EPA Posts Revised NMFS BiOp

On May 13, 2011, EPA posted on its ESA Website NMFS’ revised Biological Opinion which addresses the potential effects from six pesticides on Pacific salmon and steelhead listed as endangered or threatened under the Endangered Species Act. The six pesticides are: captan, chlorothalonil, 2, 4-D, diuron, linuron and triclopyr BEE. 

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What EPA Wants NAS To Review

EPA, the Department of Agriculture, the Department of Commerce and the Department of Interior have asked the National Academy of Sciences (NAS) to review several issues arising out of the troubles ESA pesticide consultations between EPA and the Services.  Steve Bradbury is Director, EPA’s Office of Pesticide Programs. On May 3, 2011, Mr. Bradbury testified about ESA issues before House Committee on Natural Resources and the House Committee on Agriculture.

With regard to the issues for NAS review, Mr. Bradbury told Congress:

How EPA Wants To Change ESA Consultations

Steve Bradbury is Director, EPA’s Office of Pesticide Programs. On May 3, 2011, Mr. Bradbury testified about ESA issues before House Committee on Natural Resources and the House Committee on Agriculture. Mr. Bradbury told congress that “[i]n EPA’s view, a more efficient and effective consultation process should include the following attributes:

The FIFRA risk assessment process and the development of Biological Opinions would rely on best available information and peer-reviewed scientific procedures and models would be developed to evaluate and estimate the potential effects on listed species resulting from the use of a pesticide and to determine what measures would provide adequate protections;

Commenters Question BiOp’s Treatment of Chlorothalonil

NMFS produced a draft biological opinion for chlorothalonil and several other pesticides, and sent it to EPA.  NMFS isn’t taking comment on this BiOp, but EPA is. Many comments filed to date emphasize the importance of chorlothalonil and question NMFs’ treatment of it in the BiOp.

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Dueling BiOps

The Department of Interior’s Bureau of Land Management uses pesticides on federal lands it administers.  These pesticides include 2,4-D, diuron and triclopyr.  In 2007, BLM completed Endangered Species Act consultation with NMFS on BLM’s use of these pesticides.  This ESA consultation included BLM’s preparation of a Biological Assessment, which NMFS approved.

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NMFS Should Allow and Respond to Public Comment on BiOps

The National Marine Fisheries Service prepares Biological Opinions for EPA’s consideration during EPA’s registration of pesticides. These BiOps are supposed to inform EPA’s consideration of the pesticides’ effects on species listed under the Endangered Species Act. NMFS does not provide any opportunity for public comment on these BiOps. 

To EPA’s credit, the Agency on its own initiative provides opportunities for public comment on BiOps it receives from NMFS. EPA then sends the public comment along with EPA’s own comment to NMFS. There is often no record of whether NMFS considered the comment. See EPA’s letter to NMFS at http://www.epa.gov/espp/litstatus/nmfs-3-11-11-draft-biop.pdf , for an example of this unsatisfactory process, and the problems it causes.

ESA Pesticides Plaintiffs Don’t Want Anyone Else In Court

Environmental groups have sued EPA in San Francisco federal district court.  The Center for Biological Diversity and the Pesticide Action Network North America are the two plaintiffs in the case.  They seek a court order that would amount to a judicial take-over of EPA’s regulation of pesticides under the Endangered Species Act. 

On March 15, 2011, the court granted a motion to stay litigation in the case.  The motion was filed jointly by the two plaintiffs and by the defendant EPA.  The motion asked the judge to stay the case for the following reasons:

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EPA Criticizes NMFS’ Latest BiOp

In a letter dated April 19, 2011, EPA responded to NMFS’ draft biological opinion for six pesticide active ingredients, including 2.4-D and chlorothalonil. EPA’s response was very negative, and criticized the draft BiOp in several respects. 

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MCFA to Address EPA’s ESA Information Needs

The Minor Crop Farmers Alliance is meeting in Denver on May 24-25, 2011. At their meeting, the MCFA will address EPA’s recent request to the Pesticide Program Dialogue Committee for recommendations on how to improve the ESA pesticides consultation process. In particular, EPA requests suggestions on how to develop better and timely information on ESA consultation issues.

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SFIREG Addresses ESA Pesticide Issues

On April 18-19, 2011, the Environmental Quality Issues Working Committee of the State-FIFRA Issues Research and Evaluation Group met at EPA’s Arlington, Virginia offices. On April 18, EPA spoke to the meeting about ESA pesticides consultation issues.  Some of the major points EPA made are:

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