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Apr
20

CRE Comments at Inter-Agency ESA Pesticides Workshop

On April 15, 2015, the U.S. Fish and Wildlife Service, Environmental Protection Agency, and National Marine Fisheries Service jointly conducted a workshop on “Assessing Risks to Endangered and Threatened Species from Pesticides – 4th Interagency Workshop on Joint Interim Approaches to NAS [National Academy of Sciences] Recommendations.”
The Government website on this workshop is available here . According to this website:

“The workshop is an opportunity for stakeholders and agencies to continue their dialogue on the technical aspects of further developing interim scientific methods that were issued in November 2013.”

Center for Regulatory Effectiveness representatives made the following comments at this workshop.

First, CRE noted that the NAS Report being implemented by the Workshop discussed Information Quality Act Guideline requirements at page 41, where it explains that “all federal agencies are expected to comply with the Office of Management and Budget (OMB) guidelines on objectivity, utility, and integrity of disseminated information”:

“OMB (67 Fed. Reg. 8452 [2002]) describes those attributes as follows: ‘Objectivity’ focuses on the extent to which information is presented in an accurate, clear, complete and unbiased manner; and, as a matter of substance, the extent to which the information is accurate, reliable and unbiased. ‘Utility’ refers to the usefulness of the information to the intended users. ‘Integrity’ refers to security, such as the protection of information from unauthorized access or revision, to ensure the information is not compromised through corruption or falsification. The Services and EPA (EPA 2002; FWS 2007) have separately published information quality guidelines (IQGs) that follow closely the government-wide OMB guidelines. Similar basic principles for achieving a scientifically credible assessment are prescribed in the IQGs from the agencies; the agencies are committed to ensuring the quality of evaluations and the transparency of information from external sources used in their disseminated assessments and actions (EPA 2003; NMFS 2005). They also recognize that a high level of transparency and scrutiny is needed for influential information that is expected to have a substantial effect on policies and decisions (EPA 2002; NMFS 2004; FWS 2007) [citing the Agencies’ DQA Guidelines].”

A copy of the NAS Report is available here.

CRE then explained that under the IQA, all three agencies are required to review the information that they disseminate to ensure that it is accurate and reliable, and that it meets the other DQA Guidelines. This review has to occur before the information is disseminated, and this review has to be documented in the agency’s administrative record for the information dissemination.

For example, the Department of Interior DQA Guidelines require:

“Before disseminating information to members of the public, the originating office within the Department must ensure that the information is consistent with the OMB, Departmental, and bureau or office guidelines and must determine that the information is of adequate quality for dissemination and maintain an administrative record of review procedures.”

Interior IQA Guidelines, Section II.5

CRE stated that it hasn’t found this required record in any of the FWS pesticide ESA consultations. If there are such records of DQA pre-dissemination review, then CRE asked FWS to make them available for to public review and comment.

CRE next briefly addressed a lawsuit filed by the Center for Biological Diversity (“CBD”) on February 12, 2015, against FWS in the United States District Court for the Northern District of California. The complaint in this case is available online here. It alleges in part that

“FWS Fails to Complete Required Section 7 Consultation

35. In 2007, the Center sued EPA for failing to consult with FWS regarding the pesticide impacts on 11 San Francisco Bay Area species with respect to 77 pesticide active ingredients. In 2010, the Center and EPA reached a settlement and the Federal Court entered a Stipulated Injunction requiring the EPA complete effects determinations for these 11 species and imposing spray-limitation buffers around defined habitats. In compliance with these settlements, EPA began to analyze the impacts of different pesticides on the listed species.

36. In February 2009, EPA requested formal consultation from FWS for atrazine, alachlor, and 2,4-D after determining that these pesticides were likely to adversely affect the Delta smelt and the Alameda whipsnake (as well the California red-legged frog, which is not covered by this Complaint). But FWS refused to complete formal consultation.

37. Nearly six years have passed since EPA requested the first of its consultations. In that time, FWS has not completed any consultation or recommended any measures necessary to ensure that atrazine, alachlor, and 2,4-D will not harm the Delta smelt or the Alameda whipsnake, or adversely modify their critical habitat. The process has been stalled for years despite the mandatory deadlines in the ESA and its applicable regulations. The agency’s delay in completing the consultations and prescribing mitigation allows toxic pesticides to continue to harm wildlife species, in violation of law.”

This case against FWS could affect, and perhaps even establish, some of the pesticide ESA consultation procedures that are being addressed by the Workshop.

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