Archive for July, 2011

Judge Reaffirms Earlier ESA Pesticide Decision

On July 21, 2011, Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia reaffirmed her earlier decision limiting relief in Defenders of Wildlife, et al., v. Lisa P. Jackson to a “narrowly applied, tailored” injunctive measure to restrict use of the rodenticide chlorophacinone, but only in the states most affected by EPA’s violations of the ESA.

Ruling from the Bench, the judge said that if the parties do not reach a tentative agreement on a workable proposed order for her to sign by July 27, she could partially vacate EPA’s registration of the substance.  This would eliminate the pesticide’s registration in at least four of the 10 states it is currently used to control western prairie dog populations.

EPA Praises NMFS’ Enhanced Use of Special and Temporal Analysis

In several respects, EPA criticized NMFS’ revised biological opinion on 2,4-D, triclopyr butoxyethl  ester, diuron, linuron,  captan and chlorothalonil. However, EPA also commended NMFS on several changes NMFS made in this BiOp.  One of these changes is NMFS’ enhanced use of special and temporal analysis in the BiOp.  EPA recommended that NMFS continue this enhanced use in future BiOps.  In EPA’s own words, from a letter to NMFS: 

House Republicans Add ESA Consultation Provisions to FY12 EPA Funding Bill

House Republicans at an Appropriations Committee markup of EPA’s fiscal year 2012 spending bill have attached several riders blocking key EPA policies. One of them affects EPA’s consultations with NMFS and FWS about pesticides under section 7 of the Endangered Species Act.

 Rep. Ken Calvert (R-CA) attached a rider that would prevent the agency from modifying, canceling or suspending the registration of a pesticide under section 3 or 4 of the Federal Insecticide, Fungicide, & Rodenticide Act in response to a final biological opinion or other written statement issued under section 7b of the ESA . The rider aims to address concerns from industry and others that biological opinions under the ESA by the National Marine Fisheries Service or Fish & Wildlife Service could lead to pesticide registration cancellations.

Pesticide Program Dialogue Committee Meets on July 27 to Advise EPA

The Pesticide Program Dialogue Committee provides a forum for a diverse group of stake holders to provide advice to EPA’s pesticide program on various pesticide regulatory, policy, and program implementation issues. In meeting its Federal Insecticide, Fungicide,and Rodenticide Act and Endangered Species Act obligations, EPA seek advice from the PPDC and its workgroup, the Pesticide Registration Improvement Act Process Improvement Work Group. EPA plans to meet its ESA consultation obligations through the pesticide registration review program.

FWS Also Has to Review EPA’s General Permit for Pesticides

EPA is producing a General Permit for pesticides under the Clean Water Act.  EPA is developing the PGP in response to a 2009 court ruling in National Cotton Council, et al. v. EPA in the U.S. Court of Appeals for the 6th Circuit, which vacated EPA’s rule exempting pesticide spraying activities from permit requirements. The ruling was stayed until April, but EPA filed for an extension of the stay until Oct. 31, partly because of delays in receiving the ESA Section 7 consultations with NMFS and FWS.

NMFS’ BiOp Requires Many Changes in EPA’s Proposed Pesticides General Permit

On June 17, 2011, the United States National Marine Fisheries Service issued a Biological Opinion reviewing the impact on aquatic endangered species of EPA’s proposed pesticide general permit. This BiOp is issued under section 7 of the Endangered Species Act. EPA’s PGP is required by court order and will be issued under the Clean Water Act. The permit that EPA is crafting will apply in those states and regions that do not have delegated CWA permit authority over the issue, including Idaho, Massachusetts, Oklahoma, Alaska, New Hampshire, New Mexico, as well as tribal and federal lands.

NMFS Issues Final Fourth BiOp

On June 30, 2011, EPA published on its website NMFS’ final fourth Biological Opinion in the series of ESA pesticides consultations between EPA and NMFS.  NMFS’ transmittal letter for this final BiOp states:

Read the entire article attached below.


EPA Requests that NMFS Respond to Public Comments on Draft BiOps

In a letter dated June 14, 2011, EPA forwarded to NMFS all public comment that EPA has received on NMFs draft BiOp for the effects of four herbicides and two fungicides on salmon.

EPA’s letter also requests that NMFS include a chapter in the final BiOp where NMFS responds to all public comment.

 EPA’s letter to NMFS may be read here.