwide BEs is in the following table. The schedule for conducting most
of these BEs was negotiated as part of a partial settlement agreement pursuant to a joint stipulation
filed on October 18, 2019, and entered by the court on October 22, 2019, in Center for Biological
Diversity et al. v. EPA et al. Note that both draft and final BE dates are included. Draft BE dates are
milestones, and final BEs are scheduled to be completed approximately 1 year after the drafts are
completed. Final BE dates are to be completed at a date certain under the partial settlement agreement.
The time between draft and final BEs allows for a public comment period to be held and sufficient time
to incorporate public comments.
Current Schedule for Upcoming Draft and Final Biological Evaluations
Pesticide
Draft BE Date
Final BE Date
MethomyP, CarbaryP
March 2020
March 2021
Atrazinea, Simazinea, Propazine,
Glyphosate
September 2020
September 2021
Clothianidin, Thiamethoxam
June 2021
June 2022
Brodifacouma, Bromadiolonea,
Warfarina, Zinc phosphidea
September 2023
September 2024
a. Included in the Center for Biological Diversity et al. v. EPA et al. partial settlement agreement
Ongoing Consultations for Chlorpyrifos. Diazinon. and Malathion:
• On July 19, 2019, EPA re-initiated formal consultation with NMFS on their December 2017 Biological
Opinion (BiOp) on chlorpyrifos, diazinon, and malathion. EPA re-initiated consultation because
additional information became available (e.g., public comments on the BiOp and additional usage
information) that may have revealed that the extent of the effects of the action (i.e., registration review)
may be different than what was previously considered. EPA also provided additional usage data it
believes may be relevant to the consultation. In its transmittal of this information to NMFS, EPA also
referenced usage data and information that had been recently submitted by the registrants of pesticide
products containing chlorpyrifos, malathion, and diazinon. Based on review of information EPA
provided, NMFS determined that it is appropriate to revise the chlorpyrifos, malathion, and diazinon
BiOp. Based on the need to meet other court-ordered deadlines, NMFS will issue revised BiOps for
chlorpyrifos, diazinon, and malathion by June 2022.
• In addition, FWS, EPA, and the applicant for malathion agreed to extend the consultation timeline to
allow for incorporation of usage data into the process into the malathion consultation. FWS is
scheduled to issue its final malathion BiOp in March 2021.
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Additional Work that Benefits Listed Species:
• EPA continues to implement a three-pronged strategy that is intended to protect threatened and
endangered species and designated critical habitat by focusing resources on areas where we can
achieve the most protections as described in the December 2019 report to Congress.1 For new uses on
pesticide tolerant crops, EPA is using methods set out in the Overview Document for endangered
species assessments to make effects determinations. The Overview Document details EPA's general
risk assessment approach for pesticides and its specific application to endangered species. This
approach is being used to address EPA's FIFRA and ESA obligations while EPA continues to develop
and implement methodologies to assess the potential risks of pesticides to listed species and their
designated critical habitat through the interagency pilot process. In addition, through the assessment
processes supporting registration and registration review activities, EPA makes No Effect findings
where appropriate for conventional, biochemical, and antimicrobial pesticides when EPA determines
there are no effects at the taxa level. We also continue to compare potential hazards of new pesticides
to the registered alternatives to allow stakeholders to compare the relative risks of the proposed
registration to available alternatives, which often have the potential to pose greater risks to ESA-listed
species than do the newer, generally lower-risk pesticides being introduced into the marketplace today.
1 https://www.epa.goy/endangered-species/report-congress-improving-consultation-process-under-endangered-species-act
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