Endangered Species Act implementation to financially impact every soybean farmer

January 18, 2024 | Aaron Putze, APR

The scoop

• Environmental Protection Agency (EPA) commits to fully implementing federally mandated Endangered Species Act (ESA).
• Act requires all federal agencies to ensure their actions don’t harm nearly 1,700 listed endangered or threatened species (80 more are under consideration, including the Monarch butterfly).
• “Actions” include EPA’s registering pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
• Soybean leaders closely monitoring EPA’s actions pertaining to the ESA and FIFRA as its provisions currently implicate the crop protection products used by U.S. farmers on every acre planted to soybeans.

 

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The Environmental Protection Agency’s latest attempts to implement the federally mandated Endangered Species Act (ESA) are raising major concerns – and headaches – among farmers and ag retailers.

Just ask Ashlea Frank, a Federal Insecticide Fungicide and Rodenticide Act (FIFRA) expert.

“I live and breathe it,” says Frank. “Perhaps that’s why I sometimes can’t fall asleep.”

Her perspective is molded by an acute understanding of nearly every nuance of FIFRA and the impact of its implementation on farmers’ access to products critical to staving off insects and disease. It’s also impacted by her passion for agriculture and a family history of living in the hill country of central Texas, home to many endangered species.

“This stuff is brutally complicated.” she says.

ESA’s origins

Frank represents the 16 pesticide participants involved in the FIFRA Endangered Species Task Force. It was created in 1994 to respond to an EPA data requirement to provide EPA with information on endangered species locations and where pesticide applications occur.

The task force’s jurisdiction has expanded to support current agency assessments, species protection goals and implementation by end users of crop and livestock protection products.

One must first understand the history of the ESA and FIFRA to truly understand its potential implications on the ability of farmers to grow soybeans profitably.

The EPA was founded in 1970. Three years later, Congress established the ESA to protect critical species and their habitats. The work is conducted within the U.S. Department of Interior via the U.S. Fish and Wildlife Service and U.S. National Oceanic and Atmospheric Administration’s National Marine Fisheries Service.

The ESA requires all federal agencies to ensure their actions do not harm the nearly 1,700 listed endangered or threatened species (80 more are under consideration, including the Monarch butterfly). “Actions” include the EPA’s registering pesticides under FIFRA.

FIFRA provides for the federal regulation of pesticide distribution, sale, and use. All pesticides distributed or sold in the United States must be registered (licensed) by EPA. Prior to being registered under FIFRA, applicants must show that using the pesticide according to specifications “will not generally cause unreasonable adverse effects on the environment.”

As with most regulatory matters emanating from Washington, D.C., there are plenty of devils in the details.

Unprecedented lawsuits

While the ESA is not new to FIFRA, Frank says the number and frequency of new provisions and frameworks is unprecedented. So, too, is the number of lawsuits being lobbed at the EPA as it finds itself under increasing pressure to implement the ESA.

“This is the seventh or eighth go around with ESA and FIFRA,” Frank adds. “It gets difficult during the implementation phase, and that’s where we are now.”

The EPA began its registration review program and was sued. So, it embarked on several pilot projects and was sued again… and lost. 

“Complying with ESA is not new to pesticide registration nor are lawsuits new to the EPA,” says Frank.

The EPA’s efforts to swiftly address ESA concerns are driven by the need to minimize risk of litigation and increase efficiency of the registration and registration review process.

The latest iterations of FIFRA, therefore, go further than previous frameworks. Media, ag retailers and farm organizations and their members were quick to take notice.

That’s because FIFRA’s implementation has far-reaching implications.

Crop protection product labels and registrations must be evaluated by the EPA. Products must perform as advertised without having adverse impacts on human health or the environment. This includes an evaluation of potential impacts to non-target species, including those listed as endangered.

To address potential adverse effects as determined by the EPA, the agency can require changes to uses, rates, application methods and other mitigation measures.

“Often, the reason for these label directions is not specifically identified on the label as ESA, but can result from discussions about ESA,” Frank says. “Therein lies additional confusion and uncertainty.”

Further complicating the process are pesticides requiring additional protections for ESA-listed species but not having that information in time to place on a product’s label. Increasingly, ESA protection requirement language is publicized via bulletins that must be accessed online.

“These notifications are extensions of the labels,” says Frank.

Time is money

The layers of additional provisions and guidelines and the ever-increasing pace at which they can change adds time and costs for retailers and farmers and their employees.

Once logging into epa.gov/endangered-species/bulletins-live-two-view-bulletins, product users must find their location, enter the proper product codes, and assess the bulletin for additional product use requirements and restrictions. 

