9.12 FIFRA and Endangered Species Act

NASDA believes that rulemaking should be conducted by the Environmental Protection Agency (EPA) to address the issue of the inter-relationship of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA). The proposed rulemaking will ensure that implementation of FIFRA is in compliance with the requirements of section 7(a)2 of the Endangered Species Act (ESA). Those requirements pertain to evaluation of and possible consultation regarding the effects of agency actions on endangered or threatened species. Rules should be developed with the Secretaries of Agriculture, Commerce, and the Interior, all of whom have responsibilities that will be impacted by these regulations. NASDA recommends that these three Departments be involved in product registration review to facilitate the consultation process as necessary and to minimize the potential of legal actions after registration. Encourage the development of "Bulletins Live" and bulletins for pesticide users. Additional funding to states for education and enforcement is critical for the implementation of the ESA pesticides program.

The Endangered Species Act Amendments of 1988 directed EPA to develop a final FIFRA Endangered Species Protection Program. The program was also intended to ensure that growers could "continue production of agricultural food and fiber commodities." EPA published an interim program in 1989, but has never established a final program. This situation has left registrants of and agricultural producers who use pesticide products vulnerable to allegations that they are in violation of the ESA, thus triggering its considerable civil and criminal penalty provisions. A number of lawsuits have been filed or noticed for filing, which implicate the entire FIFRA program and all domestic species listed as endangered or threatened under the ESA. No interest is served by the present situation. Endangered and threatened species may not enjoy the full protections promised by the ESA. Producers and applicators of pesticide products have no security that those products can continue to be purchased and used in any situation where endangered and threatened species are implicated. Rulemaking would provide certainty to registrants, applicators, producers, and the general public regarding the inter-relationship of the FIFRA and ESA programs.

Progress toward implementing the ESA remains slow and implementation through label amendments referencing state specific restrictions will require state involvement. EPA should involve states early in the process to see if mitigation practices provide practical relief to endangered species rather than use prohibitions. In addition, states will need time and resources to review use restrictions and endangered species habitat locations, and correlate with pesticide use patterns.