ESA WORKPLAN UPDATE: Nontarget Species Mitigation for Registration Review and Other FIFRA Actions

2022-11-17

EPA’s Pesticide Program faces the decades-long challenge of meeting its Endangered Species Act (ESA) obligations for the large number of actions taken annually under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

To address this challenge, EPA has taken several crucial steps in the last year alone. In January 2022, the Agency committed to fully complying with the ESA before registering any new conventional pesticides. And in April 2022, the Agency released a workplan on how it will address this challenge, including by incorporating protections for ESA listed species earlier in its FIFRA process.

EPA is now releasing this first update to the workplan, which describes the Agency’s efforts to reduce pesticide exposure to nontarget organisms, including listed species, during the FIFRA registration review process and through other FIFRA actions. Taken together, these steps will move EPA toward fulfilling its ESA obligations and making final registration review decisions by providing earlier protections for listed species, while increasing regulatory certainty for growers and pesticide registrants. The workplan update thus reflects a major milestone in EPA’s journey to fully comply with the ESA in ways that are protective, implementable, and transparent. For most pesticides, registration review is the most important opportunity for EPA to include mitigation for listed species.

On 15-year intervals, EPA must assess each existing pesticide active ingredient to ensure it continues to meet the FIFRA standard of causing no unreasonable adverse effects. Because most pesticides were registered without a formal ESA review, the initial registration review is the Agency’s first major opportunity to incorporate mitigation for listed species and many other nontarget wildlife.

Further, registration review triggers ESA requirements as courts have repeatedly made clear. EPA’s inability to fully meet the ESA requirements has created a growing number of lawsuits against the Agency. Existing court-enforceable deadlines, combined with ongoing litigation and settlement discussions, will require EPA to complete ESA reviews for over 50 pesticides, thus filling the Agency’s ESA workload well beyond 2030. Yet these cases represent less than 5% of EPA’s future pesticide actions that trigger ESA obligations. Unless EPA makes substantial progress on ESA compliance, it is likely to face more litigation. The workplan update represents a major step in this process by proposing a large menu of ecological mitigation measures that EPA will begin including in registration review actions. This outcome is a win for wildlife in need of protections, and a win for growers who seek legal certainty about the status of the pesticides they rely on.

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US EPA, 17-11-2022
; https://www.epa.gov/system/files/documents/2022-11/esa-workplan-update.pdf