EPA has announced a 60-day extension of the deadline for the submission of public comments on the final Biological Opinion (BiOp), issued by the National Marine Fisheries Service (NMFS) under the Endangered Species Act, on the potential effects of chlorpyrifos, diazinon, and malathion on listed species and critical habitats. The Biological Opinion found jeopardy to 38 species and adverse modifications to 37 critical habitat units. It also includes a series of Recommended Prudent Alternatives (RPAs) based on the “best available information on current agricultural practices and pesticide reduction strategies to reduce pesticide exposure to aquatic species and their habitats.” Comments are due by July 23, 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 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.
The final BiOp was issued on December 29, 2017 pursuant to a court-ordered deadline set 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 deadline was established after the court denied a request from NMFS seeking additional time to engage in more extensive collaboration with EPA and stakeholders in developing the final BiOp.
In announcing its request for public comment on the BiOp, EPA maintained that the court’s failure to extend the deadline for issuance of the Opinion was “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 emphasized 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 deciding to reinitiate consultation with NMFS or move forward with implementing the measures contained in the Opinion.
Meanwhile, EPA continues to work with the Services to refine an interim scientific approach and create a sustainable process for completing consultations that meet requirements of both the ESA and FIFRA. As part of this process, EPA is collaborating with the Services to determine an appropriate method for incorporating available usage data in the evaluation of pesticides for ESA effects. EPA personnel state that the Agency’s objective is to streamline the process so that it is protective of species, ensures timely FIFRA registration review decisions, transparent to the public, and takes into consideration the limited resources available to the Agency.