How does this legislation affect you, and what can you do to help?
⋅ BY CASSIDY NEMEC ⋅
Figuring out how the Endangered Species Act affects the agricultural industry can be both complex and frustrating. The ESA of 1973 was enacted by Congress under President Nixon and has since drawn much attention to species across the United States that have the potential to be threatened or completely wiped from the map.
In recent years especially, it has become increasingly critical for growers, crop advisors, Extension and others throughout the agricultural industry to not just be aware of the ramifications from the ESA on their operations, but also to be more involved.
Who Has Jurisdiction?
In the sea of alphabet soup that is federal agencies, it is the U.S. Fish and Wildlife Services federal agency (or the National Marine Fisheries Service in cases of aquatic species) whom has jurisdiction over the ESA. According to the FWS website, the act itself “establishes protections for fish, wildlife and plants that are listed as threatened or endangered species, and for preparing and implementing plans for their recovery.”
Species become listed one of two ways. The FWS may propose species or any citizen can petition for it. The citizen petition route is the most common way for this to happen, due in part to the FWS having an extreme backlog of requests it must funnel through, keeping the agency busy.
The FWS is involved in the candidate conservation, listing and classification and recovery processes as it relates to ESA. Their website also mentions the provision “for interagency cooperation to avoid take of listed species and for issuing permits for otherwise prohibited activities.” This brings up two concepts: interagency cooperation should be taking place and “take” can be broadly defined.
The Devil’s In The Definitions
Ag Law in the Field is a podcast hosted by Texas A&M AgriLife Extension ag law specialist Tiffany Lashmet. She recently sat down with Jonathan Wood, vice president of law and policy at the Property Environment Research Center. He has been working with ESA for years and discussed how “take” is defined in relation to the act.
“Essentially, it’s any private activity that harms a listed species and, to some extent, also its habitat. The FWS may also issue regulations extending that prohibition to threatened species,” Wood says. This applies for both endangered (listed) and threatened species in terms of critical habitat and conservation, but the ESA only applies the “take” definition to endangered species for private land use.
Reemphasizing what he terms the “teeth of the law,” Wood further explains what the “take” definition can encompass.
“Most people think it means you’re intentionally taking or harming, but the FWS interprets it far more broadly. If you harm a species, even unintentionally, if you disturb a species, if you modify its habitat in a way that may, in the future, restrict its ability to find food or to breed and reproduce — all of those things could violate the ‘take’ prohibition, which, depending on the species and the use of the land, can make continued use of that property really complicated.”
Wood says that FWS can also regulate all other agencies and their respective activities that could have any effect on species.
In the podcast, Wood says FWS is currently facing a 10-year backlog of citizen requests, including those requests made mainly by three major environmental litigation groups.
FIFRA And ESA
In 1947, the Federal Insecticide, Fungicide and Rodenticide Act was enacted with the original intent of establishing measures regarding the registering of pesticides used in interstate commerce with the U.S. Department of Agriculture as well as labeling provisions. The act was later expanded due to concerns over pesticides’ toxic effects and residues. It now involves everything dealing with the “sale, distribution and use of pesticides,” according to U.S. Environmental Protection Agency’s website.
So where does FIFRA intersect with the ESA?
Wood says the ESA, while historically focused on more charismatic species like wolves in the Western United States, has gone nationwide in the last 20 years with more types of species being added to the list that are more vulnerable to pesticide use.
“Increasingly, the ESA is requiring EPA, when it’s approving pesticides, to set species-protective limits on how they’re used,” he says. “With every additional species you add to that process, with every different pesticide or application you’re adding, you just add to the complexity.”
Mitigation Strategies Affecting Ag Practices
Registering and reregistering pesticides takes time, and EPA has a similar backlog to FWS in their listing petitions and permitting process. They are supposed to be evaluating every product and how it may impact species, which is both challenging due to lack of data and time consuming with their ongoing list of what they should be accomplishing. In working to comply with ESA and FIFRA’s regulations, EPA has implemented the Endangered Species Protection Program to help with this large task at hand.
