Pesticide Regulation and Endangered Species: Moving from Stalemate to Solutions

Shortly after the U.S. Environmental Protection Agency (EPA) assumed responsibilities for federal pesticide regulation under FIFRA (Federal Insecticide, Fungicide and Rodenticide Act), the Endangered Species Act (ESA) became law. Although FIFRA deals with licensing and registration under the mandate "not to cause unreasonable adverse effects" on the environment, ESA obligations include ensuring that registration actions "are not likely to jeopardize" the continued existence of an endangered species, and require consultation with the U.S. Fish and Wildlife Service (USFWS) or National Marine Fisheries Service (NMFS) if the registration action "may affect" an ESA-listed species. Over the years, EPA has modified data requirements, developed ecological risk assessment methodologies, and proposed several successive field implementation plans, including county bulletins, to ensure protection of endangered species in pesticide regulatory decision-making. Industry has also been active in generating supporting data, and a significant outcome has been development of a task force-sponsored species location system. During the past 35 years, EPA has developed a conservative, screening-level ecological risk assessment approach designed to provide a high degree of protection for ecosystems, including endemic endangered species. However, limited success has been experienced in forging a collaborative process between EPA and the Services (USFWS, NMFS) with respect to ESA consultation activities. A variety of operational and technical issues has impeded progress in effectively meshing FIFRA and ESA obligations. At present, efforts to make a fresh start on ESA-related consultations via the EPA Registration Review program are making slow progress, and a spate of ESA-related lawsuits unrelated to Registration Review has clogged the system and exacerbated unresolved issues. This chapter reviews historical developments related to implementation of ESA obligations for pesticide regulation, examines the current state of affairs with respect to Registration Review and litigation, and highlights a movement toward process and science improvements described in succeeding chapters of this book.