Leah Duzy, also of Compliance Services International representing the FIFRA Endangered Species Task Force, says questions are mounting regarding the use of bulletins. If a product’s label, for example, doesn’t refer to the existence of a bulletin, the user is not bound by the bulletin’s provisions. 

“It can be a game of catch up as bulletins can change quicker than labels,” Duzy says.

A string of mounting court cases has compelled the EPA to ratchet up its commitment to complying with the ESA as outlined in its workplan. Nearly two years ago, EPA backed up its public commitment by releasing a new workplan in April followed by an update to the workplan in November 2022. The latter version included new language referencing pick lists and strategies.

In late 2022, EPA began implementing the workplan related to methomyl, carbaryl and rodenticides. In June of 2023, it released the draft Vulnerable Species Pilot with species Story Maps followed by the draft Herbicide Strategy in July. Language continues to change despite pledges from EPA about being consistent throughout the strategies.

In September 2023, the final mega settlement was released along with additional strategies complete with dates and parameters. However, there were no explanations about implementation. The draft Vulnerable Species Pilot project includes 27 species, or those deemed most vulnerable by the EPA. Making the list are the American burying beetle, Mead’s milkweed and rusty-patched bumblebee.

“They have narrow ranges and small populations,” says Duzy. “The effort to protect them is broad, with the vulnerable species pilot project pertaining to the use of all pesticides, not just those in agriculture.”

Wider net

Casting a wider net has resulted in an avalanche of comments and input from an array of stakeholders, including soybean farmers. By early December 2023, the EPA had already reviewed 10,000 comments. More work and reviews were expected.

“As a result, the strategy will be updated,” Duzy says.

In a six-page document released last November, the EPA revisited how it would compile the pilot vulnerable species list and develop a consistent approach for the various targets to reduce pesticide exposure to listed species from spray drift and movement.

On the herbicide front, the strategy framework includes early mitigation measures for listed species. It seeks to provide consistent mitigations across conventional ag herbicides while additional measures could be added.

“EPA received substantial pushback and the strategy could change yet again,” Duzy says.

Proposed runoff and erosion mitigations add complexities. The EPA introduced a point system that’s dependent on active ingredients and locations of use. Under the draft herbicide strategy, herbicide use in all crops may be subject to additional limitations implemented during registration or registration review, either through general registration or pesticide use limitation area, or PULAs.

The PULAs implicate a whopping 43% of U.S. soybean and corn acres, although this percentage is deceivingly low.

What makes the figure both tricky and scary, say those in the know, is nearly every farmer in the lower 48 states will have to do something to acquire the necessary points to comply with the herbicide strategy. Farmers operating in a PULA may need nine points depending on herbicide.

Every square inch of Iowa is currently in a PULA.

Frank and Duzy agreed that 2024 is going to be a busy year for the EPA and those who monitor FIFRA.

“While the road to impetration is twisty, I wouldn’t panic,” says Frank. “I would, however, do everything possible to get the word out that pesticide labels may be changing and they’re going to change without strategies.”

She encourages applicators to find information about ESA-listed species that may be in proximity to where they use pesticides. Review pesticide labels for bulletins language and help applicators become familiar with how to search, use and save information provided online.

Closely monitoring

Those who go to work each day representing the needs of soybean farmers are closely monitoring the EPA’s actions pertaining to the ESA and FIFRA.

One such proposal, says Kyle Kunkler of the American Soybean Association (ASA), could significantly hinder or prevent pesticide use on close to 13 million acres of cropland, including more than five million acres of soybeans.

ASA’s director of government affairs acknowledges that the EPA holds responsibility for approving federal registration of pesticides in the United States, including determination of the parameters for use during the registration process.

“However, the broad approach EPA is proposing as part of the vulnerable species pilot program would greatly inhibit agriculture on a significant amount of land,” Kunkler says.

The agency intends to expand the pilot project to scale up the program to much larger areas in the future.

The EPA, he adds, has long struggled to meet ESA’s obligations to complete endangered species impact evaluations for pesticides. The agency has lost multiple lawsuits related to the matter, which can result in pulling a pesticide immediately from the market.

“This litigation is unlikely to subside without changes,” Kunkler says.

ESA consultations typically take four to 15 years. EPA has court-determined deadlines to complete 18 reviews over the next six years. The math, says Kunkler, simply doesn’t work.

“The agency estimates this workload will put them at capacity before any other potential court-ordered ESA evaluations are handed to them. Simply put, the current situation under ESA for pesticide registration is untenable given the resources available to do the evaluations.”

Putze serves as Chief Officer of Brand Management and Engagement. Add to the conversation at aputze@iasoybeans.com.

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