Within the past two years, EPA has been having regular ESA-FIFRA meetings to work toward moving forward. They produced their first workplan in early 2022 and an update later that year. The update includes regulation review efforts and other initiatives, which include many mitigation strategies for both agricultural and nonagricultural use.
Within the endangered species component, EPA is attempting a biological evaluation on whether a particular product “may affect” a species. If so, they must look further into that product and consult FWS.
EPA is implementing early mitigation measures to protect species while the FWS works on their biological opinions. These measures address water runoff, soil erosion and drift and are incorporated into a picklist.
The Importance Of Bulletins Live! Two
Information related to geographic pesticide use limitations is included in Endangered Species Protection bulletins, which can be obtained through EPA’s website. As stated there, “Bulletins set forth geographically specific pesticide use limitations for the protection of threatened and endangered (listed) species and their designated critical habitat.”
Bulletins Live! Two is the application system that has been in place for a couple years and is where these bulletins are housed. This is where a pesticide label comes into play. When reviewing a label that directs you to the website, it will then instruct you on the pesticide use limitations for the applicable area, or PULAs. The applicator is required to follow these for the intended area, product and application month.
Bulletins are good for six months from the time they are created and protect the pesticide applicator for that entire length of time, even if additional measures arise that did not exist at the time of printing that bulletin. If no PULAs are listed, it is still important to print the documentation and keep it in your records saying there are no bulletins for that area in order to cover the applicator.
Information on how to find the EPA registration number needed to search for a product in the Bulletins Live! Two application, along with a tutorial on the system as a whole, is available at https://www.epa.gov/endangered-species/endangered-species-protection-bulletins. PG
ESA On The Farm Level
Thomas Butts, University of Arkansas Division of Agriculture Extension weed specialist, tells how ESA is currently impacting agriculture and what it might look like down the road for a process that is different for every product, state and active ingredient. “Moving forward, it’s going to be that we either have more regulations and paperwork to do in order to make legal applications — or we’re just going to outright lose options.”
University of Georgia Extension weed specialist Eric Prostko says herbicides such as atrazine and glyphosate are up next for registration. “The loss of these herbicides or increased restrictions on them would be a big problem,” he says.
Butts says the regulation process used to look more like a risk-benefit analysis but now is strictly a risk assessment with no benefits factored in. He also says there is a lack of any warning in the case of pulled products, such as when Arkansas lost the ability to use Enlist in 11 counties last year. “What was scary is that none of us knew that was coming. It was just kind of a memo slid across a desk one afternoon, and all of a sudden, we didn’t have those products in those counties anymore.”
He says they currently do not have any sort of consistency with the regulations nor the capability to know how to better prepare — or prepare at all — for when they do come along. Butts says better direction moving forward would help at least in the sense that they could figure out what to do to get a better handle on circumstances before they occur and to plan for the future.
Prostko says peanut growers are already doing several things to help protect endangered species and habitat. This includes cover crops, twin rows, strip-tillage and utilizing irrigation to activate herbicides prior to rainfall. “We are trying to make sure that EPA will include mitigation measures that are science based and practical. They are willing to listen.”
Comments Make A Difference
The EPA encourages those in agriculture to make comments during pesticide registration and reregistration processes.
Both Butts and Prostko say it is critical for producers to pay attention to when the comment periods are open and to submit comments.
“That’s an opportunity where EPA can hear directly from growers about our practices,” Butts says. “Getting those opinions and voices out there and having EPA hear them directly from growers and consultants goes a lot further than the mass emails or comments they get that are just a template or form signed by a different name.”
Prostko says it is important to remain diligent in everyday agricultural practices. “Growers should continue to read and follow all labeled pesticide directions and wear appropriate personal protective equipment. Growers must also stay diligent about keeping all pesticides (herbicides, fungicides, insecticides and fumigants) on-target by paying close attention to nozzle type, pressure, application speed and boom height, as well as maintaining situational awareness: Are sensitive crops nearby? What direction is the wind blowing? How fast is the wind blowing?”
He says ESA is not temporary. “Don’t fall asleep on this issue. ESA is not going away and is here to stay!” PG