The Endangered Species Act is like a nagging backache. Farmers know it's there, but it's not going to stop them from doing a day's work unless it turns into a sharp, stabbing pain; something akin to a lawsuit filed by Friends of the Earth or the Environmental Defense Fund.
When the Endangered Species Act became law in 1973, few would have argued with the legislation's intent: Conserving threatened or endangered species of plants or animals that were in danger of extinction throughout all or a significant portion of their range.
But, instead of focusing on rescuing gopher tortoises and silvery minnows, the law has become a vehicle for what some have called a “bottomless pit” of lawsuits because of government agency shortcomings and ambiguities in the law itself, according to ESA watchers.
“EPA has been subject to litigation across the country for failing to consult the U.S. Fish and Wildlife Service and the National Marine Fisheries Service on the impact of pesticides on listed species,” says Jay Vroom, president and CEO of CropLife America, the national trade organization representing the crop protection industry.
“Pesticide applicators and crop protection chemical registrants have had to face the consequences.”
The latest efforts to resolve such issues were among several environmental topics Vroom addressed at the Media Summit '06 in Washington. BASF Corp. Agricultural Products sponsored the event.
In recent months, the U.S. Fish and Wildlife Service, NOAA-Fisheries and EPA have made progress on the consultation issue, finalizing the Counterpart Regulation for endangered species protection. The latter allows EPA to register a pesticide without additional consultation when it has no effect or is not likely to affect endangered species.
“The Counterpart Regulation fully satisfies the consultation criteria set forth under Section 7 of the ESA,” says Vroom. “The interagency consultation process has been streamlined. However, the new rule is already being challenged in court.
“With more than 2,000 ESA-listed species, 675 active pesticide ingredients and 20,000 formulated pesticide products — the rule needs time to work.”
EPA has also published the implementation plan for its Endangered Species Protection Program to bring the pesticide registration program into compliance with the Endangered Species Act.
“This action culminates a 15-year process of consultations and review by the EPA, Fish and Wildlife Service and other federal agencies to address how pesticide labels should be designed to protect endangered species and how the EPA plans to address concerns about endangered species when it reviews pesticide registration,” said Vroom.
“This program will benefit listed species, farmers, pesticide registrants and the public because there will be a definitive process in place to ensure that products that are registered are in compliance with the Endangered Species Act.”
But more needs to be done legislatively to avoid the legal challenges that already threaten the implementation of the Counterpart Regulation and the Endangered Species Protection Program, he says.
The ESA needs to be reauthorized and modernized, according to Vroom, whose organization is supporting the Threatened and Endangered Species Recovery Act or TERSA, a bill written by Rep. Richard Pombo, R-Calif., and passed by the House, 226-193, last September.
“CropLife America successfully included an amendment during the House Resources Committee markup, which provides a five-year safe harbor from litigation for EPA as the agency implements the new counterpart rule,” he said.
“The Senate has formed a bipartisan group of senators working to draft its own version of ESA modernization legislation,” he said. “However, negotiations have been difficult and progress has been slow.”
Sen. Lincoln Chafee, R-R.I., chairman of the Senate Fisheries, Wildlife and Water Subcommittee, is said to want to make a number of changes in the Pombo bill. Meanwhile, Sens. Mike Crapo, R-Idaho, and Blanche Lincoln have introduced legislation that has several features of TERSA, including voluntary incentives to landowners to help recover species.
CropLife America has a link on its Web site (http://www.croplifeamerica.com) that allows interested persons to communicate with their members of Congress on the Endangered Species Act reform efforts.
Vroom said CropLife America has also begun work on the reauthorization of the Pesticide Registration Improvement Act, legislation passed by Congress in January 2004 that establishes a system of fees that cover part of EPA's costs of processing registration actions involving their products.
The law, which expires in 2008, sets up about 90 categories of registration actions, fees and timelines, ranging from more than $550,000 and two years for a new pesticide active ingredient to be used on food crops and needing an experimental use permit to $1,050 and three months for registration of a new product that is identical to another registered product and requires no review of data.
“The act provides resources to reduce the backlog of registration applications with fees tied to specific decisions timeframes, providing a more predictable business climate,” said Vroom. “It also provides immediate funding to ensure that EPA meets the Food Quality Protection Act Aug. 3, 2006, deadline for completing pesticide tolerance reassessments of all food use pesticides and re-registration eligibility decisions.”
Jim Jones, director of EPA's Office of Pesticide Programs, who also spoke at the Media Summit, said his office is meeting the timeframes set out by PRIA “about 99 percent of the time.”
“We're now making pesticide registration decisions in two years that 10 years ago would have taken four years or, in some cases, six years,” he noted. “And we're doing it without compromising on our mandate to protect the environment and human health.”
Jones said he is also confident that EPA will meet the Aug. 3 deadline for completing the re-registration process that was required in the passage of the Food Quality Protection Act in August 1996.
Vroom said CropLife America is also bracing for another EPA announcement involving National Pollutant Discharge Elimination System or NPDES permits under the Clean Water Act. The announcement of a new rule on NPDES permits is expected later this year.
“Similar to ESA, applicators and product registrants are facing litigation under the citizens suit provisions of the Clean Water Act,” he noted. “The claims in the lawsuits are that the application of a pesticide is a point source discharge requiring an NPDES permit.”
EPA is expected to announce a proposed rule that will say NPDES permits are not required if you apply pesticides according to the Federal Insecticide, Fungicide and Rodenticide Act label near, over or into waters of the United States.
“The problem is the proposed rule at EPA does not go far enough to ensure that all pesticide applications do not require NPDES permits and does not prevent future citizen lawsuits,” said Vroom. “That's why we need action by Congress on this front.”
The organization is also continuing to intervene and file “friend-of-the-court” briefs in matters involving the Bates case, a lawsuit in which the U.S. Supreme Court seemed to void the pre-emption provision in FIFRA that gives EPA the authority to regulate pesticide usage in all 50 states.
“CropLife America continues to maintain that the FIFRA label is the law of the land,” says Vroom. “We're encourage EPA to take steps to restore the agency's supremacy in the regulation of pesticide labeling and misbranding to eliminate the possibility of a 50-state patchwork of regulatory schemes.”
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