In the March 23, 2018 Federal Register, EPA announced that it is seeking public comment on the final Biological Opinion issued pursuant to the Endangered Species Act (ESA) by the National Marine Fisheries Service (NMFS) on the potential effects of chlorpyrifos, malathion and diazinon on listed species and their critical habitats. Comments are due by May 22, 2018 and may be submitted via www.regulations.gov identified by docket number EPA-HQ-OPP-2018-0141.
Under Section 7(a)(2) of the ESA, if EPA determines that a pesticide is likely to adversely affect a listed species or its designated critical habitat, the Agency must consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively known as the “Services”). Following consultation, the Service(s) prepares a Biological Opinion (BiOp) on whether the registration action will jeopardize or adversely affect a listed species or habitat and, if so, may include reasonable and prudent alternatives and/or reasonable and prudent measures to avoid or minimize such impacts.
On December 29, 2017, in response to a deadline issued by the U.S. District Court for the Western District of Washington in the case of Northwest Coalition for Alternatives to Pesticides, et. al. v. NMFS, the National Marine Fisheries Service transmitted its final BiOp to EPA which addresses the potential effects of chlorpyrifos, malathion and diazinon on 77 listed species and 50 designated critical habitats as part of registration review.
In its Opinion, NMFS concluded that EPA’s proposed registration of pesticides containing chlorpyrifos is likely to jeopardize the continued existence of 38 of the 77 listed species, and adversely modify 37 of the 50 designated critical habitats. Likewise, for diazinon, NMFS found jeopardy for 25 of the 77 listed species and adverse modification of 18 of the 50 designated critical habitats. NMFS also determined that registration of pesticides containing malathion is likely to jeopardize 38 of the 77 listed species and adversely modify 37 of the 50 designated critical habitats. NMFS set forth a series of Recommended Prudent Alternatives (RPAs) which, according to the Service, were drafted using “the best available information on current agricultural practices and pesticide reduction strategies to reduce pesticide exposure to aquatic species and their habitats.” The RPAs include a list of chemical alternatives as well as specific measures to reduce loading of pesticide chemicals into aquatic habitats.
However, EPA contends that the court’s failure to extend the deadline for issuance of the Opinion did not allow for appropriate public input and is “at odds” with an interim approach developed by the Agency in 2013, with the support of the Services and USDA, for assessing the potential ESA effects of pesticides. According to EPA, this interim approach is intended to establish an “open and transparent process” for ESA consultations. The Agency emphasizes that “stakeholder input is critical to the development and evaluation of any measures EPA may implement to address risks to listed species and designated critical habitat.” As such, EPA is seeking public comment and stakeholder input before making a decision on whether to reinitiate consultation with NMFS or move forward with implementing the measures contained in the Opinion. The Biological Opinion appears in the public docket established by EPA which may be accessed by clicking here. Should you have any questions, please contact CPDA’s offices.